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• « » •
SELECTION
OP
LEGAL MAXIMS
Maxims are the condensed Good Sense of Nations. — Sia J. Mackintosh.
Juris Procepta sunt hssc ; honeste vivere, alterum non Lcdere suum cuique
tribuere.—- 1. 1. 1. 3.
„•*»'▼•. ~*
*
*
I* '
A
SELECTION
LEGAL MAXIMS,
Classtfieli anU Illustrated
By HERBERT BROOM, LL.D.
THE SIXTH EDITION
B»
HERBERT F. MANISTY, LL.B.,
BARRISTER- AT-LAW J
AND
CHARLES CAGNEY, B.A.,
RARRIOTEB-AT-LAW.
LONDON:
W. MAXWELL & SON, 8, BELL YARD, TEMPLE BAR.
MEREDITH, RAY, & LITTLER, MANCHESTER ;
HODGES, FIGGIS, & CO., AND E. PONSONBY, DUBLIN ;
CHARLES F. MAXWELL, MELBOURNE AND SYDNEY.
1884.
LOKDON
MADBURly AONEW, & 00., PAUTTEBS, WHITEFRIARJ^
PREFACE TO THE SIXTH EDITION.
The reader will find the Maxims, except in one instance,
arranged in the same order as heretofore, and the system
adopted by the late Dr. Broom in the preparation of the
earlier editions of the Work has been followed. The
Index alone has been re-arranged ; each principal Maxim
is inserted in the Index (as well as in the "List of
Maxims " at the beginning of the Book), with references
to the various heads of Law treated uader it
A large number of the earlier decisions collected by
the late Dr. Broom have been retained in the notes. It
may be thought that a considerable portion of these
decisions might have been expunged as being obsolete.
The reason for their retention is a twofold one; first,
many of the old cases are elaborate treatises on the law
they deal with, and are worthy of careful perusal by
the student; secondly, they were collected, not from
digests, but, after a laborious search, from the Reports
themselves. To strike them out would compel a
reference to the earlier editions, in which alone many of
VI PREFACE TO THE SIXTH EDITION.
them are to be found, and to which, in process of time,
access would necessarily become difficult.
The present Editors desire to express their respectful
thanks to the Lord Justice Lindley for the loan of his
copy of a former Edition, noted up by himself with
recent decisions bearing upon many of the Maxims dis-
cussed in the text; most of these cases are inserted in
the notes to this Edition. The Editors were further aided
by several valuable suggestions of Mr. S. P. Micholls, of
3, King's Bench Walk, Temple, who assisted them in the
correction of the proofs ; also by certain manuscript notes
of the Author, prepared with a view to a fresh edition
of the Book.
H. 'F. M.
C. C.
Tkmpic,
October* 1884.
PREFACE TO THE FIRST EDITION.
In the Legal Science, perhaps more frequently than
in any other, reference must be made to first principles.
Indeed, a very limited acquaintance with the earlier
Reports will show the importance which was attached to
the acknowledged Maxims of the Law, in periods when
civilization and refinement had made comparatively little
progress. In the ruder ages, without doubt, the great
majority of questions respecting the rights, remedies,
and liabilities of private individuals, were determined by
an immediate reference t& such Maxims, many of which
obtained in the Soman Law, and are so manifestly
founded in reason, public convenience, and necessity, as
to find a place in the code of every civilized nation. In
more modern times, the increase of commerce, and of
national and social intercourse, has occasioned a corre-
sponding increase in the sources of litigation, and has
introduced many subtleties and nice distinctions, both
in legal reasoning and in the application of legal prin-
ciples, which were formerly unknown. This change,
however, so far from diminishing the value of simple
Vlll PREFACE TO THE FIKST EDITION".
fundamental rules, has rendered an accurate acquaintance
with them the more necessary, in order that they may be
either directly applied, or qualified, or limited, according
to the exigencies of the particular case, and the novelty of
the circumstances which present themselves. If, then, it
be true, that a knowledge of first principles is at least as
essential in Law as in other sciences, certainly in none
is a knowledge of those principles, unaccompanied by a
sufficient investigation of their bearing and practical
application, more likely to lead into grievous error.
In the present Work I have endeavoured, not only to
point out the most important Legal Maxims, but also to
explain and illustrate their meaning ; to show the various
exceptions to the rules which they enunciate, and the
qualifications which must be borne in mind when they
are applied. I have devoted considerable time, and much
labour, to consulting the Reports, both ancient and
modern, as also the standard Treatises on leading
branches of the Law, in order to ascertain what Maxims
are of most practical importance, and most frequently
cited, commented on, and applied. I have likewise
repeatedly referred to the various Collections of Maxims
which have heretofore been published, and have freely
availed myself of such portions of them as seemed to
possess any value or interest at the present day. I
venture, therefore, to hope, that very few Maxims have
been omitted which ought to have found place in a work
PREFACE TO THE FIRST EDITION. ♦ IX
like that now submitted to the Profession. In illus-
trating each Rule, those Cases have in general been
preferred as examples in which the particular Maxim has
either been cited, or directly stated to apply. It has,
however, been necessary to refer to many other instances
in which no such specific reference has been made, but
which seem clearly to fall within the principle of the
Rule ; and whenever this has been done, sufficient autho-
rities have, it is hoped, been appended, to enable the
reader, without very laborious research, to decide for
himself whether the application suggested has been cor-
rectly made, or not.
<
In arranging the Maxims which have been selected as
above mentioned, the system of Classification has, after
due reflection, been adopted : first, because this arrange-
ment appeared better calculated to render the Work, to
some extent, interesting as a treatise, exhibiting briefly
the most important Rules of Law, and not merely useful
as a book of casual reference ; and, secondly, because by
this method alone can the intimate connection which
exists between Maxims appertaining to the same class be
directly brought under notice and appreciated. It was
thought better, therefore, to incur the risk of occasional
false or defective classification, than to pursue the easier
course of alphabetical arrangement. An Alphabetical
List has, however, been appended, so that immediate
reference may be made to any required Maxim. The
X PREFACE TO THE FIRST EDITION.
plan actually adopted may be thus stated: — I have, in
the first Two Chapters, very briefly treated of Maxims
which relate to Constitutional Principles, and the mode
in which the Laws are administered. These, on account
of their comprehensive character, have been placed first
in order, and have been briefly considered, because they
are so very generally known, and so easily compre-
hended. After these are placed certain Maxims which
are rather deductions of reason than Rules of Law, and
consequently admit of illustration only. Chapter IV.
comprises a few principles which may be considered as
fundamental, and not referable exclusively to any of the
subjects subsequently noticed, and which follow thus :
Maxims relating to Property, Marriage, and Descent;
the Interpretation of Written Instruments in general;
Contracts ; and Evidence. Of these latter subjects, the
Construction of Written Instruments, and the Admis-
sibility of evidence to explain them, as also those Maxims
which embody the Law of Contracts, have been thought
the most practically important, and have therefore been
noticed at the greatest length. The vast extent of these
subjects has undoubtedly rendered the work of selection
and compression one of considerable labour; and it is
feared that many useful applications of the Maxims
selected have been omitted, and that some errors have
escaped detection. It must be remarked, however, that,
oven had the bulk of this Volume been materially in-
creased, many important branches of Law to which the
PREFACE TO THE FIRST EDITION. XI
Maxims apply must necessarily have been dismissed with
very alight notice ; and it is believed that the reader will
not expect to find, in a Work on Legal Maxim3, subjects
considered in detail, of which each presents sufficient
materials for a separate Treatise.
One question which may naturally suggest itself
remains to be answered : For what class of readers is a
Work like the present intended ? I would reply, that it
is intended not only for the use of students purposing to
practise at the bar, or as attorneys, but also for the
occasional reference of the practising barrister, who may
be desirous of applying a Legal Maxim to the case before
him, and who will therefore search for similar, or, at all
events, analogous cases, in which the same principle has
been held applicable and decisive. The frequency with
which Maxims are not only referred to by the Bench, but
cited and relied upon by Counsel in their arguments ; the
importance which has, in many decided cases, been
attached to them ; the caution which is always exercised
in applying, and the subtlety and ingenuity which have
been displayed in distinguishing between them, seem to
afford reasonable grounds for hoping, that the mere
Selectron of Maxims here given may prove useful to the
Profession, and that the examples adduced, and the
authorities referred to by way of illustration, qualification,
or exception, may, in some limited degree, add to their
utility.
Xll PREFACE TO THE FIRST EDITION.
Ill conclusion, I have to express my acknowledgments
to several Professional Friends of Practical experience,
ability, and learning, for many valuable suggestions which
have been made, and much useful information which has
been communicated, during the preparation of this Work,
and of which I have very gladly availed myself. For
such defects and errors as will, doubtless, notwithstanding
careful revision, be apparent to the reader, it must be
observed, that I alone am responsible. It is believed,
however, that the Professional Public will be inclined to
view with some leniency this attempt to treat, more
methodically than has hitherto been done, a subject of
acknowledged importance, and one which is surrounded
with considerable difficulty.
HERBERT BROOM.
Temple,
January 301A, 1845.
CONTENTS.
_4
CHAPTER L.
SKCT. I. — RULES FOUNDED OX PUBLIC POLICY.
PAGE
Salus populi suprema lex 1
Neoesritas inducit privilegium quoad jura private . . . 9
Summa ratio est quae pro religione facit 14
Dies Dominions non est juridicus 16
Sect. n. — Rules of Legislative Policy.
Leges posteriores priores contrarias abrogant . .20
Nova constitatio futuris formam imponere debet, non pre-
teritis 28
Ad ea qose frequentius accidont jura adaptantnr . .35
CHAPTER II.
Maxims relating to the Crown.
Rex non debet esse sub homine, sed sub Deo et sub lege,
quia lex facit regem 40
Rex nunquam moritur 43
Rex non potest peccare 46
Non potest Rex gratiam facere cum injuria et damno aliorum 59
Nullum tempus occurrit Regi 61
Quando jus Domini Regis et subditi concurrunt, jus Regis
pneferri debet 65
Roy n'est li§ per ascun statute, si il ne soit expressement nosme 68
Nemo patriam in qua natus est exuere nee ligeantiee debitum
ejurare possit 71
XIV CONTENTS.
CHAPTER III.
Sect. L— The Judicial Office.
PAGE
Boni judicis est ampliare jurisdictionem 75
Do fide et officio judicis non recipitur quaBstio, sed de scientia
sive sit error juris aive facti ...... 80
Qui jussu judicis aliquod fecerit non videtur dolo malo fecisse,
quia parere necesse est 88
Ad qusestionem facti non respondent judioes, ad quaestionom
legis non respondent juratores 96
In praesentia ma j oris cessat potentia minoris . . . . 105
Sect. IL— The Mode of Aduinistebinq Justice.
Audi alteram partem 106
Nemo debet esse judex in propria sua causa . . . . 110
Actus curiae neminem gravabit 116
Actus legis nemini est damnosus 120
Executio juris non habet injuriam 121
In fiotione juris semper aaquitas existit 124
Cursus curiao est lex curiae 129
Consensus tollit errorem 131
Communis error facit jus 134
De minimis non curat lex 138
Omnia iunovatio plus novitate perturbat quam utilitate prod-
est 141
CHAPTER IV.
RULES OF LOGIC.
Ubi eadem ratio ibi idem jus 147
Cessante ratione legis cessat ipsa lex 153
De non apparentibus et non existentibus eadem est ratio . . 156
Non potest adduci exceptio ejusdem rei cujus petitur dis-
solutio 158
Allegans contraria non est audiendus 161
CONTENTS. XV
PAOK
Omne majus oontinet in ee minus .... 168
Quod ab initio non volet in tractu temporis non convaleeoit . 171
Argumentum ab inoonvenienti plnrimum valet in lege 177
CHAPTER V.
Fundamental Legal Principles.
Ubi jus ibi remedium 181
Quod remedio deetituitur ipsa re yalet si culpa absit . . . 206
In jure non remota causa sed proxima spectatur .211
Actus Dei nemini facit injuriam 224
Lex non cogit ad impossibilia 237
Ignorantia facti excusat, ignorantia juris non excusat . . 246
Volenti non fit injuria 262
Nullus commodum capere potest de injuria sua propria . 273
Acta exteriora indicant interiora secreta 293
Res ipsa loquitur 298
Actus non facit reum nisi mens sit rea 300
Nemo debet bis yexari pro una et eadem causa . . 316
CHAPTER VI.
Acquisition, Enjoyment, and Transfer of Property.
Sect. I.— The Mode of Acquiring Property.
Qui prior est tempore, potior ost jure 335
Sect. II. — Property—its Rights and Liabilities.
Sic utere tuo ut alienum non lsedas 347
Cajus est solum ejus est usque ad coolum .... 371
Quicquid plantatur solo solo cedit 376
Domufl sua cuique est tutissimnm refugium .... 404
XVI CONTENTS.
Sect. KL— The Transfer of Pbopebtt.
PAGE
Alienatioreiprceferturjnri accresoendi 414
Cujus est dare ejus eet disponere 430
Asfflgnatufl utitur jureauotoris 434
Cuicunque aliquis quid oonoedit ooncedere videtur et id sine
quo res ipsa esse non potuit 444
Aocessoriuxn non ducit sed sequitur sunm principale . . . 457
Licet dispositio de interesse futuro sit inutilis tamen fieri
potest declaratio praeoedens quae sortiatur eneotum in-
teryeniente novo acta 464
CHAPTER VII.
BULEB RELATING TO MARRIAGE AND DESCENT.
Consensus, non concubitus, facit matrimonium . . . . 468
Haeres legitimus est quern nuptice demonstrant . 480
Nemo est haares viventis 486
Hsereditas nunquam ascendit 489
Persona oonjnncta aequiparatur interesse proprio . . 493
CHAPTER VIII.
The Interpretation of Deeds and Written Instruments.
Benignaa faciendsa sunt interpretationes propter simplicitatem
laicorum ut res magis yaleat quam pereat; et verba
intentioni, non e contra, debent inseryire . . 498
Ex antecedentibus et coosequentibus fit optima interpretatio . 533
Koscitur a sociis 541
Verba chartarum fortius accipiuntur contra proferentem . 548
Ambiguitas verborum latens verificatione suppletur; nam quod
ex facto oritur ambiguum verificatione facti tollitur . . 561
CONTENTS. XVII
PAGE
Qaoties in verbis nulla est ambiguitas, ibi nulla expoaitio
contra yerba fienda est 573
Certain est quod certum reddi potest 578
Utile per inutile non yitiatur 581
Falsa demonstrate non nocet . 584
Verba generalia restringuntur ad habilitatem rei yel per-
sonam 600
Expressio unius est exclusio alterius 606
Expreasio eorum quae tacite insunt nihil operator . . . 625
Verba relata hoc maxime operantur per referentiam ut in
eis inesse yidentur 628
Ad proximum anteoedens flat relatio nisi impediatur sententia 636
Contemporanea expositio est optima et fortissima in lege . 638
Qui haevet in litera hseret in cortice 611
CHAPTER IX.
The Law of Contracts.
Hodus et conyentio yinount legem 645
Quilibet potest renunciare juri pro se introducto . . 655
Qui sentit commodum sentire debet et onus . . . . 661
In sequali jure melior est conditio possidentis . . . 667
Ex dolo malo non oritur actio ....... 684
Ex nudo pacto non oritur actio 699
Caveat emptor 723
Quicquid solyitur, solyitur secundum modum solventis —
quicquid recipitur, recipitur secundum modum recipientis 770
Qui per alium facit per seipsum facere yidetur . . . 777
Respondeat superior 798
Omnia ratihabitio retrotrahitur et mandato priori sequiparatur 822
Nihil tarn conveniens est naturali eequitati quam unumquod-
que dissolvi eo ligamine quo ligatum est ... 832
Vigilantibus, non dormientibus, jura subveniunt . . . 844
Actio personalis moritur cum persona ..... 855
b
XV111 CONTENTS.
CHAPTER X.
Maxims applicable to the Law of Evidence.
PACK
Optimus interpree rerum usus 871
Cailibet in sua arte perito est credendum .... 885
Omnia prawjumuntur contra spoliatorem 892
Omnia prresumnntur ritd et solenniter esse acta 896
Res inter alios acta alteri nocere non debet 908
Nemo tenetur seipeum accusare 922
ALPHABETICAL
LIST OF LEGAL MAXIMS.
• *
Throughout (his List, Wingatc's Maxims are indicated by the letter (W). Jjofft's Reports (Ftl. 1790),
to which is appended a very copious Collection of Maxims, are signified by the letter (L). The
Grounds and Rudiments of Law (Ed. 1751), by the letter (G) ; and Halkerston's Maxims (Kd. 1*23),
by the letter (H) ; the reference in the last instance only being to the number of the Page, in the
others to that of the Maxim. Of the above Collections, as also of those by Soy (9th Ed.), and Branch
(5th Ed.), 4use has, in preparing the following List, been freely made. Some few Maxims from the
Civil Law have also been inserted, the Digest being referred toby the letter (D\ as in the body of the
Work.
The figure* at the end of the line without the Parentheses denote the pages of this Treatise where the
Maxim is commented upon or cited.
PAG*
A communi observantiA non est rece-
dendum (W. 203).
Ab abusu ad usum non valet conse-
quentia (a).
Absolute sententia expositore non in
diget (2 Inst. 533).
Abundans cautela non nocet (11
Rep. 6).
Acceasorinm non ducit, sed sequitur,
suum principale . . . .
Acceasorium non trahit principale
Accusator post rationabile tempus non
est audiendus, nisi se bene de omis-
sions excusaverit (Moor, 817).
Acta exteriora indicant interiors
secreta
457
465
PAGE
293
Actio non datur non damnificato(Jenk.
Gent 69).
Actio personalis moritur cum persona*
443, 855
Actio quaelibet it suA vift (Jenk. Cent.
77).
Actionnm genera maxime sunt ser-
vanda (L. 460).
Actor sequitur forum rei (Branch
M. 4).
Actore non probante absolvitor reus
(Hob. 108).
Actori incumbit onus probandi (Hob.
103).
Actus curia; neminem gravabit . .11$
Actus Dei nemini facit injuriam . 224
(a) Id Stockdale v. Hansard, 9 Ad. & E. 116, I maxim cannot apply " where an abuse is directly
Lottl Demnaii, C.J., observes, that the above I charged and offered to be proved."
b 2
XX
LIST OF LEGAL MAXIMS
PAGE I
Actus Dei Demini nocet . . . 236
Actus inceptus cujus perfectio pendet
ex voluntate partium revocari potest,
si autem pendet ex voluntate tertiae
persona; vel ex contingenti revocari
non potest (a) (Bac. Max. reg. 20).
Actus judiciarius coram non judice
irritus habetur, de ministeriali
autem a quocunque provenit ratum
esto (L. 458).
Actus legis nemini est damnosus . 1 20
Actus legis nemini facit injuriam . 120
Actus legitimi non recipiuht modum
(Hob. 153).
Actus non facit reum nisi mens sit rea
293, 300, 769 (y)
Ad ea qure frequentius accidunt jura
odaptantur . . . 35, 36
Ad qusestionem facti non respondent
judices — ad quaestionem legis non
respondent juratores . . . 96
Ad quaestionem legis respondent
judices 892
.Edificare in tuo proprio solo non
licet quod alteri noceat . . .351
JEquitas sequitur legum( Branch M. 8).
Affectus punitur licet non sequitur
efiectus (9 Rep. 56).
Amrmanti non neganti incumbit pro-
batio (H. 9).
Alienatio licet prohibeatur consensu
tamen omnium in quorum favorem
prohibita est potest fieri (Co. Litt
98).
Alienatio rei prsefertur jnri accrescendi 414
Aliquid conceditnr ne injuria reman-
ent impunita quod alias non con-
cederetur (Co. Litt 197).
AGB
Aliquis non debet esse judex in propria
causa, quia non potest esse judex et
pars Ill
Aliud est celare — aliud tacere . . 738
Aliud est posside re— aliud esse in pos-
sessione (Hob. 163).
Allegans contraria non est audiendus
161, 167, 287
Allegans suam turpitudinem non est
audiendus (4 Inst. 279).
Allegan non debuit quod probatum
non relevat (1 Chan. Cas. 45).
Alterius circumventio alii non pnebet
actionem (D. 50. 17. 49).
Ambigua responsio contra proferentem
est accipienda (10 Rep. 68).
Ambiguis casibus semper pnesumitur
pro rege (L. 248).
Ambiguitas verborum latens verifica-
tione suppletur, nam quod ex facto
oritur ambiguum verificatione facti
tollitur 561
Ambiguitas verborum patens nulla
verificatione excluditur (L. 249).
Ambulatoria est voluntas defuncti
usque ad vita? supremum exitum . 466
Anglire jura in omni casu libertati
dant favorem (H. 1 2).
Animus hominis est anima scripti (3
Bulstr. 67).
A non posse ad non esse sequitur
argumentum necessarie negative
licet non affirmative* (Hob. 336).
Applieatio est vita regular (2 Bulstr.
79).
Arbitramentum cequum tribuit cuique
8uum (Noy, M. 248).
Argumentum ab auctoritate est for-
(a) The law, observes Lord Bacon, makes this
difference, that, if the parties have put it in the
power of a third person, or of a contingency, to
give a perfection to their act, then they have put
it out of their own reach and liberty to revoke
it ; but where the completion of their act or con-
tract depends upon the niutual.consent of the ori-
ginal parties only, it may be rescinded by express
agreement So, in judicial acts, the rule of the
civil law holds, smtentia inUrlocutoria rerocari
potest, that is, an order may be revoked, but a
judgment cannot.— Bac. M. reg. 20.
LIST OF LEGAL MAXIMS.
XXI
PAGE
tissimum in lege (Co. Litt.
254).
Argumentuin ab impossibili plurimum
ralet in lege (Co. Litt. 92).
Argumentum ab inconvenienti pluri-
mum valet in lege .... 177
Argumentum a commnniter accidentia
bus in jure frequens est . . 38 (d)
Argumentum a divisione est fortissi-
mum in jure (6 Rep. 60). (W. 71).
Argumentum & majori ad minus nega-
tive non valet — valet e converso
(Jenk. Cent. 281).
Argumentum a ainiili valet in lege
(Co. Litt. 191).
Assignatns utitur jure auctoris . . 434
Aucupia verborum suntjudice indigna
(Hob. 343).
Audi alteram partem . . . 106
Bello parta cedunt reipublic© (cited
2 Russ. k My. 56).
Benedicts est expositio quando res re-
dimitur & destructione (4 Rep. 26).
Benignse faciend© sunt interpreta-
tiones, propter simplicitatern laico-
rum, ut res niagis valeat quam
pereat 498
Benignd faciend* sunt interpreta-
tiones et verba intentioni debent
inservire 498
Benignior sententia, in verbis generali-
bus aeu dubiis, est preferenda (4
Rep. 15).
Bome fidei possessor, in id tantum
quod ad sepervenerit tenetur (2 Inst.
285).
Bona fides non patitur, nt bis idem
exigatur . . . 324, n. (a)
Boni judicis est ampliare jurisdictio-
nem 75
Boni jadicis est judicium sine dilatione
mandare executioni (Co. Litt. 289).
r.\oE
Boni judicis est lites dirimere, nc lis
ex lite oritur, et interest reipublicus
ut sint fines litium (4 Rep. 15).
Bonus judex secundum sequum et
bonum judicat, et tequitatem stricto
juri pnefert 76
Casus omissus et oblivioni datus dis-
position i communis juris rel in quit ur 39
Causa proxima et non remota specta-
tur. 212, 213, 216, 222
Caveat emptor ; qui ignorare non
debuit quod jus alienum emit . 723
Caveat venditor (JL 328).
Certa debet esse intentio, et narratio.
et certum fundamentum, et certa
res qu«e deducitur in judicium (Co.
Litt. 303, a). '
Certum est quod certum roddi potest 578
Cessante causa, cessat effectus . .153
Cessante ratione legis, cessa ipsa lex
153, 154, 155
Cessante statu primitivo, cessat deri-
vativus 462
Cbarta de non elite non valet (Co. Litt.
36, a).
Chirographum apud debitorem reper-
tum presumitnr solutum (H. 20).
Circuitus est evitandus . . . 329
Clausula inconsuetse semper indncunt
suspicionem 283
Clausula generalis de residuo'non ea
complectitur quae non ejusdem sint
generis cum iis que speciatim dicta
fuerant (L. 419).
Clausula generalis non refertur ad ex-
pressa (8 Rep. 154).
Clausula vel dispositio inutilis, per
presumption em vel causam remotam
ex post facto non fulcitur . . 628
Cobieredesuna persona censentur prop-
ter unitatem juris quod habent (Co.
Litt. 163).
XXII
LIST OF LEGAL MAXIMS.
PAOE
Communis error facit jus .
. 134, 135,
137, 144
Couditio bcncficialis qurc statuiu coii-
struit, benigne, secundum verborum
intentionem, est interpretanda ;
odiosa, autem, quae statum destruit,
stride, secundum verborum propria-
tatem accipienda (8 Rep. 90).
Couditio preecedens adimpleri debet
priusquam sequatur effectus (Co.
Litt. 201).
Conditiones qwelibet odiosrc ; maximc
autem contra matrimonium et com-
mercium (L. 644).
Confirmare nemo potest priusquam
jus ci accident (10 Rep. 48).
Confirmatio omnes supplet defectus,
licet id quod actum est ab initio non
valuit (Co. Iitt. 295, b);
Consensus, non concubitus, facit ma-
trimonium 468
Consensus tollit errorem . . .131
Consentientes et ogentes pari pound
plectentur (5 Re]). 80).
Consentire matrimonio non possunt
infra annos nubiles (5 Rep. 80).
Constitutions tempore posteriores
potiores sunt bis qute ipsas pneces-
serunt 22 (i)
Constructio legis non facit injuriam . 556
Consuetudo ex certa causa rationa-
bili usitata privat communem legem
873
Consuetudo loci est observanda . . $72
Consuetudo manerii et loci observanda
est (Branch M. 28).
Consuetudo neque injuria oriri neque
tolli potest (L. 340).
Consuetudo regni Anglia* est lex An-
glise (Jenk. Cent. 119).
Consuetudo semel reprobata non potest
amplius induci (G. 53).
Contemporanea expoeitio est optima et
fortissima in lege .... 638
TAOE
Contra negantem priucipia non est
disputandum (G. 57).
Contra non valentem agere nulla cur-
rit pnescriptio .... 854
Conventio privatorem non potest pub-
lico juri derogare (W. 201).
Copulatio verborum indicat accepta-
tionem in eodem sensu . .541
Corporalis injuria non recipit wstinia-
tionem de futuro .... 273
Cuicunque aliquis quid concedit, con-
cedcre videtur et id sine quo res ipsa
esse non potuit . .445
Cuilibet in sua arte perito est creden-
dum S85
Cui licet quod majus non debet quod
minus est non licere . .169
Cujus est dare ejus est dispouero 430, 433
Cujus est solum, ejus est usque ad
caelum 371
Culpa caret, qui scit, sed prohibero .
non potest (D. 50. 17. 50).
Culpa est imniiscere se rei ad se non
pertinenti (D. 50. 17. 36).
Cum duo inter se pugnantia reperiun-
tur in testamento, ultimum ratum
est 538
Cum in testamento ambigue aut etiani
perperam scriptum est benigne inter-
pretari et secundum id quod cre-
dible est cogitatum credendum est 524
Cum principalis causa non consistit, ne
ea quidem quae sequuntur, locum
habent (D. 50. 17. 129. § 1).
Curia parliament suis propriis legibus
subsistit 80
Cnrsus curiu? est lex curiae . . .129
Damnum sine injuria esse potest (H.
12).
Debile fundamentum fallit opus . 174
Debita sequuntur personam debitoris
(H. 13).
LIST OF LEGAL MAXIMS.
XX111
l'ACE
TAQK
Debitor non praesiiinitur douarc (a)
(H. 13).
Debitoram pactionibus creditorum pe-
titio nee tolli nee niinui potest . 653
Debitum et contractus sunt nullins
loci (b). (7 Kep. 61).
Deficient© uno non potest esse tares
(G. 77).
Be fide et officio judicis non recipitur
questio, sed de acientia sire sit error
juris sive facti . .SO
De gratiA speciali, certa scientiA, et
mero motu ; talis clausula non valet
in his in quibus pnesumitur prin-
tipem esse ignorantem (1 Rep. 53).
Delegata potestas non potest delegari 794
Delegatus debitor est odioeus in lego
(2 Bulstr. 148).
Delegatus non potest delegare . 840, 842
De minimis non curat lex, 138, 139, 140,
158 (c).
Dc non apparentibus, et non existenti-
bus, eadem est ratio . . . 156
Derivativa potestas non potest esse
major primitiva (W. 26).
Deus solus hseredem facere potest, non
homo 580
Dies doininicus non est juridicus . 16
Discretio est discernere per legem
quid sit jus torn . .78
Divinatio, non interpretatio est, qua'
omnind recedit a literft (Bac Max.
reg. 3).
Dolo malo pactum se non servaturum 686
Dolosus versatur in gencralibus . . 282
Dominium non potest esse in pendenti
(H. 39).
! Domus sua cuiquc est tutiwimum refu-
| gium 404
, Dona clandestiua sunt semper suspi-
ciosa 283
Donari vidctur, quod nullo jure co-
gen te eonceditur (D. 50. 17. 82).
Douatio non pnesumitur (Jenk. Cent
109).
Donatio perficiturpossessioneaccipien-
tis (Jenk. Cent. 109).
Duo non possunt in solido unam rem
ere ... . 434 (x)
Eadem mens pnesumitur regis quae est
juris, et qure esse debet, prassertim
in dubiis 47
Ea qua* commendaudi causi in vendi-
tionibus dicuntur si palam appareant
venditorem non obiigant . . 736
Ea qua* raro accidnnt, non temere in
agendisnegotiis computantur(D. 50.
17. 64).
Ecclesia ecclesia decimas solvere non
debet (Cro. El. 479).
Ecclesia meliorari non deteriorari po-
test (c).
Ejus est interpretari cujus est condere 142
Eodem ligamine quo ligatum est dis-
solvitur 843
Eodem modo quo quid constituitur,
eodem modo dissolvitur— destruitur
(6 Rep. 53).
Ex antecedentibus et consequcutibus
fit optima interpretatio . . .583
%Exceptio probat regulam (11 Rep. 41).
(rf).
Excusat aut extenuat delictum in capi-
(«) See Kip]>*n v. Jkulty, 3 Macq. ik\ App. Can. , is so much a confirmation of the rule, that it lias
£03. ' become a maxim, exoeptio probat reguiam," per
(b) See the Note to Matty* v. Fubrigag, 1 Smith, Lord Kenyon, C.J., 3 T. R. 722. Bee also, Id. 38 ;
L. C. ; Story, Confl. Laws, tit "Contract*." 4 T. R. 703 ; 1 East, 047, n. ; per Lord Campbell,
(e) Arg., A.-(l v. CKotmley, 2 Eden, 313. I C.J., 4 B. & B. 832 ; arg. Lyndon v. Standbridgr,
• Id) " Every exception that can he accounted for , 2 H. k N. 48.
XXIV
LIST OF LEGAL MAXIMS.
PAGE
talibus quod non operatur idem in
civiHbus 314
Ex diuturnitate temporis omnia pne-
aumuntur rite et solenniter esse acta 896
Ex dolo malo non oritur actio . 288, 684
Executio juris non habet injuriam, 121, 123
Ex maleficio non oritur contractus . 689
Ex nuda submissione non oritur actio
(G. 143).
Ex nudo pacto non oritur actio . . 699
Expedit reipublicce ne sua re qnis male
utatur 348
Expressa nocent, non expressa non no-
cent (D. 50. 17. 195).
Expressio eorum cpue tacite insunt
nihil operatur . . . 625, 709
Expressio unius est exclusio altering . 606
Expressum facit cessare taciturn . 606
Extra territorium jus dicenti impune
non paretur 94
Ex turpi causa non oritur actio . . 634
Factum a judice, quod ad officium ejus
non pertinet ratum non est (D. 50.
17. 170) . . . . 88, n. (y)
Falsa demonstrate non nocet . 585
Falsus in uno falsus in omnibus (a).
Fictio legis inique operatur alicui dam-
num vel injuriam . . 127, 129
Fortior est custodia legis quamhominis
(2 Rol. Rep. 325).
Fortior et potent ior est dispositio legis
quam hominis . . . 653, 654
Fractionem diei non recipit lex (L.
572).
Frater fratri uterino non succedet in
hrereditate paterna . . 491
PAGK
Fraus est celare fraudem (1 Vera. 240).
Fraus est odiosa et non pnesumenda
(Cro. Car. 550).
Fraus et dolus nemini patrocinari de-
bent 28f*
Frequentia actus multum operatur (4
Rep. 78) (W. 192).
Frustra fit per plura, quod fieri potest
per pauciora (Jenk. Cent. 68) (W.
177) (G. 161).
Frustra legis auxilium quserit qui in
legem committit . . • 274, 28i>
Frustra probatur quod probatum non
relevat (H. 50).
Furiosu8 absentis loco est (D. 50. 17.
124. § 1).
Furtum non est ubi initium habet de-
tentions per dominum rei (3 lust.
197).
Gexehale, nihil certi iroplicat (W.
164).
Generalia specialibus non derogant
(Jenk. Cent 120) (6).
Generalia verba sunt generaliter intel-
ligenda 602
Generalibus speeialia derogant (H. 51).
Generalis clausula non porrigitur ad
ea qua: antea specialiter sunt com-
prehensa (8 Rep. 154).
Generalis rt'gula generaliter est intelli-
genda (6 Rep. 65).
Habemus optimum testem confiten-
tem reum (Fost. Cr. L. 243) (c).
(a) Thin maxim may properly be applied in those
cases only where a witness siieaks to a fact with
reference to which he cannot be presumed liable
to mistake ; see per Story, J., The Sctntissima
Trinidad, 7 Wheaton (U.S.), R. 338, 339.
(b) Cited is,'. Qf Derby v. Burg Ivtpt. Cmiis., L. R.
4 Ex. 226; Khhton v. Empire Ins. Co., L. R. 1 C. P,
046 ; arg. Thanes Conservators v. Hall, L. R. 3 C\
P. 419,
(r) In the various treatises upon the law of evi-
dence will be found remarks as to the weight
which should be attached to the confession of a
LIST OF LEGAL MAXIMS.
XXV
PAOK
Hseredi magis parcendum est (D. 81.
1. 47).
Hsereditas nihil aliud est, quam succes-
sio in universum jus, quod defunctus
habuerit (D. 50. 17. 62).
Hsereditas nunquam ascendit . . 469
Hares est aut jure proprietatia aut
jure representationis (3 Rep. 40).
Hares est nomen juris, filiua est nomen
natura (Bac. M. reg. 11).
Hreres legitimua est quern nuptise de-
monstrant 480
Id certain est quod certum reddi po-
test 578
Idem est non esse et non apparere . 158
Id possumus quod de jure possumus
(G. 183).
Id, quod nostrum est, sine facto nostro
ad alium transferri non potest (D.
50. 17. 11).
Ignorantia corum quae quis scire tene-
tur non excusat .... 261
Ignorantia facti excusat ; ignorantia
juris non excusat . . . 246, 248
Ignorantia juris, quod quisque scire
tenetur, neminem excusat . 247, 257
Ignorantia legis neminem excusat 247 (n)
Imperitia culpa? adnumeratnv (D. 50.
17. 132).
Impossibilium nulla obligatio est . 242
Impotentia excusat legem . .237, 238
In rcquali jure melior est conditio pos-
sidentis 667
In ambigua voce legis ea potius accipi-
enda est significatio qu® vitio caret,
pnesertim cum etiam voluntas legis
ex hoc colligi possit . . 532
PAf.K
In ambiguis orationibns niaxime sen-
tentia spectanda est ejus, qui eas
protulisset ..... 524
In Anglia non est interregnum . 43
Incaute factum pro non facto habetur
(D. 28. 4. 1).
Incerta pro nullis habentur (G. 191).
Incivile est, nisi totA sententia in-
spects de aliquA parte judicare (G.
194).
In con8imili «asu, consimile debet esse
remedium (G. 195).
In contractis tacite insunt quie sunt
moris et consuetudinis . . 798
In conventionibus contrahentiuin vo-
luntas potius quam verba spectari
placuit 500
In criminalibus sufficit generalis ma-
litia intentionis cum facto paris
gradus 314
In disjunctives sufficit alteram partem
esse verani . • . . . . 545
In eo, quod plus sit, semper inest et
minus (D. 50. 17. 110).
In favorem vitro libertatis et innocentia?
omnia pnesumuntur (L. 125).
In fictione juris semper sequitas existit
124, 129
In judicio non creditur nisi juratis
(Cro. Car. 64).
In jure, non remota causa, sed prox-
ima spec tat ur . . 211, 810 (z)
Injuria non excusat injuriam . . 370
Injuria "non praesumitur (Co. Litt.
232. b).
In majore summa continetur mino
(5 Rep. 115).
In odium spoliatoris omnia pnesu-
muntur 8
party. Respecting the above maxim, Lord Stowell
has observed, that, "What is taken pro eonfesto is
taken as indubitable troth. The plea of guilty
by the party accused shuts out all further inquiry.
Hdbemus confitentem reum is demonstration, tniZe
indirect motive* can be assigned to it." Mortimer
v. Mortimer, 2 Hagg. 815.
XXVI
LIST OF LEGAL MAXIMS.
PAGE
In omnibus quidem, maxime tamen in
jure, lequitas spectanda sit (D. 60.
17. 90).
In pari causa possessor potior haberi
debet (MM
In pari delicto potior est conditio de-
fendentis 673
In pari delicto potior est conditio pos-
sidentis 673
In posnalibus causis benignius inter-
pretandum est (D. 60. 17. 156.
§1).
In pnesentia majoris cessat potentia
minoris 105, 106
In stipulationibus cum queritur quid
actum sit verba contra stipulatorem
interpretanda sunt . 554
Intentio ca»ca mala (2 Bulstr. 179).
Intent io inservire debet legibus non
leges intentioni (Co. Litt 314. b).
Interest reipublicee ne roalelicia renia-
ncant impunita (Jeuk. Cent. 31).
(W. 140).
Interest reipublicse suprema hominum
testamenta rata haberi (Co. Litt.
236. b).
Interest reipublieoe ut sit finis litium 328
Interpretare et concordare leges legibus
est optimus interpretandi modus (8
Rep. 169).
Interpretatio chartarum benigne fa-
cienda est ut res magis valeat quam
pereat 498
In testamentis plcnius testatoris in-
tentionem scrutamur . 513, 625
In testamentis plenum voluntatis tes-
tantium interpretautur . . 525
In toto et pars continetur (D. 50. 17.
113).
Invito beneficium non datur . 665 (t)
Ita semper fiat relatio ut valeat dispo-
sitio (6 Kep. 76).
FAQS
Judicium a non suo judice datum nul-
lius est momenti . .88
■
Judicium redditur in invitum (Co.
Litt. 248. b).
Judicis est judicare secundum allegata
et probata (H. 73).
Judicis est jus dicere non dare (L. 42).
Jura eodem modo destituuntur quo
eonstituuntur 833
Jure nature aequum est neminem cum
aherius detrimento et injuria fieri
locupletiorem (D. 50. 17. 206).
Jus accrescendi inter mercatores locum
non habet pro beneficio commercii . 427
Jus constitui o|>ortet in his qurc ut
plurimum accidunt non quoj ex in-
opinato 36
Jus snperveniens auctori accrescit suc-
cessor! (H. 76).
Leges et constitutions futuris certum
est, &a 29
; Leges posteriores priores contrarias
abrogant 21
Le salut du ]>euple est la supreme loi 2 (a)
Lex aliquando scquitur anjuitatem (3
Wils. 119).
Lex Angliae sine parliamento mutari
non potest (2 Inst. 619).
Lex beneficialis rei consimili reme-
dium pnestat (2 Inst. 689).
Lex citius tolerare vult privatum
damnum quam publicum malum
(Co. Litt 125).
Lex neiuinem cogit ad vana seu
iuutilia 246
Lex neminem cogit ostendere quod
nescire pnesumitur (L. 569).
Lex nil frustra facit .... 246
Lex non cogit ad impossibilia . .237
Lex non favet votis delicatorum . 362
Lex non requirit verificari quod apparet
curia? (9 Kep. 54).
LIST OF LEGAL MAXIMS.
XXVll
PAGE
Lex plus laudator quando ratione pro-
batur 15$
Lex posterior derogat priori 22
Lexrejiritsuperflua, pugnantia, incon-
grua (Jenk. Cent 133, 140, 176).
Lex semper dabit remedium . .182
Lex semper intendit quod couvenit
rationi (Co. Litt. 78. b).
Lex spectat naturae ordinem . . . 24G
Licet dispositio de interesse futuro sit
inutilis, tameu potest fieri declaratio
prsecedens que sortiatur effectual,
interveniente novo actu . .464
Licita bene miscentur, formula nisi
juris obstet (Bac. Max. reg. 24) (a).
Linea recta semper pnefertur transver-
sali 490
Locus regit actum (6).
Ma jus dignum trahit ail se minus
dignum 169 (c)
Mala grammatica non vitiat chartam 642
Maledicta expositio quae corrumpit
textum 577
Malitia supplet eetatem . 309
Malus U8us est abolendus . . 876
Mandata licita strictamrecipiuut inter-
pretationem sed illicita latam et
extensam (Bac, Max. reg. 16) (c).
Mandatarius terminos sibi positos
transgredi non potest (Jenk. Cent.
53).
TAQZ
Matrimonia delient esse libera (H.
86).
Meliorem oonditionem suam facere po-
test minor, deteriorem nequaquam
(Co. Iitt 337. b).
Melior est conditio possidentis et rei
quam actoris (4 Inst 180). . . 668
Mi sera est servitus, ubi jus est vagum
aut incertum 143
Mobilia sequuntur personam . . 485
Modus de non decimando non valet
(I* 427).
Modus et conveutio vincunt legem . 645
Modus legem dat donation! . 431
Malta conceduntur per obliquum quae
non conceduntur de directo (6 Rep.
47)\
Multa in jure comnrani, contra ratio-
nem disputandi, pro communi
utilitate iutroducta sunt . • 152
Natuualk est quidlibet dissolvi eo
modo quo ligatur .... 833
Necessitas inducit privilegium . . 9
Necesaitas inducit privilegium quoad
juraprivata 9
Necessitas publica major est quam
privata 14
Xecessitas quod cogit, defendit . .13
Nemo agit in seipsum . . . . 210
Nemo contra factum suum venire po-
test (2 Inst. 66).
(«) " Tlie law," says Lord Bacon, " giveth that
favour to lawful acts, that, although they be
executed by several authorities, yet the whole act
is good;" if, therefore, tenant for life and remain-
derman Join in granting a rent, " this is one solid
rent out of both their estates, and no double rent,
or rent by confirmation : " Bac. Max. reg. 24 ; and
if tenant for life and reversioner join in a lease for
life reserving rent, this shall enure to the tenant
for life only during his life, and afterwards to the
reversioner. See 1 Crabb, Real Prop. 179.
(1>) Cited arg. Hodgson v. Bmnchante, 12 Moo.
P. C. C. 308 ; Uaytl v. (Juibert, L. R. 1 Q. B.
115.
(c) A principal is civilly liable for those acts
only which are strictly within the scope of the
agent's authority. But if a man incite another to
do an unlawful act, he shall not, in the language
of Lord Bacon, "excuse himself by circumstances
not pursued ; " as if he command his servant to
rob I. D. on Shooter's Hill, and he doth it on Gad's
Hill ; or to kill him by poison, and he doth it by
violence : Bac Max. reg. 16, cited Parke* v. Pret-
erit, L. R. 4 Ex. 109, 182.
XXVUl
LIST OF LEGAL MAXIMS.
PAGE
Nemo dat quod non habet . . 761
Nemo debet bis puniri pro uno delicto 330
Nemo debet bis vexari, si constat curiae
quod sit pro una et eadem causa
316, 328
Nemo debet esse judex in propria
causa 110
Nemo debet locupletari aliena
jactura- (a).
Nemo debet locupletari ex alterius in-
commodo (Jenk. Cent. 4).
Nemo de domo sua extralii potest 404 (b)
Nemo ejusdem tenementi simul potest
esse hreres ct dominus (1 Reeves,
Hist. Eng. L. 106).
Nemo enim aliquam partem rectd in-
telligere possit antequam totum
iterum atque iterum perlegerit . 547
Nemo est hreres viventis . . . 486
Nemo ex alterius facto pnegravari
debet (See 1 Poth., by Evans,
133).
Nemo ex proprio dolo consequitur
actionem 289
Nemo ex suo delicto meliorem suam
conditionem facere potest (D. 50. 17.
134. § 1).
Nemo patriam in quA. natus est exuerc
nee ligeantiae debitum ejurare possit 71
Nemo plus juris ad alium transferre
potest quam ipse haberet . 436, 438
Nemo potest contra recordum verifi-
cai-e per patriam (2 Inst. 380).
Nemo potest esse simul actor et
judex Ill
Nemo potest esse tenens et dominus
(Gilb. Ten. 142).
Nemo potest mutare consilium suum
in alterius injuriam . . .28
Nemo presumitur alienam posteri-
tatem ante pnetulisse (W. 285).
TAOK
1*22
36
Nemo punitur pro alieno delicto (W.
336).
Nemo sibi esse judex vel suis jus
dicere debet .... 110, 116
Nemo tenetur ad imposHibilia . 237, 239
Nemo tenetur divinare (4 Rep. 28).
Nemo tenetur seipsum accusare .
Neque leges neque senatus-consulta
ita scri^i possunt ut omnes, &c.
Nihil aliud potest rex quam quod de
jure potest (11 Rep. 74).
Nihil consensui tarn contrarium est
quam vis atque metus (D. 50. 17.
116).
Nihil in lege intolerabilius est eaudem
rem di verso jure censeri (4 Rep.
93 a).
Nihil perfectum est dum aliquid restat
agendum (9 Rep. 9 b).
Nihil pnescribitur nisi quod possidetur
(5 B. k Aid. 277).
Nihil quod est inconveniens est lici-
tum .... 178, 348
Nihil simul inventum est et perfec-
tum (b) (Co. Iitt 230).
Nihil tarn conveniens est narurali tequi-
tati quam unumquodquc dissolvi eo
ligamine quo ligatum est . . . 832
Nil consensui tarn contrarium est
quam vis atque metus . . 273 (1)
Nil facit error nominis cum de corpore
vel personS, constat . . . .
Nil tarn conveniens est naturali tequi-
tati quam voluntatem domiui
volentis rem suam in alium trans-
ferre ratum haberi (I. 2. 1. 40).
Non accipi debent verba in demonstra-
tionem falsam quae competunt in
limitationem veram
Non aliter a aignificatione verborum
recedi oportet quam cum mani-
588
597
(a) Cited per Bovill, C. J., Fletcher v Alexander I (b) Applied to a patent, Arg., Re Newall <t Elliot r
L. R. 3 C. P. 881. I 4 C. B„ N. S., 290.
LIST OF LEGAL MAXIMS.
XXII
PAGE
fe3tam est aliud senaisse testato-
rem 52$
Non dat qui non habet . . . . 436
Non debeo nielioria conditionis esse,
quam auctor meus, a quo jus in me
transit (D. 50. 17. 175. § 1).
Non debet alteri per alteram iniqua
conditio inferri (D. 50. 17. 74).
Non debet cui plus licet, quod minus
est, non licere .... 169
Non decipitur qui scit se decipi (5
Eep. 6).
Non dubitatur, etsi special iter venditor
evictionem non, promiserit re evicts,
ex empto competere actionem . . 723
Non est novum ut priores leges ad pos-
teriores trahantur : ... 22
Non ex opinionibus singuloram sed ex
communi usu nomina exaudiri de-
bent (D. 33. 10. 7. § 2).
Non impedit clausula derogatoria quo
minus ab eadem potestate res dis-
solvantura qua constituuntur 21
Non in tabulis est jus (10 East, 69).
Non omnium quae & majoribus nostris
constituta sunt ratio reddi potest . 150
Non possessor! incumbit necessitas
probandi possessiones ad se perti-
nere 668
Non potest adduci exceptio ejusdem
rei cujus petitur dissolutio . 158
^on potest probari quod probatum
non relevat (a).
Non potest rex gratiam facere cum in-
juria et damno aliorum . . .59
Non potest videri desisse habere,
qui nunquam habuit (D. 50. 17.
208).
Non quod dictum est, sed quod factum
est, inapicitur (Co. Litt 36. a) (b).
PAG*
Non videntur qui errant consentire . 256
Non videtur consensum retinuisse si
quis ex pnescripto minantis aliquid
immutavit 273
Non videtur quisquam id capere, quod
ei necesse est alii restituere (D. 50.
17. 51).
Noscitur a sociis .... 541
Nova constitutio, futuris formam im-
ponere debet, non prateritis . . 28
Novatio non pnesuraitur (H. 109).
Novum judicium non dat novum jus
sed declarat antiquum (10 Rep. 42).
Nul prendra advantage de son tort de-
mesne 283
Nulla pactione effici potest ut dolus
prsestctur 652
Nullum simile est idem (G. 467) (c).
Nullum tempus occurrit regi . . 61
Nullus commodum capere potest de
injuria sua propria, .163, 273
Nullus videtur dolo facere qui suo
jure utitur , . ... 121
Nunquam crescit ex post facto prate-
riti delicti aeatimatio .35
Nuptias non concubitus sed consensus
facit 468
Omne majus continet in se minus . 168
Omne quod solo inaedificatur solo
cedit .... 376, et $cq.
Omnes licentiam habere his, qua* pro
se indulta sunt, renunciare . 656
Omnia presumuntur contra spoliato-
rem ... . 892
Omnia prsesumuntur riteet solenniter
esse acta donee probetur in contra-
rium 902
(a) See A.-G. v. Hitchcock, 1 Exch. 91, 92,
102.
(6) Cited While v. Trustees of Brituh Museum, 6
Bing. 319; Ilatt v. Gtngt, 3 Cart 175.
(c) Cited 2 Bla. Com., 21st ed., 162; Co. Litt 3
a. ; Aig., 1 M. & 8. 172; per Buller, J., 3 T. R.
664. See, per Knight-Bruce, L.J., Boy$t v. Rm-
borough, 3 De <*., M., & O., 846.
XXX
LIST OF LEGAL MAXIMS.
PAOE
Omnia pnesumuntur rite et aolennitcr
esse acta . . .158, 896
Omnia qu» jure contrahuntnr, eon-
trario jure pereunt (D. 50. 17.
100).
Omnia qua sunt uxoris sunt ipsius
. viri (Co. Litt 112. a).
Omnis innovatio plusnovitate pertur-
bat quam utilitate prodcst . • 141
Omnis ratihabitio retrotrahitur et
mandato priori sequiparatur 713, 822
Omnium contributions sarciatur quocl
pro omnibus datum est (4 Bing.
121).
Optima est legis interpres consuetudo 884
Optima est lex qua* minimum relin-
quit arbitrio judicis, optimus judex
qui minimum sibi ... 78
Optimus interpres rerum usus 871, 878
Optimus legis interpres consuetudo . 641
Origine propria neminem posse vo-
luntate su& eximi manifcstum est 78
PAOB
Pacta couventa qu» neque contra
leges neque dolo malo inita sunt
omnimodo observanda sunt . .654
Pacta dant legem contractui (II.
118).
Pacta quae contra leges constitutiones-
que vel contra bonos mores fiunt,
nullam vim habere, indubitati juris
est 650
Pacta qua* turpem causam continent
non sunt observanda . 687
Pactis privatorum juri publico non
derogatur 651
Par in parem imperium non habet |
(Jenk. Cent. 174).
Pater est quern nuptirc demonstrant . 481
Perpetua lex est nullam legem huma- ]
nam ac positivam perpetuam esse,
et clausula qtue abrogationcm ex-
cludit ab initio non valet . . 21
Persona conjuncta sequiparatur inter-
ease proprio 493
Potestas suprema seipsam dissolvere
potest, ligare non potest (Bac. Max.
reg. 19).
Potior est conditio defendentis . 669
Potior est conditio possidentis . 209, 667
j Piwsentia corporis tollit errorem no-
minis ; et Veritas nominis tollit er-
rorem demonstrationis . ' . . 592
Prasumptio violenta valet in lego
(Jenk. Cent. 56).
Prior tempore, potior jure . . 335
Privatis pactionibus non dubium est
non laedi jus cffiterorum 653
Privatorum conventio juri publico
nonderogat 650
Privilegium contra rem publicam non
valet 14
Probandi necessitas incumbit illi qui
agit (I. 2. 20. 4).
Protectio trahit subjectionem, et sub-
jectio protectdonem ... 74
Quando abest provisio partis, adest
provisio legis (cited 13 C. B. 960).
Quando aliquid mandatur, mandatur
et omne per quod parvenitur ad
illud 452
Quando aliquid prohibetur, prohibetur
et omne per quod devenitur ad illud. 4 55
Quando duo jura in un& persona con-
currant (equum est ac si e&sent in
diversis 492
Quando jus domini regis et subditi
concurrunt, jus regis pneferri debet 65
Quando lex aliquid alicui concedit,
conceditur et id sine quo res ipsa
esse non potest .... 453
Quando lex est specialis ratio autem
genernlis generaliter lex est intelli-
geuda (2 Inst. 83).
LIST OF LEGAL MAXIMS.
XXXI
PACK
Qtuuido plus fit quam fieri debet, vide-
tur etiam iilud fieri quod faciendum
esc ....•«
Que ab initio inutilis fait institutio,
ez post facto convalescere non po-
test (D. 50. 17. 210).
Qtub accessionum locum obtinent ez-
tinguuntur cum principales res per-
emptse fuerint ....
Que dubitationis tollendse causa con-
tractibus inseruntur, jus commune
non tadunt (D. 50. 17. 81).
Quae in curia regis acta sunt rite
agi prasumuntur (3 Bulstr. 43).
Quae in testamento ita sunt scripta, ut
intelligi non possint, perinde snnt
ac si scripta non essent (D. 50. 17.
73. § 3).
Que legi communi derogant stricte
interpretantur (Jenk. Cent. 29).
Quselibet concessio fortissimo contra
donatorem interpretanda est (Co.
Litt 183. a).
Que non valeant singula juncta ju-
vant
Quicquid demonstrate rei additnr satis
demonstrate frnstra est
Quicquid plantatnr solo solo cedit
Qoicquid solvitur, solvitur secundum
modum solventis ; quicquid recipi-
tury recipitur secundum modum re-
cipientis .....
Qui cum alio contrahit, vel est, vel
debet esse non ignarus conditionis
ejus (D. 50. 17. 19).
Qui doit inheriter al pere doit inheri-
ter al fitz
Qui ez damnato coitu nascuntur inter
liberos non computentur
Qui facit per aliam facit per se
Qui hsret in litera heret in cortice .
PMiK
Qui in jus dominiumvo alterius sue-
cedit jure ejus uti debet 441, 444
170 Qui jure suo utitur neminem liedit . 362
Qui juasu judicis aliquod fecerit non
videtur dolo malo fecisse, quia
parere necesse est . .88
Quilibet potest renunciare juri pro se
introducto .... 655, 660
463 Qui nou habet in sere luat in corpore
(2 Inst 172).
Qui non prohibet quod prohibere
potest assentire videtur (2 Inst.
305) (a).
Qui per alium facit per seipsum facere
videtur 777
Qui prior est tempore, potior est jure
335, 338-
Qui rationem in omnibus qiuerunt ra-
tionem subvertunt .151
Qui sentit commodum sentire debet
et onus 661
Qui sentit onus sentire debet et com-
modum 666
Qui tacet consentire videtur 134, 746
542 Qui vult decipi decipiatur 738 (d)
Quod a quoquo poena? nomine ezactum
584 est id eidem restituere nemo co-
376 gitur (D. 50. 17. 46).
Quod ab initio non valet in tractu
temporis non convalescit %.
Quod sedificatur in area legatft cedit
770 legato
Quod contra legem fit pro infecto ha-
betur (G. 405).
Quod contra rationem juris recep-
tum est, non est producendum
482 ad consequentias (D. 50. 17.
141) (&).
483 Quod fieri debet facile pnesumitur (H.
799 j 153).
641 , Quod fieri non debet factum valet 175, 289
171
396
(«) Cited per Parke, B., Morgan r. Thomas, 8 I (6) See TAntiwiUe R. C. v. Litton, 2 Howard
xca. 304. 1 (U.8.), R. 528.
XXX11
LIST OF LEGAL MAXIMS.
PAGE
Quod meura est sine facto meo vel
defectu meo amitti vel in alium
transferri non potest .434
Quod non apparet non est .150
Quod non habet principium non habet
finem 171
Quod nullius est, est domini regis . 336
Quod nullius est id ratione naturali
occupanti conceditar . . 335
Quod remedio destituitur ipsa1 re
valet si culpa absit . . . 206
Quod semel aut bisexistit pnetereunt
legislatores 39
•Quod semel meum est amplius me am
esse non potest . . . 434 (x)
■Quod Bubintelligitur non deest (2 Ld.
Raym. 832).
Quod verd contra rationem juris re-
ceptum est, non est producendum
ad consequentias .... 152
Quotiens dubia interpretatio libertatis
est, secundum libertatem respon-
dendum est (D. 50. 17. 20).
Quotiens idem sermo duas sententias
exprimit: eapotissimumexcipiatur,
quae rei generandae aptior est (D.
50. 17. 67).
Quoties in stipulationibus ambigua
oratio est, commodissimum est id
accipi quo res de qufi. agitur in tuto
sit (D. 41.' 1. 80, and 50. 16. 219).
Quoties in verbis nulla est ambi-
guitas, ibi nulla expositio contra
verba fienda est . . . 573
Quum principalis causa non consistit
lie ea quidem quae sequuntur locum
habcnt 463
Ratihabitio mandate comparatur . 822
PAOB
Beceditur a placitis juris potius quam
injuria? et delicta maneant impunita 9
Regula est, juris quidem ignorantiam
cuique nocere, facti vero ignoran-
tiam non nocere . . . .247
Remote impedimento emergit actio
(W. 20).
Res accessoria sequitur rem principa-
lem 457
Res inter alios acta altcri nocere non
debet 908
Res ipsa loquitur .... 298
Res judicata pro veritate accipi tur
317, 320
Resolute jure concedentis resolvitur
jus concessum .... 436
Res peiit suo domino • 234
Respondeat superior . . . 798
Res sua nemini servit (a).
Rex non debet esse sub homine sed
sub Deo et lege . . 40,110
Rex non potest fallere nee falli (G.
438).
Rex non potest peccare ... 46
Rex nunquam moritur ... 43
Roy n'est lie* per ascun statute, si il
ne soit expressement nosine* . . 68
S alus populi suprema lex . 1, 179 (e)
Salus reipublicie suprema lex . . 348
Scientia utrinque par pares contra-
hentes facit .... 750 (a)
Secundum naturam est, commoda cu-
jusqucrei eum sequi, quern sequun-
tur incommoda (D. 50. 17. 10).
Seisina facit stipitem . . 489
Semper in dubiis benigniora praefc-
renda (6).
Semper in obscuris, quod minimum
est sequimur . . . 643 (b)
(o) Cited per Lord Wensleydale,lta*rrf v. Fortune, I (6) See Ditcher v. Denisun, 11 Moo. P. C. C. 343.
4 Macq. 8c. App. Cos. 151. I
LIST OF LEGAL MAXIMS.
XXXlU
PAGE
PAGE
Semper prasumitur pro negante (a).
Semper apecialia generalibus in sunt
(D. 50. 17. 147).
Sententia contra niatrimonium nun-
quam transit in rem judicatum (7
Rep. 43).
Sententia interlocutoria revocari po-
test definitiva non potest (Bac.
Max. reg. 20).
Sic utere tuo ut aliennm non kedas . 218,
347, 375
Simplex commendatio non obligat . 737
Si quidem in nomine, eognominc, praj-
nomine legatarii testator erraverit,
cam de persona constat, nihilomi-
nos valet legatum . 599
Si quid universitati debetur singulis
non debetur nee quod debet univer-
sitas singuli debent (D. 3. 4. 7.
!(*))•
Sive tota res evincatur, sive pars,
habet regressum emptor in vendi-
torem 723
Socii mei socins, mens secius non est
(D. 50. 17. 47).
Solutio pretii emptionis loco habetur
(Jenk. Cent. 50").
Specialia generalibus derogant (c).
Spoliatus debet ante omnia restitui (2
Inst 714) (d).
Stabit praesumptio donee probetur in
contrarium 903
Statutum affirmatimm non derogat
I communi legi (Jenk. Cent. 24).
Sublato principali tollitur adjunctum
J 173 (u)
Summa ratio est qu® pro religion©
farit 14
Summum jus, summa injuria (Hob.
125) (G. 464).
Super falso et certo frigitur . .125
Surplusagium non nocet . .581
Talis interpretatio semper fienda est,
ut evitetur absurdum et incon-
veniens, et no judicium sit illu-
8orium (1 Rep. 52).
Tenor est qui legem dat feudo . . 430
Traditio loqui facit chartam (5 Rep.
i) w.
Tutius semper est errare in acquitando
quam in pnniendo, ex parte miseri-
cordise, quam ex parte justititB . 31tt
Ubi aliquid conceditur, conceditur et
id sine quo res ipsa ease non potest 449
Ubi cessat remedium ordinarium ibi
decurritur ad extraordinarium - et
nunquam decurritur ad extraordi-
narium ubi valetordinarium (G.491).
Ubi damna dantur, victus victori in
expensis condemnari debet (2 Inst.
289) (/).
(a) See Beg. v. MUlis, 10 CI. & Fin. 534 (cited
porf), where this maxim was applied; A.-G. v.
Dean, <fcr., of Windsor, 8 H. L. Cas. 392 ; Baker v.
La, Id. 512 ; Beamish v. Beamish, 9 H. L. Cas.
274, 23S;per Lord Campbell, C. J., Dansey v.
Richardson, 3 K. & B. 72a
(b) See 1 Bla. Com-, 21st ed., 484.
(c) See Kidston v. Empire Ins. Co., L. R. 1 C. P.
546 ; Earl ofKintore v. Lord Inverury, 4 Macq. Sc.
App. Cas. 522.
<rf) See 4 Bla. Com., 21st ed., 363 ; Horwood v.
**«*, 2 T. B. 753.
W See as to this maxim, Goddards case, 2 Rep.
4 ; per Bayley, J., Stiles v. Wanlle, 4 B. & C. 911 ;
per Patteson, J., Browne v. Burton, 17 L. J., Q. B.,
50 ; citing Clayton's case, 5 Rep. 1, and recognising
Steele v. Mart, 4 B. & C. 272, 279 ; Tupper v.
Foulkes, 6 C. B., N. S., 797. See, also, Shaw v.
Kay, 1 Exch. 412 ; per Jervis, C. J., Davis v.
Jones, 17 C. B. 634 ; Cumberlege v. Lawson, 1 C.
B., N. S., 709, 720 ; Xenos v. Wickham, 14 C. B.,
N. S., 435 ; S. C, 13 Id. 385, L. R. 2 H. L. 296 ;
Kidner v. Keith, 15 C. B., N. 8., 35.
(/) 3 Bla. Com., 21st ed., 399 ; cited per Tindal,
C. J., 1 Blng., X. C, 522. This maxim is taken
from the Roman law, see C. 3. 1. 13. g 0.
XXXIV
LIST OF LEGAL MAXIMS.
PAGE
Ubi eadem est ratio eadem est lex . 149
Ubi eadem ratio ibi idem jus . .147
Ubi jus ibi remedium 181, 182, 184, 196
Ubi nullum matriraonium ibi nulla
dos (Co. Litt. 32).
Ubi verba conjuncta non sunt sufficit
altemtrum esse factum (D. 50. 17.
110. § 3).
Unumquodque dissolvitur eodom
ligamine quo ligatur . . . 832
Unumquodque codem modo quo col-
ligatum est dissolvitur . . . 836
Usucapio constitute est ut aliquis
litium finis esset . . . 846 (k)
Utile per inutile non vitiatur . . 581
Uxor non est sui juris sed sub poten-
tate viri (3 Inst. 108).
Vani timores sunt rcstimandi qui non
cadunt in constantein virura (7 Rep.
27).
Verba accipienda sunt secundum sub-
jectam materiem (6 Rep. 62).
Verba chortarum fortius accipiuntur
contra proferentem . . . 548
Verba cum effcctn accipienda sunt
(Bac. Max. reg. 3).
PACK
Verba generalia restringuntur ad habi-
litatem rei vel personam . . 600
Verba illata incase videntur . 630, 631
Verba ita sunt intelligcnda ut res
inagiB valeat quam pereat (Bac.
Max. reg. 3).
Verba posteriora propter certitudinem
addita ad priora qua1 certitudine in-
digent sunt referenda . . 540*
Verba relata hoc maxinie operantur
per referent iam ut in eis mesne
videntur 628
Veritas nominis tollit errorem demon-
atrationis 596
Via trita via tuta . .130
Vicarius non habet vicarium .794
Vigilantibus et non dormientibuB jura
subveniunt 844
Volenti non fit injuria . 262, 263 (z)
Voluntas donatoris, in charta doni sui
manifesto expressa, obserrctur (Co.
Litt. 21. a).
Voluntas facit quod in testamento
scriptum valeat (D. 80. 1. 12. § 3).
Voluntas testatoris est ambulatoria
usque ad extremum vitas exitum
(4 Rep. 61 b).
Vox emissa volat— litera scripta manet 623
TABLE OF CASES.
A.
ABBOTT v. Middleton, 524, 549
Ablert v. Pritchard, 22
Abler v. Dale, 89, 108
Abraham v. Reynolds, 814
Abrath r. N. E. R. 0. 101
Abrey r. Crux, 838,
Aeebbl r. Leyy, 572
Acey v. Fernie, 782
Ackerley v. Parkinson, 83
Ackroyd v. Smith, 432
Acton r. Blundell, 189, 337, 360
Adams r. Andrews, 840
r. Bronghton, 324
r. Lancashire and York-
shire R. C, 262
r. Lloyd, 923
r. Royal Mail Steam
Packet Co., 240
r. Steer, 502
v. Wordley, 838
Adamson v. Jams, 745, 759
Addison i\ Gandasequi, 781
Affleck v. Child, 312
Aga Kurboolie Mahomed v. The
Queen, 411
Agacio v. Forbes, 781
Agar v. Athenseum life Ass. Soc.,
606
Agnew r. Jobson, 91
Agricultural Cattle Insurance Co.
i*. Fitzgerald, 148
Aiken r. Short, 77, 252> 758
Ainsworth v. Creeke, 828
Aislabie r. Rice, 233
Aitkenhead v. Blades, 294
Albert v. Grosvenor Investment
Co., 835
Albon r. Pike, 620
Albrecht t\ Sussman, 73
Alcock (ex pte.), 133
v. Cooke, 49, 60
Alder r. Boyle, 552
Alderman v. Neate, 504
Alderson v. Davenport, 793
Aldis v. Mason, 581
Aldous v. Com well, 148
Aldred's case, 362
Aldred t\ Constable, 342
Aldridge v. Great Western R. C,
349
r, Johnson, 279
Alexander r. Alexander, 513
r. Yanderzee, 99
Alhambra (The), 574, 878
Alhusen v. Labouchere, 924
Allan, app., Waterhouse, rtsp.,
795
v. Lake, 738
Allaway r. Wagstaff, 187, 371
Allen, app.t House, resp., 582
r. iDundas, 318, 912
v. Edmundson, 658
r. Hayward, 828
v. Hopkins, 760
v. Maddock, 632
v. Milner, 326
v. Pink, 838
v. Rescous, 687
r. Richardson, 731
r. Worthy, 333
AUeyne v. Reg., 122
Allsop v. Allsop, 199
Allum v. Boultbee, 138
Allwood v. Heywood, 459
Alner v. George, 18
Alsager v. Close, 97
Alston v. Grant, 362
r. Herring, 218, 370
c 2
XXXVI
TABLE OF CASES.
Alston v. Scales, 6
Altham's case, 07
Alton Woods (The case of), 48,
60
r. Midland B. C, 706, 745
Amalia (The), 609
Amann v. Damm, 312
Ambergate, Nottingham, and
Boston B. C. v. Midland B. C,
293
Ambrose v. Kerrison, 494
Ames r. Waterlow, 274
Amies v. Stevens, 'l 34
Amos r. Smith, 695
Ancona v. Marks, 825
Anderson v. Fitzgerald, 552
v. Lanerwille, 485
v. Eadcliff, 342, 6S9
v. Thornton, 950
Andree v. Fletcher, 674
Andrew v. Motley, 466
Andrews v. Elliott, 131, 161
v. Laurence, 148
v. Marris, 83, 88
Anglo-Egyptian Co. c. Bennie,
230
Annesley v. Anglesoa (Earl of),
894
Anon., Aleyn, 124
1 Lev., 123
Loflt, 442
2 Falk., 132
1 Salk., 110
Ansdell v. Ansdell, 32
Anstee v. Nelms, 592
Anthony «. Haney, 296
Appleby r. Myers, 231, 234
Apps v. Day, 138
Archer v. James, 528
Arden v. Goodacre, 192, 289
Arkwright v. Gell, 359
Arlington v. Merrick, 601
Armory v. Delamirie, 337, 893
Armstrong's Trusts (re), 464
Armstrong v. Armstrong, 692
r. Burnett, 665
v. Normandy, 908
• • v. Stokes, 779
Arnold v. Holbrook, 3
Arthur v. Barton, 792
Ash v. Abdy, 527
- v. Daunay, 294
Ashby v. White, 139, 147, 182,
184, 185, 192
Asher v. Whitlock, 668
Ashford v. Thornton, 833
Ashforth v. Bedford, 99
Ashley v. Harrison, 200
Ashlin v. White, 748
A&hmead «. Banger, 448
Ashmole v. Wainwright, 76,
267
Ashton v. Poynter, 24
v. Sherman, 782
Ashworth, ajyp.y Hey worth, reap.,
457
Aspden v. Seddon, 662
Aspdin v. Austin, 504, 60S
Aftsop v. Yates, 199, 350, 810
Astley v. Reynolds, 168, 269
Aston t\ Heaven, 234
Atherley v. Harvey, 924
Atkins i>. Ban well, 708, 714 "
v.Hill, 715
v. Kilby, 92
Atkinson v. Denby, 250, 267, 673
v. Fell, 620
v. Newcastle Water-
works, 199
v. Pooock, 755
v. Bitchie, 240
v. Stephens, 720
Atkyns v. Kinnier, 302
Att.-Gen. v. Bovet, 456
v. Bradbury, 527
v. Brazen Nose Coll.,
883
v. Bristol Waterworks
Co., 31
v. Bristow, 62
v. Chelsea Waterworks
Co., 27, 539
v. Clerc, 582
v. Donaldson, 68
v. Drummond, 883, 884
v. Ewelme Hospital,
277
r. Forster, 638
v. Hertford (Marquis
of), 31
v. Hollingworth, 674,
680, 681
v. Jackson, 38
v. KtShler, 45
TABLE OF CASES.
XXXVU
Att.-Gen. v. Lock wood, 3, 25,
301, 532
v. Marlborough (Duke
of), 178
r. Mathias, 872, 874
r. Moore, 25
r. Parker, 638, 884
t\ Physicians (The
Coll. of), 262
r. Eadloff, 70
r. Rogers, 104
- r. Rudloff, 928
r. Shillibeer, 636
r. Sillem, 30, 104, 528,
301, 620, 639
v. Truemau, 67
v. Walmsley, 67
r. Windsor (Dean, &c,
of), 321, 893
Attack v. Bramwell, 294, 408
Attenborough (re), 444
Attwood v. Small, 609, 690, 729,
743
Auchterarder (Presbytery of) r.
Kinnoul (Lord), 282
Aulton v. Atkins, 210
Austin v. Chambers, 378
v. Great Western E. C,
387
v. Holmes, 142
Avery v. Bowden, 240, 244, 898,
v. Cheslyn, 393, 393
Aveson v. Kinnaird (Lord), 921
Awde v. Dixon, 438
Ayles t?. Cox, 730
Ayrton v. Abbott, 83
Azemor v. Casella, 618
B.
Babcock v. Lawson, 439
v. Montgomery County
Mutual Insurance Co., 211
Backhouse v. Bonomi, 187, 353, 853
Bacon v. Smith, 865
Badely v. Vigors, 329
Bagg's case, 107
Baggett v. Meux, 425, 426
Bagnall t>. London and North
Western B. C, 348, 351
Bagot (Lord) v. Williams, 318
Bagshaw v. Go ward, 294
Bagueley r. Hawley, 758
Bafldon v. Walton, 772
Bailey v. Bidwell, 710
v. De Crespigny, 230, 435
r. Edwards, 660
r. Harris, 694
v. Porter, 658
r. Stephens, 432, 876
Bain v. Fothergill, 137, 144
v. Whitehaven and Purness
Junction B. C, 485
Bainbridge v. Lax, 842
v. Wells, 576
Baines v. Ewing, 787, 874
v. Holland, 601
v. Swainson, 763
Baird v. Fortune, 576, 855
v. Williamson, 189, 354,
355
Baker (re), 330
v. Bolton, 868
r. Cave, 797, i)06
r. Jubber, 149
v. Tucker, 499
Balfe v. West, 701
Balmain v. Shore, 428
Ball {ex pte.) re Shepherds, 204,
757, 868
Bamberger v. Commercial Credit
Mutual Ass. Soc, 148
Bamford v. Turnley, 362
Bandon (Earl of) v. Beecher, 317
Bandy v. Cartwright, 726, 757
Bane v. Methven, 453
Bank of British North America
v. Cuvillier, 600
of England v. Anderson,
639
~— of Louisiana v. First
National Bank of New
Orleans, 286
of New South Wales v.
' Ouston, 803
Bankart v. Bowers, 722
Banks v. Newton, 287
Banner v. Berridge, 98
Bannerman v. White, 747
Banwen Iron Company v. Bar-
nett, 175
Barber v. Brown, 251, 713
XXXV111
TABLE OF CASES.
Barber r. Butcher, 580
r. Lesiter, 199
r. Pott, 268, 781
Barclay (expte.), 897
Baring v. Christie, 637
t\ Corrie, 761
Barker (re), 631
t\ Allan, 629
v. Cox, 730
v. Green, 181
v. Greenwood, 778
v. Highley, 792
r. Midland R. C, 195
v. St. Quintin, 834
r. Stead, 788
v. "VVindle, 747
Barkworth v. Ellerman, 707
v. Young, 232
Barley v. Walford, 754
Barnardiston v. Soamc. 160, 202
Barnes*. Braithwaite, 77
i\ Keane, 906
r. Lucas, 894
Vt Ward 264
Barnett v. Guilford (Earl of),
127
v. Lambert, 788
Barr v. Gibson, 734, 740
Barrett v. Bedford (Duke of),
647
r. Long, 314
v. Stockton and Darling-
ton R. C, 557
Barrick t\ Buba, 73
Barrington's case, 7
Barronet {re), 261
Barry v. Arnaud, 85
v, Oroskey, 223
v. Robinson, 860
Bartholomew v. Bushnell, 736,
759
Bartlett v. Baker, 360
t?. Crozier, 185
v. Kirwood, 107
i\ Lewis, 924
v. Ramsden, 126
r. Rendle, 190
v. Smith, 102
r. Viner, 695
r. Wells, 310, 652
Barton v. Dawes, 584, 630
v. Fitzgerald, 533
Bartonshill Coal Co. v. M'Guire,
815
r/ Raid, 811
Barwick r. English Joint Stock
Bank, 752, 803
Baskerville's case, 63
Basley v. Bethune, 100
Bastable v. Poole, 781
Basten v. Carew, 84
Batard v. Hawes, 713
Bateman v. Bailey, 922
Baton's case, 372
Bates i?. Hewitt, 750
v. Townley, 326
Bathurst (Borough of) r. Mac-
pherson, 197
v. Errington, 524
Bath's (Earl of) case, 575
Battishill v. Reed, 372
Batty t\ Marriott, 674
Baxendale v. Groat Western R. C,
a, ooi
Baxter, app., Newman, rcsp., 428
v. Burneld, 857
Bayley v. Merrel, 738
r. Manchester, &c, R.
Co., 803
r. Wiikins, 453, 882
r. Wolverhampton Water-
works Co., 350, 366
Bayliffe v. Butterworth, 882
Bay lis r. Att.-Gen., 562
r. Laurence, 101, 313
t\ Le Gros, 506
v. Strickland, S4, 88
Bayne t?. Walker, 228, 234
Bazeley v. Forder, 494
Bealet'. Caddick, 771
r. Moules, 788
v. Sanders, 723
Bealey v. Stuart, 504, 722
Beamish v. Beamish, 176, 321,
468, 470, 471
Beard v. Egerton, 49, 346, 510
Beardman v. Wilson, 435
Beatson v. Skene, 312
Beauchamp v. Winn, 256
Beaudely v. Brook, 447
Beaudry v. Montreal (the Mayor
of), 134
Beaufort (Duke of) r. Neeld,
729
TABLE OF CASES.
XXXIX
Beaufort (Duke of) r. Swansea
(Mayor of), 883, 884
Beaumont r. Barrett, 455
r. Brengeri, 18
r. Field, 588
r. Beeve. 708
Beanraiu r. Scott, 83
Beavan v. Delahay, 388
Becher r. Great Eastern B. C,
706
Beck v. Bebow, 398
Beckett v. Midland B. C, 200
Beckh r. Page, 636
Beckham v. Drake, 856, 858
Bective v. Hodgson, 464
Bedford Infirmary (Governors of)
r. Bedford (Commissioners of),
606
Beer v. Beer, 505
Beer, app,, Santer, reap., 636
v. Walker, 742
Beere v. Foakes, 703, 843
Beeston r. Weate, 189
Begbie t\ Levi, 19
Behn r. Burness, 508, 734
r. Kemble, 747
Belcher v. Sambourne, 67H
Beldon v. Campbell, 452
Belfour v. Weston, 228
BeH(expteX 675
r. Gardiner, 149, 253
v. Graham, 470
v. Midland B. C, 246, 372
p. Morrison, 846
v. Simpson, 304
Bellamy v. Majoribanks, 879
Benett v. The Peninsular and
Oriental Steam Boat Co., 118
Benham v. United Guarantee, &c,
Co., 747
Benjamin v. Andrews, 764
v. Storr, 197
Bennett r. Bays, 798
— i\ Herring, 443
Bennison r. Cartwright, 361
Benson r. Paull, 649
BentiLey (ex pte.), 397
Berdoe v. Spittle, 643
Beresford r. Geddes, 133
Bernardie v. Motteux, 912
Bermondsey (Vestry) v. Bamsey,
373
Berriman v. Peacock, 379
Berry v. Alderman, 672, 710
Berwick v. Andrews, 861
v. Horsfall, 97
, (May. of) v. Oswald, 230,
240, 601
Besant v. Cross, 562
Bessell v. Wilson, 108, 109
Bessey v. Windham, 681
Beswick v. Swindels, 241
Betterbee v. Davis, 168
Bette v. Gibbins, 683
v. Menzies, 510
v. Walker, 629
Bevans v. Bees, 168
Bewick t>. Wintfield, 379
Biccard v. Shepherd, 800
Bickerdike v. tollman, 658
Bickerton v. Burrell, 288, 553
Biddulph r. Lees, 518
Biffin v. Yorke, 531
Bigge v. Parkinson, 617, 739,
742
Bignold v. Springfield, 643
Bilbie v. Lumley, 249, 250
Billiter v. Young, 697
Bingle (rr), 150
Binnington v. Wallis, 708
Birch (re), 901
Bird v. Brown, 826, 827
v. Holbrooke, 262
». Belph, 870
Birkenhead Docks (Trustees of)
v. Birkenhead Dock Co. , 23
Birkett v. Morris, 196
v. Whitehaven Junction
B. C, 366
Birks, app., Allison, resp., 526
Birt v. Boutinez, 481
Bishop v, Curtis, 435
v. Elliott, 400, 402, 541
v. Pentland, 212
Bittlestone v. Cooper, 590
Bize v. Dickason, 250, 252, 256
Black v. Smith, 168
Blackett v. Bradley, 353, 876
v. Weil-, 682
Blaokham v. Pugh, 311
Blackwell v. England, 499
Blades v. Higajs, 297, 337, 413
Blagrave v. Bristol Waterworks
Co., 190
xl
TABLE OF CASES.
Blaikie v, Steinbridge, 801
Blake's case, 834
Blake r. Foster, 177
Blakemore v. Bristol & Exetor
R. C, 745
v. Glamorganshire Ca-
nal Co., 557, 558
Blakesley r. Whieldon, 449
Blamford v. Blamford, 513
Bland v. Crowley, 500
v. Boss, 800
Blayue p. Gold, 595
Blewett, app.t Jenkins, resp.t 874
Blight v. Page, 242
Block «. Bell, 553
Blofield v. Payne, 195
Bloodworth v. Gray, 310
Blow v. Russell, 1(58
Blowers v. Rackham, 86
Bloxsome v, Williams, 18
Bluck v. Siddaway, 707
Bluett v. Tregonning, 872
Blundell v. Gladstone, 589
Blyth I?. Birmingham Waterworks
Co., 202, 224, 350
v. Dennett, 166
Boast v. Firth, 230
Boden v. French, 572
v. Wright, 710
Bodenham v. Purchas, 774
Bod field v. Padmore, 255
Bodger v. Arch, 695, 862
Boiieau v. Rutlin, 326, 910, 913
Bolckow v. Seymour, 99
Bolingbroke v. Kerr,. 857
Bolton 17. Gladstone, 912
Bonaker v. Evans, 107
Bonar v. Macdonald, 660
Bond v. Gibson, 785
v. Hopkins, 279
v. Roslin, 503
Bonelli {re goods of), 892
Bonomi v. Blackhouse, 347
Boodle v. Campbell, 277
v. Davis, 31
Boorman v. Brown, 194
Boosey v. Parday, 138
Booth r. Alcock, 277
r. Bank of England, 456
v. Clive, 134
r. Kennard, 98, 344
Boraston v. Green, 389, 443
Borradaile v. Hunter, 501, 543,
603
Boa v. Helsham, 731
Bosanquet v. Dashwood, 269
r. Wray, 772
Bostock v. Hume, 778
v. North Staffordshire
R. C, 620
Botten v. Tomlinson, 793
Bottomley's case, 500
Bottomlev v. Hay ward, 845
Boucicault v. Chatterton, 346
r. Delafield, 346
Boughton v. James, 522
Boulton 17. Bull, 345
v. Crowther, 6
r. Jones, 553
Bourne v. Fosbrooke, 466
r. Gatliff, 879
t\ Mason, 706
Bousfield r. Wilson, 635, 678, 690
Bovill v. Pimm, 98
Boville v. Wood, 130
Bowden r. Waithman, 793
Bowen v. Gwen, 169, 627
Bower v. Hodges, 607
t\ Peate, 807
Bowerbank v. Monteiro, 839
Bowes r. Foster, 681
r. Shand, 98, 764
Bowman v. Blythe, 300
v. Horsey, 618
Bo wring v. Stevens, 738
Bowyer v. Cook, 372, 63*
Boydell 17. Drummond, 629
v. M<Michael, 397
Boyes 17. Bluck, 534
Boylo v. Brandon, 199
v. Wiseman, 102, 923
Boyse 17. Rossborough, 272
Brace r. Marlborough (Duchess
of), 339
Bracewell v- Williams, 702
Bradbee v. London (Mayor, &c.
ofj, 351, 352
Bradburne v. Botfield, 505
Bradbury v, Anderton, 613
17. Morgan, 859
Bradlaugh v. De Bin, 902
v. Evans, 923
Bradley v. Bardsley, 149*
r. Benjamin, 231
TABLE OF CASES'.
:li
Bradley v. Carr, 83
v. Cartwright, 520
v. James, 916
r. Pilots of Newcastie,883
r. Warburg, 130
r. Washington Steam
Packet Co., 567
Bladlie v. Maryland Insurance
Co., 214
Bradshawv. Beard, 444, 713
v, Lawson, 415
v. Tasker, 34
Brady v. Giles, 809
v. Todd, 453
Brain v. Harris, 629
v. Thomas, 199
Braithwaite v. Coleman, 895
v. Gardiner, 287
v. Skinner, 185
Bramston v. Colchester (Mayor
of), 23
v. Robins, 250
Brandao v. Barnett, 648, 879
Brandon v. Brandon, 664
v. Robinson, 429
v. Scott, 164, 288
Branson v. Didsbury, 138
Brass o. Maitland, 194, 738
Braunstein v. Accidental Death
Insurance Co., 552
Braye Peerage (The), 902
Breadalbane (Marquis of) v. Mar-
quis of Chandos, 258
Brecknock Co. v. Pritchard, 229
Bree v. Holbech, 725, 855
Breese v. Owens, 451
Bremer v. Freeman, 485
Bremner v. Hull, 899
Brewer v. Jones, 707
v. Sparrow, 161
Brewster v. Kitchell, 230, 240
Briddon v. Gt. Northern R. C., 234
Bridgeman v. Green, 425
t;. Holt, 110
Bridges v. Garrett, 747, 778
v. Hawkesworth, 337, 769
Bridgman v. Dean, 703
Bright v. Legerton, 919
Brighty v. Norton, 102
Brindson v. Allen, 658
Brinsmead v. Harrison, 324
Brisbane v. Dacres, 250, 252, 272
Bristol (Earl of) v. Wilsmore, 296f
686
Bristol & Exeter R. C. v. Garten,
636
Bristol & North Som. Co. (re), 239
Bristow v. Sequeville, 892
v. Whitmore, 663
British Columbia Saw Mill Co. v.
Nettleship, 220
British Linen Co. v. Caledonian
Insurance Co. , 768
Brittainr. Lloyd, 712
v. Kinnaird, 83
Britton v. Cole, 798
v. Gt. Western Cotton Co.,
815
Broadbent v. Imperial Gas Co., 192
r. Ramsbotham, 189,
350
v. Wilkes, 872
Brogden v. Marriott, 243
Bromage v. Lloyd, 543
v. Vaughan, 157
Bromley v. Holland, 250
Brook (re), 106, 107, 109
v. Hook, 827
p. Jenney, 373
Brooke v. Brooke, 468, 469, 478
Brookes v. Tichbourne, 888
Brooks v, Bockett, 34
v. Hodgkinson, 122
r. Rivers (the Earl of),
110
Broom v. Batchelor, 498, 508
Broomneld v. Kivber, 154
Broughton v. Conway, 535
Brown v. Annandale, 344
v. Bussell, 816
r. Byrne, 620
v. Chapman, 121
r. Copley, 83, 805
r. Edgington, 739, 741
v. Fletcher, 6M3
t\ Glenn, 408, 410
r. Hodgson, 780
v. Howard, 855
r. Jones, 88
v. Laneley, 839
v, London (Mayor of), 238
v. Manchester S. & L. By.,
265
v. Mallett, 360
xlii
TABLE OF CASES.
Brown r. Robins, 187
v. Boyal Insurance Co.,
229, 244
r. Windsor, 351
Browne v. Lee, 713
Browning v. Dann, 409
v. Morris, 674
Brownlie v. Campbell, 137
Brownlow v. Metropolitan Board
of Works, 818
Brudenell v. Elwes, 521
Bruflfv. Conybeare, 567
Bruno v, Thompson, 883
Brunswick (Duke of) v, Harmer,
853
■ 1?. Slowman,
408, 631
Brnnton r. Ilawkes, 49
Bryan v. Clay, 870
Bryant v. Beattio, 241
t\ Busk, 234
v. Foot, 876, 903
r. Lefever, 189
«. Wardoll, 445, 636
Bryden v. Stewart, 813
Brydges v. Phillips, 612
v. Smith, 117
Buccleuch (Duke of) t*. Metropo-
Htan Board of Works, 4
Buckby v. Coles, 447
Buckhurst's (Lord) case, 459
Buckhurst Peerage, 48
Buckhurst (The), 227
Buckland v. Butterfield, 400
v. Johnson, 322, 324
Buckley t. Barber, 427
v. Gross, 337, 769
Buckmaster, a pp. , Reynolds, resp. ,
300
v. Meiklejohn, 326
v. Russell, 98
Budd r. Fairmaner, 615, 738
Buddie v. Green, 760
Bull v. Robinson, 739
B alien v. Denning, 550
v. Sharp, 667, 785
Buller v. Mountgarret, 897
Bullock v. Richardson, 924
Bulwer v. Bulwer, 384
Bunbury v. Hewson, 870
Bunch v. Kennin^ton, 273
Burbidge v. Moitis, 789
Burchell v. Hickisson, 264
Burchfield v. Moore, 148
Burdan v. Greenwood, 80
Burder t\ Velo5r, 4
Burdett r. Abbott, 407
Burgess v. Boetefeur, 'SAO
r. Bracher, 546
v. Gray, 809
Burgh v. Legge, 758
Burling v. Read, 413
Burmester v. Norris, 792
Burn v. Carvalho, 34
Burns v. Chapman, 119
Burnand v. Rodoconachi, 165
Burnard, app., Haggis, resp., 310
Burnby r. Bollett, 742
Burnside v. Dayrell, 788
Buron v. Denman, 821, 831
Burrage v. Nicholetts, 295
Burrows v. March Gas Co., 199,
201
Burt v. Haslett, 400, 541
Burton v. Griffiths, 102
r. Reevell, 503
v. Thompson, 138
Bush v. Martin, 714, 850
Bushell's case, 81, 96, 101
B usher, app., Thompson, resp.,
872
Busk v. R. E. A. Co., 212
Butchor v. Butcher, 413
v. Henderson, 26
Bute (Marquis of) v. Thompson,
240
Butler v. Kent, 199
v. Knight, 193
Butter and Baker's case, 127
Butterfeilds t?. Burroughs, 737
Button v. Thompson, 613
Bwlch-y-Plwm Lead Mining Co.
v. Baynes, 697
Byam r. Bullard, 262
Byrne v. Manning, 158
C.
Cadaval (Duke de) v. Collins, 271,
272
Cadell v. Palmer, 135, 423, 424
! Cadgo {in the goods of), 150
TABLE OF CASES.
xliii
Cage v. Acton, 120, 129
r. Paxton, 535
Caine v. Horsfall, 881
Caines v. Smith, 723
Calcutta and Burmah Steam Na-
vigation Go. v. De Mattos, 649
Caldeoott v. Smythies, 389
Calderr. Halket, 81
Calder and Hobble Navigation Co.
v. Pilling, 20, 451
Caledonian R. Co. v. Colt, 620
v. Cort, 185
v. Lockhart, 656
v. North British
R. Co., 531
r. Sprot, 187, 445
v. Walker's trus-
tees, 5
Callaghan v. Callaghan, 681
Calland t>. Troward, 120
Callisher v. Bischoffheim, 704
Calvert t>. Baker, 150
Calvin's case, 72, 74
Camberwell Bent-charge (re), 107
Cambridge v. Rous, 584
Cameron v. Charing Cross R. Co.,
200
Camidge v. AUenby, 845
Cammell v. Sewell, 912
Camoys (Lord) r. Blundell, 589,
592
Campbell v. Campbell, 137, 682
v. Fleming, 697
v. Loader, 328
t*. Rickards, 889
r. Spottiswoode, 313
r. Strangeways, 138
v. Webster, 613
Canadian Prisoners' case, 94
Candler v. Candler, 892
Canham v. Barry, 230, 232, CG8, 686
Cann v. Clipperton, 93
Cannam v. Fanner, 287, 652
Cannan v. Reynolds, 328
Cannot v. Morgan, 330
Canterbury (Vise.) r. Att.-Gen.,
43, 55, 203, 228, 366, 820, 866
Canterbury's (Archb. of) case, 606
Capel v. Child, 107
v. Powell, 869
Capital and Counties Bank v.
Henty, 314
Card v. Case, 368
Cardigan (Earl of) r. Armitage,
376, 450
Carew v. Duckworth, 658
Cargey v. Aitcheson, 580
Canyon v, Lovering, 872
Cannae v. Warriner, 736, 739
Carman v. Reynolds, 256
Carmichael r. Carmichael, 274
Can- v. Hood, 313
r. Jackson, 553
r. L. & N. W. 31. Co..
284
p. Martinson, 168
v. Montefiore, 512, 750
i». Roberts, 856
c. Royal Exchange Ass. Co.,
529
v. Stephens, 329
Carratt v. Morley, 83, 88, 89
Carron Co. v. Hunter, 691
Carter v. Boehm, 750, 889
t\ Carter, 649
v. Crick, 736, 880
v. Flower, 658
r. James, 320, 326
v. Wormald, 842
Cartwright v. Green, 924
Casher v. Holmes, 606
Cashill v. Wright, 350
Castellani r. Thompson, 286
Castleden v. Castleaen, 845
Castledon r. Turner, 562
Castrique v. Imrie, 912
Caswell, app., Cook, reap., 527
r. Worth, 262, 367
Catchpole v. Ambergate, &c.,R. C,
183
Cates v. Knight, 620
Catherwood v. Casio n, 474
Catlin v. Bell, 795
Caton r. Caton, 840
Oattell r. Ireson, 928
Catterall v. Catterall, 470
v. Hindle, 96, 778
Catton v. Simpson, 148
Caudrey's case, 156
Cave v, Hastings, 630
r. Mills, 161
t>. Mountain, 83
Central R. C. of Venezuela t*.
Kisch, 738, 743
xliv
TABLE OF CASES.
Chadwick t». Marsden, 447
v. Trower, 352
Chamberlain v. The Chester and
BirkenheadR.C.,198
v. Boyd, 200
v. King, 94
r. Williamson, 857
Chambers v. Bernasconi, 919
v. Mason, 202
v. Miller, 297
Chandelor v. Lopus, 737
Chandler (in re), 111
v. Doulton, 192
Chandoe (Marquis of) v. Commis-
sioners of Inland Revenue, 527
Chanel v. Eobotham, 45$
Chaneyt*. Payne, 582
Channon v. Patch, 380
Chanter v. Dewhurst, 739
v. Hopkins, 616, 734, 735,
739, 741
v. Leese, 242
Chapleo v. Brunswick Building
Society, 784
Chapman v. Bluck, 638
t». Dalton, 642
r. Freston, 290
r. Pickersgill, 183
r. Rothwell, 366
r. Shepherd, 268, 882
v. Spiller, 758
r. Walton, 889
Chappell v. Purday, 30, 346
Chappie v. Cooper, 493
Charles River Bridge v. Warren
Bridge, 449
Charloton v. Spencer, 534
Charlotte (The), 261
Charnley v. Winstanley, 278
Chartered Mer. Bk. of India v.
Netherlands SS. Co., 216
Chasemore v. Richards, 189, 337,
347, 356, 360
v. Turner, 98
Chatfield v. Paxton, 253
Chatterton v. Cave, 138
Chauntler v. Robinson, 353
Cheesman v. Exall, 444, 760
Cheotham v. Ward, 659
Chelsea (Vestry of), app., Bang,
reap., 5
Cheney v. Courtois, 498, 906
Chesman v. Nainby, 695
Chester v. Wortley, 924
Chesterfield, &c, Colliery Co. v.
Hawkins, 504
Chevely v. Fuller, 98
Cheyney's case, 562, 5R7, 637
Chichester v. Lethbridge, 197
Chilton v. London and Croydon
R. C, 451
Chod v. Tilsed, 883
Cholmondeley (Marq. of) v. Clin-
ton (Lord), 338, 501, 534, 561
Chope v. Reynolds, 215
Chorlton v. Lings, 600
Chown v . Baylis, 205
Christchurch (Dean, &c, of) v.
Buckingham (Duke of), 274
Christie v. Boulbee, 723
v. Gosling, 416, 424
Christopherson v. Burton, 13, 342
Chuck v. Cremer, 159
Church v. Mundy, 604
Churchill v. Churchill, 101
v. Signers, 124, 190
Churchward v. Ford, 607
v. Reg.t 55, 244,505,
625
City Discount Co. v. McLean,
775
Clancy v. Piggott, 841
Clan Gordon ( The), 24
Clarence Railway Company v.
Great North of England Rail-
way Company, 5, 449
Claridge's Patent (in re), 344
Clark v. Adie, 164, 311
v. Alexander, 463
v. Chambers, 201, 367
v. Woods, 91, 272
Clarke v. Bradlaugh, 25, 68, 70,
12*', 138
v. Cogg, 376, 447
v. Colls, 519
r. Crofts, 857
17. Dixon, 255, 289, 686,
697
r. Holford, 399
v. Holmes, 814
v. Royston, 388, 619
?\ Tinker, 154
v. Wright, 38
Clay v. Turley, 837
TABLE OF CASES.
xlr
Claydon v. Green, 530
Clayton's case, 774
Clayton (ex pie.), 527
v. The Att.-Gen., 166
v. Corby, 876
v. Kynaston, 659
v. Lord Nugent, 563, 632
Clegg v. Dearden, 325
Clement v. Weaver, 78
Clements v. Scudamore, 338
Clere's case, 126
Cleveland v. Spier, 264, 362
Clifb v. Schwabe, 509, 543, §77,
638
Clifton v. Cockburn, 249
v. Hooper, 192
Climie v. Wood, 395, 396, 397
Close v. Phipps, 268
Clothier v. Webster, 818
Clough v. Baddiffe, 684
Clow v. Brogden, 196
Clubb v. Hutson, 689
Clunnes v. Pezzer, 894
Cobb v. Becke, 707, 794
17. Mid- Wales B. C, 39
Cobbett v. Warner, 327
Cock v. Gent, 7
Cockburn v. Alexander, 555, 881
Cocker v. Tempest, 129
Cockerill v. Cholmeley, 258
Cocking v. Ward, 717
Cockram v. Irlam, 795
Cockrill v. Sparkes, 98
Cocks v. Nash, 834
Cocksedge v. Cocksedge, 263
Coddington v. Paleologo, 879
Codrington v. Codrington, 167
Coe v. Lawrence, 528
— v. Wise, 192
Coggs v. Bernard, 234
Colburn v. Patmore, 682, 685
Colchester (Mayor of ) v. Brooke,
361
Cole v. Goble, 511
v. N. W. Bank, 763
Colegrare v. Dias Santos, 391,
395, 396
Coleman v. Biches, 820
Coles v. Hulme, 533, 534
v. Pack, 653
v. Trecothick, 795
Collen v. Wright, 750, 785
Collett v. Foster, 124, 190, 798, 830
Collingridge r. Royal Exchange
Ins. Co., 196
Collingwood v. Berkeley, 788
Collins v. Aron, 78
v. Blantern, 79, 651, 687
v. Bristol and Ex© te r 11. C ,
234
v. Brook, 707
v. Cave, 199
v. Evans, 753
v. Middle Level Commis-
sioners, 201, 355
Collis v. Selden, 745
Colman v. Eastern Counties Bail-
way, 7
v. Foster, 441
Colmore 1?. Tyndall, 503
Columbine Insurance Co. v. Law-
rence, 212
Colwill t7. Beeves, 279
Commercial S. S. Co. v, Boulton,
138
Comyn t7. Comyn, 263
Connelly v. Steer, 341
Conradi v. Conradi, 317
Constable v. Nicholson, 872, 876
Cook 17. Clark, 412
v. Jennings, 242, 610, 613
17. Lister, 837
v. Palmer, 793
Cooke v. Birt, 412
v. Tauswell, 896
17. Tonkin, 789
17. Waring, 186, 368
17. Wildes, 314
v. Wilson, 288, 782
Coombes v. Dibble, 674
Coombs (re), 112
17. The Bristol and Exeter
B. C, 778
case, 794
Cooms (re), 268
Coomer v. Latham, 89
Cooper v. Cooper, 167
17. Crabtree, 372
17. Harding, 547
v. Hubbock, 834
v. Johnson, 857
17. Law, 746
v. Parker, 703, 843
v. Phibbs, 247, 256
xlvi
TABLE OF CASES.
Cooper r. Reg., 37
r. Shepherd, 324
r. Simmons, 264, 857
r. Slade, 821
r. Walker, 611
r. Wandsworth Board of
Works, 109
r. Willomatt, 445
r. Woolfitt, 386, 464
Cope r. Albinson, 716
r. Cope, 538
v. Rowlands, 694
Copeland («r»te.), 640
Copeman r. Gallant, 529
Copland r. Laporte, 536
Copley r. Burton, 17
Corbet's case, 422
Corbet r. Hill, 373
Corcoran r. Gurney, 213
Cork and Bandon R. C. v. Goode,
848
Cornell v. McGorlish, 713
Corner r. Shew, 839
Cornfoot r . Fowke, 750
Cornforth r. Smithard, 98
Cornill r. Hudson, 851
r. Cleiff, 607
r. Keene, 344
Corry v. Burr, 215
Corsar v. Reed, 159
Cort v. Sagar, 447
Corturier v. Hastie, 881
Costar r. Hetherington, 332
Cotes v. Michil, 88
Cothay v. Fennel, 781
Cotterel v. Jones, 190
Couch v. Steel, 199, 813
Counden v. Clerke, .567
Courtauld v. Legb, 364
Courtenay v. Strong, 242
Courtney t\ Taylor, 504
Couston v. Chapman, 735
Coventry v. Apsley, 853
Coverley v. Burrell, 738
Cowan v. Buccleuch (Duke of),
131
r. Milbourn, 208, 693
Coward r. Baddeley, 300
v. Gregory, 866
Cowell v. Edwards, 713
Cowie i'. Barber, 674
Cowley v. Dunlop, 613
Cowper v. Godmond, 854
v. Green, 703
Cox v. Burbidge, 368
— r. Glue, 372
~ t-. Godsalve, 386
— r. Hiokman, 785
— r. Hubbard, 288
— r. Lee, 310
— r. Leigh, 884
— v. London (Mayor of), 876
— r. Masterman, 255
— r. Midland Counties R. C,
781
— ' r. Mitchell, 332
— v. Morgan, 845
— v. Prentice, 670
Coxhead v. Richards, 311
Cracknell v. Thetford (The Mayor
of), 192, 559
Craig v. Levy, 159
Crane v. London Dock Co., 764
v. Powell, 629
Crauston v. Marshall, 747
Craven v. Smith, 320
Craw v. Ramsay, 74
Crawcour v. Salter, S82
Crawshay v. Maule, 428
v. Thompson, 748
Crease v. Barrett, 917
Creighton v. Rankin, 660
Crepps v. Durden, 19
Cre8pignyi\ Wittenoom, 529
Cripp8 «. Reade, 725
Crisp v. Anderson, 894
Critchley (expte.)% 687
Croft t. Alison, 805, 809
v. Lumley, 457, 771
v. Stevens, 314
Crofts r. Beale, 709
v. Harris, 326
v, Waterhouse, 234
Croll r. Edge, 49
Crompton v. Lea, 355
CroocKewit r. Fletcher, 150, 50S
Crookenden v. Fuller, 485
Cropper v. Cook, 639, 874, 882
Cross v. Williams, 788
Crosse v. Gardner, 759
Crossfield v. Morrison, 602
r. Such, 427, 862, 865
Crossing v. Scudamore, 500
Crossley r. Dixon, 164
TABLE OF GASES.
xlvii
Crotty v. Hodges, 1-19
Crow v. Edwards, 131
r. Falk, 634
v. Bogers, 703
Crowder v. Long, 793
Crowhurst v. Ameraham, 349
Crowther v. Fairer, 702
Cackfield Burial Board (re), 69
Cuckson v. Stone, 231
Cullen v. Bailer, 543
r. Thompson's Trustees,
783
Camber v. Wane, 117, 843
Camming v. Bedborough, 250,
267
r. Forrester, 49
v. Ince, 272
Cummins v. Heard, 326
Cumpston t\ Haigh, 553
Canard v. Hyde, 689
Condell v. Dawson, 686, 694
Curlewis r. Clarke, 843
v. Laurie, 408
v. Lord Mornington, 85-3
Curzon v. Belworthy, 686
Curteis v. Kenrick, 466
Cutler v. Turner, 319
Cuthbert v. Cumming, 874
t\ Haley, 688
Cuthbertson v. Irving, 177
Cutter v. Powell, 613, 618
D.
Bails t\ Lloyd, 251
Dains v. Heath, 629
Dakins v. Seaman, 22
Dalby v. Hirst, 389, 874
Dale v. Humfrey, 620
Dalhousie (The Countess of) v.
M'Dowall, 482
D'Allex v. Jones, 694
Dahner v. Barnard, 153
Dalrymple v. Dalrymple, 468
Dalston v. Coatsworth, 893
Dalton v. Angus, 38, 137, 187,
807
Daly v. Thompson, 273
Dalyell r. Tyrer, 801, 809
Dand v. Kingscote, 450
Daniel v. Gracio, 579
r. Morton, 107
v. Sinclair, 257
Daniell v. Directors of Metro*
politan B. C, 807
Daniels v. Fielding, 190
Danks (ex pteX 168
Dansey v. Richardson, 350
Danube, Ac., B. C. r. Xenos,
243
Danvers v. Morgan, 327
Darby v. Ouseley, 310
D'Arcy v. Tamar, 902
Darcy (Lord) r. Askwith, 379,
458
Darnley (Earl of) v. London, Chat-
ham and Dover B. C, 132
Dart v. Dart, 75
Dartmouth (Mayor of) v. Silly,
Dash v. Van Kleeck, 28, 29
Dash wood r. Jermyn, 706
Davenport v. Mason, 954
Davidson v. Burnand, 543
v. Cooper, 148, 149, 150
r. Sinclair, 137
v. Stanley, 782
Davies v. Humphries, 713, 854
v. Jenkins, 124, 190
— — v. Lowndes, 282
— r— v. dem. Lowndes ten., 174,
910
app., Hopkins, reap-, 794
v.Pearoe, 917
v. Pratt, 899
t>. Williams, 413
Davis v. Bomford, 839
v. Burrell, 413
r. Cary, 240
r. Evton, 385
v. Haycock, 882
v. Jones, 402
v. Lloyd, 918
r. London and Blackwall
B. C, 354
v. Meeker, 787
r. Nisbett, 703
r. Powell, 153
r. Serace, 635
v. Trevannion, 160
xlviii
TABLE OP CASES.
Davison v. Donaldson, 779
v. Duncan, 312
v. Gent, 654, 668
v. Wilson, 197, 413
Daw v. Metropolitan Board of
Works, 24
Dawes v. Hawkins, 3
r. Peck, 780
Dawkins v. LordPaulet, 190, 202,
203, 311
Vm Lord Rokeby, 202,
203
Dawson v. Collis, 758
v, Fitzgerald, 696
v. OliverMassey , 233, 24 1
v. Morrison, 791
v. Paver, 7
Vm The Sheriffs of London,
199
. v. Surveyors of High-
ways, 897
Dav v. Savadge, 115
- v. Trig, 588
Deacon v. Gridley, 720
Dean v. James, 168
v. Millard, 25
Deane ^-Clayton, 178, 362
Dearden v. Townsend, 304
Dearie v. Hall, 341 .
De Boauvoir v. De Beauvoir, ol2
De Begnis v. Armistead, 695
De Bemardy v. Harding, 836
De Bode (Baron) v. Keg., 51, 57,
68, 203, 892
De Bussche v. Alt, 798
Debenham v. Mellon, 793
Deering v. Farrington, 60 <
Dflfreeze v. Trumper, lo i
DeggTMidlandlo.,264,350,
815
De Lancey (re), 126
Delany v. Fox, 413
Delegal v. Highley, 100
De Medina v. Grove, 190, 272
De Mesnil v. Dakin 272, 280
De Montmorency v. Devereux, 1 id
De Moranda v. Dunkin, 793
Dempster v. Purnell, 906
Denby v. Moore, 267 ^
Denison v. Holliday, 3/4
Denn
- v. Balphson, 759
r. Diamond, 527
Denn d. Nowell v. Roake, 558
Dennis v. Fovell, 226
Dent v. Auction Mart Co., 365
v. Smith, 215
Denton v. Great Northern B. C,
234
Depperman v. Hubbersty, 777
Derby (Earl of), case of, 110
v v. Bury Commis-
sioners, 900
De Boo v. Foster, 310
Des Barre v. Shey, 51
Deuters v . Townsend, 438
Devaux v. Conolly, 271, 670, 881
v. J 'Anson, 543
De Vaux v. Salvador, 218
Devaynes v. Noble, 135, 775
Dew v. Parsons, 250
Dews v. Biley, 88
Dicas v. Lord Brougham, 82
Dickenson t\ Grand Junction
Canal Co., 189,
196
v. Jardine, 620, 881
v. Naul, 760, 761
Dickinson v. North Eastern B. C,
864
v. Stidolph, 632
Dickson t;. Caledonian B. C, 38
v. Beg., 528
v. Swansea Vale B. C,
441
v. Zizinia, 614
Dietrichsen v. Giubilei, 713
Digby «. Thompson, 310
Dimes (in re), 111
v. Grand Junction B. C,
111
v. Petley, 361
Dimmock v. Bowley, 124
Dimeck v. Corlett, 509
Di Sora t>. Phillips, 99, 892
Dixon v. Bell, 367
v. Bovill, 437, 438
i?. Caledonian Co., 533
v. Clarke, 168
v. Holroyd, 847
v. Metropolitan Board of
Works, 6, 225
v. Sadler, 800
v. Stansfeld, 648
v. Yates, 761
TABLE OF CASES.
xlix
Dobell v. Stevens, 738, 746
Dobie 17. Larkan, 710
Dobbs v. Grand Junction Waiter
Works, 22
Dobeon %\ Blackmore, 197, 361
v. Espie, 837
Dodd v. Burchell, 447
v. Holme, 187, 351, 352
Dodgson v. Scott, 691
Doe d, Allen v. Allen, 569
Amlot v. Davies, 512
Anglesea (Lord) t>. Ruge-
ley (Churchwardens of),
240
Ashburnham (Earl of) v.
Michael, 916
Ashforth v. Bower, 584,
597
Atkinson v. Fawcett, 604
Bacon t?. Bridges, 910
Barney v. Adams, 502
— Beach v. Jersey (Earl of)
671
Beech r. Nail, 637
Biddulph v. Poole, 654
Bills v. Hopkinson, 513
Birtwhistle v. Vardill, 482
Bish v. Keeling, 362
Blesard v. Simpson, 517
Blomfield v. Eyre, 434
Brammall v. Collinge, 172
Brayne v. Bather, 327
Bristol Hospital (Gover-
nors of) v. Norton, 179
Bryan v. Bancks, 173, 273
Bywater v. Brandling, 540
Bute v. Guest, 534
Cadogan v. Ewart, 153
Canon v. Eucastle, 605
Cape v. Walker, 518 -
Chichester v. Ox en den, 597
Cholmondeley (Earl of) v.
Maxey, 631
Clarke v. Ludlam, 143
Compton v. Carpenter, 587
Cross v. Cross, 466
Curzon v. Edmonds, 98
Dand v. Thompson, 903
Daniell v. Woodrolfe, 207,
502
Davies v. Williams, 551
Downe v. Thompson, 911
Doe d. Dunning r. Cranstoun, 588
Duntze v. Duntze, 317
Egremont (Earl of) r.
Burrough, 434
Ellis v. Owens, 532
Everett v. Cooke, 545
Preeland v. Burt, 374, 571
Eryer v. Coombs, 97
Gains v. House, 595
Gallini v. Gallini, 605
Gallop v. Vowles, 916
Gilbert t\ Boss, 896
Gord v. Needs, 567, 568
Gore v. Needs, 567
. v, Laneton, 637
Grantley (Lord) v. Butcher,
240
Groves v. Groves, 285
Gutteridge v. Sowerby, 822
Gwillim v. Gwillim, 562
Hamilton v. Clift, 873
». Huddard, 322
Harris «. Greathed, 590
- Haw u. Earles, 545
Hemming v. Willetts, 570
Henry u. Guntard, 327
-1 — Hiscocks v, Hiscocks, 587,
588
Hopley v. Young, 849
Howeil v. Thomas, 604
Hotchkiss v, Pearse, 612
Hubbard v. Hubbard, 585,
587
Hull v. Wood, 654
Hutchinson v. Manchester
and Rossendale Railway
Co., 559
Jenkins r. Davies, 888
Kinglake v. Beviss, 913
Levy v. Horne, 277
Lewis t?. Davis, 501
Lloyd v. Ingleby, 609
Mansfield v. Peach, 612
Meyrick v. Meyrick, 533
Miohinson v. Carter, 457,
653
Mudd v. Suckermore, 888
Murch v. Marchant, 539
Muston v. Gladwin, 277
Myatt v. St. Helen's R. C,
547
Nanney v. Gore, 904
1
TABLE OF CASES.
Doe d. Norton r. "Webster, 570,
571
Otley v. Manning, 702
Oxenden v. Chichester, 575
Pad wick v. Skinner, 919
r. Witcombe, 919
Parsley t\ Day, 504
Patteshall t\ Turford, 919
Pearson t\ Ries, 638
Pennington v. Taniere, 172
Phillips v. Evans, 899
Preedy v. Holtom, 570
Pulteney v. Freeman, 327
Renon v. Ashley, 590
Richards t\ Lewis, 681
Roberts v. Roberts, '681
v. Parry, 588
Robertson v. Gardiner, 898
Rogers v. Price, 448, 504
r. Pullen, 614
v, Rogers, 857
Sams v. Garlick, 513, 516,
604
Scholefield v. Alexander,
626
Scott v. Roach, 513
Shallcross v. Palmer, 150,
901
Shore v. Porter, 861
Shrewsbury (Earl of) v.
Wilson, 626
Smith v. Galloway, 584,
588
Spilsbury v. Burdott, 611
Stace v. Wheeler, 861
Stansbury v. Arkwright,
73
Stevens v. Lord, 406
Stevenson v. Glover, 513
Strickland v. Strickland,
98, 466
Strode v. Seaton, 327
Sweetland v. Webber, 915,
918
Tatum «. Catomore, 148,
150, 901
Thomas v. Acklam, 73
Thomas v. Benvon, 569
Timmis v. Steele, 579
Tofield v. Tofield, 171 '
Tremewen v. .Permewen,
512
Doe <I. Tyrrell v. Lyfford, 561
Watson v. Jefferson, 845
Watt v. Morris, 62
« Westlake v. Westlake, 568
William the IVth v . Ro-
berts, 62
Williams v. Lloyd, 681
v. Matthews, 170
Winter r.Perratt, 486,487,
562, 567
WoodaU t\ Woodall, 632
Woodhouse r. Powell, 902
Wyndhamu.Carew,537,643
Doe t\ Acklam, 177
r. Allen, 144
v. Beviss, 884
v. Godwin, 535
r. Huddard, 322
1\ Huthwaite, 592
v. Lyford, 598
v. Tatham, 920
v. Trye, 743
1\ Underdo wn, 512
r. York (Archb. of), 68, 449
Doglioni v. Crispin, 485
Dolphin v. Robins, 468
Donald v. Suckling, 444
Done v. Walley, 713
Don's Estate (re), 468, 480, 482
Dormay v. Borrodaile, 543
Dorset (Duke of) v. Lord Hawar-
den, 567
Dost Aly Khan (re goods of), 892
Douglas v. Dysart, 875
r. Patrick, 168
v. Watson, 838
Dowell v. Steam Navigation Co.,
218
Downing r. Capel, 94
Downman v. Williams, 782
Downs r. Ship, 845
Doyle t\ Falconer, 39, 452
Dracachi v. Anglo-Egyptian Nav.
Co., 440
Drake v. Drake, 592
v. Pywell, 363
Dresser v. Bosanquet, 287, 648
Drewe v. Lanson, 342
Driver v. Benton, 270
Drouet v. Taylor, 913
Drummond v. The Att.-Gen., 638
Drury v. De la Fontaine, 17
TABLE OF CASES.
li
Duberley r. Gunning, 263
Dublin Wicklow Co. v. Slattery,
104
Du Bost r. Beresford, 310
Du Boulay v. Du Boulay, 186
Duckmanton v. Duckmanton, 565
Duckworth v. Johnson, 350
Dudden v. Guardians of Ohitten
Union, 189
Dudgeon v. Pembroke, 213
Dudley (Lord) v. Ward (Lord),
393, 394, 399
Duero (The), 800
Dugdale v. Lovering, 683
v. Reg., 306
Duke v. Ashby, 177
v. Forbes, 583, 695
Dumergue v. Rumsey, 399, 402
Dunbar (Magistrates of) v. The
Duchess of Roxburghe, 640
Duncan v. Brighton Club Co.,
581
Dunckle v. Wiles, 324
Dundee Harbour v. Dougal, 846
Dunford u. Trattles, 800
Dungannon (Lord) v. Smith, 416,
424
Dunkley v. Farris, 820
Dunlop v. Lambert, 780 4
Dunn v. Sales, 504, 608
v. Spurrier, 550
Dunston v. Paterson, 287
Durrant v. Eccles. Commrs. , 255
Duvergier v. Fellows, 241, 690
Dyer v. Green, 629
v. Pearson, 761
Dyke v. Walford, 336
Dyne v. Nutley, 584
Dynen v. Leach, 810
E.
Eagle v. Charing Cross R. C, 200
Earle v. Hopwood, 689
v. Oliver, 715, 720
Early v. Benbow, 578
v. Garrett, 733, 758
East v. Twyford, 521
East Anglian R. C. v% Eastern
Counties R. C, 697
Eastern Archipelago v. Reg., 50,
54, 59, 560
Counties R. C. t\ Broom,
799, 828
Counties R. C. v. Mar-
riage, 530, 636
■ Union R. C. r. Symonds,
919
East India Co. v. Paul, 855
v. Tritton, 669
Eastmead v. Whitt, 312
Eastwood v. Avison, 520
v. Bain, 745, 748
v. Kenyon, 708, 715
Eaton v. Swansea Waterworks
Co., 365
Eddliston v. Barnes, 319
Eden v. Blake, 838, 840
Edgar t?. Fowler, 674, 675, 676
Ecl^er v. Knapp, 713
Edie v. Kingsford, 916
Edinburgh and Glasgow R. C.
v. Magistrates of Linlithgow,
620
Edis v. Bury, 553
Edmonds v. Lawley, 31
Edmondson v. Stevenson, 312
Edmunds v. Bushell, 787
v. Downes, 613
v. Greenwood, 924
Edward v. Trevillick, 272
Edwards (re), 707
v, Aberayon Ins. Soc,
695
v. Bates, 77
v, Baugh, 703
- v. Grace, 857
v. Havill, 454
v. Hodges, 529
v. Martyn, 130
v. Ward, 248
Egerton v. The Earl of Brownlow,
348, 423, 432, 433, 487, 687
Egremont (Earl of) v. Saul, 883
Eichholz v. Bannister, 758, 759
Elbinger v. Armstrong, 222
Eldrich's case, 577
Eleanor (The), 188
Electric Telegraph Co. v. Brett, 636
v. Salford,
Overseers of, 371
Eliott v. Bishop, 31
d 2
lii
TABLE OF CASES.
Eliott v. Johnson, 442
v. North Eastern R. C, 629
v. Royal Exchange Ass.
Co., 692, 751
v. South Devon Bailway
Co., 97
v. Turner, 510
Elkin v. Baker, 161
Ellcock v. Mapp, 654
Ellis v. Bridgnorth (the Mayor
of), 432, 897
v, Griffith, 151
t\ Hopper, 111
i?. Lofthouse Iron Co., 369
v. Russell, 678
v. Sheffield Gas Consumers
Co., 804
v. Smith, 142
Ellston v. Deacon, 785
Elsee v. Gatward, 701
Elwes v. Maw, 391, 393, 400
Embry r. Owen, 196, 337, 356
Emerson v. Brown, 280
v. Emerson, 861
Emery v. Webster, 255
Emilie (The), 893
Emmens v. Elderton, 608, 712,
720
Emmerton v. Matthews, 739, 742
Empress Engineering Co. (re),
826
England v. Marsden, 823
Enohin t\ Wylie, 584
Entick v. Carrington, 3, 36, 90,
181, 407, 639, 656, 797
Ernest v. Nicholls, 785
Esdaile v. Lund, 115
v. Maclean, 636
Esposito v. Bowden, 232, 240, 244
Etherton v. Popplewell, 295
Ething v. U. S. B., 99
Evans v. Earl, 602
v. Edmonds, 686, 755
r. Hutton, 237
v. Jones, 67, 138, 282
v. Powis, 843
v. Recs, 23, 117, 446
v. Scott, 577
Everard v. Poppleton, 577
Everett v. London Assurance, 199,
211
v. Robinson, 850
Every r. Smith, 668
Ewart r. Cochrane, 447, 461
v. Jones, 89, 101, 190
Ewbank v. Nutting, 801
Ewer v. Jones, 185
Ewin v, Lancaster, 839
Exali v. Partridge, 713
Exeter (The Bishop of) v. Mar-
shall, 153, 173
(Mayor of) r. Warren, 60
F.
Facey v. Hurdom, 647
Pagan v. Harrison, 823
Faggt?. Nudd, 718
Fairchild r. Gaire, 844
Fairhurstr. TheLiverpool Adelphi
Loan Association, 287
Falmouth (Lord) v. George, 874
v. Roberts. 149
(Earl of) v. Thomas, 841
Farebrother v. Ajisley, 682
Farley v. Danks, 190
Farmer r. Arundel, 266
r. Mottram, 834
v. Russell, 678
Farrall v. Hilditch, 504
Farrant v. Barnes, 194, 745
r. Nichols, 520
Farrar v. Hutchinson, 678
Farrer v. Close, 395
Farrow v. Wilson, 230
Faulkner v. Johnson, 899
v. Lowe, 210
Faunsett v. Carpenter, 508
Faviell r?. Gaskoin, 388
Fay v. Prentice, 351, 372, 373
Fazakerloy v. M'Knight, 148
Feather v. Reg.,54, 55, 56, 69, 137,
560, 820, 821
Fector r. Beacon, 794
Fellowes v. Clay, 526
r. Gwydye, 729
Feltham v. England, 811
Fenn v. Bittleston, 445
v. Harrison, 782
Fennell v. Ridler, 17, 18
Fenner v. Taylor, 660
TABLE OF CASES.
liii
Fenton v. City of Dublin Steam
Packet Company, 801
v. Emblers, 854
v, Hampton, 39, 453
r. Livingstone, 172, 468,
482, 485
Fenwick v. Schmalz, 234
Fereday c. Wightwick, 428
Feret r. Hill, 289, 668, 686
Ferguson v. The Earl of Kinnoul,
85
v. Mahon, 107
Fergusson r. Norman, 695
Fermor's case, 282
Fermoy Peerage case, 640, 641,
884
Fernandes (re), 923
Fernandez \expte.)f 89, 923
Fernie v. Young, 96
Fernley v, Worthington, 84
Feronia (The), 663
Ferrand r. Bischof&heim, 781
Ferrier v. Howden, 130
Festing r. Allen, 513, 578
Fetherston v. Fetherston, 521, 604
Fetter r. Beal, 324
Field r. Adames, 273
v. Leiean, 881
Filleter v. Phippard, 366
Finch v. Miller, 169
Findon v. Parker, 273
Fineux v. Horenden, 131
Finney v. Bee&ley, 130
v. Finney, 317
Fish t\ Broket, 17
r. Kelly, 708
Fisher v. Apollinaris Co., 689
I?. Bridges, 679, 708
v. Clement, 313
r. Dixon, 394, 395
r. Magnay, 280
r. Owen, 924
r. Ronalds, 923
v. Waltham, 703
Fishmongers' Co. v. Dimsdale, 629
v . Bobertson, 117
Fitch v. Jones, 710
Fitton v. Accidental Death In-
surance Co., 211, 552
Fitzgerald's case, 534
Fitzgerald v. Dressier, 899
v. Fitzgerald, 120
Fitzjohn v. Mackinder, 199, 222
Fitzmaurice v. Bayley, 628, 823
Fitzroy v. Gwillim, 693
Fivaz t;. Nicholls, 190, 677, 684
Fleckner r. United States Bank,
822
Fleet y. Perrins, 443
Fleming v. Dunlop, 130
v. Fleming, 567, 568
i7. Manchester & Shef-
field R C, 194
Fletcher v. Braddick, 801
t;. Galthrop, 529
v. Smith, 355
v. Sondes (Lord), 178, 184
Flemyng v. Hector, 788
Flight v. Gray, 838
v. Beed, 680, 718
v. Thomas, 365
Flood v. Patterson, 853, 854
Florence v. Drayson, 463
v. Jennings, 323, 463
Flory 1?. Denny, 466
Foley (Lord) r. Commissioners of
Inland Be venue, 527
v. Addenbrooke, 402, 505
v. Fletcher, 527
Foljamb'8 case, 453
Follett v. Hoppe, 272
Forbes v. Cochrane, 16
r. Forbes, 463
v. Marshall, 554
v. Smith, 849
Force v. Warren, 311
Ford v. Beech, 498, 551
v. Elliott, 921
v. Laoey, 139
v. Leche, 793
17. Tynte, 337
Fordyce v. Bridges, 525
Foreman v. Free Fishers of Whit-
stable, 876, 883
Forman 17. Wright, 252, 709
Forster 17. Forster, 263
r. Mackreth, 785
Forsyth t7. Biviere, 344
Forward 17. Pittard, 224
Foster v. Allanson, 324
v. Bates, 857, 862
v. Charles, 748
t?. Dawber, 836, 837
v. Dodd, 89, 90
liv
TABLE OF CASES.
Poster v. Mackinnon, 672, 691
v. Mentor Life Assurance
Co., 881
v. Pearson, 671
v, Pritchard, 25
v. Smith, 735, 747
v. Spooner, 448
Fountain v. Boodle, 312
Fourdrin v. Gowdey, 34
Fowell v. Tranter, 501
Fowkes v. Manchester and London
Life Ass. Co., 552, 610, 613
Fowler v. Padget, 643
Fox v. Mackreth, 730
Fragano v. Long, 780
Francis v. Cockrell, 741, 745
v. Hawkesley, 98
v. Hayward, 461
Frank v. Frank, 649
Franklin v. Carter, 267
v, Neate, 444.
Franklyn v. Lamond, 782
Fray v. Fray, 310
v. Voules, 193
Frazer v. Jordan, 660
v. Hatton, 704
Freake v. Cranefeldt, 855
Fredericks, app., Howie, resp.,
371
Free Fishers of Whitstable v.
Gann, 446
Freegard v. Barnes, 121
Freeman, app,, Bead, resp,, 94, 164
v. Baker, 738
v. Cooke, 284
v. East India Co. 764
v. Jeffries, 251, 255,
670
v. Bead, 94
v. Bosher, 830
t;. Steggall, 287
v. Tranah, 80, 117, 129
Freke v. Carberry, 485
Fremlin v. Hamilton, 703
Freshfields Trusts, 442
Frewen v. Phillips, 363
Frith v. Guppy, 330
v. Wollaston, 834
Frost v. Oliver, 453
Fryer v. Kinnersley, 311
Fuentes v. Montis, 762
Fuller v. Wilson, 752, 753
Furber r. Sturmey, 76
Furnis v. Leicester, 759
Furnival v. Coombes, 537
v. Stringer, 131
Furze v. Sharwood, 509
Fussell r. Daniell, 502
G.
Gabriel t\ Dresser, 842
Gadsby, app,, Barrow, resp., 577
Gahan v. Lafitte, 81
Gainsford v. Griffith, 607
Gale v. Abbott, 365
v, Beed, 533, 535
Galley v. Barrington, 542, 637
Galliard v. Laxton, 90
Galloway v. Jackson, 703
Galway v. Baker, 629
Gambart v. Ball, 346
v. Sumner, 302
Gamble r. Kurtz, 345
Games (expte.) 834
Ganley v. Ledwidge, 764
Garden v. Bruce, 854
Gardiner v. Gray, 616
v. Lucas, 29
Gardner v. Campbell, 297
v, Walsh, 148
Garland v. Carlisle, 13, 127, 135
Garnett r. Ferrand, 82, 83
Garrard v, Hardey, 698
Garrett v. Handley, 981
Garton v. Bristol and Exeter B.
C, 77
Gartside v, Badcliff, 893
Gascoigne v. Harris, 326
Gaslight and Coke Co. v. Turner,
680, 688
Gaters v. Madeley, 443
Gateward's case, 874
Gathercole v. Miall, 86, 310
Gattorno v. Adams, 508
Gaunt v. Fymney, 362
v. Taylor, 577
Gauntlett v. King, 798
Gautret v. Egerton, 264
Gayed v. Martya, 358, 359
TABLE OF OASES.
lv
Gayford r. Nicholls, 187, 80*
Gaylard v. Morris, 273
Geddis v. The Proprietors of Bann
Reservoir, 191
Geere v. Mare, 679, 680
Gelen v. Hall, 84
General Mutual Insurance Co, r.
Sherwood, 212
General Steam Navigation Co. r.
British and Colonial Steam Na-
vigation Co., 819
General Steam Navigation Co. r.
Bolt, 660
General Steam Navigation Co. r.
Slipper, 161
Generous (The), 238
Genner v. Sparkes, 411
George v. Skivington, 744
Gerhard v. Bates, 707, 745, 748
Gerish v. Chartier, 914
Gether v. Capper, odd
Gibbs v. Flight, 876
r. Guild, 281, 853
v. Lawrence, 606
v. Balph, 320
v. Stead, 109
Giblin v. M'Mullen. 103
Gibson v. Bruce, 250
v. Dickie, 433
v. Doeg, 897
v. Hammersmith B. C,
399
-p. Minet, 288, 501
v. Preston (Mayor of),
818
Gidley r. Palmerston (Lord),
819
Gidlow r. L. & T. By. Co.,
271
Gifford v. Livingstone, 145
v. Yarborough (Lord), 158
Gilbertson r. Bichardson, 201
Gildart v. Gladstone, 557
Gilding v. Eyre, 122
Giles v. Grover, 67
v. Spencer, 838
Gill (in the goods of), 632
Gill v. Cubitt, 672
v, Dickinson, 876
Gillett v. Offor, 982
Gilmore v. Shuter, 30, 31
Gilpin v. Fowler, 314
Gingell v. Pai'kins, 250
Giraud v. Bichmond, 842
Girdlestone v. Brighton Aqua-
rium, 19, 328
Gittins i;. M'Dermott, 466
Glaholm v. Hays, 508
Glanville v. Stacey, 139
Gleadow v. Atkin, 915
Gleaves v. Parfitt, 870
Gledstanes v. Sandwich (Earl of),
47,60
Gloucester (the Mayor, &c, of)
v. Osborn, 564
Glyn, Mills and Co. v. E. & W.
India Dock Co., 178
Goblet v. Beechy, 563
Goddard v. Cox, 772
v. Hodges, 772
v. Jeffreys, 260
Godefroi v. Jay, 193
Godfrey v. Bullock, 338
Godts v. Bose, 881
Godwin v. Culling, 98
Goldham v. Edwards, 836
Gollan v. Gollan, 148, 642
Gomery v. Bond, 249, 250
Gompertz v. Bartlett, 740
Goodall v. Lowndes, 675
Goode v. Burton, 459
Goodman v. Edwards, 588
v, Harvey, 671
Goodright d. Hall v. Bichardson,
579
v. Vivian, 380
Good title v. Bailey ? 501
v. Baldwin, 62
v. Gibbs, 173, 582
v. Southern, 588
v. Woodward, 825
Goodwin v. Hubbard, 668
Goodwyn v. Cheveley, 102
Gordon v. Ellis, 288, 761
v. Howden, 673
v. Mony, 286
v. Whitehouse, 580
Gorgier v. Mieville, 769
v. Morris, 704
Gorham v. Bishop of Exeter, 110,
641
Gorris v. Scott, 186
Gorrissen t;. Perrin, 747, 881
Gorton v. Gregory, 443
lvi
TABLE OF CASES.
Gosling r. Veley, 134, 145, 182,
183, 4,31
Goss v. Nugent (Lord), 838, 840
Gosset v. Howard, 89, 907
Gott v. Gandy, 607, 646
Gough v. Findon, 704
Gould v. Coombs, 149
v. Oliver, 262
Gowdy v. Duncombe, 153
Grace v. Clinch, 119
Graff v. Evans, 528
Graham v. Berry, 13S
v. Darcey, 580
v. Ewart, 461
v. Furber, 282
v. Ingleby, 655, 660
t». Van Diemen's Land
Co., 102
Grand Junction Canal t>. Shugar,
189
Grand Junction R C. v. White,
634
Granger v. George, 855
Grant v. Da Costa, 709
v; Grant, 564
v. Norway, 792
Grantham Canal Navigation Co.
v. Hall, 657
v. Hawlev, 465
Grath v. Ross, 581
Graves v. Aahford, 346
v. Legg, 620
— - v.Weld, 382
Gray v. Cox, 739
v. Johnston, 193
v. Liverpool and Bury R C. ,
559
v. Pullen, 804, 806
v. Beg., 315
Great Central Gas Co. v. Clarke,
23
Great Eastern (TheJ, 792
Great Northern R C. v. Harrison,
264, 367, 505
Great Northern B. C. v. Wiltham,
704
Great Western R C. t\ Bennett,
187
Great Western B. C. v. Crouch,
102
Great Western R C. v. Fletcher,
445
Great Western B. C. r. Goodman,
780
Great Western of Canada r. Braid,
234
Greathead v. Bromley, 318
Greaves v. Tofield, 541
Green v. Attenborough, 148
v. Baverstock, 686
v. Chapman, 313
v. Cobden, 117
v. Elgie, 89, 124
t\ Elmslie, 212
v. Kopke, 782
v. Laurie, 272
v, London General Omni-
bus Co., 802
v. Saddington, 717
v. Sichel, 161
Greeno v. Armsteed, 585
Greenwich v. Maudslay, 3
Greenwood v. Roth well, 518
t\ Sutcliffe, 539
t\ Taylor, 771
Gregg v. Wells, 285
Gregory v. Brunswick (Duke of),
129
v. Cotterell, 13, 743, 805
v. Des Angos, 620
i?. Piper, 802
Gregson v. Gilbert, 214
Grell v. Levy, 689
Greaham v. Fostan, 759
Gressell v. Robinson, 713
Greville v. Chapman, 888
Grey v. Pearson, 514, 531, 549
Griffin v. Langfield, 780
Griffiths v. Gidlow, 264
t\ Owen, 842
v. Perry, 435
■- — v. Puleston, 388, 389, 448
Grill r. General Iron Screw
Colliery Co., 212, 216
Grimman v. Legge, 613
Grimoldy v. Wells, 735
Grimsley r. Parker, 843
GrinneU v. Wells, 494
Grise v. Kendrick, 761
Grissell v. Bristowe, 874, 882
Grocers' Co. v. Donne, 349, 352
Groenvelt v. Burwell, 81
Grote v. Chester and Holyhead
R C, 350
TABLE OF CASES.
lvii
Groucott v. Williams. 348, 353
Grove t?. Aldridge, 67
t\ Dubois, 787
v. Withers, 447, 451
Grover v. Burningham, 414, 512
Grymes v. Bo were n, 400
Guest v. Warren, 324
Guille v. Swan, 201
Gullett v. Lopez, 154
Gulliver v. Cosens, 293
v. Gulliver, 849
Gully v. Bishop of Exeter, 702
Gunn v. Roberts, 792
Gurly v. Gurly, 632
Gumey v. Behrend, 441
v. Evans, 286
v. Womersley, 740, 768
Gunin r. Kopera, 504
Gwithin v. Stone, 724
Gwyn v. Hardwicke, 641
v. Neath Canal Co., 538
Gwynno v. Burnett, 156
v. Davy, 834
Gynes v. Kemsley, 5S4
Gyse v. Ellis, 780
.H.
Habergham v. Vincent, 660
Haddou v. Ayres, 262, 505
I?. Lott, 199
Hadfield's case, 145
Hadkinson v. Robinson, 215, 216
Hadley v. Clarke, 240
v. Green, 325
v. Taylor, 264
Hagedorn v. Whitmore, 212
Haggerston v. Hanbury, 502
Hahn v. Corbett, 212
Haigh v. Paris, 327
— — v. Sheffield (T. C), 301
Haine v. Davy, 139
Haines v. East India Co., 161
v. Boberts, 187, 353
v. Welch, 385
Haire v. Wilson, 313
Hale v. Bawson, 240, 243
v. Webb, 650
Hales v. Petit, 66
Haley v. Hammersley, 397, 398
Halhead v. Young, 216, 839
Hall v. Bainbridge, 324
17. Bristol (the Mayor of),
186
w. Conder, 733, 739, 759, 643
v. Dysen, 690
p. Featherstone, 672, 710
v. Flockton, 842
v. Janson, 881
v. Johnson, 813
r. London Brewery Co., 726
p. Lund, 447, 450
v. Nottingham, 875
v. Warren, 518, 637
1\ Wright, 229, 230, 468
Hall's case, 345
Hallett v. Dowdall, 654
t7. Wylie, 229
Hallewell v. Morrell, 508
Halley (The), 819
Halliday v. Holgate, 444, 767
Hallifax v. Lyle, 287
B^lliwell v. Trappes, 647
Halton v. Cave, 529
Hambleton v. Veere, 184
Hambly v. Trott, 866
Hamelin r. Bruck, 148
Hamilton v. Anderson, 81, 83
v. Hamilton, 469
v. White, 264
Hammack v. White, 299
Hammersmith Bent-charge (re),
107, 109
Hammersmith and City B. C. v.
Brand, 192, 200, 372, 530, 893
Hammond v. Bendyshe, 108
Hampden v. Walsh, 675
Hancock v. Austin, 407
t?. Somes, 332
v. Welsh, 321
r. York, Newcastle, and
Berwick B. C, 361
Hanmer v. Chance, 876
Hannan v. Mockett, 337
Hardcastle v. Dennison, 517
v. South Yorks. B. C,
264
Harden v. Clifbon, 148, 834
Harding v. Pollock, 457
Hardingham v. Allen, 168, 771
Iviii
TABLE OF CASES.
Hardwicke (Earl of) v. Douglas, ♦
514
r. Lord Sandys, 615
Hardy (in the goods of)y 150
v. Tingey, 547
v. Veasey, 193
Hare v. Horton, 396, 398, 610
Hargreave v. Smee, 553
Harereaves r. Parsons, 838
Harlow r. Bead, 582
Harman v. Cam, 257
Harmer r. Steele, 837
Harnor r. Groves, 697, 747
Harper r. Burgh, 442
r. Carr, 107
r. Williams, 706, 782
Harratt v. Wise, 254
v. Thomas, 320
Harries (re), 777
Harris r. Anderson, 350
v. Davis, 642
v. James, 817
v. Truman & Co., 280
v. Lawrence, 30
r. Lincoln (Bishop of), 562
r. Lloyd, 252
v. Quine, 849
v. Robinson, 22
v. Shaw, 765
Harrison r. Blackburne, 534
r. Bush, 311
v. Cage, 722
v. Cotgreave, 149
v. Great Northern B.C.,
355
v. Harrison, 416
r. Heathorn, 117, 698
r. Hyde, 584
v. Buscoe, 288
t*. Seymour, 659
r. Southampton (Mayor
of), 901
i\ Stickney, 32
r. Wright, 134
Harrold v. Whitaker, 505
Harrop, app.y Fisher, resp.t 443
v. Hirst, 140, 195, 197
Harrower v. Hutchinson, 750
Harrup v. Bay lev, 164, 265
Hart i\ Bassett, *197
v. Crowley, 309
v. Miles, 703
Hart v. Prendergast, 655
t\ Swaine, 732
v. Windsor, 727
Hartland v. Jukes, 850
Hartley v. Hindmarsh, 332
r. Ponsonby, 703
Harvey v. Brydges, 413
r. Farme, 480, 481
v. Gibbons, 243
r. Grabham, 841
r. Harvey, 395
v, Pocock, 295
v. Towers, 710
Harwood r. Great Northern B. C,
345
- r. Goodright, 895
Haseler v. Lemoyne, 830
Hasleham r. Young, 825
Hastings Peerage (The), 902
Hatch v. Trayes, 709
Hatfield v. Phillips, 763
Hawkes v. Eastern Co. B. C, 690
v. Sanders, 715
Hawkins r. Alder, 138
v. Hall, 281
Hay v. Coventry (Earl of), 544
Haycraft r. Creasy, 349, 745
Haydn v. Hayward, 894
Hayes v. Warren, 912
Hayton r. Trevin, 875
Hayward v. Bennett, 242
r. Duff, 661
Hazeldine v. Grove, 84
Heald v. Carey, 780
r. Kenworthy, 782
Heap v. Barton, 402
Heard v. Wadham, 814
Hearle v. Hicks, 513
Hearn v. Bellman, 144
Hearne v. Garthon, 300, 820
Heath v. Brewer, 94
v. Chilton, 830
v. Durant, 840
r. Elliott, 154
v. Heape, 100
v. Unwin, 315, 345
Heathcote v. Wing, 117
Heather v. Webb,717
Heaven v. Pender, 195, 350
Heffer v. Meadows, 498
Heffield v. Meadows, 838
Heilbut v. Nevill, 288
TABLE OF CASES.
lix
Heilbutt r. Hickson, 73d
Hellawell v. Eastwood, 26, :i97
Helps v. Clayton, 708
Helsham r. Blackwood, 331
Hemans i\ Picciotto, 506
Hemming r. Hale, 795
r. Hole, 192
v. Tremery, 150
Hemmings v. Gasson, 101
Hemp r. Garland, 854
Henderson r. Barnwell, 795
v. Broomhead, 190
v. London and North
Western B.C., 4 63
r. Sherborne, 25, 529
v. Stobart, 534
Hennikerr. Wigge, 774
Henson v. Coope, 838
Henwood v. Harrison, 313
v. OHver, 627
Hercules (The), 205
Herring v. Metropolitan Board of
Works, 200
Heseltine t\ Siggers, 508
Heslop r. Chapman, 100, 103
Hesse v. Stevenson, 535
Hewitt v. Isham, 154, 448
Heydon'e case, 639
Heyman v. Fleuker, 763
r. Beg., 174
Heysham v. Eorster, 904
Heyworth v. Knight, 822
Hibblewhite v. M'Morine, 653
Hickman v. Machin, 341
Hicks v, Faulkner, 100
Hide v. Thornborough, 187
Higgins v. Butcher, 205
v. Hopkins, 788
v. M'Adam, 793
r. Senior, 666, 781
Higgons v. Burton, 697, 782
Higgs v. Assam Tea Co., 441
t\ Scott, 251
Higham r. Bidgway, 916
Hiibery r. Hatton, 823
Hilcoat v. Abp. of Canterbury,
185
Hill v. Balls, 759
v. Cowdery, 457
v. Grange, 508
v. Grayx 746
u.Hall, 24
Hill v. Thompson, 49
v. Tupper, 432, 433
v. Mitson, 690
Hills v. London Gas Light Co., 50
v. Street, 269
v. Sughrue, 240
Hilton v. Eckerley, 370
v. Granville, 876
t\ Swan, 764, 768
v. Whitehead, 187, 353
HinchclifFe r. Xinnoul (Earl of),
450
Hine v. Beynolds, 540
Hipkins v. Birmingham Gas
Light Co., 301, 356
Hirschfeld r. Smith, 149
Hitchcock v. Way, 30
Hitchin v. Groom, 574
Hitchman t\ Walton, 396
Hix v. Gardiner, 150
Hoare v. Dickson, 327
v. Graham, 838
Hobbs v. Henning, 693
Hobson r. Blackburn, 565, 588
t\ Neale, 30
v. Thellusou, 192, 343
Hochster v. De la Tour, 243
Hodges v. Horsfall, 630
Hodgkinson v. Ennor, 188, 351,
356
v. Fernie, 203, 820
v. Wyatt, 34
Hodgson v. Ambrose, 512
v. De Beauchesne, 485
v. Field, 449, 450
v. Malcolm, 212
v. Sidney, 220
Hodsoll r. Stallebrass, 184
Hodson v. Walker, 328
Hoey v. Felton, 199
Hogan v. Jackson, 604
Hogg v. Ward, 102
Holcroft v. Hoggins, 787
Holden v. Smaubrooke, 337
Holder v. Soulby, 350
Holding v, Elliott, 881
Holdsworth v. Barsham, 580
v. City of Glasgow
Bank, 292
Hole v. Sittingboume and Sheer-
ness R. C, 804
Holford, app,y George, re*p., 876
Ix
TABLE OF CASES.
Holland v. Hodgson, 397
v. Russell, 669, 750
Holliday r. Morgan, 737
Hollier t?. Eyre, 662
v. Laurie, 405
Ilollis v. Palmer, 463
Holman r. Johnson, 693
Holme v. Guppy, 241
Holmes v. Clarke, 262
v. Goring, 451
v. Kerrison, £54
r. London and North-
Western R. C, 315
t\ Mackrell, 98
v. Mather, 227
v. Newlands, 323
r. North Eastern R. C,
366
r. Penney, 703
t\ Simons, 154
r. Williamson, 713
r v. Wilson, 372
Holroyd c. Breare, 83
v. Marshall, 466
Holt v. Ely, 77
v. Ward, 475
Homer v. Taunton, 314
Homfray t». Scroope, 855
Honywood v. Honywood, 379
Hooper v. Clark, 443
i\ Lane, 13, 123, 290, 805
v. Treffry, 707
Hope v. Hope, 94
Hopkins i\ Francis, 900
v. Freeman, 324
r. Great Northern R. C,
188
r. Hitchcock, 592, 739
r. Logan, 719
v. Tanqueray, 733, 747
v. Ware, 850
Hopkinson v. Lee, 505
r. Rolt, 339
r. Whaley, 858
Hop wood (ex pte.), 107
v. Whaley, 858
Horn v. Baker, 400
Hornby v. Close, 370
v. Lacy, 781
Home t\ Midland R. C, 201, 220,
221
v. Widlake, 264
Horsey r. Graham, 571
Horsfall r. Thomas, 686, 697
Horton r. Sayer, 651, 695
v. Westminster Improve-
ment Commissioners,
689, 900
Horwood r. Smith, 766
Hotson r. Brown, 744
Houghton v. Houghton, 428
Houlden r. Smith, 81
Houlds worth v. Evans, 134
Househill Coal and Iron Co. v.
Neilson, 344
How u. Eirohner, 648
Howard v. Burtonwood, 263
v. Gossett, 42, 47
c. Shepherd, 745
r. Sheward, 787
v. Shrewsbury (Earl of),
530
Howden v. Standish, 13, 453
Howe v. Malkin, 817
Howell r. Coupland, 230
r. Richards, 633
r. Young, 855
Howton v. Frearson. 447
Howe r. Malkin, 817
Hoye v. Bush, 92
Hovt v. Thompson, 95
Hubbard v. Lees, 900
t\ Mace, 409
Hubbersty v. Ward, 792
Hudson v. Clementson, 882
r. Ede, 5oo
r. M'Crae, 302
r. Roberts, 368
r. Stewart, 643
r. Tabor, 226
Huffer v. Allen, 122, 318
Huggin8 v. Coates, 854
Hughes v. Buckland, 92
v. Clark, 898
- *\ Cornelius, 912
r. Great WesternR.0.,134
r. Jones, 796
• r. Statham, 456, 838
Hulse v. Hulse, 702
Humble v. Huntor, 288
Humblestone v. Welham, 161
Humfrey v. Dale, 622, 782
Humphreys v. Green, 715
(re), 301
TABLE OF CASES.
lxi
Humphreys v. Pensam, 909
Humphries v. Brogden, 187, 353,
354
Humphry's v. Pratt, 753
Hunsden r. Cheney, 746
Hunt?. Bate, 712
v. Chambers, 80
v. Goodlake, 101
r. Hort, 562
v. Hunt, 655
v. Peake, 187
Hunter (The), 893
Hunter v. Gibbons, 853
v. Leathley, 512
v. Stewart, 325
Huntley v. Russell, 393, 865
Hurdman v. North Eastern R. C,
349, 355
Hurst v. Great Western B. C,
881
Husband v. Davis, 288
Hutchinson v. Johnston, 342
v. Kay, 393
v. Sydney, 712
v. Tatham, 622
v. York, Newcastle,
and Berwick B. C,
802, 810
Hutchison v. Birch, 409
Hntt v. Morrell, 326, 385
Hutton v. Balme, 136
v. Warren, 388, 619
Huxam v. Wheeler, 27, 526
Hyams r. Webster, 818
Hyatt v. Griffiths, 389
Hybart v. Parker, 653
Hyde v. Graham, 297
v. Johnson, 532, 794
v. Watts, 275
- v. Windsor (Dean of), 859
Hydraulic Engineering Co. v.
McHoffie, £21
I.
Ibottson v. Peat, 189, 337
Iggulden v. May, 535
Ilkdge v. Goodwin, 368
Ilott v. Wilkes, 263
Imperial Bank v. London & St.
Xatherine Docks, 342, 622
Imperial Gas Light and Coke Co.
v. London Gas Light Co., 853
Imray r. Magnay, 342
Indermaur v. Dames, 264
India (Secretary of State of) v.
Sahaba, 831
Ingham v. Primrose, 443
Inglis v. Butterby, 575
Inman v. Jenkins, 78
Ionides v. Pinder, 890
t?. Universal Marine In-
surance Co., 215
Ireland (Bank of) v. Archer, 700
Ireland v. Champneys, 865
Irnham (Lord) v. Child, 624
Ironmongers Co. t». Att.-Gen.,
522
Ironsides (The), 34
Irvine t\ Watson, 779
Irving t\ Veitch, 613
Irwin r. Grey, 320, 900
Isherwood v. Oldknow, 135, 169
Islington Market Bill (re), 60
Ivatt v. Finch, 817
Ivay v. Hedges, 264
Ivimey v. Stocker, 359
Izon v. Gorton, 228, 728
J.
Jack v. M'Intyre, 518, 586
Jackson v. Carrington, 118
v. Clark, 594
v. Cobbin, 698, 703
v. Duohaire, 693
v. Galloway, 130
v. Pesked, 174, 372
v. Smithson, 368
v. Tollett, 806
v. Woolley, 32, 853
Jacobs v, Layborn, 130
v, Seward, 246
Jacobson v. Blake, 293, 295
Jacques t». CHambers, 565
James (expte.), 257
v. Child, 771
v. Cochrane, 504
v. Isaacs, 30, 828
v. Phelps, 100
lxii
TABLE OF CASES.
Janes v. Whitbread, 581, 589
Janvrin v. De la Mare, 135
Jarmain v. Hooper, 1 24, 793
Jarrett v. Kennedy, 755
Jefferys v. Boosey, 95, 346
Jeffreys v. Gurr, 713
Jeffries v. Alexander, 222
v. G. W. R., 337
v. Williams, 347
Jeffrys v. Evans, 461
Jegon v. Vivian, 517, 545
Jendwine v. Slade, 272, 736,
738
Jenkin v. Peace, 97
Jenkins v. Harvey, 883
v. Hughes, 518, 605
v. Turner, 368
v. Waldron, 184
Jenkyns v. Usborne, 440,
763
Jenner v. Jenner, 604
Jennings v. Brown, 708
v. Florence, 190
v. Gt. Northern R. C,
706
v. Randall, 310
Jepson v. Key, 466
Jervis v. Tomkinson, 240
Jesse v. Roy, 573
Jessel v. Bath, 792
Jesson v. Wright, 605
Jessopp v. Lutwyche, 695
Jewison v. Dyson, 638
Jinks v. Edwards, 447, 726
Johns v. Dickinson, 611
Johnson v. Credit Lyonnais Co.,
763
v. Dodgson, 780
v. Johnson, 725
v. Lansley, 677
v. Leigh, 412
v. Liversedge, 29
. t;. Oserton, 796
v. Pye, 310
v. Royal Mail Steam
Packet Co., 270, 707,
713
v. Simcock, 545
v. Smith, 127
v. Windle, 768
Johnston v. Raylton, 795
v. Stear, 767
Johnstone r. Sutton (in error), S3,
169, 181, 202, 203,
886
r. Usborne, 620, 879
Joliffe v. Baker, 732, 756
Jonassohn r. Young, 243, 506
Jones (re), 636
t\ Atherton, 342
r. Bowden, 738, 758
v. Bright, 739, 741
v. Brown, 640
v. Carter, 173
v. Chapman, 88, 668
v. Clarke, 738
v. Davies, 492
r. FestiniogR. C, 349, 355,
366
v. Giles, 695
r. Hart, 798
v. How, 232
v. Jones, 413
v. Just, 740, 742
t?. Littledale, 620
v. Mersey Docks, 68
v. Newman, 567
v. Peppercorn, 879
v. Pope, 848
v. Randall, 248
v. Ryde, 670, 740
v. St. John's College, 241,
243
v. Sawkins, 843
v. Smart, 39
v. Taplin, 135, 362
v. Waite, 686, 690
v. Yates, 288
Jordan v. Adams, 576, 505
Jordin v. Crump, 264
Josh v. Josh, 584
Josling v. Kingsford, 739
Jowett i'. Spencer, 535
Jowle v, Taylor, 94
Joyce v. Metrop. B. of W., 138
Justice r. Gosling, 332
K.
Karnak (The), 452, 792
Katharina (The), 261
Kaye v. Brett, 780
TABLE OF CASES.
lziii
Kaye r. Dutton, 703, 704, 718
v. Waghorn, 834
Kearney v. L. & B. R. Co., 299
Kearns v. Cordwainers* Co., 199
t?. Dwell, 267, 271, 709
Kearon v. Pearson, 235
Kearsley v. Cole, 659
Keates v. Earl of Cadogan, 728,
746
Keech v. Hall, 341
Keele v. Wheeler, 670, 739
Keene v. Beard, 443
Keighley's case, 225
Keir t7. Leeman, 675, 687, 689
Kelly v. Lawrence, 280
v. Morray, 320
17. Partington, 199
v. Solari, 251, 253
v. Tinling, 31 1
Kelner v. Baxter, 537, 826
Kelsall v. Marshall, 76
v. Tyler, 653
Kemp v. Balls, 822
— *— v. Pinden, 713
v. Neville, 81, 82
Kempson v. Boyle, 881
Kendall v. Hamilton, 323
v. King, 792
Kennedy v. Brown, 202
v. Panama &c. Mail Co. ,
686, 739, 758
Kennet and Avon Navigation Co.
1?. Witherington, 188
Kenney v. Browne, 378
Kent v. Great Western B. C,
271
Kenyon v. Hart, 373
Kepp 1?. Wiggett, 143
Kerr 17. Wauchope, 167, 665
Keyse v. Powell, 187
Kidgill v. Moor, 372
Kidston v. Empire Marine Ins.
Co., 882
Kielly v. Carson, 455
Kimbray 17. Draper, 29
Kimpton 17. Eve, 389
Kindersley v. Chase, 912
King 17. Bryant, 159
v. Gillett, 474, 722, 839
v. Hind, 882
17. Hoare, 322
v, Jones, 856
King v. Melling, 541
v. Norman, 321, 910, 913
t\ Sears, 712
v. Spurr, 803
Kingdon v. Nottle, 856
Kingsbury v. Collins, 382, 384
Kingsford 17. Merry, 697, 762
Kingston's (Duchess of ) case, 163,
317, 410
Kingston-upon-Hull Dock Co. v.
Browne, 557
Kinloch v. Secretary for India, 56
Kinnersley v. Cope, 322
Kinning v. Buchanan, 89, 158
Kintore (The Earl of) v. Lord
Inverury, 636
Kintrea v. Preston, 726
Kirchner v. Venus, 648
Kirk 17. Todd, 863
Kirkhaugh v. Herbert, 34
Kirkland v. Nisbett, 892
Kitchin «. Hawkins, 247, 771
Kitson v. West London Bank,
749
v. Julian, 602
Knapp 17. Harden, 838
Knatcnbull v. Grueber, 730
Knevett v. Pool, 383, 384
Knight v. Bennett, 388
v. Fox, 809
v. Gibbs, 200
v. Gravesend and Milton
Waterworks Co., 505
v. Selby, 545
Knights v. Quarles, 857, 858
Kynaston 17. Crouch, 823
Kynnaird v. Leslie, 483
L.
Labouchere v. Tapper, 774
Laidlaw v. Organ, 738
Laing i?. Fidgeon, 616, 739, 741
17. Whaiey, 188
Lamb v. Walker, 185
Lambert v. Bessey, 349
17. Taylor, 62
Lamert v. Heath, 739
Lampleigh v. Brathwait, 711
lxiv
TABLE OF CASES.
Lancashire Waggon Co. v. Fitz- j
hugh, 444
Lancaster v. Eve, 393, 403
Lancaster & Carlisle E. C. v.
Heaton, 111
Lane v. Cotton, 806
v. Bennett, 39
Langden v. Stokes, 839
Langley v. Hammond, 460
-— v. Headland, 669
Langmead v. Maples, 319
Langridge t'. Levy, 944
Langston v. Langston, 499, 503
Langton v. Haynes, 30
Langton v. Hughes, 24
Lanman v. Lord Audley, 117
Lanyon t\ Carne, 573
Lapsley v. Grierson, 901
Larpent v. Bibbey, 31
La Touche v. Hutton, 917
v. La Touche, 714
Latham v. Atwood, 382
r. Lafone, 636
Latimer v. Batson, 283
Latless v. Holmes, 29
Lattimore v. Garrard, 720
Laughter v. Pointer, 798, 806
Laughter's case, 232
Launock t\ Brown, 407
Laurie v. Douglas, 213
v. Scholefield, 838
Law v. Blackburrow, 508
v. Parnell, 443
Lawes v. Purser, 164, 739
v. Rund, 850, 899
Lawless v. Anglo-Egyptian Cotton
Co., 311
Lawrance v. Boston, 626
Lawrence v. Fletcher, < C U
. Vt Great Northern K.
C. 620
„. Hitch, 876, 903
v. Hodgson, 117
. v. Sidebotham, 613
. v. Walmsley, 660
v. Wilcock, 131
Lawton v. Lawton, 393, 394, 399
. v. Salmon, 393, 394
v. Sweeney, 894
Lax v. Darlington (Corp.), 263
Lay v. Mottram, 503
Layton v. Hurry, 293
Leach r. Money, 90
Leak r. Howell, 797
Leame v. Bray, 201
Leary v. Patrick. 31
Leather Cloth Co. r. American
Leather Cloth Co., 845
Le Case de Tanistry, 872
Ledsam v. Bussell, 68, 636
Lee r. Bayes, 206, 765, 767
— r. Cooke, 274
— v. Evans, 139
- v. Everet, 778
— v. Gansell, 409
— v, Johnston, 900, 903
— v. Jones, 686
— v. Merrett, 250
— v. Milner, 557, 558
— v. Muggeridge, 708
— v. Reed, 661
— r. Riley, 369
— v. Simpson, 302, 315
— r. Wilmot, 714
Leech v. Lamb, 119
Leeds (The Duke of) r. Earl
Amherst, 381, 523
v. Cheetham, 228
Lees v. Moseley, 518
Leete v. Hart, 94
Leggatt v. G. N. R., 319
Legge t\ Boyd, 336
Leidman v, Schultz, 882
Leith v. Irvine, 151
Le Mason v. Dixon, 861, 863
Lemere v. Elliott, 717
Leonard v. Baker, 283
Leuckhart v. Cooper, 150
Levi v. Milne, 313
v. Sanderson, 26
Levy v. Moylan, 88, 118
Lewis v. Bright, 678
v. Campbell, 712
v. Clifton, 244
v. Davison, 698
v. G. W. Ry.,265
v. Jones, 838
v. Lane, 876
v. Levy, 312
v. Marshall, 509, 880
v. Puxley, 604
v. Read, 295, 830
v. Reilly, 785
Ley v. Ley, 512 -
TABLE OF CASES.
1X7
Leyfield's (Dr.) oiso, 97
Lichfield (Mtyor of) v, Simpson,
85
Union (Guardians of) v.
Greene, 768, 845
Liddard v. Kain, 737
Liford's case, 127, 154, 448
Lightfoot v. Tenant, 693
Lilly v. Hays, 703
Limpus v. General Omnibus Co.,
805
Lincoln College case, 547
Lindenau v. Desborough, 750
Lindgren v. Lindgron, 587
Lindsays Cundy, 761, 767
v. Gibbs, 464
v. Janson, 98
Lindus v. Melrose, 548
line v. Stephenson, 607
Lion (The), 532, 819
Lister v. Lohley, 4
v. Perryman, 100
Litt r. Martindale, 77, 707
Little v. Newton, 796
Littlefield v. Shoe, 708
Liver Alkali Works v. Johnson,
234, 235
Liverpool (Mayor of) v. Chorley
Water Works Co., 6
Adelphi Loan Ass. v.
Fairhurst, 652
Borough Bank v. Tur-
ner, 525
Liversidge v. Broadbent, 706
Livie v. Janson, 212
Llanbeblig Llandyfrydog (In re),
119
Llewellyn v. Jersey (Earl of), 584,
630
v. Llewellyn, 703
Lloyd v. Crispe, 242
v. General Iron Screw
Collier Co., 215, 216
v. Guibert, 229, 500
v. Harrison, 88, 192
v, Jones, 874
v. Lloyd, 506
v. Oliver, 554
r. Pettijean, 480
v. Roberts, 902
v. Sandilands, 411
Lock v. Ashton, 121
Lockett v. Nick! in, 838
Lockwood v. Lever, 767
v. Wood, 638
Lockyer v. Ferriman, 318
Lofft v. Dennis, 228
Logan v. Hall, 292
v. Le Mesurier, 234
London (Mayor of) v. A.-G., 70
v. Cox, 904
«. Parkinson,
527
v. Reg., 445
London, Birmingham & South
Staffordshire Bank (re), 777
London Gas Light Co. v. Vestry
of Chelsea, 506
London Grand Junction B. C. v.
Freeman, 586
London Guarantee Co. v. Fernley,
696
London Loan, &c, Co. v. Drake,
399, 400, 462
London and North- Western B. C.
v. Lindsay, 111
Long v. Millar, 630
Longbottom v. Berry, 392, 395,
397
Longmeid v. Holliday, 745
Longstaff v. Meagoe, 397
Longworth v. YeTverton, 922
Lonsdale (Earl of) v. Bigg,
461
Loosemore v. Tiverton &c. Co., 7
Lopez v, Burslam, 95
Lord v. Commissioners of Sydney,
445
v. Lee, 824, 830
Lorvmer u. Hickson, 735
Lost v. Hague, 345
Lothian t». Henderson, 250
Love v. Pares, 556
Lovellv. Howell, 811
Lovelock u. Franklyn, 244
Lovick v. Crowder, 343
Low v. Little, 129
Lowry v. Bourdieu, 250, 674
Lowtner r. Radnor (Earl of), 8£
Lozano v. Janson, 543
Lozon v. Pryse, 145
Lubbock v. Potts, 674
Lucas v. Nockolls, 664
v. Worewick, 251, 253
lxvi
TABLE OF CASES.
Lucy v. Levin gton, 856
v. Mouflet, 746
Lumley t\ Dubourg, 118
v. Gye, 801, 900
v. Wagner, 895
Lunt v. London and North- Wes-
tern E. C, 366
Lupton t;. White, 279
Lyall v. Edwards, 601
Lygo t?. Newbold, 264, 367
Lyle r. Richards, 97, 571, 630
Lyme Regis (Tne Mayor, &c, of)
v. Henley, 197
Lyn v. Wynn, 24
Lynch i\ Knight, 199, 200
t\ Nurdin, 367, 368
Lyndon v. Stanbridge, 606
Lyon r. Reed, 654
Lyons v. De Pass, 765
■ v. Tucker, 341
Lysaght v. Bryant, 435
Lyth t>. Ault, 703
Lythgoe v. Vernon, 161
Lyttleton v. Cross, 128, 900
M.
M'Call v. Taylor, 554
M'Callan v. Mortimer, 175, 675
M'Cance v. London and North
Western R. C, 165
M'Carthy v. Decaix, 258, 259
M'Collin v. Gilpin, 572
M'Cormack v. Grogan, 49
M'Donnell v. White, 845
M'Dougal v. Robertson, 857
M'Gahey v. Alston, 899
M'Gregor v. Barrett, 122
v. Graves, 712
v. Low, 679
v. Topham, 901
M'Guire v. Scully, 608
M'Inne's patent (In re), L'45
M'Intyre r. Belcher, 278
M'Kenna v. Pope, 85
M'Kenzie v. British Linen Co.,
284
v. Hesketh, 730
M'Kinnon v. Penson, 198
H'Kune v. Joynson, 442
M'Lanahan v. Universal Insur-
ance Co., 890
M'Lauglin r. Pryor, 809
M'Mahon v. Field, 220
r. Lennard. 899
M'Manus r. Bark, 700
v. Crickett, 804
M'Naughten*s case, 887
M'Neill v. Reid, 243
M'Pherson v. Daniells, 309
M'Swiney v. Royal Exchange Ass.
Co., 215
Macaulev v. Furness Ry., 265
Macbeath v. Haldimand, 819
Macdonald v. Longbottom, 570,
572
MacDougal's patent (ia re), 345
Macdougal r. Paterson, 23
Mace v, Cammel, 282
Macfarlane v, Taylor, 741
Machell v. Clarke, 437
MackaUy'a. case, 17
Mackay v. Commercial Bank of
New Brunswick, 803
%\ Dick, 231
Mackenzie v. Sligo and Shannon
R. C, 32
v. Dunlop, 879
Mackintosh v. Marshall, 750
v. Midland Counties
R. 0., 506
v. Trotter, 377
Maclae v. Sutherland, 581, 583,
823
Maclean v. Dunn, 825
Macrae v. Clarke, 192
Macrowv. Hull, 138
Mactaggart v. Watson, 659
Maddick v. Marshall, 789
Maddison v. Alderton, 718
Madeley v. Booth, 730
Madrazo v, Willes, 56
Magdalen College (case of), 69
Magee v. Atkinson, 620
v. Lovell, 576
Magnay t?. Edwards, 505
Magrath v. Hardy, 900
Maitland v. Mackinnon, 533
Malcolmson v. O'Dea, 918
Malins v. Freeman, 273
Mallan v. May, 509, 695
v. Radloff, 617, 741
TABLE OF CASES.
lxvii
Malpas r. Clements, 899
t'. London and South
Western B. C., 838
Manby v. Bewicke, 846
v. Witt, 312
Manchester B. C, app.t Fullar-
ton, reap., 350
Sheffield, &c, Co. r.
Brown, 646
Mandrel (ex pie.), 389, 443
Mangan v. Atterton, 367
Mangles v. Dixon, 441
Manley v. Boycot, 660, 838
t\ St. Heleu's Can. and
B. C, 350
Maon v. Mann, 586
r. Pearson, 486
Manning r. Bailey, 396
r. Eastern Counties B.
C, 904
Mansell v. Beg., 316
Mansergh (in re), 95
Mansfield (Earl of) r. Blackburne,
400, 402
Manson v. Thacker, 731
Manton t>. Bales, 138
Manzoni v. Douglas, 299
Mapleback (re), 676
Mardall v. Thellusson, 860
Mare v. Charles, 499
Margetson v. Wright, 737
Marianna Flora (The), 361
Marine Ins. Co. v. Hardside,
898
Markham v. Stanford, 656
Marks v. Lahee, 917
Marlborough (Duke of) v. Lord
Godolphm, 126, 456
Marriott i?. Hampton, 250
Marsden v. City and County Ass.
Co., 211, 215
v. Moore, 506
i?. Saville Street Foun dry
Co., 344
Marsh v. Higgins, 31
v. Keating, 206, 785
v. Loader, 308
Marshall, app., Bown, resp., 681
v. Berridge, 579
v. Broadhur8t, 859
v. Lamb, 88
v. Lynn, 840, 841
Marahalsea case, 83
Marson v. Short, 246
Marston v. Downes, 896
Martin v. Andi'ews, 77
t?. Great Northern B. C,
134
r. Hewsoo, 675
r. Lee, 512
r. Maokonochie, 16, 884
v, Morgan, 253
i\ Pycroft, 562, 838
r. Bead, 767
r. Beid, 442, 777
v. Boe, 393
r. Strachan, 668, 870
v. Temperley, 800
Martindale v. Booth, 283
r. Falkner, 248
r. Smith, 649
Martinez v. Gerber, 199
Martyn v. Clue, 443
v. Gray, 286
v. Williams, 443
Marzetti r. Williams, 193, 194
Mason v. Bradley, 149, 150
r. Hill, 356, 357
v. Keeling, 368
v. Mitchell, 685
v. Morley, 895
Massey v. Allen, 919
v. Goodall, 723
v, Johnson, 835
v. Sladen, 102
Master v. Miller, 79, 148, 149
Master's Clerk case, 796
Masters v. Ibberson, 688
r. Lewis, 160
Mather v. Fraser, 390, 393, 394,
395, 397, 398, 610
v. Maidstone (Lord), 692.
710
v, Thomas, 157
Maiiieson v. Kilburn, 825
Mathew v. Blackmore, 607, 610
Matthews v. Discount Corp., 196
v. Gibson, 159
Maugham v. Sharpe, 466, 579
Maxted v. Paine, 36, 882
May v. Burdett, 368
v. Chapman, 672
v. Seyler, 710
Mayer v. Harding) 245
t 2
lzviii
TABLE OF CASES.
Mayer v. Isaac, 552
Mays v. Cannell, 508
Mears v. London and South
Western B. C, 372
Meath (Bishop of) v. Winchester
(Marquis of), 96
Meddowcroft v. Huguenin, 908
Medina v. S tough ton, 759
Medwav Navigation Co. r. Rom-
ney (Earl of), 196
Medwin (ex ptc), 1 10
v. Streeter, 828
Meeus v. Thellusson, 107
Melhadov. Porto, &c. Co., 826
Mellersh v. Rippen, 187
Mellish v. Richardson, 130
Mellors v. Shaw, 810, 815
Melville i>. De Wolf, 244
v. Doidge, 350
Melville's (Lord) Trial, 893
Menhennet (ex pte.), 112
Merchant Shipping Co. v. Armi-
tage, 581
Merchant Tailors' Co. v. Truscott,
27
Meriton v. Coombs, 413
Merrill v. Frame, 607
Merry v. Green, 337, 769
Merry weather v. Nixon, 682
Mersey Dock Board v. Penhallon,
361, 366, 818
Mersey Dock Trustees v. Gibbs,
115, 191, 361, 366, 818
Mersey Docks v. Cameron, 68
Messenger v. Andrews, 167, 665
Messent v. Reynolds, 607
Metropolitan Association v. Petch,
372
Metropolitan Asylum Bd. v. Hill,
6, 191
Metropolitan Board of Works v.
McCarthy, 5
Metropolitan Board of Works v.
Metropolitan R. C, 353
Metropolitan Counties Assurance
Co. v. Brown, 398
Meux v. Jacobs, 297
Mews v. Carr, 778
Mexican and South American Co.
(re), 923
Meyer v. Ha worth, 716
Meyerstein v. Barber, 444
Micheli r. Brown, 23, 24
Micklethwait v. Micklethwait, 533
Micklethwaite (ex pte.), 527
Middleton v. Barned, 901
v. Crofts, 23, 261
v. Melton, 915, 917
Midland Great Western R. C. r.
Johnson, 256, 257
Midland Ins. Co. v. Smith, 155,
204, 767, 868
Midland R. C, app.y Pye, re$p.T
34
Milbourn v. Ewart, 120
Mildmay'8 case, 421
Miles v. Bough, 117, 795
t\ Mcllwraith, 285
v, Schilizzi, 739
v. Williams, 117
Millar v. Taylor, 346
Millen v, Hawery, 296
Miller r. Knox, 453
v, Lawton, 453
v. Race, 768
v. Salomons, 36, 142
v. Tetherington, 881
t\ Travers, 567, 568, 587,
588, 590
Milligan r. Wedge, 806, 819
Mills r. Alderburj' Union, 251
v. Farmer, 522
v. Fowkes, 771, 772
v Gibson, 658
v. Ladbroke, 505
r. Wright, 537
Millward v. Littlewood, 703
Milne v. Bayle, 19
t». Leister, 919, 921
v. Marwood, 747
Milner t\ Field, 329
v. Maclean, 414
Milnes v. Dawson, 466
v. Duncan, 252, 253
Minshall v. Lloyd, 390, 391, 399
Mirehouse v. Rennell, 143, 179
Mirfin v. Attwood, 26
Mitcalfe v. Westawa}', 435
Mitchell v. Crass wel lor, 802
u. Darthez, 610, 613
v. Jenkins, 309
v. Newhall, 739
Mitcheson v. Nicol, 822
Mittelholzer v. Fullarton, 690
TABLE OF CASES.
lxix
Mody v. Gregson, 617, 740,
742
Moens v. Heyworth, 744
Moffat v. Dixon, 792
v. Laurie, 618
v. Parsons, 779
Molineux v. Molineux, 632
Mollett v. Wackerbath, 149
Mollino and Co. v. Court of Wards,
785
Mollino, March, &c. v. Court of
Wards, 640
Molton v. Camroux, 289
Monck v. Hilton, 548
Mondel v. Steel, 325, 615, 935
Money t>. Jordan, 287
Monke v. Butler, 899
Montefiore v. Lloyd, 571, 576
Montefiori v. Montefiori, 692
Monypenny v. Deering, 521, 522
v. Monypenny, 607
Moon v. Durden, 30
v. Witney Union, 618
Moone v. Bose, 294
Moor v. Roberts, 117
v. Watts, 324
Moore (ex pte.), 133
v. Bushell, 707
v. Campbell, 842
v. M'Grath, 603
v. Phillips, 31
v. Bawlins, 600
Moorhouse v. Lord, 71
Moorsom v. Kymer, 613
Morant v. Chamberlain, 361
Moravia v. Sloper, 88, 906
Morden, app., Porter, resp.,
301
Morgan {ex pte.), 133
v. Abergavenny (Earl of)
337
v. Bridees, 280
v. 'Couchman, 161, 287
v. Orawshay, 621
v. Evans, 746
v. Marquis, 427
r. Morris, 119
«. Nicholl, 327, 910
v. Bavey, 858, 866
v. Rowlands, 772
v. Seaward, 49, 510, 511
v. Thomas, 862
Morgan v. Yale of Neath B. C,
811
t>. Whitmore, 897
Morley v. Attenborough, 733, 757,
759
v. Boothby, 840, 841
v. Grove, 265
Morrall v. Sutton, 539
Morrell v. Fisher, 584, 586, 567,
597
v . Frith, 98
t>. Martin, 68
Morrice p. Langham, 415
Morris v. Blackman, 456
v. Cleasby, 781
v. Davis, 901
v. Edging toD, 451
v. Matthews, 235
v. Morris, 381, 430
v. Ogden, 900
a. Parkinson, 83
v. Pu*h, 129
v. Bichards, 17
Morrish v. Murrey, 134, 412, 746
Morrison r. Chadwick, 654
r. Univ. Mar. Ins., 164
Morten v. Marshall, 656
Mortimer v. Cradock, 337, 893
v. Hartley, 546
t>. South Wales B. C,
320
Mortimore v. Wright, 494
Morton, app., Brammer, resp.,
140
v. Woods, 538
Moseley v. Motteuz, 460, 500, 603
v. Simpson, 133
Moses v. Macfarlane, 77
Mosley v. Massey, 584
Moss v. Gallimore, 341
v. Hall, 702
Mostyn v. Coles, 139
v. Fabrigas, 81, 126
v. Mostyn, 590, 592
Moule v. Garrett, 661
Mounsey v. Ismay, 874
Mount v, Taylor, 26
Mountcashel (Earl of), v. Barber,
713, 823
Mountjoy v. Wood, 69
Mouse's case, 11
Moverley v. Lee, 643
lxx
TABLE OF CASES.
Moyse v. Newington, 766
Muggleton v. Barnett, 338, 873
Muir r. City of Glasgow Bank,
552
Mulcahy v. Beg., 316
Muilett v. Mason, 221
Mullins v. Collins, 302
Mumford v. Hitchcocks, 17
v. Oxford, Worcester,
and Wolverhampton B. C, 3(52,
372
Mummery v. Paul, 744, 747
Munday v. Stubbs, 8S
Munn v. Baker, 553
Munro v. Munro, 482
Munroe r. Bordier, 710
Munt r. Stokes, 673
Murcbie v. Black, 187
Murray v. Mace, 229
v. Mann, 744, 748, 752
r. Beg., 529
Myerhoff t\ Freelicb, 9S
N.
Nadin v. Battie, 120
Napier v. Bruoe, 534, 602
Nash v. Armstrong, 702
t*. Lucas, 408
Natal Land, &c. Co. r. Good, 910
National Guaranteed Manure Co.
v. Donald, 458
Naylor v. Palmer, 215
Nazer v. Wade, 119
Neat v. Harding, 761
Needham v. Bremner, 321, 910
Neilson {ex pteX 682
v. Harford, 98, 509
Neilson'spatent, 510
Nelson (Earl) v. Bridport (Lord),
892
v. Couch, 318
-^— v. Liverpool Brewery Co.,
817
Nerot v. Wallace, 243
Ness v. Angas, 165
Neve v. Hollands, 716
Newberry v. Colvin, 801
Newbould v. Coltman, 83
Newcastle (Corporation of) r. The
Att.-Gen., 639
(Duke of) Settled Es-
tates, 430
Newington Local Board r. Not-
tingham L. Co., 240
Newmarch r. Clay, 771
New South Wales (Att.-Gen. of)
v. Macpherson, 583
Newton (re), 330
r. Belcher, 248
v. Boodle, 130, 236
v. Chantler, 304
r. Cowie, 142, 641
Vm Cubitt, 667
v. Ellis, 804, 819
v. Grand Junction R. C,
345
v. Harland, 413
v. Holford, 620
v. Liddiard, 248
v. Lucas, 588
v. Ricketts, 611, 885
t\ Rouse, 650
v. Vaucher, 345
Nichol r. Godta, 562
Nicholl i\ Allen, 197
v. Nicholl, 522
Nichols r. Marsiand, 225, 226
Nicholson v. Gooch, 678, 689
v. Lancashire & York-
shire R. C, 366
v, Mounsey, 806
v. Paget, 552
v. Revill, 659
Nickels v. Atherstone, 285, 654
v. Ross, 49
Nicoll v. Chambers, 592
v. Glennie, 828
Nightingall v. Smith, 586
Nind v. Marshall, 602
Nitro-phosphate Co. v. St. Kathc-
rWs Docks Co., 224, 225
Nixon v. Freeman, 407
Noble v. National Discount Co.,
703
v. Noble, 248
v. Ward, 841, 842, 843
Nokes's case, 607
Nordenstrom v. Pitt, 718
Norfolk (Duke of) v. Worthy,
781
TABLE OF CASES.
kxi
Norris r. Baker, 373
i?. Norris, 466
North (Lord) i\ Ely (Bishop of),
533
v. London and S. -Western
E. C., 273
r. Smith, 350
North British Insurance Co. r.
Lloyd, 750, 753
British B. C. r. Tod, 629
Eastern B. C. r. Elliott,
187
Stafford Steel Co. v. Ward,
608
Western B. C. r. Whinray ,
602
Northam v. Hurley, 196
Northumberland (Duke of) r. Er-
ring-ton, 536
Norton v. Powell, 18
Norwich v. Pearse, 928
Norwood v. Bead, 860
Notman v. Anchor Ass. Co., 320,
552 ♦
Nott v. Shoolbred, 372
Nottidgo v. Pritchard, 776
Novello v. Sudlow, 183
Nugent v. Smith, 224, 234
Nunn r. Varty, 872
Nuttall r. Bracewell, 358
0.
Oakeley v. Pasheller, 659
Oakes v. Turquand, 292
Oakley v. Portsmouth and Byde
Steam Packet Co., 224.
Oates v. Hudson, 267
O'Brien v. Bryant, 310
r. Clement, 310
Ochsentein v. Papelier, 281
Ockford v. Freston, 290
O'ConneU r. Beg., 136, 332
O'Connor v. Bradshaw, 674
O'Flaherty v. M'Dowell, 23, 527
Ogden v. Graham, 626
Ogle v. The Earl Vane, 843
Oelesby v. Yglesias, 783
Oldershaw v. King, 498
Oliver v. Fielding, 508
f Ollerton (/v), 111
Ollivant i\ Bailey, 617, 741
Ollive v. Booker, 508
Onions r. Bowdler, 845
. Onslow v. , 389
Organ r. Brodie, 453
, Oriental Bank v. Wright, 4
Orme v. Broughton, Sj7
Ormerod v. Chad wick, 586
v, Todmorden Co. , 80
Ormond r. Holland, 810, 815
Ormrod v. Huth, 733, 754
Osborn v. Gillett, 868
v. London Dock Co., 924
v. Wise, 451
Osborne's case, 642
Osborne v. Williams, 684
Osman v. Sheaf, 501
Ostler v. Cooke, 5, 88
OToole v. Browne, 466
Oulds r. Harrison, 466, 694
Outram v. More wood, 322
Overton r. Harvey, 318
Owen v. Homan, 659
v. Smith, 637
v. Thomas, 580
Oxley v. Watts, 294
P.
Pacific Steam Navigation Co. v.
Lewis, 616
Backer v. Gibbins, 228
Packington's case, 380
Paddock v. Forester, 634
v. Fradley, 671
Paddon v. Bartlett, 30
Padwick v. Knight, 872
Page v. Eduljee, 649
v. Moore, 135
Paget v. Foley, 27
r. Wilkinson, 758
Paine r. Patrick, 666
Painter v. Abel, 707
v. The Liverpool Gas Co.,
84, 108
Palgrave v. Wyndham, 861
Palk r. Force, 634
Palmer v. Blackburn, 619
v. Evans, 820
lxxii
TABLE OF CASES.
Palmer v. Hutchinson, 55, 819
v, Johnson, 732
v. Moxon, 580
Panama Telegraph Co. v. India
"Rubber Works, 244
Pannell v. Mill, 461, 503
Panton v. Holland, 361
v. Williams, 100
Paradine r. Jane, 226, 228, 2;!8
Parana (The), 201
Pardington v. South Wales R. C.
264
Pargeter v. Harris, 177
Pans v. Levy, 363
Parke v. Harris, 579
Parker v. Bristol and Exeter R.
C, 267, 269, 271
v. Crouch, 30
v. Great Western R. C,
268, 271, 559
v. Green, 928
v. Ibbotson, 98
v. Kett, 797
v. Marchant, 588
v. Patrick, 766
v. Rolls, 433
v. Tootal, 513
v. Winlow, 783
Parkes v. Prescott, 821
v. Smith, 326
Parkhurst v. Smith, 503, 536
Parkinson v. Lee, 616, 733, 739,
740
Parmiter v» Coupland, 101, 311,
313
Parnaby v. Lancaster Canal Co.,
366
Parrett Navigation Co. v. Robins,
559
Parrott v. Anderson, 778, 780
Parry v. Croydon Commercial Gas
and Coke Co., 23
v. Jones, 16
v. Nicholson, 149, 150
Parsons v. Sexton, 617
v. St. Matthew's, Bethnal
Green, 818
v. Thompson, 689
Parton v. Crofts, 822
P artridge v. Scott, 351
P asley v. Freeman, 184, 736, 744
P atapsco Ins. Co. v. Coulter, 212
Patent Bottle Envelope Co. v.
Seymer, 345
Paterson v. Gandasequi, 781
i\ Wallace, 813
Patmore v. Colburn, 838
Patricks. Oolerick, 295
v. Rej'nolds, 791
Patten v. Rea, 802
Pattison r. Jones, 312
Paull v. Simpson, 274
Pawlev. Gunn, 713
Pawson v. Watson, 755
Paxton v. Popham, 680, 688
Payler v, Homersham, 534, 600
Payne v. Burridge, 267
v. Meller, 234
v. New South Wales, &c,
Steam Nav. Co., 720
Payntorv. Williams, 714
Peaceable r. Watson, 717
Peachey v. Rowland, 804
Peacock v. Bell, 907
t\ Stockford, 637
Peake r. Screech, 636 *
Pearce v. Brooks, 693
Peardon v. Underhill, 601
Pearson v. Cox, 299
v. Dawson, 161
v. Hull Local Board of
Health, 547
v. Lemaitre, 514
v. Spencer, 447, 452
Pease v. Chayter, 81, 84, 324
v, Gloahec, 440
Peate v. Dicken, 17, 706
Pedley v. Davis, 83, 84
v. Goddard, 580
Peek t\ Gurney, 223
v. NorthStaffordshireR.C,
880
Veer v. Humphrey, 761, 766
Peers v. Lambert, 7t0
Pell v. Linnell, 236
Pemberton v. Chapman, 862
v. Oakes, 774
Tennell v. Deffell, 774
v,* Reynolds, 304
Penney v. Slade, 160
Penny (re), 188
v. Brice, 855
v. Innes, 329
Penrose v. Martyn, 4U9
TABLE OF CASES.
lxxiii
Penruddocke's case, 351, 372
Penton t\ Browne, 410, 412
t\ Robart, 400, 432
Peppercorn v. Hofman, 92
t?. Peacock, 637
Percival r. Hughes, 352, 807
v. Nanson, 916
v. Oldacre, 747
v. Stamp, 294, 408, 411
Perkins v. Eade, 730
v. Smith, 798
Perkinson r. Guildford, 860
Perren v. Monmouthshire Rail-
way and Canal Co., 234, 350
Pen-in v. Blake, 423
Perrott v. Palmer, 378
Perry v. Attwood, 842
v. Davis, 134
v. Fitzhowe, 274, 413
t\ Skinner, 540
v. Watts, 502
Perth Peerage (The), 892
Peshall v. Lay ton, 793
Petch v. Lyon, 287
v. Turin, 509
Peter v. Daniel, 499
Peters 17. Clarson, 293
Peto v. Blades, 758
Petrie v. Hannay, 689
t\ Nuttall, 911
Pettamberdass t\ Thaekoorseydas,
30
Pettitt v. Mitchell, 618
Peytoe's case, 834
Peyton v. London (Mayor, &c, of),
352
Phone* v. Popplewell, 654
Pheysey v. Vicary, 450
Philips v. Barber, 543
Philipson 17. Egremont (Earl of),
691
Phillips v. Ball, 875
v. Edwards, 553
1?. Eyre, 29, 35, 81, 116,
332
v. Humphrey, 867
v. Innes, 18
v. Nairne, 212, 215
v. Naylor, 190
t?. Phillips, 263, 339, 428
v. Smith, 369
Philpott v. Jones, 773
Philpott r. Kelly, 855
v. St. George's Hospital,
681
Philpotts v. Philpotts, 6S1
Phipps 17. Ackers, 135
Phipson v. Haryett, 22
Piatt 17. Ashley, 636
Pickard v. Sears, 284, 286
v. Smith, 804, 807
Pickering v. Dowson, 747
17. Ilfracombe B. C. , 696
v. Budd, 373
Pickford v. Grand Junction B. C,
271, 780
Pidgeon v. Burslem, 694
Piers v. Piers, 470, 901
Piggot 17. Eastern Counties B. C,
202, 349
Pigot 17. Cubley, 767
Pilot's case, 148, 695
Pike v. Carter, 83
1?. Hoare, 178
Pilbrow v. Pilbrow's Atmospheric
B. C, 697
Pilgrim v. Southampton and Dor-
chester B. C, 6
Pilkington v. Cooke, 25
Pillans 1?. Van Mierop, 699
Pilmore 17. Hood, 744, 746, 747
Pirn 17. Curell, 912
Pindar v. Ainsley, 228
17. Wadsworth, 140, 195
Pinel's case, 843
Pinhorn v. Souster, 30
Pinington v. Galland, 447
Pitoher v. King, 83
Pitt 17. Coombes, 272
v. Pitt, 667
Place 17. Potts, 318
Plant 17. Taylor, 915
Plasterers' Co. v. Parish Clerks'
Co., 364
Plate Glass Co. v. Meredith, 6
Piatt i?. Bromage, 250
Playford v. United Kingdom
Telegraph Co., 706
Plenty v. West, 466, 539
Plevins 17. Downing, 841
Plimpton v. Malcolmson, 511
Plumer v. Briscoe, 894
Pochen v. Duncombe, 641
Pocock v. Pickering, 529
Ixxiv
TABLE OF CASES.
. I
Polden r. Bastard, 447
Pole v. Cetcovitch, 240
v. Harrobin, 688
Polhiil v. Walter, 748, 782,
784
Polini v. Grey, 919
Pollard {in re), 108
v. Bank of England, 2.52
v. Ogden, 777
Pollen v. Brewer, 413
Pollitt v. Forest, 579
Pollock v. Stables, 882
Pomfret v. Bicroft, 449
Pontifex v. Bignold, 196, 744
v. Midland B. C, 194
v. Wilkinson, 840
Poole v. Dicas, 919
i\ (Mayor of) v. Whitt, 277
v. Poole, 532
v. Tunbridge, 835
v. Whitcombe, 139, 248
Pooley v. Brown, 247, 740
r. Driver, 284, 785
v. Harradine, 660, 839
Pope v. Bavidge, 263
v. Fleming, 289
Popplewell v. Hodkinson, 187,
354
Pordage v. Cole, 506, 624
Porter v. Bradley, 153
Portington's case, 418, 422
Portland (Duke of) r. Topham,
456
Portsmouth Floating Bridge Co.
v. Nance, 557
Potez v. Glossop, 897
Pothoneir v. Dawson, 767
Potter r. Faulkner, 264, 350, 366,
815
Poul8um v. Thirst, 94
Poulton v. London and South-
western B. C, 781, 799
Powell, app. , Borraston, reep.9 400
v. Barhani, 736
v. Divett, 149
v. Edmunds, 615
i>. Elliott, 720
v. Fall, 191
v. Farmer, 400
v. Graham, 859
v. Gudgeon, 414
v. Hoyland, 272
Powell r. Bees, 865
v. Sonnett, 899
Power v . Barham, 758, 739
Powlett v. Boulton, 379
Powley v. Walker, 723
Pownall r. Ferrand, 713
Prehn t\ Royal Bank of Liver-
pool, 220
Prentice v. Harrison, 88
t\ London Building So-
ciety, 163
Preston v. Liverpool and Man-
chester B. C, 690
t\ Merceau, 614
v. Norfolk B.C., 194
v. Peeke, 320
Pretty v. Bickmore, 817
Price r. Barker, 534, 659
v. Carter, 287
r. Easton, 703
v. Great Western E. C, 60fr
v. Green, 695
i\ Kirkham, 658
v. Macaulay, 738
r. Messenger, 92
v. Peek, 793
v. Seaman, 475
v. Torrington (Earl of), 918
t». Wodehouse, 294, 295
v. Worwood, 457, 897
Prichard v. Powell, 154
Prideaux v. Bunnett, 616, 617
Priestley v. Foulds, 557
v. Fowler, 745, 810
Priestly v. Fernie, 330
Prince v. Clarke, 824
v. Nicholson, 631
Prior v. Hembrow, 859
Pritchard v. Merchants' Life In-
surance Co., 254
Pritchett v. Smart, 924
Proctor v. Hodgson, 447, 451
v. Mainwaring, 528
Prohibitions (The case of), 42,
110
Prole v. Wiggins, 688
Prosser v. "Wagner, 912
Proudfoot v. Montefiore, 799
Prowse v. Loxdale, 327
Prudential Insurance Co. v. Ed-
munds, 104
Pryoe v, Beloher, 184
TABLE OF CASES.
lxxv
Pugh r. Griffith, 410
r. Stringfield, 499, 505
Pulsford v. Richards, 728
Purchase v. Shallis, 586
Purnell, app., Wolverhampton
New Waterworks Co., re*p.y 23
Pusey v. Desbouverie, 159, 258
Pyer r. Carter, 447
Pym r. Campbell, 620
r. Great Northern R. C,
864
Pyne (r<0, 160
v. Dor, 380
Q.
Quarman u. Burnett, 800, 809,
819
Quick v. Ludborrow, 859
Quicke v. Leach, 514
Quilter v. Mapleson, 29
Quincey (ex jpfe.)> 394
r. Sharpe, 98
E.
Rackham v. Marriott, 98
Raffles v. Nichelhaus, 561
Railton v. Matthews, 753
Rainforth (rf), Gwyne r. Gwyne,
772
Ralston v. Hamilton, 143, 518
Ramazottd v. Bowring, 286, 781
Bameshur Pershad Narain Singh
c. Koorj Behari Pattuck, 359
Ramsden v. Dyson, 132, 167, 284,
378
Ramahay (er pte.)y 108
Rand v. Green, 592
Randall v. Newson, 235
v. Roper, 221
Randell r. Trimen, 748, 785
Ranger v. Great Western R. C,
112, 304
Ranklin v. Scott, 340
Rann v. Hughes, 700
Raphael v. The Bank of England,
671
v. Goodman, 793
Rapson v. Cubitt, 806, 819
Rashleigh r. South Eastern R. C,
505,607
I
Ratcliffe r. Burton, 409
Rawlings i\ Bell, 749, 755
Rawlins v. Ellis, 22
v. Wickham, 728
Rawson r. Haigh, 922
Rawstron r. Taylor, 189, 356
Ray v. Jones, 502
Raymond r. Fitch, 856, 857
Rayner v. Grote, 288, 583
Rea v. Sheward, 296
Read v. Edwards, 368
v. Great Eastern R. C.r
864
v. Legard, 494
Reade v. Conquest, 315
Readhead v. Midland R. C, 864,
234, 235, 741
Reason v. Wirdnam, 711
Eeay v. Richardson, 838
Rebeckah (The), 560
Redgrave v. Hurd, 729, 732
Redman r. Wilson, 212
Redmond v. Smith, 644
Reed v. Ingham, 547
v. Jackson, 321, 900
r. Lamb, 897
Reese River Silver Mining Co. r.
Smith, 686, 697, 756
Reeve v. Palmer, 358
v. Whitmore, 466
Reeves v. Hearne, 716
Reg. i\ Abbott, 206
v. Aberdare Canal Co., 113
v. AUeyne, 688
r. Ambergate, &c, R. C,
239, 909
v. Anderson, 94
v. Aspinall, 174
v. Austin, 67
v. Bamber, 225
v. Beadle, 69
v. Bennett, 223
v, Bertrand, 104
v. Betts, 49, 140, 361
v. Bird, 330
v. Birmingham (Inhabit. of),
658
v. Birmingham (Overseers
of), 915
v. Bishop, 303
v. Blake, 922
v. Blakemore, 688
\
lxxvi
TABLE OF CASES.
Beg. v. Bolton, 88
p. Boys, 923
p. Bradford Navigation Co.,
362
v. Brennan, 900
r. Brighton (Inhabit, of),
468
p. Brimilow, 310
p. Brittleton, 928
p. Broadhempston (Inhabit
of), 499, 899
p. Brown, 636
v. Bryan, 206
v. Burgon, 206
v. Button, 330
v. Caledonian R. C, 241,
620, 629
v. Cambridge (The Recorder
of), 113
v, Canterbury (Archbishop
of), 107, 639, 834
— — v. Casterton (Inhabit, of),
637
v . Chadwick, 478
v. Chapman, 90
v. Charlesworth, 140, 332
v. Cheeseman, 306
v, Cheltenham Commission-
ers, 114
v. Chri8tchnrch (Inhabit.
of), 32
v. Cleworth, 606
v. Coaks, 239
p. Collins, 306, 308
p. Combs, 658
v. Cresswell, 901
v. Cross, 925
p. Darlington Board of
Health, 192
r. Deal (Mayor of), 113
p. Deane, 24
v. Deeley, 928
v» Denbighshire (The Jus-
tices of), 130
v, Denton (Inhabit, of), 25,
39
v. Drury, 331, 332
v. Dulwich College, 638, 794
v. Eagleton, 206, 307
v. East Mark, 62
v. Eastern Archipelago Co.,
608
Reg. v. Edmundson, 606
v. Edwards, 67, 128, 236
v. Eldershaw, 310
v. Ellis, 166
v. Ellington, 332
v. Essex, 899
v. Essex (Commissioners of
Sewers), 225
v. Evans, 161
p. Exoter, 915
p. Exeter (Chapter of),
900
p. Fisher, 305
v. Fontaine Moreau, 909
v, Fordingbridge (Inhabit.
of), 899
v. Gardner, 224, 307
v. Garrett, 308
v. Gate Fulford (Inhabit
of), 904
v. Gaunt, 330
v. Gibbon, 114
v. Gillyard, 105, 926
v. Glynue, 332
v. Gompertz, 332
v. Goodall, 582
v. Goss, 206
r. Grant, 83
r. Great Western R. C, 111,
239
p. Great Yarmouth (J.J.)i
113, 114
v. Green, 332
v. Gregory, 625
v. Groomoridpp, 310
p. Handeley, 114
p. Hapgood, 306
v. Hardoy, 688
p. Hertfordshire (Justices
of), 114
p. Hicklin, 301,304
p. Hickling (Inhabit of),
83
v. Hill, 304
v. Hodgkiss, 171
v. Hughes, 224, 883
v. Huntingdon, 1 14
v. Jones, 224, 796, 901
v. Jordan, 320
v. Keighley, 206
v. Kenrick, 206
v. Kirkman, 305
TABLE OF CASES.
lxxvii
V.
p.
v,
v.
p.
r.
p.
r.
r.
r.
v.
r.
r.
i».
p.
t?.
r.
f.
17.
p.
p.
p.
p.
v,
p.
«?.
p.
p.
p.
p.
r.
p.
p.
p.
■ p.
■ v.
■ p.
■ p.
•p.
-p.
Knight, 330
Lancashire and Yorkshire
B. C , 239
Lee, 114, 206, 392
Leeds and Bradford B. C,
34
Leicestershire (The Jus-
tices of), 235
Leigh, 226
Lewis, 94
London and North West-
ern B. C, 239
London (Justices of), 115
London (Mayor of), 22,
23
Lovett, 304
Lowe, 160
M'Cann, 68
M'Pherson, 306
Machin, 330
Madeley (Inhabitants of),
30
Maidenhead (Mayor of),
79
Manchester and Sheffield
B.C., 113
Man waring, 470
Martin, 224, 307
Mellor, 593
Metropolitan Board of
Works, 200
Middlesex (Registrar of),
629
Miiledge, 114
Millis, 136, 468, 469, 470,
526
Moah, 330
Moore, 305
Morris, 331, 335
Murphy, 104
Myers, 113, 114
Newborough (Lord), 175
Newirarket
794
Oxley, 582
Parker, 583
Paty, 908
Payne, 928
Peel, 592
Perkin, 796
Philips, 310
Pocock, 224
R* C, 8,
I
Beg. p. Povey, 892
p. Powell, 900
p. Prince, 303, 320
p. Bagg, 206
p. Band, 111, 113
p. Begent's Canal Co., 629
v. Bew, 224
p. Biley, 307
p. Boberts, 307
p. Bobinson, 925
v. Bochester (Dean of), 111
v. Roebuck, 206
p. Botherham, 582
p. Bussell, 140, 928
p. Saddlers' Co., 107, 289
v. Sandwich (The Mayor of),
287
v. Scott, 925
p. Sharpe, 15
v. Sherwood, 206
v. Silkstone, 582, 905
v. Skeen, 925
p. Smith, 314
v. South-Eastern B. C, 239
p. St. Albans (Bishop of),
112, 116
v. St. Edmund's, Salisbury,
22,24
v. St. Margaret's, Westmin-
ster, 636
p. St. Mary Magdalen, 899
v. St. Marylebone, 698
p. St. Mary's, Warwick, 138,
919
v. St. Mary's, Whitechapel,
31
v. St. Michael's, Southamp-
ton, 900
v. St. Paul's, Covent Garden,
899
v. Stainer, 645
v. Stainforth (Inhabitants
of). 91
v. Stephens, 821
v. Stoke- upon -Trent, 618
v. Strahan, 926
v. Stretfield, 586
p. Suffolk (Justices of), 24,
118
v. Surrey (Justices of), 115,
245
v. Sussex (Justices of), 135
lxxviii
TABLE OF CASES.
Reg. r. Taylor, 171
r. Tewkesbury (Mayor of),
248
i\ Thomas, 301 , 305
r. Thompson, 928
v, Tooley, 90
v. Totness (Inhabitants of),
91, 109, 905
r. Train, 197
r. Treasury (Commrfl.), 203
v. Upton St. Leonard's, 115
r. Vaughan, 200
r. Walcot (Overseers of), 156
r. Warwickshire (Justices
of), 899
v. Waverton, 631
1\ West Biding (Justices of),
114
r. Whiteley, 17
v. Widdop, 134
v. Wiicock, 586
v. Woodrow, 143, 301
v. Woodward, 830
v. Wooldale (Inhabitants of)
571, 580, 642
r. Worth (Inhabitants of),
919
v, York and North Midland
E. C, 239
v. York, Newcastle, and Ber-
wick R. C, 239
Reid v. Hoskins, 240, 244
Reis v. Scottish Equitable Life
Assurance Society, 838
Remfry v. Butler, 268
RenneU v. Lincoln (Bishop of),
844
Rennie v. Clarke, 791
v. Ritchie, 426
Reuse v. Picksley, 841
Revis v. Smith, 190
Rew v. Barber, 757
Reward (The), 140, 694
Rex v. All Saints, Southampton,
905
v. All Saints, Worcester, 924
v. Amery, 60
v. Antrobus, 13
v. Aslett, 24, 27
v, Bailey, 262
v, Bellringer, 884
v. Benn, 107
Rex v. Birchenough, 330
Birmingham, 477
Butler, 48
Cambridge (University of),
107, 108
Carlisle, 321
Chester (Bishop of), 156 ^
Chilverscoton, 171, 637,
905
Claviger, 924
Cotton, 67
Croke, 5
Crutchley, 10
Cunningham, 623
Davie, 638
Davis, 25
Dixon, 304
Eriswell, 135
Esopp, 262
Farrington, 304
FiUongley, 698
Garbet, 923
Hall, 531, 643
Halliday, 924
Harvey, 304, 309
HaalingfieK 904
Hellings, 905
Holm, 905
Hoseason, 110
Hulcott, 905
Jarvis, 633, 635
Johnson, 74, 84, 530
Jones, 301
Kempe, 47
Larking, 67
London (Bishop of), 246
London (Mayor of), 560
Loxdale, 176
Lyme Regis, 900
Mahon, 332
Marsh, 301
Mashiter, 638
McGrowther, 10
Middlesex (Justices of), 27
Moore, 304
North Nibley, 620
Nottingham Waterworks
Co., 900
12. Osbourne, 638
v. Otley (Inhabitants of), 393
v. Owen, 309
v. Poole, 105
t?.
r.
v.
■v,
v.
v.
r.
t?.
t?.
v.
■ V.
V.
■V.
■17.
■17.
■r.
- 17.
■V.
•17.
■ 17.
-17.
•1?.
V.
V.
-17.
■V.
17.
-«.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
-17.
TABLE OF CASES.
lxxix
Rex r. Poor Law Commsrs., 540
r. Richards, 637
p. Robinson, 530
r. Sainsbury, 301
p. Scofield, a00
p. Scully, 406
r. Sloper, 66
p. Somerset (Com. of Sewers),
225
p. SouthertoD, 124
p. St. Dunstan, 395
p. St. Mary's, Leicester, 637
p. St. Pancras, 319
p. Stockton, 899
1\ Upton Gray, 171
p. Yandercomb, 330
p. Verelst, 899
p. Walters, 305
p. Ward, 197, 361
p. Watson, 101
p. Westwood, 451
p. Whitchurch, 171
p. Whitnash (Inhabitants of),
17
p. Wilkes, 79, 407
p. Williams, 75
p. Woodfall, 301
p. Wrieht, 69, 70
p. Yarborough (Lord), 158
p. Younger, 17
Bsynell r. Lewis, 788
v. Sprye, 683, 686, 738
Reynolds (re), 923
(expte.) 925
v. Barford, 551
p. Clarke, 373
v. Fenton, 107
p. Wheeler, 713
Rhodes v. Forwood, 278
v. Haigh, 857
v. Smethurst, 855
Ribble Navigation Co. v, Har-
greayes, 557
Ricard v. Williams, 902
Ricardo v. Garcias, 324
Rice p. Shepherd, 494
Rich p. Basterfield, 816
v. Jackson, 614
Richards p. Bluck, 535
p. Davies, 517, 520
p. Dyke, 24
r. Harper, 187
Richards p. James, 343
p. M'Bride, 531
p. Morgan, 900
p. Rose, 187, 353, 447
Richardson p. G. E. EL, 234
v. Dubois, 494
p. Dunn, 746
p. Mellish, 674, 518
v. Power, 513
v. Watson, 565, 567
Richmond p. Nicholson, 865
R. C. p. Louisa R. C,
449
Rickards p. Murdock, 889
Rickett p. Metropolitan R. C,
200, 392
Ricketts p. Bennett, 792
v. Weaver, 857
Riddell p. Sutton, 860
Ridgway p. Wharton, 629, 826
Riding p. Smith, 196
Ridley p. Gyde, 922
Rigby v. Great Western R. C.,504
Rigg p. Burbidge, 325
p. Lonsdale (Earl of), 336
Right p. Oompton, 544
Riley p. Baxendale, 813
p. Packington, 789
Ring p. Roxburgh, 583
Ringer p. Cann, 61 1
Rippinghall p. Lloyd, 834
Risbourg p. Bruckner, 782
Riseley p. Ryle, 124
Rishton v. Cobb, 588
Risney p. Selby, 738
Ritchie v. Atkinson, 508
p. Smith, 686, 695
Rivers v. Griffiths, 168
Rix p. Borton, 22
Rizzi p. Foletti, 118
Robarts p. Tucker, 768
Robbins v. Fennell, 707
Roberts p. Aulton, 77
v. Barker, 359
p. Bethell, 896
p. Brett, 506
p. Bury Commsra., 241
v. Great Western R. C,
350
p. Orchard, 94
v. Phillips, 611
p. Preston, 820
lxxx
TABLE OF CASES.
Roberts v. Hose, 363
v. Shaw, 774
t?. Smith, 350, 709, 815
Robertson v. Fleming, 709
v. French, 512, 880
v. Gantiett, 447
- — v. Powell, 513
Robinson r. Anderton, 758
v. Bristol (Marquis of),
584
t\ Collingwood, 906
v. Cotterell, 39
v. Davison, 230, 339
i\ Emerson, 25
v. Gleadow, 782, 824
. v. Hardcastle, 521
v. Mollett, 882
v. Reynolds, 710
v. Rutter, 761
Robson v. Att-Gen., 336
Rochdale Canal Co. v. King, 184
Roddy v. Fitzgerald, 520, 549, 605,
609
Roden v. Small Arms Co., 572
Rodger v. The Comptoir d'Es-
compte de Paris, 441, 556
Rodgers v. Maw, 823
v. Nowill,748
v. Parker, 294
Roe d. Allport v. Bacon, 632
I. Berkeley (Earl of) v. York
{Archbishop of), 501
-d, Haldane v, Harvey, 894
I. Hunter v. Galliers, 433
I. Reade v. Reade, 544
■47. Bacon, 634
■v. Birkenhead, Lancashire,
and Cheshire R. C, 799,
828
-v. Harrison, 834
-17. Lidwell, 535
-v. Tranmarr, 501
Roffey v. Henderson, 399, 840
Rogers v. Brenton, 872
17. Hadley, 99, 165, 620,
646, 691, 881
v. Ingham, 257
17. Nowill, 195
17. Parker, 196
17. Rajendoo Dutt, 56, 184,
188
v. Rogers, 263
Rogers ». Taylor, 187, 450, 872,
876
v. Vandercomb, 118
Rolfe 17. Flower, 775
Rolin v. Steward, 193, 196
Rollason v. Leon, 503
Rolls i7. Rock, 380
Rooke's case. 79
Rooke r. Kensington (Lord)f
604
Roope r. D'Avigdor, 155, 205,
868
Roret 17. Lewis, 124
Roscorla v. Thomas, 712, 714
Rose v. Groves, 197, 198
v. Miles, 197
17. Poulton, 210
Rosewarne v. Billing, 679, 694
Ross 17. Adcock, 870
17. Hill, 234, 366
Rosse (The Earl of) v. Wainmanr
400
Rossiter v. Trafalgar Life Assur-
ance Association, 796
Rothes 17. Kirkcaldy, &c, 526
Routledge v. Low, 346, 347
Rowbotham v. Wilson, 187, 353,
354, 432, 447, 647
Rowe 17. Brenton, 916
Rowles 17. Senior, 124
Royal Liver Friendly Society (Re),
537
Rumsey v. North- Eastern R. C.r
274, 656
Rusden v. Pope, 464
Russell (ex pte.) 702
v. Bryant, 302
v. Da Bandiera, 241
v. Devon (Men of), 198
t\ Ledsam, 634
v. New York (Mayor of)r
2
■ r. Smyth, 76
v. Thornton, 750
Russia Steam Navigation Co., r.
Silva, 880
Rust 17. Nottidge, 505
Rustomjee i\ Reg., 58
Rutland 17. Doe d. Wythe, 434
v. Rutland, 861
Rutland's (Countess of) case, 122,
833
TABLE OF CASES,
lxxxi
Butland's (Earl of) case, 60
Butter v. Chapman, 502, 796
Buttinger v. Temple, 494
Byall v. Bolle, 396, 444
Byan r. Shilcock, 407
Byder v. Mills, 527, 528
t\ Wombwell, 103, 493
Bylands v. Fletcher, 349, 354,
355, 356, 366
v. Kreitman, 168
Byves v. Wellington (The Bake
of), 53
S.
Sack v. Ford, 801
Sadler v. Dixon, 219
v. Henlock, 704
v. Leigh, 781
v. Smith, 674
Saint v. Pilley, 166, 402
St. Margaret's Burial Board v.
Thompson, 37
St. Pancras v. Batterbury, 185
St. Victor v. Devereux, 133
Salford (Mayor of) v. Ackers, 635
Salisbury (Marquis of) v. Glad-
stone, 432,. 874
v. Great
Northern B. C, 746
Salkeld v. Johnson, 525, 529, 530,
640
Salmon v. Webb, 909
Salomons v. Pender, 165
Salter's Co., v. Jay, 27
Sammell v. Wright, 809
Sampson v. Easterby, 534
Samuel v. Green, 780
Samuell^. Howorth, 660
Sanchar's (Lord) case, 105
Sandeman v. Scurr, 801
Sanders v. Coward, 241
v. Powell, 759
Sanderson v. Dobson, 545
v. Symonds, 150
Sandilands {re), 898
Sandilands v. Marsh, 785
Sandon v. Jarvis, 408
v. Proctor, 130
Sandrey v. Mitchell, 442
Sands v. Child, 798
Sansom v. Bell, 602
Sanson v, Bumsay, 893
Santos v. Illidge, 690
Sargent v. Gannon, 248
t\ Morris, 781
v. Wedlake, 686
Sarquy v. Hobson, 214
Sasty Yelaider v, Sembecutty, &&>
901
Saul v. Jones, 148
Saunders' case, 448
Saunders t\ Evans, 609
v. Graham, 168
v. Smith, 373
Saunderson v. Griffiths, 823
v. Piper, 564
Savery v. King, 826
Savin v. Hoylake, 646
Saye and Sele Peerage (The), 901
Sayer v. Wagstaff, 777
Scales v. Cheese, 129
Scarborough v. Borman, 425
(Earl of) v. Doe d.
Savile, 513
Scarfe v. Morgan, 17
Soarpillinli v. Atcheson, 714
Scatter$ood v. Sylvester, 765
Schilizzi v. Derry, 240
Schmaling v. Tomlinson, 795
Schmaltz v. Avery, 288
Schofield (ex pte\ 925
Schooner Beeside (The), 885
Schuster v. M'Kellar, 801
Sootson v. Pegg, 903
Scott v. Avery, 537, 626, 651, 696
v. Littledale, 256
v. London Dock Co., 298
v. Manchester(Mayor of), 85
v. Scott, 338, 809
v. Seymour (Lord), 332
v. Shepherd, 201, 349
v. Stansfeld, 81, 311
v. Waithman, 894
Scrimshire v. Alderton, 781
Scrivener v. Pask, 618, 799
Seagrave v. Union Mar. Ins. Co.,
2L2
Seaman v. Neatherclift, 202
Searle v. Lindsay, 810, 815
Searles v. Sadgrave, 168
Sebag v. Abitbol, 350
Seeger v. Duthie, 508
lxxxii
TABLE OF CASES.
Seifferth v. Badham, 626
Seignior v. Wolmer, 666
Selby v. Browne, 277
Selkrig v. Davies, 428
Seller v. Jones, 601
Selwood v. Mildmay, 587
Semayne's case, 404, et erq.
Senhonse v. Earle, 638
Senior t\ Armytage, 414
v. Ward, 262, 810
Seymour v. Greenwood, 802, 805,
809
v. Maddox, 810
Shackell v. Hosier, 682
Shadwell v. Shad well, 702
Shand v. Grant, 669
Sharp v. Grey, 234
r. Nowell, 796
r. Powell, 201
v. Waterhonse, 443
Sharpe v. Great Western B. C, 743
Sharpies v. Rickard, 103
Sharpley v. Overseers of Mable-
thorpe, 639
Sharrod v. London and North-
Western E. C, 802
Shattock v. Garden, 342
Shaw v. Beck, 901
v. Gould, 71, 468, 481, 483
v. Jeffery, 681
Shedden v. Patrick, 470, 482
Sheffield Nickel Co.r. Unwin, 245
v. Radcliffe, 125
Shelburn v. Inchiquin, 623
Sheldon v. Sheldon, 632
Shelton v. Braithwaite, 157
v. Livius, 838
v. Springett, 494
Shepherd v. Hills, 39, 185, MS
v. Kain, 738
r. Payne, 876
r. Pybus, 616, 739, 741
v. Sharp, 7
r. Shepherd, 144
Sheppard v. Phillimore, 177
Sherborn v. Lord Huntingtower,
119
Sherwin r. Swindall, 309, 407
Shore t>. Wilson, 98, 519, 575, 883
Shoreditch (Vestry of) v. Hughes,
102, 499
Short (ex pte.), 333
Short v. M'Oarthy, 855
1\ Simpson, 440
Shortrede v. Cheek, 562
Shower v. Pilck, 466
Shrewsbury v. Blount, 738, 745
Peerage (The), 557
Shutford v. Borough, 854
Shuttleworth v. Greaves, 570
v. Le Fleming, 528
Siboni v. Kirkman, 858
Sibree v. Trap, 843
Sibthorpe v. Brunei, 506
Sichel v. Lambert, 901
Sicklemore v. Thistle ton, 535
Siddons v. Short, 167, 196
Sidwell v. Mason, 98
Sievewright v. Archibald, 822
Sill v. Worswick, 485
Sillem v. Thornton, 627
Simmons v. Heseltine, 256
v. Lillystone, 197
v. Norton, 227, 380
v. Taylor, 669, 768
Simond r. Braddcn, 738
Simons v. Johnson, 534
t». Patchett, 785
Simpson v. Bloss, 677, 680
v. Egginton, 713, 822
v. HoDiday, 97
v. Howden (Lord), 4,
690
v. Ingham, 77*
v. Lamb, 689
v. London and North
Western R. C. 220
v. London General Omni-
bus Co., 298
v. Margeson, 567, 8S1
r. Nicholls, 18
v. Pickering, 322
i\ Ready, 25, 635
v. Sadd, 351
v. Savage, 362, 372
r. Swan, 329
v. Thompson, 210
v. Wilkinson, 903
Sims v. Bond, 781
v. Morrvatt, 757, 700
Singleton v. Williamson, 275
Siordet v. Hall, 219
v. Kuczynski, 103
Six Carpenters' case, 120, 293, 295
TABLE OF CASES.
lxxxiii
8kaife v. Jackson, 678
Skeate v. Beale, 272
Skeet v. Lindsay, 98
SkiUett v. Fletcher, 659
Skinner v. Lambert, 529
Skipp v. Eastern Counties R. C,
264,810
Skull v. Glenister, 447, 585
Slaman v. Neatherclift, 202
Slater v. Dangerfield, 520
v. Mayor, &c, of Sunder-
land, 658
Sleap v. Newman, 662
Sleddon v. Crnickshank, 402
Sleigh v. Sleigh, 270
Slim v. Croucher, 729
Slingsby v. Granger, 514, 587
Smallcombe v. Olivier, 31
Smart t?. Harding, 717
r. Hut ton, 793
v. Morton, 187, 353, 354
Smeeton v. Collier, 796
Smethurst v. Mitchell, 782
Smith v. Attwood, 744
v. Baker, 163, 742
v. Bell, 532, 559
v. Blakey, 916
v, Boucher, 81
v. Braine, 710
v. Bromley. 250
v. Chadwick, 729
v. Coffin, 512
v. Colgay, 861
v. Compton, 535
v. Cramer, 922
v. Doe d. Jersey (Earl of),
143, 556
v. Edge, 135
v. Egginton, 294
v. Eox, 855
v. Prampton, 366
v. Gibson, 324
v. Green, 221
v. Hartley, 580
v. Hodson, 161, 823
v. Jenryes, 567, 571
v. Kay, 744
v. Keal, 798
v. Kenrick, 187,189, 32 5,
354
- v. Lawrence, 809
v. Linds, 674
Smith v. London and South- Wes-
tern R. C, 366
v. Malings, 277
v. Manners, 278
v. Marrable, 727
v. Marsaok,
v. Mawhood, 694
v. Mills, 862
v. Monteith, 122, 272
v. Neale, 739, 841
t7. Faokhurst, 501
v. Pinoomb, 259
v. Pocklington, 502
v. Pritchard, 805
v. Reg., 106
v. Render, 400
v. Ridgway, 460, 597
v. Soott, 739
v. Shirley, 407
v. Simonds, 858
v. Sleap, 782
v. Sparrow, 17, 18
v. Stafford, 120
v. Stapleton, 172
v. Sydney, 900
v. Thackerah, 186, 187,
347, 353, 853
v. Thompson, 572
v. Thome, 716
v. Universal Insurance Co.,
215
v. Wedderburne, 525
v. Wigley, 775
v. Wilson, 618, 879
v. Woodfine, 722
v. Wright, 297
Smout 17. Hbery, 748, 783
Smurtwaithe v. Wilkins, 440
Sneesby v. L. & Y. R. C, 211
Snell v. Finch, 341
Snow v. Peacock, 671
Snowdon v. Davis, 271
Soane v. Knight, 313
Soares v. Glyn, 838
Solly v. Forbes, 554
v. Rathbone, 795
Solomon v. Vintners* Co., 187,
352, 354, 372
Somerville v. Hawkins, 312, 314
v. Mirehouse, 84
Somes v. British Empire Shipping
Co., 77
/2
Ixxxiv
TABLE OF CASES.
Sorabie v. Park, 505
Sottomayer v. De Barros, 478,
480
Southall v. Bigg, 252, 709
Southampton Bock Co. v. Bichards,
176
Southcote v. Stanley, 810
South Shield* Waterworks Co. r.
Cookson, 360
Spackman v, Evans, 686, 845
v. Miller, 445
Sparrow v. Chisman, 288
Spartali v. Benecke, 574, 620, 649,
881
Spedding v. Nevell, 750, 785
Speight v. Tedcastle, 216
Spence v. Chad wick, 229, 240
v. Union Marine Ins. Co.,
280 337
Spencer's case, 386, 435, 443
Spencer v. Handley, 693
v. Marlborough (The
Duke of), 424
Spicer v. Cooper, 879
Spicot's case, 282
Spieres v. Parker, 633, 900
Spill v. Maule, 102, 311
Spiller v. Paris, &c. Co., 826
v. Westlake, 722
Spooner v. Payne, 584
Spotswood v. Barrow, 208
Spread v. Morgan, 248
Sprigwell v. Allen, 758
Springwell v. Callen, 733
Spry u. Flood, 611
Sprye v. Porter, 689
Squire v. Ford, 76, 537
Stace v. Griffiths, 102
Stacey, app.t Whitehurst, resp.,
828
Stadhard v. Lee, 646
Staffordshire and Worcestershire
Canal Navigation v. Birming-
ham Canal Navigation, 359
Stallard v. Great Western B. C,
20
.Stammers v. Dixon, 883
v. Hughes, 129
Stamp v. -Sweetland, 84
Standen v. Christmas, 442, 607
Standish v. Boss, 250, 287
iStaniland v. Hopkins, 636
Stanley v. Stanley, 589
Stansell v. Jollard, 187
Stansfield v. Mayor, &c, of Ports-
mouth, 402
Stanton v. Styles, 907
Stapylton v. Clough, 919
Startup v. Macdouald, 102, 879
Stavers v. Curling, 506, 723
Stead v. Anderson, 315, 344
v. Berrier, 562
v. Carey, 34, 49
v. Dawber, 842
v. Williams, 327, 344
Steavens v. Jeacock, 198
Stebbing v. Spicer, 570
Stedman's case, 305
Stedman v. Gooch, 777
Steele v. Haddock, 838
v. Harmer, 658
v. Hoe, 498
v. Shomberg, 85
v. South-Eastern R. C,
809
v. Williams, 268, 271
Stem v. Croucher, 729
Stephens (ex pte.), 401
v. Badcock, 778
v. De Medina, 725
v. Elwall, 798
v. Hill, 926
v. Pell, 553
v. Reynolds, 286
v. Taprell, 547
Stepney v. Lloyd, 123
Sterry v. Clifton, 529
Stevens v. Copp, 443
v. Gourley, 685, 689
v. Lynch, 250
v. Midland Counties B.
C, 799
v. Stevens, 633
Stevenson v. Oliver, 26
Stevenson's Heirs v. Sullivant,
484
Steward r. Greaves, 532
v. Gromett, 199
v. Lombe, 396
Stewart v. Aberdein, 620, 879
v, Anglo-CalifornianGold
Mining Co., 629
v. Eddowes, 643
v. Gibgon, 696
TABLE OF CASES.
lxxxv
Stewart v. London and North-
western B. C, 251
v. Menzies, 469
v. Stewart, 249, 260
St. Helen's Smelting Co. v. Tip-
ping, 355, 362
Stilwell v. Clarke, 327
Stirling v. Maitland, 278
Stockdale v. Hansard. 13, 89, 184
Stockport Waterworks (re), 433
Stockton and Darlington R. C. v.
Barrett, 527, 529
Stokes v. Russell, 177
Stone v. Godfrey, 257
v. Marsh, 205, 206
v. Stone, 263
Storey v. Ashton, 802, 803
v. Robin son, 273
Storie r. Bishop of Winchester,
63
Story (ear pte.)% 107, 130
Stott v. Tairlamb, 837
Stonghton v. Day, 601
Stourbridge Canal Co. v. Wheeley,
557
Stowell v. Robinson, 840
v. Zouch (Lord), 540
Stracey v. Nelson, 4, 532
Stradbroke (Lord) v. Mulcahy,
385
Stratton *. Pettitt, 499
Strauss v. Francis, 320
Stray v. Russell, 268
Street v. Blay, 735, 739, 758
Streeter v. Horlock, 713
Strickland v. Maxwell, 448
v. Turner, 251, 703
Stringer v. Gardiner, 569
Strode v. Russel, 562
Strong v. Foster, 339
v. Harvey, 168
Strother v. Hutchinson, 160
v. Lucas, 902
Stroud (re), 881
Stroyan v. Knowles, 187
Strutt v. Bovingdon, 322
Stuart v. Evans, 816
v. Jones, 24
v. Whitaker, 793
Stubbs v. Holywell, 231, 857
v. Parsons, 267
Stucley v. Baily, 736, 747
Studdy v. Sanders, 723
Sturges v. Lord Curzon, 3)0
Sturgis v. Darell, 843, 855
Sturmy v. Smith, 793
Start v. Blagg, 101
Submarine Telegraph Co. v. Dick-
son, 361
Suffellv. Bk. of England, 149
Suker v. Neale, 150
Summers v. Solomon, 286
Surplice v. FarnBWorth, 228, 728
Surtees v. Ellison, 25
v. Lister, 703
Suse v. Pompe, 619
Sussex Peerage (The), 478, 530,
891, 892
Sutdiffe v. Booth, 359
Sutton (expte.), 796
v. Clarke, 6
v. G. W. R. C, 271
v. Johnstone, 185, 900
v. Sutton, 530
v. Temple, 726
Sweet v. Benning, 346
v. Seager, 267
Sweeting v. Pearce, 778
Sweetland v. Smith, 614
Swift v. Dewsbury, 276
Swinfen v. Lord Chelmsford, 202
Syers v. Jonas, 618
Sykes v. Giles, 778
v. Sykes, 798
Bymee (ex pteX 923
Symonds v. Lloyd, 881
T.
Taaf Vale R. C. v. Giles, 799
Taafe v. Downes, 81
Talbot v. Radnor (The Earl of),
167, 664
Taltarum's case, 419
Tamplin v. James, 260
Tancred v. Christy, 156
«. Ley land (in error), 1 96
Tanner v. Hartley, 654
v. Moore, 711
v. Smart, 615, 655
Taplin v. Florence, 840
ixxxvi
TABLE OF GASES.
Tapling v. Jones, 365
Tapp v. Lee, 749
Tarleton 17. Liddell, 209, 282
v. Shingler, 149
v. Staniforth, 501
Tarrant v. Webb, 810, 815
Tarry v. Newman, 84
Tasker v. Shepherd, 859
Taesell v. Cooper, 822
Tattersall v. Fearnley, 103
Tatton I?. G. W. R. C., 194
v. Wade, 748
Taunton v. Costar, 413
Taverner v. Little, 809
Tawney v. Lynn and Ely H. C.
(The), 4
Taylor v. Ashton, 744
d. Atkyns v. Horde, 327
v. Best, 161
v. Bowers, 675
v. Bullen, 629, 747
v. Burgess, 660
v. Caldwell, 230
t7. Chester, 675, 676
i?. Clemson, 5, 88, 806
i?. Cook, 899
v. Crowland Gas and Coke
Co., 694
v. Dunbar, 212
v. Ford, 907
t\ Great Northern R. C,
233
17. Hawkins, 102, 312, 314
«. Henniker, 196
v. Hilary, 838, 842
17. Horde, 418, 422
v. Humphries, 635
v. Laird, 613
v. Manners, 835
v. Newman, 302
v. Plumer, 761 •
17. St. Helen's (Corp.), 277,
548
v. Stray, 739, 882
v. Taylor, 428
v. Vansittart, 25
v. Web, 564
Tebb v. Hodge, 397
Teede v, Johnson, 249
Templeman v. Hayden, 350
Tenant v. Elliott, 678, 679
v. Goldwin, 350
Tennant, app.f Cumberland, re$p.t
635
Terry v. Brighton Aquarium Co.,
19
Tetley v. E as ton, 345
17. Wanless, 636
Teutonia (The), 237
Thackeray v. Wood, 725
Thames (Conservators of) v. Hall,
24
Tharpe v. Stallwood, 862
Thelluson v. Lord Bendlesham,
519
Thellusson v. Woodford, 424
Thetis (The), 819
Thibault, q. t v. Gibson, 24, 634,
635
Thickneese v. Lancaster Canal Co.,
557
Thistlewood v. Cracraft, 674
Thorn v. Bigland, 748
Thomas v. Churton, 82
i'. Cross, 777
17. Edwards, 782
v. Fen ton, 658
v. Hay ward, 443
17. Howell, 233
v. Hudson, 88
v. Packer, 389
v. Pearse, 793
17. Beg., 52, 55
v. Russell, 913
v. Thomas, 584, 703, 705
v. Waters, 48
i?. Watkins, 38, 408
v. Williams, 430
Thompson (re), 650
17. Bell, 774
v. Gibson, 372
17. Hakewill, 505
17. Hopper, 218, 222
17. Lack, 659
17. Lapworth, 267
17. Pettit, 396
i7. Shakell, 313
17. Wood, 294
Thomson v. Davenport, 782
17. Grant, 209
17. Harding, 119, 210
Thorburn 17. Barnes, 107, 796
Thornborrow 17. Whitacre, 243
Thornhill v. Hall, 521
TABLE OF CASES.
Ixxxvii
Thornhill *. Neats, 241
Thornton v. Jenyns, 242, 703, 712,
722
Thorpe v. Aldous, 24
v. Eyre, 389
v. Thorpe, 601, 723
Thrustout d. Park v. Troublesome,
327
Thnrnell v. Balbirnie, 243
Tidswell v. Whitworth, 267
Tighe v. Cooper, 312
Tiling v. Hodgson, 280
Tillett v. Ward, 369
Timmins v. Gibbins, 768, 845
Tindal (ex pte.)t 859
Tinkler v. Hilder, 164
Tinniswood v. Pattison, 83, 459
Tinsley v, Nassau, 82
Tipper v. Bicknell, 706, 721
Titley v. Fox all, 906
Tiynan (in te), 94
Tobacco Pipe Makers v. Loder,
848
Tobin v. Beg., 52, 55, 56, 69, 800,
802, £20
Todd v. Emly, 788
v. Flight, 816
v. Stewart, 322
Toller v. Wright, 605
Tollerton (Overseers of) (ex pie.),
130
Tomlin v. Fuller, 451
Tommey v. White, 31 8, 834
Tompkrnson v. Russell, 793
Toms v. Cuming, 794
Toomer v. Beeves, 527
Tooth v. Bagwell, 235
Toplis v. Grane, 683
Torrington (Lord) v. Lowe, 882
Toulmin v. Anderson, 117
v. Copland, 771
Toussaint v. Martinnant, 613,
713
Towler v. Chatterton, 34
Townend v. Woodruff, 449
Towns v. Wentworth, 518
Townsend v. Crowdy, 251—253
v. Deacon, 857
Townshend v, Deyaynes, 428
(Marquis of) v. Stan-
groom, 263
Traherne v. Gardner, 268
Trapps 17. Harter, 397
Travel v. Carteret, 49
Traver v. , 716
Travers v. Blundell, 584
Treadwen v. Bourne, 788
Tread win v. Great Eastern B. C,
463
Tregoning v. Attenborough,
678
Tremeer v. Morison, 662
Trent v. Hunt, 341, 829
Trent Navigation v. Wood, 234
Treport's case, 502
Trevivan v. Lawrence, 322
Trickett v. Tomlinson, 287
Trimble v. Hill, 267, 675
Trimleson (Lord) v. Kommis, 894,
910 917
Trinity House v. Clark, 801
Tripp t\ Thomas, 196
Trott v. Tiott, 901, 902
Trotter v. Maclean, 919
Trueman v. Fen ton, 708
v. Loder, 280, 570, 620
Truscott v. Merchant Taylors' Co. ,
834
Tucker v. Newman, 273
v. Webster, 634
v. Wilson, 767
Tulk v. Moxhay, 432
Tullett v. Armstrong, 425
Tunny v. Midland B. C, 811
Turberville v. Stampe, 349, 366,
802
Turner v. Ambler, 100
v. Browne, 705
t». Harvey, 730
v. Hayden, 350
v. Mason, 494
v. Sheffield B. C, 179,
532
v. Skelton (re), 731
Turney v. Dodwell, 777
Tweddle v. Atkinson, 703, 706
Twigg v. Potts, 138
Twyman v. Enowles, 895
Twyne's case, 282, 527
Tyerman v. Smith, 131, 161
Tyler v. Jones, 857
Tyrringham'8 case, 296
Tyson v. Smith, 152, 873
lxxzviii
TABLE OF CASES.
IT.
Udal v. Walton, 922
Udell v. Atherton, 751
Udny v. Udny, 71
Underhill v. Wilson, 823
Underwood v. Bedford B. C. (re),
114
v. Nicholls, 777, 778
Union Bank of Manchester r.
Beech, 659
United States r. Fisher, 532
v. Wiltberger, 529
United States' Bank v. Dandridge,
899
v. Owen, 687
Unwin v. Clarke, 333
Upton v. Townhend, 32, 808
v. Wells, 406
Utherv. Bich, 671,
V.
Valieri v. Boyland, 792
Valpy v. Manley, 268
Van Boyen's case, 634
Van Casteel v. Booker, 763
Vance v. Lowther, 149
Vandeleur v. Vandeleur, 545
Vanderburgh v. Truax, 201
Vander Donck v. Thelluaon, 892
Vandyck v. Hewitt, 674
Van Hasselt v. Sack, 161
Van Ness v. Pacard, 393
Van Omeron v. Dowick, 899
Van Sandau v. Turner, 88
Vansittart v. Taylor, 33, 131
Varney v. Hickman, 675
Vaughan v. Menlove, 349, 366
v. Wilson, 117
v. Wyatt, 138
Vaux's (Lord) case, 261
Peerage (The), 902
Vauxhall Bridge Co. v. Sawyer,
371, 527
Vavasour v, Ormrod, 634, 6?5
Venables v. Smith, 802
Venur v. Sellon, 530
Vere v. Ashby, 785
Vernede v. Weber, 738
Vernon v. Keys, 737
Vickers v. Hertz, 763
v. Wilcocks, 200
Victors v. Dayies, 712
Vigers v. Dean, &c. of St. Paul's,
47
v. Pike, 288
Villeboisnet v. Tobin, 924
Vincent v. Bishop of Sodor and
Man, 466, 611
v. Slaymaker, 643
Violett i'. Sympson, 853
Vivian v. Mersey Dock Board,
Vlierboom v. Chapman, 610
Vose v. Lancashire and Yorkshire
B. C, 350, 814
Vyn v. Foster, 707
Vyner v. Mersey Docks Co., 434
Vyse v. Foster, 707 .
Vyyyan v. Arthur, 442
W.
Waddle v. Downman, 580
Wade's case, 168
Wade v. Simeon, 119, 248, 703
Wadham v. Marlow, 211
Wadsworth v. Bentley, 324
Wain v. Warlters, 840
Waite v. North-Eastern B. 0.t
368
Wake r. Hall, 403
v. Harrop, 783, 838
Wakefield v. Brown, 505
v. Newbon, 272
Board of Health v. West
Biding, &c. B. C. 114
Wakley v. Cooke, 547
Waldegrave Peerage (The), 480
Walker's case, 277
Walker v. Birch, 648
v. Brit. Guarantee Society,
234
v. Brogden, 310
v. Butler, 772
v. Giles, 537
v. Goe, 199
v. Great Western B. C,
780
TABLE OF CASES.
lxxxix
Walker v. Hatton, 190}
v. Hunter, 829
v. Jones, 438
v. Maitland, 212
v. Mellor, 760
v. Olding, 121
v. Perkins, 687
v. Thelluson, 160
Wallace t>. Kelsall, 288, 678
Waller v. Drakeford, 337
v. S. Eastern R. C, 810,
814
Walley v. M'Connell, 124
Wallingford v. Mutual Society,
80
Wallis v. Day, 701
v. Iittell, 839
Walmsley v. Milne, 397, 398
Walpole (Lord) v. Cholmondeley
(Earl of), 568
Walsh t>. Lincoln (Bishop of), 8 !
v. Secretary of State for
India, 646
v. Southworth, 796
v. Trevanion, 535
Waltham v. Sparkes, 135
Walton v. Gavin, 901
Wansey, app.t Perkins, reap., 179
Warburton v. Great Western R. C,
811
Ward v. Andrews, 380
v. Beck, 525
v. Broomhead, 822
v. Day, 166
v. Hobbe, 742
v. Johnson, 337
t?. Lee, 804, 819
v. Lloyd, 687
v. Weeks, 200
Wardle v. Brocklehurst, 189
Wardour v. Berisford, 893
Ware v. Cann, 422, 423
v. Begent's Canal Co., 557
Waring v. Dewbury, 129
Wannoll v. Young, 343
Warne (re), 906
Warren v. Lugger, 870
Warrender v. Warrender, 259
Warrington (expte.), 527
v. Early, 148
Warwick v. Bruce, 475
v. Nairn, 709
Warwick i\ Sogers, 193
Wason v. Waiter, 311, 313
{ex pie.), 311
Waterer v. Freeman, 124
v. Waterer, 427
Waterford (The Earl of) Peer-
age, 135, 532
Waterpark v. Furnell, 884
Waters i\ Louisville Insurance
Co., 212
Watkins v. Great Northern R. C,
620
Watling v. O'Asler, 815
Watson's case, 922
Watson v. Bodell, 88
v. Foxon, 512
v. Little, 899
v. Quilter,
v. Russell, 706, 709
v. Swan, 777, 824
v. Turner, 708
Waugh v. Carver, 785
v. Middleton, 31
v. Morris, 682
Way v. Hearn, 567, 592, 660
Wear Commissioners v. Adam-
son, 226
Weaver v. Ward, 310, 349
Webb v. Adkins, 122
v. Austin, 177
v. Bachelour, 84
v. Beavan, 297
v. Bird, 189, 365
v. Bishop, 674
t?. Cowdell, 857
v. East, 924
v. Fox, 444
v. Manchester and Leeds
R. C, 4, 659
v. Plummer, 551
v. Rhodes, 235
v. Weatherby, 771
Webber v. Stanley, 519, 584, 597
Webster v. Power, 280, 465
v. Watts, 293
Weeks v. Maillardet, 624
Weems v. Mathieson, 811, 814
Weir v. Barnett, 276
v. Bell, 276, 756
Welchman v. Sturges, 862
Weld v. Hornby, 638, 884
Wellock v, Constantino, 203
xc
TABLE OF CASES.
Wells v. Abraham, 204, 205, 767
v. Pearcy, 155
v. Watling, 195
Welsh v. Trevauion; 602
Wemyss v. Hopkins, 319
Wenman (Lady) v. Mackenzie,
911
Wennall v. Adney, 708, 714, 716
Wentworth v. Cock, 858, 860
v. Lloyd, 894
West v. Blakeway, 400
v. Jackson, 721, 737
v. Lawday, 585
v. Moore, 386
v. Nibbs, 297
London R. C. v. London
and N.-Western E. C,
551, 601
India &c. Co. v. Home and
Col. Insurance, 213, 543
West of England Bank v.
Nicholls, 924
Western Bank of Scotland v.
Addie, 732
Westhead v. Sproson, 722
We8tlake v. Adams, 703
Westropp v. Solomon, 739
Wetherell v. Jones, 687, 694
v. Langston, 505
Weymouth (Mayor of) v. Nugent,
70
Whaley v. Laing, 356
Whatman r. Pearson, 94
Wheatley v. Lane, 861
v. Thomas, 631
Wheeler v. Montefiore, 283
Wheelton v. Hardisty, 750, 751
Whelfdale's case, 148
Whistler v. Forster, 438
Whitaker v. Wisbey, 29, 128
Whitcher v. Hall, 139
White v. Bass, 363, 447
v. Beard, 140
v. Bee ton, 509
v. Bluett, 704
v, Boulton, 806
v. Burnby, 503
v. Crisp, 361, 441
v. Garden, 292, 697
app.y Grennish, resp., 292
v. Hancock, 537
v. Morris, 681
White v. Mullet, 337
r. Rose, 778
v. Sayer, 388
v. Sharp, 582, 796
v. Spettigue, 205, 767
v. Wiltshire, 410
Whiteaker v. Jackson, 322
Whitehead v. Bennett, 401
v. Izod, 268, 739
v. Parkes, 196
Whitehouse v. Birmingham Canal
Co., 350
v. Fellowes, 853
Whiteley v. Adams, 311
Whitfield v. Brown, 882
v. Clement, 599
v. Lord De Spencer, 806
v. South-Eastern R. C,
311
Whitmore v. Robertson, 529
r. Smith, 796
Whittaker v. Jackson, 322
Whittle, app.9 Frankland, resj).,
722
Whittome v. Lamb, 582
Wiat v. Essington, 325
Wicks v. Jordan, 387
Wiggettt?. Fox, 811
Wigglesworth v. Dallison, 388,
389, 619, 882
Wigmore v. Jay, 810
Wigney v. Wigney, 80
Wilcox v. Odden, 164
Wild v. Harris, 703
Wilde v. Gibson, 729, 748, 750
v. Waters, 397, 399
Wilders v. Stevens, 329
Wildes r. Russell, 81, 113, 116,
328
Wildman r. Glossop, 580
Wilkes v. Perks, 119
r. Wood, 90
Wilkin t\ Manning, 304
Wilkinson v. Evans, 629
v. Fairrie, 307
v. Johnston, 250
Willans v. Eyres, 554
Williams v. Bagot (Lord), 108
v. Bayley, 205, 677, 687
v. Burrell, 442, 505
r. Crossling, 643
r. Deacon, 778, 786
TABLE OF CASES.
XC1
Williams v. East IndiaCo., 698,904
v. Evans, 778
v. Eyton, 900
v. Great Western R. C,
HI
v. Grey, 275, 861
v. Griffith, 772
v. Hayward, 443
v. Hedley, 678
v. Hide, 232
v, Jones, 574
v. Lewis, 161, 520
v. London Commercial
Exchange Co., 842
v. Mostyn, 192
v. Newton, 636
t\ Paul, 18
v. Pigott, 791
v. Pritchard, 22
v. Eeynolds, 228
- — v. Roberts, 38, 295, 408
tf.Sidmouth Bail way and
Harbour Co., 320
v. Smith, 32, 329
v. Spence, 409
v. Stern, 287
v. Thacker, 324
v. Thomas, 161
v. Williams, 381
Williamson 17. Allison, 733, 759
v. Barton, 782
Willion v. Berkley, 68—70
Willonghby i'. Horridge, 350
v. Willoughby, 339
Wills v. Murray, 857
Willy v. Elgee, 704
Wilson t?. Bagshaw, 451
v. Barker, 829
v. Barthrop, 782
v. Curzon (Lord), 791
v. Dnnville, 221
v. Finch-Hatton, 727
v. General Iron Sorew Co. ,
222
v. Hart, 782
v. Knubley, 861
v. Marryat, 73
v. Merry, 811, 815
-p. Newport Dock Co., 218
220
v. New York (Mayor of),6
v. Peto, 806
Wilson v. Rankin, 821
v. Bastall, 138
v. Robinson, 314
v. Strugnell, 267
v. Thorpe, 796
v. Tumman, 825, 829
v. Waddell, 188, 355
v. Willes, 872
v. Wilson, 703
Wiltes (The) Peerage, 28, 48, 50,
321
Wilton v. Dunn, 251
v. Royal Atlantic Mail
Steam Co., 219
Wiltshear v. Cottrell, 393, 396
Windham v. Chetwynd, 641
Windsor's (Dean and Chapter of)
case, 662
Windsor v. Reg., 331
Wing v. Mill, 714
Wingate v. Waite, 83
Winn v. Ingleby, 395
i;. Moesman, 529
v. Nicholson, 119
Winser v. Reg., 175
Winsmore v. Greenbank, 182
Winspear v. Accidental Ins. Co.,
211
Winterbottom v. Lord Derby, 197
v. Wright, 192, 195,
745, 810
Winter bourne v. Morgan, 295
Wintle I?. Crowther, 785
Wise v. Great Western R. C, 264
v. Metcalf, 870
Withers 17. Parker, 829
Withnoll 17. Gartham, 885
Witte v. Hague, 807
Wolf v. Horncastle, 825
17. Oxholm, 74
Wolverhampton Water Co. r.
Hawkesford, 185
Wood 17. Bell, 458
17. Copper Miners' Co., 771
17. Dixie, 282
17. Dunn, 318
17. Dwarris, 161
v. Hewitt, 393, 403
17. Hurd, 130
17. Leadbitter, 840
17. Priestner, 553
v. Rowcliffe, 584, 602, 629
xcu
TABLE OF CASES.
"Wood v. The Copper Miners' Co.,
v. Wilson, 580
Woodbridge t\ Spooner, 837
Union v. Colneiss,900
Woodgate v. Knatchbull, 793
Woodhouse r. Walker, 662
Woodin v. Burford, 782
Woodland v. Fear, 768
Woodley v. Coventry, 164
t\ Metropolitan By., 263
Woods v. Finnis, 805
o. Thiedemann, 768
Woodward v. Pell, 330
v. Watte, 531
Woollen e. Wright, 829
WooUey v. Kay, 528
Wootton v. Dawkins, 262
v. Steflfenoni, 505
Worrall v. Jacob, 257
Worseley v. Demattos, 283
Worsley v. South Devon B. C, 110
Worth v. Gilling, 358
Worthington v. Grimsditch, 98
v. Ludlow, 608
i>. Warrington, 729
Wren v. Weild, 190
Wright v. Child, 793
- v. Crookes, 739, 746, 823
v. Cuthell, 825
v. Greenroyd, 34
t\ Hale, 29
v. Hickling, 777
v. Howard, 356
v. Leonard, 652
v. Mills, 67, 128, 138
v. Pearson, 368
v. Tallis, 641
v. Wakeford, 612
v. Wright, 425
Wrightup v. Greenacre, 25
Wroughton v. Turtle, 527, 625
Wyatt v. Harrison, 187, 351
Wycombe Union v. Eton Union,
252
Wyld v. Pickford, 460
Wylde v. Hopkins, 788
Wylie v. Birch, 192
Wynn v. Davis, 23
v. Shropshire Union Bail-
way and Canal Co., 240
Wynne v. Edwards, 582
Y.
Yates v. Lansing, 81
Yearsley v. Heane, 190
Yeatman (ex pte.)t 133
Yeats v. Pym, 619
Yelverton v. Longworth, 468, 469
471
Yeomans v. Williams, 836
York and North Midland B. C. r.
Beg., 559
Youde v. Jones, 537
Young v. Austen, 834
v. Billiter, 682
v. Cole, 740
v. Davis, 298
v. Grote, 768
v, Hughes, 442
v. Lambert, 444
v. Bainoock, 602
v. Bobertson, 518
Younghusband v. Gisborne, 429
Z.
Zichy Ferraris (Countess of) v.
Hertford (Marquis of), 660
ADDENDA ET CORRIGENDA.
3>
ft
Page 13, L 19, for "Court" read "Court*"
„ 22,1. 5, for "2^" read "Zcs."
„ 28, L 8, for "operations" read "operation."
„ 41, 1. 21, add iu brackets, " except apparently in Ceylon, where it
seems an action may be maintained against the Queen's
Advocate as representing the Crown. Hcttihewtge v. The
Queen's Advocate, 9 A pp. Cas. 571."
51, L 16, for "respodneat" read " respondeat. "
53, n. (/), add, " For a case where it has been decided that petition of
right is a legal remedy and excludes mandamus, see Beg.
v. Commissioners of Inland Revenue, 12 Q. B. D. 461,
53 L. J., Q. B. 229 (C. A.)."
,, 57. The doubt expressed in the text has been set at rest in Kinloeh v. .
The Queen, where it was held that petition of right would
not lie.
S9, n. (a), add, " In Bradlaugh y. Oosset, 12 Q. B. D. 271 ; 53 L. J.,
Q. B. 209, it was decided, following the principle laid
down in tho text, that no action will lie against the
Serjeant-at-Arms of the House of Commons for excluding
a member of that Houso in obedience to its resolution."
100, n. (y). See also Quartz Hill Consolidated Mining Co. v. Eyre (No.
2), 50 L. T. 274.
110, n. Co), add, " for a recent example of this rule see Barroxo v. Dyster,
13 Q. B. D. 635."
125, 1. 13, for "frigitur" read "fin&tur."
129, n. (a). See the principle given in the text applied by Cairns, £.,
in Hill v. East and West India Dock Co., 9 App. Cas.
. 448; 53 L. J., Q. B. 842.
137, n. (mi), for the words "conveyances in" read "conveyancers, see."
137, n. (»), read " see post ;— -omnia, &c."
138, n. (o). It has been decided that to support an action for infringement
of a copyright it must be proved that the defendant took
a substantial and material part of the plaintiff's production,
Chatterton v. Cave, 3 App. Cas. 483 ; 47 L. J., C. P. 545.
9
»»
>t
19
»>
It
9»
»»
91
11
»»
9}
Xciv ADDENDA ET CORRIGENDA.
Page 144, n. (*), add, "Hilly. East and West India Dock Co., 9 App. Cas
448, at p. 457 ; 53 L. J., Q. B. 842."
„ 163, n. (r). For an illustration of the various forms of estoppel, see
Cropper v. Smith, 26 Ch. Div. 700 ; 53 L. J., Ch. 170.
185, n. (o). Lamb v. Walker has been since overruled in Mitchell v.
Darnley Main Colliery Co., 53 L. J., Q. B. D. 471.
189, n. («). The principle of law that there is no property in under-
ground water has been recently recognised in Ballard v.
Tomlinson, 26 Ch. Div. 194.
191, n. (0, add, "Truman v. London, Brighton & S. C. B. Co., 25 Ch.
Div. 423 ; 53 L. J., Ch. 209."
195, n. (e), for " Pindar " read " Pender."
199, n. (u), for words, "in C. A." insert "S. C."
201, n. (c). The case of The Parana followed in TJtc Notting Hill, 9
P. D. 105.
204, for "Wills" read " Wells. "
217, n. (g). For an exhaustive definition of what constitutes contri-
butory negligence, see Darn/ v. L. <£r S. W. B. Co., 12 Q.
B. D. 70 ; 53 L. J., Q. R 58.
221. The blank note to be (z).
234, 1. 16, after word " passengers," insert, " unlike a carrier of goods."
262, n. (if), add, " Davcy v. L. <fc & W. B. Co., 12 Q. B. D. 70 ; 53
L. J., Q. B. 48."
302, n. (h), add, " Beg. v. Somerset, 12 Q. B. D. 360 ; Cundy v. Lc Coeq,
13 Q. B. D. 207 ; 53 L. J., M. C. 125."
818, n. {a), add afterword '* cited" — "see Brunsden v. Humphrey, 53
L. J., Q. B. D. 476, which decides that there may be two
causes of action arising out of one and the same act, and
that therefore judgment obtained in respect of one of such
causes of action is no bar to a second action based on the
other."
319, n. (ft). See also Vallance v. Folic, 13 Q. B. D. 109 ; 53 L. J., Q.
B. 459 , and Priestmanr. Thomas, 9 P. D. 70 ; 53 L. J.t
P. & D. 58."
347, n. (d). See Truman v. The London, BrigJUon <fc S. C. B. Co., 25
Ch. Div. 423, at p. 432.
„ 356, n. (it\ add, "JVhallcy v. L. «fc Y. B. Co., 13 Q. B. D. 131 ; 53 L. J.,
Q. B. 285."
,, 366, n. (z), add, "The principle of this case was applied and perhaps
extended in The Queen v. Williams, 9 App. Cas. 418 ; 53
L. J., P. C. 64."
„ 360, n. (r), for "15 L. Ex." read " 15 L. J. Ex. 315."
„ 403, n. (a), add, "affirmed on appeal to the House of Lords, 52 L. J..
Q. B. 494."
99
9»
11
91
91
99
9»
ADDENDA ET CORRIGENDA. XCV
Page 424, n. (c), add, "It would appear that where alternative periods arc
specified in the will, and one period has been applied and
exhausted, a second period is not to be applied to extend
the period of accumulation. See Jogger v. Jogger, 25
Ch. Div. 729; 53 L. J., Ch. 201."
„ 453, n. (d), add, "Murray v. ScoU, 9 App. Cas. 519, at p. 546."
„ 518, n. (6). See also Bradford v. Young, 26 Ch. Div. 656.
„ 540, n. (y). See observations of Selborne, C, in Municipal Bui Id hi g
Society v. Kent, 9 App. Cas. 260, at p. 269 ; 53 L. J.,
Q. B. 290.
„ 541, n. (6), add, "cited in Joumenjoy v. Watson, 9 App. Cas. 561, at
p. 569."
,, 552, n. (m), add, " See the maxim recognised in the case of a policy of
marine insurance, Birrell v. Dryer, 9 App. Cas. 345, at
p. 350."
„ 588, n. (n). RisJiton v. Cobb, doubted in Re Boddington, 25 Ch. Div.
685.
,, 595, n. (n), add, " The distinction between mere false description, and
that description which amounts to a condition, so that if
the donee fails to satisfy the description the gift is void,
should be carefully observed. This distinction is well
illustrated in Re Boddington, 22 Ch. Div. 597, in C. A. 25
Ch. Div. 685."
„ 705, 1. 28, for "priority" read "itrivity."
„ 714, n. (s). See also Green v. Humphries, 26 Ch. Div. 474; 53 L. J., Ch.
625.
„ 732, n. (z), add, "affirmed in C. A., 13 Q. B. D. 351."
,, 743, L 5, for "and referring " rend, "the reader is referred."
„ 749, n. (*), add, "affirmed on appeal, 13 Q. B. D. 360."
,, 774, u. (r). See also London and County Bank v. Terry, 25 Ch. Div. 692
(C. A.); 53 L. J., Ch. 404.
„ 878, n. (n), add, "Barrow v. Diytter, 13 Q. B. D. 635, which illustrates
the text"
„ 882, 1. 14, last word but one, for the word "and " read " but."
„ 928, il {e), add, "namely, 47 Vict. c. 14."
4
LEGAL MAXIMS.
CHAPTER I.
§ I. — RULES FOUNDED ON PUBLIC POLICY.
The Maxims contained in this section being of general
application and resulting so directly from the simple prin-
ciples on which our social relations depend, it has been
thought better to place them first in this collection, — as,
in some measure, introductory to the more precise and
technical rules which embody the elementary doctrines of
English law.
Salus Populi suprema Lex. (XII. Tables: — Bacon,
Max., reg. 12.) — That regard be had to the public
ivelfare, is the highest law.
This phrase is based on the implied assent on the part of Pnbuc
every member of society, that his own individual welfare
shall, in cases of necessity, yield to that of the community ;
and that his property, liberty, and life shall, under certain
circumstances, be placed in jeopardy or even sacrificed for
if
BULES FOUNDED ON PUBLIC POLICY.
the public good (a). "There are," says Bidler, J. (b),
" many cases in which individuals sustain an injury for
which the law gives no action ; as, where private houses
are pulled down or bulwarks raised on private property,
for the preservation and defence of the kingdom against
the king's enemies." Commentators on the civil law,
indeed, have said (c), that, in such cases, those who suffer
have a right to resort to the public for satisfaction ; but no
one ever thought that our own common law gave an action
against the individual who pulled down the house or
raised the bulwark (d). On the same principle, viz. that
a man may justify committing a private injury for the
public good, the pulling down of a house when necessary,
in order to arrest the progress of a fire, is permitted by
the law (<?).
Likewise, in less stringent emergencies, the maxim is,
that a private mischief shall be endured, rather than a
public inconvenience (/) ; and, therefore, if a highway be
out of repair and impassable, a passenger may lawfully
go over the adjoining land, since it is for the public good
(a) Alibi diximus res subditorum
sub eminent i dominio esse civUatis,
ita ut civitas, aut qui civiiatis vice
fungituTy its rebus uti, casque etiam
perdere et alienare possit, non tantum
ex summd necessitate, qua privatis
guoque jus aliquod in aliena conce-
dit, sed 6b publicam vtilitatem, cui
priratas cederc Mi ipsi volume ccn-
sendi sunt qui in civilem ccetum coie-
runt. Grotius de Jure Belli et Pac.
Bk. 3, c. 20, 8. 7, § l.—Le Salut du
peuple est la supreme loi, Mont. Esp.
des Lois, L. XXVII. Ch. 23. In
catu extremal necessitatis omnia sunt
comtnunia. 1 Hale, P. C. 54.
{b) Per Bailer, J., Plate Glass Co,
v. Merediilh, 4 T. R. 797 ; Noy, Max.
9th ed. 36; Dyer, 60 b.; 12 Rep.
12, 13.
(c) See Puff, de Jure Nat. Bk. 8,
c. 5, 8. 7 ; Grot i us de Jure Bell, et
Pac. Bk. 3, c. 20, a 7, § 2.
(d) Per Buller, J., 4 T. R, 797.
(c) Noy, Max., 9th ed., 36 ; 12
Rep. 12 ; Dyer, 86 b ; Plowd. 322 ;
Finch's Law, 39 ; RusseU v. Mayor
of New York, 2 Denio(U. S.), R. 461,
474.
(/) Absor v. French, 2 Show. 28 ;
Dawes y. Hawkins, 8 C. B. N. S.
848, 856, 859 ; per Pollock, C.B.,
A.-Q, v. Briant, 15 M. & W. 185.
RULES FOUNDED ON PUBLIC POLICY.
that there should be, at all times, free passage along
thoroughfares for subjects of the realm (g).
The principle underlying the maxim, as well as the
limitation with which it is applied, is well illustrated by
the following expressions of Cockburn, L. C. J., "The
power to erect a sea-wall or embankment as a protection
against the sea, or from the influx of the tide in rivers, is
one of those things which emanate from the prerogative of
the Crown for the general safety of the public, and no doubt
the ordinary right of property must give way to that which
is done under that great prerogative authority for the pro-
tection and safety of the public, but only to the extent to
which it is necessary that private rights or public rights
should be sacrificed for the larger public purposes, the
general common weal of the public at large " (h).
Upon the principle we are discussing, also depends the
right of the State to interfere with and place a limit to
rights of property for the purposes of revenue and the
support of government (&).
It is, however, a rule of law, which has been designated Taxes, &c
as a " legal axiom," requiring no authority to be cited in
support of it, that "no pecuniary burden can be imposed
upon the subjects of this country, by whatever name it
may be called, whether tax, due, rate, or toll, except
upon clear and distinct legal authority, established by
those who seek to impose the burden " (Z).
{g) Per Lord Mansfield, C.J.,
Taylor ▼. Whitehead, 2 Dougl. 749 ;
per Lord Ellenborough, C.J., Bal-
lard v. Harrison, 4 M. & S. 393 ;
Dawes v. Hawkins, 8 C. B. N. S.
848 ; Robertson v. GantleU, 16 M. &
W. 296 ; A.-G. ▼. LocJcwood, 9 M. &
W. 401 ; Campbell v. Race, 7 dish-
ing (U.S.), R. 408, Seeus, where
dedication of road to public is not
absolute. Arnold v. llolbrook, L.
R. 8 Q. B. 96.
(k) Greenwich Board of. Works v.
Mavdday, L. R. 5 Q. B. 897, 401.
(k) Per Lord Camden, Entick v.
Carrmgton, 19 How. St. Tr. 1066.
(I) Per Wilde, C.J., Gosling v.
Vcley, 12 Q. B. 407. " The law of
B 2
4
RULES POUNDED ON PUBLIC POLICY.
Railway and
other Acts.
In the familiar instance, likewise, of an Act of Parlia-
ment for promoting some specific object or undertaking
of public utility, as a turnpike, navigation, canal, railway,
or paving Act, the legislature will not scruple to interfere
with private property, and will even compel the owner of
land to alienate his possessions on receiving a reasonable
price and compensation for so doing (m) ; but such an
arbitrary exercise of power (n) is indulged with caution ;
the true principle applicable to all such cases being, that
the private interest of the individual is never to be
sacrificed to a greater extent than is necessary to secure
a public object of adequate importance (o). The Courts,
therefore, will not so construe an Act of Parliament as to
deprive persons of their estates and transfer them to other
parties without compensation, in the absence of any mani-
fest or obvious reason of policy for thus doing, unless they
are so fettered by express statutory words as to be
unable to extricate themselves, for they will not suppose
that the legislature had such an intention (p). And
England is most careful to protect the
subject from the imposition of any
tax, except it be founded upon and
supported by clear and distinct lawful
authority." Per Martin, B.f Gosling
t. Veley, 4 H. L. Cas. 727. Per Lord
Truro, Id, 781. "The law requires
clear demonstration that a tax is law-
fully imposed." Judgm., Burdtr v.
Veley, 12 A. & E. 247. "It is a
well settled rule of law that every
charge upon the subject must be
imposed by clear and unambiguous
language." Per Bayley, J., Denn v.
Diamond, 4 B. & C. 245 ; per Bram-
well, B., A. G. v. Lord Middleton,
9. g. & Nf 188 ; et vid. Oriental
Bank ▼. Wright, 5 App. Cas. 842.
(in) As to the items recoverable in
respect of depreciation of property
under the Lands Clauses Act, 1845,
see Duke of Buccleuch v. Metrop.
Board of Works, L. R. 5 H. L. 418.
(n) See per Lord Eldon, C, 1 My.
& K. 162. Judgm., Tawney v. Lynn
and Ely R, C.t 16 L. J. Ch. 282 ;
Webb v. Manchester and Leeds R. C.
4 My. &Cr. 116.
(o) See Judgm., Simpson v. Lord
Howden, 1 Keen, 598, 599 ; Lister v.
Lobley, 7 A. & E. 124.
(p) See per Lord Abinger, C.B.,
Stracey v. Nelson, 12 M. & W. 540,
514; per Alderson, B.? Doe d,
RULES FOUNDED ON PUBLIC POLICY.
5
"where an Act of Parliament is susceptible of two con-
structions, one of which will have the effect of destroying
the property of large numbers of the community and the
other will not," the Court will "assume that the legis-
lature intended the latter to be applied to it " (q). Also
as judicially observed where large powers are entrusted
to a company to carry their works through a great extent
of country without the consent of the owners and occupiers
of land through which they are to pass, it is reasonable and
just, that any injury to property which can be shown to
arise from the prosecution of those works should be fairly
compensated to the party sustaining it (/•), and likewise
it is required that the authority given should be strictly
pursued and executed (*).
In accordance with the maxim under notice, it was held, Example
that, where the commissioners appointed by a paving Act
occasioned damage to an individual, without any excess of
jurisdiction on their part, neither the commissioners nor
the paviors acting under them were liable to an action,
the statute under which the commissioners acted not
giving them power to award satisfaction to the individuals
who happened to suffer ; and it was observed, that some
individuals suffer an inconvenience under all such Acts of
Parliament, but the interests of individuals must give way
Hutchinson v. Manchester and Ros-
tendaU R. C.f 14 M. & W. 694;
Anon.fhofil* 442 ; R. r. Croke, Cowp.
29 ; Clarence R. C. t. Great North of
England R. C. 4 Q. B. 46.
(q) Per Eric, C.J., The Vestry of
Chelsea app., King resp., 17 C. B.
N. 8. 629.
(r) Caledflnian R. C. v. Walker's
Trustees, 7 App. Gas. 259 ; 46 L. T.
826 ; 30 W. R. 251 ; Metropolitan
Board of Works ▼. M'Carthy, L. R.
7 H. L. 243 ; 43 L. J. C. P. 385 ;
31 L. T. 182.
(«) See Taylor v. Clemsonf 2 Q.
B. 978, 1031 ; S. O, 11 CI. A P. 610 ;
per Lord Mansfield, C.J., R. v.
Croke, 1 Cowp. 26; OtUer v. Cooke,
18 Q. B. 148.
6
RULES FOUNDED ON PUBLIC POLICY.
to the accommodation of the public (t) — privatum in-
commodum publico bono penmtur (u). And " where
authority is given by the legislature to do an act, parties
injured by the doing of it have no legal remedy, but
should appeal to the legislature " (x). Where, however,
the terms of the statute are not imperative but permissive,
and where it is left to the discretion of the persons em-
powered, to determine whether the general powers com-
mitted to them shall be put into execution or not, the
inference is drawn that the legislature intended that
discretion to be exercised in strict conformity with pri-
vate rights, and did not intend to confer licence to commit
nuisance in any place which might be selected for the
purpose (y).
We shall hereafter have occasion to consider minutely
the general principles applicable for interpreting statutes
passed with a view to the carrying out of undertakings
calculated to interfere with private property. We may,
however, observe, in connection with our present subject,
that the extraordinary powers with which railway and
other similar companies are invested by the legislature,
are given to them " in consideration of a benefit which,
notwithstanding all other sacrifices, is, on the whole,
hoped to be obtained by the public ; " and that, since the
{t) Plate Glass Co. v. Meredith,
4 T. R. 794, and Boulton y. Crow-
thcr, 2 B. & C. 703 ; cited per Wil-
liams, J., Pilgrim t. Southampton
and Dorchester R. C, 7 C. B. 228;
Wilton v. Mayor of New York, 1
Denio (U.S.), R. 505, 598 ; see Sut-
ton v. Clarke, 6 Taunt. 29; cited
10 C. B. N. S., 777, 779 ; Alston y.
Scales, 9 Bing. 3.
(u) Jenk. Cent. 85.
(z) See per Wilde, C.J., 7 C. B.
226 ; Mayor of Liverpool v. Charley
Watertcorks Co., 2 De Q. M. & Q.
852, 860 ; Dixon v. Metro]). Bd. of
Works, 7 Q. B. D. 418 ; 50. L. J. Q.
B. 772 ; 30 W. R. 83.
[y) Per Lord Watson, Metrop.
Asylum Bd. v. Hill, 6 App. Cas.
193, 213 ; 50 L. J. Q. B. ; 44 L. T.
653.
RULES FOUNDED ON PUBLIC POLICY. 7
public interest is to protect the private rights of all
individuals, and to save them from liabilities beyond those
which the powers given by such Acts necessarily occasion,
they must always be carefully looked to, and must not be
extended further than the legislature has provided, or than
is necessarily and properly required for the purposes
which it has sanctioned (z). It is, moreover, important Distinction
to notice the distinction which exists between public and p«1,Uc «n<i
x private
private Acts of Parliament, with reference to the obliga- Acte-
tions which they impose. For general and public Acts bind
all the Queen's subjects ; but of private Acts of Parliament,
meaning thereby not merely private estate Acts, but local
aud personal (6), as opposed to general public Acts, " it is
said, that they do not bind strangers, unless by express
words or necessary implication the intention of the
legislature to affect the rights of strangers is apparent in
the Act; and whether an Act is public or private does
not depend upon any technical considerations (such as
having a clause or declaration that the Act shall be
deemed a public Act), but upon the nature and substance
of the case " (c).
On the other hand, where a statute authorises the
stopping up and diverting of a highway, and thus inter-
feres with the rights of the public with a view to pro-
moting the convenience of an individual, such provisions
as the Act contains framed for ensuring compensation to
the public must receive a liberal construction. "The
{z) Per Lord Langdale, M.B., Col- 115 ; Dwarris on Statutes, 2nd Ed.,
man t. Eastern Counties R. C, 10 463.
10 Bear, 14; Loosemore v. Titer- (c) Per Wigram, V. C, Dawson v.
Urn 4 N. Devon Ry.t 22 Ch. D. 25 ; Paver t 5 Hare, 434 (citing Barring-
31 W. E. 130. ton's case, 8 Rep. 138 a, and Lucy y.
(6) See Cock y. Gent, 12 M. & W. Ltvington, 1 Ventr. 175).
234 ; Shepherd r. Sharp, 1 H. & N.
8 RULES FOUNDED ON PUBLIC POLICY.
rights of the public and the convenience of the individual
constantly come into opposition ; " in such cases " there
may be sometimes vexatious opposition on the one hand,
but there may be also on the other very earnest pursuit
of individual advantage, regardless of the rights and con-
venience of the public. Full effect, therefore, ought to
be given to provisions by which, while due concession is
made to the individual, proper protection is also afforded
to the public " (d).
criminal From the principle under consideration, and from the
veiy nature of the social compact on which municipal law
is theoretically founded, and under which every man,
when he enters into society, gives up a part of his natural
freedom, result those laws which, in certain cases, autho-
rise the infliction of penalties, the privation of liberty, and
even the destruction of life, with a view to the future
prevention of crime, and to insuring the safety and well-
being of the public; penal laws, however, should evi-
dently be restrained within the narrowest limits which
may be deemed by the legislature compatible with the
above objects, and should be interpreted by the judges,
and administered by the executive, in a mild and liberal
spirit Before any man is subjected to a penalty, a clear
case for its imposition should be made out (e). A maxim
is, indeed, laid down by Lord Bacon, which might at first
sight appear inconsistent with these remarks ; for he ob-
serves, that the law will dispense with what he designates
as the " placiia juris" " rather than crimes and wrongs
should be unpunished, quia solus 'populi mjrrema lex,'1
and " solus pojmli is contained in the repressing offences
(d) Reg. v. Newmarket 2ty. Co., L. R. 10 C. P. 583 ; 44 L. J. C. P.
15 Q. B. 702, 718. 244 ; 32 I*. T. 271.
(e) WaUh y. Bishop of Lincoln,
RULES FOUNDED ON PUBLIC POLICY. 9
by punishment/' and, therefore, receditur a pladtis juris
potius quam injuria et delicto, maneant impunita (/).
This maxim must, at the present day, be understood to
apply to those cases only in which the judges are invested
with a discretionary power to permit such amendments
to be made, ex. gr., in an indictment, as may prevent
justice from being defeated by mere verbal inaccuracies,
or by a non-observance of certain legal technicalities (g) ;
and a distinction must, therefore, still be remarked be-
tween the " placita" and the "regulw" juris, inasmuch
as the law will rather suffer a particular offence to escape
without punishment, than permit a violation of its fixed
and positive rules (h).
Necessitas inducit Pbivilegium quoad Jura privata.
(Bac. Max., reg. 5.) — In the domain of Jus privatum
necessity imports privilege.
" The law chargeth no man with default where the act
is compulsory and not voluntary, and where there is not a
consent and election ; and therefore if either there be an
impossibility for a man to do otherwise, or so great a per-
turbation of the judgment and reason as in presumption
of law man's nature cannot overcome, such necessity
carrieth a privilege in itself " (i).
\ Bacon has in this passage fallen into the common error of iim»iuntaiy
i r ° t action.
opposing compulsory to voluntary action. The opposite to
(/) Bac, Max., reg. 12. tracts on the ground that they are op-
iff) See 14 fc 15 Vict. c. 100, ss. posed to public policy will hereafter
1, 24. be considered.
(A) Bac. Max., reg. 12. The doc- (*) Bacon's Maxims, reg. 5, cited
trine of our law as to ayoiding eon- 1 T. R. 32. Jenk. Cent, 280.
10
RULES FOUNDED ON PUBLIC POLICY.
voluntary action is involuntary, and the very strongest
forms of compulsion do not exclude voluntary action. A
criminal walking to execution is under compulsion if any
one can be said to be so, but his motions are just as much
voluntary actions as if he were leaving his place of confine-
ment to regain his liberty. That the law will hold no
man responsible for an act, which is involuntary in the
strict metaphysical sense, it is unnecessary to state (k).
Compulsion. The question of compulsion gives rise to a great deal
more difficulty. The only forms of compulsion which may
form an excuse for an act in itself against the law, are
1. Compulsion by a husband over his wife. 2. By threats
of injury to person or property. 3. By necessity. Upon
the first head the law is in a state of vagueness and incon-
compuiMon gruity. If a married woman commits a theft or receives
l»y Imslmml. . .
stolen goods, knowing them to be stolen, m the presence
of her husband, she is presumed to have acted under his
coercion, and his coercion excuses her act; but this pre-
sumption may be rebutted if the circumstances of the case
show that she was not coerced. It is uncertain how far
this principle applies to felonies in general. It does not
apply to high treason or murder. It probably does not
apply to robbery. It applies to uttering counterfeit coin
and seemingly to misdemeanours generally (I).
It would seem to be a good defence to a criminal charge
that the act was done under the compulsion of a body of
rebels or rioters, and that the part played by the offender
was a subordinate one (m).
Necessity Necessity properly so called furnishes a defence to a
proper. t/ x x *
Compulsion
by rioters.
(k) HiskCr. Law, Stephen, 1, 152.
(I) Dig. Cr. Law, Stephen, § SO,
and note ii., where all the authorities
are collected.
(to) i?. v. McQrowther, 18 St.
Trials, 394 ; R. v. Orutchley, 6 C. ft
P. 133.
RULES FOUNDED ON PUBLIC POLICY. 11
criminal charge where the act has been committed in order
to avoid consequences which could not otherwise be
avoided, and which, if they had followed, would have in-
flicted upon him or upon others whom he was bound to
protect inevitable and irreparable evil, and no more has
been done* than was reasonably necessary for that purpose,
aud the evil inflicted by the act was not disproportionate
to the evil avoided (m). Under this head properly comes
the illustration given by Lord Bacon, of the two men who,
swimming in the sea after shipwreck, both seize a plank
not large enough to support both (o). Necessity in the
sense above defined is also a subject of great uncertainty,
and there exist no rules for determining what circum-
stances would constitute such an excuse for crime.
Lord Bacon uses the term necessity in a very much Baoonn
necessity.
wider sense than the foregoing, and would include under
it all forms of compulsion. The division of necessity which
he adopts, however illogical, is convenient for the collection
of many illustrations, derived from civil as well as criminal
Law, which may be considered to bear upon the heading
of this chapter.
Necessity, he says, is of three sorts: 1. Necessity of
conservation of life. 2. Necessity of obedience. 3.
Necessity of the act of God or of a stranger (p).
Under the first of these divisions, Bacon cites the seif-pre**-*
instance of the plank which has been above noticed. The
drowning of one man by another in such a case is excusable
homicide, just as much as death caused in self-defence or
by misadventure, under neither of which heads can it be
(n) Stephen's Dig. Cr. L. § 32. victim ought to be chosen by ballot,
(o) Bacon's Maxims, 5. See and Mouse's case, 12 Rep. 63.
Commonwealth v. Holmes, 1 Wall. (p) Bac Max. 5 ; Noy, Max. 9th
Jr. 1, where it was held that the ecL 32.
lawn.
12 RULES FOUNDED OX PUBLIC POLICY.
brought. Homicide is excusable on the ground of self-
defence, where a man, being attacked by another, flies
without fighting, and, after retreating as far as he safely can,
turns round and kills his assailant (q). But if two persons
quarrel and fight, neither is regarded as defending himself,
until he has in good faith fled from the fight as far as he
can (r). It may therefore be generally said that homicide,
the result of a blow struck in fight, is not excusable. The
above principle extends to the leading civil and natural
relations of life ; therefore, master and servant, parent and
child, husband and wife, killing an assailant, one in
defence of the other respectively, may be excused under
similar circumstances (s).
Necr.,aity or 2. Obedience to existing laws often furnishes excuse for
obedience .
to jxtstina an act, which of itself would be culpable (t). As, where the
proper officer executes a criminal in strict conformity with
his sentence, or where an officer of justice, or other person
acting in his aid, in the legal exercise of a particular duty,
kills a person who resists or prevents him from executing
it (u). And where a known felony is attempted upon any
one, not only the party assaulted may repel force by force,
but his servant attending him, or any other person pre-
sent, may interpose to prevent the mischief, and, if death
ensue, the party so iuterposing will be justified (x). So,
in executing process, a sheriff, it has been observed, acts
as a ministerial officer in pursuance of the command he
receives in the king's name from a court of justice, which
command he is bound to obey. He is not a volunteer,
acting from his own free will or for his own benefit, but
(q) Arch. Cr. PL 16th ed. 586. both se defendendo.
(r) Step. Dig. Cr. Law, § 200. (t) Eju* rero nulla culpa est cui
($) Post. Horn. 274 ct teq., where parere nece$9e sit. D. 60, 17, 169.
distinction is pointed out between (it) Fost. Disc Horn., 270.
justifiable and excusable homicide, (x) Ibid., 27 4.
RULES FOUNDED ON PUBLIC POLICY.
13
imperatively commanded to execute the king's writ He
is the servant of the law, and the agent of an overruling
necessity ; and if the service of the law be a reasonable
service, he is (in accordance with the above maxim) justly
entitled to expect indemnity (y), so long as he acts with
diligence, caution, and pure good faith ; and, it should be
remembered, he is not at liberty to accept or reject the
office at his pleasure, but must serve if commanded by the
Crown (z).
" The law has always held the sheriff strictly, and with
much jealousy, to the performance of his duty in the exe-
cution of writs — both from the danger there is of fraud and
collusion with defendants, and also because it is a disgrace
to the Crown and the administration of justice, if the king's
writ remains unexecuted " (a). In this case, therefore,
the rule of law usually applies, — necessities quod cogit
defendit (b) ; although instances do occur where the
sheriff is placed in a situation of difficulty because he is the
mere officer of the Court, and the Court are bound to see
that suitors obtain the fruits of decisions in their favour (c).
The actions of a third person will only afford a defence
for an act in itself criminal, where they are of such a
nature as to make it strictly involuntary in the correct
sense noticed at the beginning of this chapter. Thus, if
A., by force, take the hand of B., in which is a weapon,
(y) For instance, by Interpleader,
as to which see per Maul*, J., 3 C. B.
341, 342. Per Rolfe, B., 15 M. ft
W. 197. Per Alderson, B., 14 Id.
801.
(z) Per Vaughan, B., Garland v.
CarlUU {in error), 2 C. B. ft M. 77;
8. C, 4 CL ft F. 701.
[a) Jndgm., Hoxoden v. Standish,
6 C. B. 520, A» to the sheriff's duty
in respect of executing criminals
capitally convicted, see R. v. An*
trobus, 2 A. ft E. 788.
(6) 1 Hale, P. C. 54.
(c) See particularly StockdaU v.
Hansard, 11 A. ft E. 258 ; Chrhto-
pkcrson y. JBwion, 8 Exch. 160;
per Jervis, C. J., Gregory v. Cotterdl,
5 E. ft B. 584 ; Hooper y, Lane,
6 H. I,. Cas. 448f
of rule.
14 RULES FOUNDED ON PUBLIC POLICY.
and therewith kill C, A. is guilty of murder, but B. is
excused; though, if merely a moral force be used, as
threats, duress of imprisonment, or even an assault to the
peril of his life, in order to compel him to kill C, this is
no legal excuse (d).
Limitation It must be observed, however, that necessity privileges
only quoad jura privata, and that, if the act to be done
be against the commonwealth, necessity does not excuse —
privilegium contra rempublicam non valet (e).
It is owing to this principle that a wife has no excuse
for treason in the fiction of marital compulsion, and where
an individual is required to sacrifice his own life for the
good of the community, the necessity of self-preservation,
which excuses quoad jura privata, is overruled by that
higher necessity which regard to the public welfare imposes,
and the maxim applies, necessitas publica major est quam
privata. Death, it has been observed, is the last and
farthest point of particular necessity, and the law imposes
it upon every subject, that he prefer the urgent service of
his king and country to the safety of his life (/).
Summa Ratio est qil* pro Religione -facit. (Co. Litt,
341. a). — That course is to be adopted in preference
to others, which conduces to the cause of Religion.
The maxim above cited from the commentaries of Sir
E. Coke is, in truth, derived from the Digest; where
[d) 1 Hale, P. C. 484; 1 East, P. 9th ed., 84. In connection with the
C. 225. subject above considered, see the
(f) Bac Max.,reg. 6; Noy, Max., maxim "Lex non cogit ad impot-
9th ed., 84; arg. 4, St. Tr. 1169. sMia," post.
(/) Bac. Max., reg. 5; Noy, Max.,
RULES FOUNDED ON PUBLIC POLICY, 15
Papinian, after remarking that certain religious obser-
vances were favoured by the Roman law, gives as a reason
8umrnam esse rationem qua pro religione facit (g).
The doctrine, thus expressed, and recognised by our
own law, must be understood in a somewhat qualified
sense, and should be cautiously applied, for, whilst on
the one hand, "there are many social duties which are
not enforced, and many wicked deeds which are not
punished by human laws " (h), so, on the other, an act
springing from very laudable motives may expose to
punishment (i).
It may, however, safely bo affirmed that, if ever the Human give
■ i way to
laws of God and man are at variance, the former are to divine iaw8.
be obeyed in derogation of the latter ; that the law of
God is, under all circumstances, superior in obligation to
that of man ; and that, consequently, if any general cus-
tom were opposed to the Divine Law, or if any statute
were passed directly contrary thereto, — as if it were en-
acted generally, that no one should give alms to any
object in ever so necessitous a condition, — such a custom,
or such an Act, would be void (k).
Not only would the general maxim which we have been Foreign law.
considering apply, if a conflict should arise between the
law of the land and the law of God, but it likewise holds
true with reference to foreign laws, wheresoever such laws
are deemed by our courts inconsistent with the divine ;
for although it is well known that courts of justice in this
country will recognise foreign laws and institutions, and
will administer the lex loci in determining as to the
{g) Dig. 11. 7. 48. Skarpe, Dearai. & B. 160.
(h) Per Cur., 1 Denio (U. S.), R. (*) Doct. & Stud., 18th ed., 15,
206. 16 ; Noy, Max., 9th ed., 2 ; Pinch's
(») See, for instance, Reg. t, Law, 75, 76.
16 RULES FOUNDED ON PUBLIC POLICY.
validity of contracts, and in adjudicating upon the rights
and liabilities of litigating parties, yet inasmuch as the
proceedings in our courts are founded upon the law of
England, and since that law is in part founded upon the
law of nature and the revealed law of God, it follows, that,
if the right sought to be enforced is inconsistent with
either of these, the English municipal courts cannot re-
cognise it ; and it may therefore be laid down generally,
that what is called international comity, or the comitas
inter communitates, cannot prevail here in any case,
where its observance would tend to violate the law of
this country, the law of nature, or the law of God (I).
Dies Dominicus non est juridicus. (Noy, Max. 2.) —
Sunday is not a day for judicial or legal pro-
ceedings.
The Sabbath-day is not dies jui*idicu8, for that day
ought to be consecrated to divine service (m). The keep-
ing one day in seven holy as a time of relaxation and
refreshment, as well as for public worship, is, indeed, of
admirable service to a state considered merely as a civil
institution ; and it is the duty of the legislature to
remove, as much as possible, impediments to the due
(l) See per Best, J., Forba v. App. Cas. 424, 44tf. Per Lord
Cochrane, 2 B. ft C. 471. Philli- Blackburn, 61 L. J. P. C. 83.
more, Int. Lav, ir. 13. Under this (m) Co. Litt. 135 a ; Wing. Max.
maxim also may be noticed the im- 5 (p. 7) ; Finch's Law, 7 ; arg. Win-
munity of church property from legal sor ▼. Reg. 6 B. ft S. 143, 164.
process. Parry y. Jones, 1 0. B. Query whether the verdict in a crimi-
N. S. 345. In the relation of Be- nal case can be taken and recorded
clesiasticai to the Civil Law in this on a Sunday ? Id.
country, r. Martin t, Maekonochie, 6
BULE8 FOUNDED ON PUBLIC POLICY.
17
observance of the Lord's day (n). The Houses of Parlia-
ment indeed may, in case of necessity, sit on a Sunday (o) ;
but the judges cannot do so, that day being exempt from
all legal business by the common law (p).
It has been remarked by a recent eminent Judge, that statute,
full effect should be given to laws which are passed for
the purpose of preserving the sanctity of the day of
rest (q). The principal of these, The Lovers Day Act, 29
Car. 2, c. 7, s. 1, enacts, that no tradesman, artificer,
workman, labourer, or other person whatsoever, shall do or
exercise any worldly labour, business, or work of his ordinary
calling on Sunday (works of necessity and charity only ex-
cepted), and that every person of the age of fourteen years
offending in the premises shall forfeit the sum of 5s. (r).
The effect of which enactment is, that if a man, in the
exercise of his ordinary calling («), make a contract on a
Sunday, that contract will be void, so as to prevents party,
who was privy to what made it illegal, from suing upon it
in a court of law, but not so as to defeat a claim made
upon it by an innocent party (£). A horse-dealer, for
(*) See the preamble of Stat. 3 &
4 Will. 4, c. 31.
(o) Per Sir Geo. Grey, Feb. 19,
1866, Hans. Pari. Deb. 3rd Series,
Tol. 181, p. 763.
[p) Per Patteson, J., 3 D. & L.
380; per Erie, 0. J., Mumford v.
IIUchcocl-9, 14 C. B. N. S. 369;
Pi$h v. BroJcct, Plowd. 265 ; R. C. ,
Dyer, 181 b. : Noy, Max., 9th ed.,
2 ; MackalUrfs case, 11 Eep. 63 a ;
3 & 4 WilL 4, c. 42, s. 43. See 0.
LXIV. rr. 2, 3 of the Rules of Court,
1883, and Morris v. Richard*, 45
L T. 210.
(g) Per Willes, J., Copley v.
Burton, L. R. 5 C. P. 489, 493 ;
39 L. J. M. C. 141 ; 22 L. T. 888.
(r) Exceptions to the above general
rule are in certain cases allowed by
statute, see R. v. Younger, 5 T. R.
449 ; Reg. y. Wkitdey, 8 H. & N.
143.
(«) See R. x. Inhabs. of Whit-
marsh, 7 B. k C. 596; Smith \.
Sparrow, 4 Bing. 84 ; Prate v.
Diclcen, 1 Cr., M. & R. 422 ; Scarf e
v. Morgan, 4 M. & W. 270.
(J) Judgra., Fennell v. Rid I a; 5
B. & C. 408, explaining Lord Mans-
field's remarks in Drury v. De la
Fontaine^ 1 Taunt. 135.
o
18 RULES FOUNDED ON PUBLIC POLICY.
instance, cannot maintain an action upon a contract for
the sale and warranty of a horse made by him upon a
Sunday (u) ; though, if the contract be not completed on
the Sunday, it will not be affected by the statute (x).
It has been decided by the House of Lords, that an
apprentice to a barber could not be compelled to shave hi3
master's customers on a Sunday, and that all sorts of
handicraft are illegal which are not works of necessity,
mercy, or charity (y).
Where, in an action of assumpsit for breach of the
warranty of a horse, the defendant alone was in the
exercise of his ordinary calling, and it appeared that the
plaintiff did not know what his calling was, so that, in
fact, the defendant was the only person who had violated
the statute : — The Court held that it would be against
justice to allow the defendant to take advantage of his
own wrong, so as to defeat the rights of the plaintiff,
who was innocent (z). And for the like reason, in an
action by the indorsee against the acceptor of a bill of
exchange which was drawn on a Sunday, it was held
that the plaintiff might recover, there being no evidence
that it had been accepted on that day ; but the Court
said, that, if it had been accepted on a Sunday, and such
acceptance had been made in the ordinary calling of the
defendant, and if the plaintiff was acquainted with this
circumstance when he took the bill, he would be pre-
cluded from recovering on it, though the defendant
(u) Fenncll y. Ridler, 5 B. & C. mont v. Brtngeri, 5 C. B. 801 ; Nor-
406. ton y. Powell, 4M.& Gr. 42.
{x) Bloxsome v. Williams, 3 B. & (y) Phillips y. Innes, 4 a. & Fin
C. 232 ; Smith v. Sparrow, 4 Bing. 234.
84. See also Williams v. Paul, 6 (2) Bloxsonu t. Williams, 3 R &
Bing. 653 (observed upon in Simpson C. 232, cited 5 B. & C. 408, 409.
y. NicholU, 3 M. & W. 240) ; B*m-
BULES FOUNDED ON PUBLIC POLICY. 19
would not be permitted to set up his own illegal act as a
defence to an action at the suit of an innocent holder (a).
A bill of exchange falling due on a Sunday is payable
on the preceding day.
A person, however, can commit but one offence on the
same day by exercising his worldly calling in violation
of the statute of Charles; and if a justice of the peace
convict him in more than one penalty for the same day,
it is an excess of jurisdiction (6).
By a recent Act, 43 & 44 Vict. c. 48, s. 1, no prosecution ESHation.
or other proceeding can be instituted for an offence against
the 29 Car. 2, c. 7, except with the consent in writing
of the chief officer of police of the district or of two Jus-
tices of the Peace.
Another Act, viz., 21 Geo. 2, c. 49, imposes a penalty of
£200 for opening houses, rooms, or other places of entertain-
ment on Sunday (c). It was a matter of doubt whether the
Crown had power to remit the whole or any part of this
severe penalty, but the statute 38 & 39 Vict. c. 80, removes
this doubt, and expressly confirms the power of the Crown
in this matter.
In addition to the class of cases decided under the
" Lord's Day Act," we may refer to one- of a somewhat
different description, in which, however, the principle of
public policy which dictated that statute was discussed.
In the case alluded to, a question arose as to the validity
of a bye-law, by which the navigation of a certain, canal
(a) BeghU v. Levi, 1 Cr. k J. 180. P. 591 ; 44 L. J. C. P. 336.
{b) CreppsY. Durden, Cowp. 640 ; (c) Terry v. Brighton Aquarium
cited 4R&B. 322. See, as to cir- Co., L. R. 10 Q. B. 806 ; 44 L. J.
enmstanoes under which cumulative M. 0. 173 ; 32 L. T. 458 ; Girdle-
penalties may be recovered for sepa- stone v. The Same, 4 Ex. D. 107 ;
rate acts, Milne v. Bale, L B. 10 C. 48 L. J. Ex. 373 ; 27 W. R. 523.
c 2
20 KULES OF LEGISLATIVE POLICY.
was ordered to be closed on every Sunday throughout
the year (works of necessity only excepted). In support
of this bye-law was urged the reasonableness of the re-
striction sought to be imposed thereby, and its conformity
in spirit and tendency with those enactments by which
Sunday trading is prohibited; the Court, however, held
that the navigation company had no power, under their
Act, to make the bye-law in question, their power being
confined to the making of laws for the government and
orderly use of the navigation, but not extending to the
regulation of moral or religious conduct, which must be
left to the general law of the land, and to the laws of
God (c). A railway company is bound to deliver up
luggage deposited at the luggage and cloak office on
Sunday as on other days, unless protected by special con-
dition printed on the receipt ticket (d).
§ II.— RULES OF LEGISLATIVE POLICY.
In this section certain maxims are considered relating
to the operation of statutes, and the leading canons of
their construction. These maxims are three in number :
1st, that a later shall repeal an earlier and conflicting
statute ; 2ndly, that laws shall not have a retrospective
operation ; and, 3rdly, that enactments should be framed
with a view to ordinary rather than extraordinary occur-
rences. We shall hereafter have occasion to consider the
(c) Colder and EehhU Nav. Co. v. {d) Stallard v. Great Western <R,
Pmingx 14 M. & W. 76, Co., 2 B. & S, 419,
RULES OF LEGISLATIVE POLICY. 21
rules applicable to the construction of statutes, and may,
for the present, confine our attention to the maxims of
legislative policy just enumerated.
Leges posteriores priores contrarias abrogant. (1
Hep. 25 b.) — When the provisions of a later statute
are opposed to those of an earlier, the earlier ptatute
is considered as repealed. -
The legislature which possesses the supreme power in clausula
the State, possesses, as incidental to that power, the right eK>8a
of changing, modifying and abrogating the existing laws.
To assert that any one Parliament can bind a subsequent
Parliament by its ordinances, would in fact be to contra-
dict the above plain proposition ; if, therefore, an Act of
Parliament contains a clause, " that it shall not be lawful
for the King, by authority of Parliament, during the space
of seven years, to repeal and determine the same Act,"
such a clause, which is technically termed " clausula
derogatoria," will be simply void, and the Act may, never-
theless, be repealed within the seven years (e), for non
impedit clausula derogatoria quo minus ab eddem poten-
tate res dissolvantur a quibus constituentur (/). And-
again, perpetua lex est nullam legem humanam ac posi-
tiva/ni perpetuam esse, et clausula quce ahrogationem
excludit ab initio non valet (/). The principle thus set
forth seems to be of universal application, and it will be
remembered that, as regards our own Parliament, an Act
may now be altered, amended, or repealed in the same
(e) Bac Max., reg. 19. (/) Id.
RULES OF LEGISLATIVE POLICY.
session in which it is passed, "any law or usage to the
contrary notwithstanding " (g).
It is then an elementary and necessary rule, that a prior
statute shall give place to a later — if the two cannot be
reconciled — Les 'posterior derogat priori (A). Non eat
novum ut priores leges ad posteriores trahantur (i)
provided the intention of the legislature to repeal the
previous statute he expressed in clear and unambiguous
language, and be not merely left to be inferred from the
subsequent statute (k). For a more ancient statute will
not be repealed by a more modern one, unless the later
expressly negative the former, or unless the provisions of
the two statutes are manifestly repugnant, in which latter
case the earlier enactment will be impliedly modified or
repealed (I). It should be remembered that repeal by im-
plication is never to be favoured ; it is no doubt the neces-
sary consequence of inconsistent legislation, whenever it
occurs, but which must not be imputed to the legislature
unless absolutely necessary (m). Beyond the reproach of
inconsistency, the repeal itself casts a reflection upon the
wisdom of former Parliaments (n).
"The rule," says Lord Hardwicke, "touching the re-
(#) 13 & 14 Vict, c. 21,8. 1.
(h) See Mackeld Civ. L. 5.
(i) D. 1. 3. 20. Constitutiones
tempore] posteriores poiiores sunt his
quae ipsa* praxesserunt. D. 1 . 4. 4.
A rale of court may be overridden by
a statute ; see Barris v. Robinson, 2
C. B. 908.
(k) SecPhipson v. Barrett, 1 Cr.,
M. k R. 473; jiulgm., Reg. v. St.
Edmund's, Salisbury, 2 Q. B. 84.
(0 Or. & Rud. of Lav, 190 ; arg.
Reg. v. Mayor of London, 13 Q. B.
1 ; 19 Yin. Abr. 525, " Statutes,"
(E. 6) pi. 132 ; Sec per Lord Ken-
yon, C. J., TFttliams v. Pritchard,
4 T. R. 2, 4 ; Ablert v. Pritchard,
L. R. 1 0. P. 210 ; Rix v. Borton,
12 A. & R 470 ; Dalinsv. Seaman,
9M.4W. 777. See Wilberforce on
Stats., pp. 311 ct seq.
(m) Per Field, J., Dobbs v. G.
Junction Waterworks, 9 Q. B. D.
158 ; 51 L. J. Q. B. 604 ; 46 L. T. 820
(H. L. Nov. 30th, 1883). Vin. Abr.
"Statutes" (E.6), 132, cited arg. Phip-
son y. Harvctt, 1 Or., M.AR. 481.
(n) Dwarr. Stats., 2nd ed., 533.
RULES OF LEGISLATIVE POLICY.
23
peal of laws, is leges posteriores priores contrarias ahro-
gant; but subsequent Acts of Parliament, in the affirma-
tive, giving new penalties, and instituting new methods of
proceeding, do not [necessarily (o)] repeal former methods
and penalties of proceeding, ordained by preceding Acts
of Parliament, without negative words " (p). Nor does
an affirmative statute giving a new right of itself of
necessity destroy a previously existing right, unless the
intention of the legislature be apparent that the two
rights should not exist together (q). In order to repeal
air existing enactment, a statute must have either express
words of repeal (r), or must be contrary to, or inconsistent
with, the provisions of the law said to be repealed, or at
least mention must be made of that law, showing an
intention of the framers of the later Act of Parliament to
repeal the former («). But " the law will not allow the
(o) MicheU t. Brown, 1E.&E.
267, 274, where Lord Campbell,
C. J., observes : " If a later statute
again describes an offence created by
a former statute, and affixes a dif-
ferent punishment to it, varying the
procedure, &c. , giving an appeal where
there was no appeal before, we think
that the prosecutor most proceed
for the offence under the later statute.
If the later statute expressly altered
the quality of the offence, as by
making it a misdemeanor instead of
a felony, or a felony instead of a mis-
demeanor, the offence could not be
proceeded for under the earlier statute,
and the same consequence seems to
follow from altering the procedure
and the punishment. " See Evans v.
Bee*, 9 C. B. N. 8. 391.
(j>) MiddUUm v. Crofts, 2 Atk.
674, cited Wynn ▼. Davis, 1 Curt.
79. Yin. Abr. "Statutes" (K. 6),
pi. 132, cited arg. Macdoujall y.
PaUrson, 11 C. B. 767.
(q) O'Flaherty v. M'DoweU, 6
H. L. Gas. 142, 157.
(r) " It is a rule of law that ono
private Act of Parliament cannot re-
peal another, except by express en-
actment1' Per Turner, L. J., Trustees
of Birkenhead Docks v. Birkenhead
Dock Co., 23 L. J., Ch. 457 ; & C,
4 De G., M.f & G. 732 ; Purnclt
app., Wolverhampton New Water-
works Co. resp., 10 C. B. N. S. 597,
591.
(*) Per Sir H. Jenner, 1 Curt. 80.
See also the cases cited ; arg. Reg. v.
Mayor of London, 13 Q. B. 1 ;
Bramston t. Mayor, Ac, of Col-
cluster, 6 E. & B. 246 ; Parry ▼.
Croydon Commercial Gas and Coke
Co., 11 C. B. N. S. 579 \ Great
24
RULES OF LEGISLATIVE POLICY.
exposition to revoke or alter by construction of general
words any particular statute, where the words may have
their proper operation without it " (t).
Where, then, both Acts are merely affirmative, and the
substance such that both may stand together, the later
does not repeal the former, but they shall both have con-
current efficacy (w). For instance, if, by a former law, an
offence be indictable at the quarter sessions, and the later
law makes the same offence indictable at the assizes ; here
the jurisdiction of the sessions is not taken away, but both
have concurrent jurisdiction, and the offender may be
prosecuted at either, unless the new statute subjoins ex-
press negative words — as that the offence shall be indict-
able at the assizes, and not elsewhere (x). So, the general
rule of law and construction undoubtedly is, that, where
an Act of Parliament does not create a duty or offence,
but only adds a remedy in respect of a duty or offence
which existed before, it is to be construed as cumulative ;
this rule must, however, in each particular case, be applied
with due attention to the language of the Act of Parlia-
ment in question (y). If, for example, a crime be created
Central Gas Co. v. Clarke, 11 C. B.
N. S. 814, 835, 841 ; S. C. 13 Id.
838 ; Daw v. Metropolitan Board of
Works, 12 C. B. N. S. 161 ; Michell
t. Brown, 1 E. & E. 267.
(t) Lyn v. Wyn, 0. Bridgm. Judg-
ments, 122, 127 ; cited per Smith, J.,
Conservators of the Thames v. Hall,
L. R. 3 C. P. 421 ; Thorpe v. Al-
dous, L. R. 6 C. P. ; 2>er Bovill, C. J.
The Clan Gordon, 7 P. D. 190 ; 46
L T. 490 ; 30 W. R. 691.
(«) Dr. Foster's case, 11 Rep. 62,
63 ; Stuart y. Jones, 1E.&B. 22 ;
arg. Ashton v. roynter, 1 Cr., M.
& R. 739 ; R. y. Aslctt, 1 B. k P.,
N. R. 7 ; Langton v. Huglies, 1 M.
& S. 597 ; Hill ▼. Hall, 1 Ex. D.
411 ; 45 L. J. M. C. 153; Com. Dig.
" Parliament" {R. 9).
(x) 1 Black. Com. 93. See also
the arguments in Beg. v. St. i-ci-
mund's, Salisbury, 2 Q. B. 72 ;
Beg. v. Justices Suffolk, Id. 85.
And see Beg. v. Dcane, 2 Q. B. 96.
(y) Judgm., Richards ▼. Dyke, 3
Q. B. 268 ; Michell ▼. Brown, 1 E.
k E. 267. See Thibault v. Gibson,
12 M. & W. 88.
RULES OF LEGISLATIVE POLICY.
25
by statute, with a given penalty, and be afterwards re-
peated in a subsequent enactment with a lesser penalty
attached to it, the new Act would in effect, operate to
repeal the former penalty (z).
It has long been established, that, when an Act of Far- Effect of
liament is repealed, it must be considered (except as to
transactions passed and closed) as if it never had existed (a).
But where a statute is incorporated by reference into a
second statute the repeal of the first by a third does not
affect the second (b). By Act of Parliament the liability
to repair certain highways in a parish was taken from the
parish and cast upon certain townships in which the high-
ways respectively were, a form of indictment being given
by the Act against such townships for non-repair, which
would have been insufficient at common law. One of the
townships was indicted under the Act which before trial
was repealed without any reference to depending prosecu-
tions : the Court of Queen's Bench arrested a judgment
given against the township on such indictment (e).
There is, moreover, a difference to be remarked between
temporary statutes and statutes which have been repealed ;
for, although the latter (except so far as they relate to
transactions already completed under them) become as if
(z) Henderson r. Sherborne, 2 M.
k W. 239 ; cited and approved in
Robinson v. Emerson, 4 H. & C.
355 ; per Lord Abinger, C. B. , A. 0.
r. Lochwood, 9 M. k W. 391 ; R. r.
Davis, Leach, C. C, 271 ; Wrightup
v. Oreenaere, 10 Q. B. 1, recog-
nising PUkington v. Cooke, 16 M. &
W. 615 ; A. G. v. Moore, L. R. 3
Ex. D. 276.
(a) Per Lord Tenterden, 0. J.,
Surtees v. Ellison, 9 B, & G. 752;
cited by Qaain, J., L. R. 8 Q. B. 5 ;
Dean y. Mellard, 15 C. B. N. a 19,
25 ; per Lord Campbell, C. J., Reg. v.
Inhabs. of Denton, 18 Q. B. 770 ;
Taylor?. VanriUart, 4 E. k B. 910;
per Parke, B., Simpson v. Ready, 11
M. k W. 346.
(b) Clarke v. Bradlaugh, 8Q. B. P.
69 (C.A.);51L. J.Q.B. 1; 46L.T. 49.
(c) Reg. v. Inhabs: of Denton, 18
Q. B. 761. See Foster y. Pritcliard,
2 H. & N. 151.
26 RULES OF LEGISLATIVE POLICY.
they bad never existed, yet, with respect to the former,
the extent of the restrictions imposed, and the duration of
the provisions, are matters of construction (J).
Formerly, when a statute which repealed another was
itself subsequently repealed, the first statute was — if
nothing inconsistent with such an intention appeared (e)
—thereby revived, without any formal words for that
purpose; and it is now expressly enacted that "where
any Act repealing in whole, or in part, any former Act, is
itself repealed, such last repeal shall not revive the Act
or provisions before repealed," unless words be added,
reviving them(/). Also, wherever "any Act shall be
made repealing in whole or in part any former Act, and
substituting some provision or provisions instead of the
provision or provisions repealed, such provision or pro-
visions so repealed shall remain in force until the sub-
stituted provision or provisions shall come into operation
by force of the last made Act " Qj).
when Art Prior to the stat 33 Geo. 3, c. 13, it was not possible
Iwnniw to *■
oiicratc. to tnow the precise day on which an Act of Parliament
received the royal assent, and all Acts passed in the same
session of Parliament were considered to have received
the royal assent on the same day, and were referred to
the first day of the session ; but, by the above statute, it
is provided that a certain parliamentary officer, styled
"the clerk of the Parliaments," shall indorse, on every
Act of Parliament, " the day, month, and year, when the
same shall have passed and shall have received the royal
(<f) Per Parke, B., Stevenson r. (y) Id. s. 6. Sec Levi t. Sander-
Oliver, 8K.&W. 241. ton, L. R. 4 Q, B. 330 ; Mirfin v.
(e) HdlaweU t. Eastwood, 6 Exch. AttTcood, ib. ; Mount v. Taylor, L.
295. IL 3 C. P. 645 ; Batcher r. llender-
(/) 13 k 14 Vict. c. 21, s. 5. ma, L. R. 3 Q. B. 335.
RULES OF LEGISLATIVE POLICY. 27
assent, and such indorsement shall be taken to be a part
of such Act, and to be the date of its commencement,
where no other commencement shall be therein provided."
When, therefore, two Acts, passed in the same session of
Parliament, are repugnant or contradictory to each other,
that Act which last received the royal assent will prevail,
and will have the effect of repealing wholly, or pro tanto,
the previous statute (A), The same principle, moreover,
applies where the proviso of an Act is directly repugnant
to the purview of it; for in this case the proviso shall
stand, and will be held to be a repeal of the purview, as it
speaks the last intention of the makers (i).
Not merely does an old statute give place to a new one, common
law given
but, where the common law and the statute differ, the pjweto .
' statute.
common law gives place to the statute (£), if expressed in
negative terms (£). And, in like manner, an ancient cus-
tom may be abrogated and destroyed by the express pro-
visions of a statute ; or where inconsistent with and
repugnant to its positive language (m). But "the law
and custom of England cannot be changed without an
Act of Parliament, for this, that the law and custom of
England is the inheritance of the subject, which he cannot
be deprived of without his assent in Parliament" (n).
Statutes, however, "are not presumed to make any
alteration in the common law, further or otherwise than
(A) R. r. Justice* of Middlesex, 1 N. R. 7 ; Dresser v. JBosanquet,
2B.& Ad. 818 ; Paget v. Foley, 2 4 B. & 8. 460, 486.
Ding. K. C. 691. (Q Bac. Abr., 7th ed., "Statute"
(i) A. O. r. Chelsea JFatenoorhs (tJ).
Co., Fit^gib. 195, cited 2 B. & Ad. (to) Merchant Taylor* sCo. v. Trus-
826. cott, 11 Bxch. 855 ; Salter's Co. y.
(k) Co. Litt. 115 b. ; Paget y. Jay, 3 Q. 6. 109 ; Huxham y.
Foley, 2 Bing. N. C. 629 ; per Lord Wheeler, 8 a & 0. 75.
BUenborough, 0. J., R v. AsleeU, (n) 12 Rep. 29.
28 RULES OF LEGISLATIVE POLICY.
the Act does expressly declare ; therefore, in all general
matters the law presumes the Act did not intend to make
any alteration, for, if Parliament had had that design they
would have expressed it in the Act " (o).
Nova Constitutio futuris Formam imponere debet
non pr^teritis. (2 Inst 292.) — A legislative en-
actment might to be 'prospective, not retrospective, in
its operations.
Ruio derived Every statute which takes away or impairs a vested
from civil J J r
aw. right acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new dis-
ability, in respect of transactions or considerations already
past, must be deemed retrospective (p) in its operation,
and opposed to sound principles of jurisprudence (q). In
the Roman law we find it laid down generally, that nemo
potest mxitare consilium suum in alterins injuriam (?•) ;
and this maxim has, by the civilians (#) been specifically
applied as a restriction upon the lawgiver, who was
thus forbidden to change his mind to the prejudice of
a vested right ; and that this interpretation of the rule
is at all events in strict conformity with the spirit of
the civil law appears clearly by a reference to the Code
where the principle, which we here propose to consider, is
(o) Per Trevor, C. J., 11 Mod. 150. anl various cases and authorities
See 26 & 27 Vict. c. 125, s. 1. upon this subject are reviewed.
(p) Per Story, J., 2 Gallia (U.S.) (q) Instances of retrospective legis-
R. 139. In the judgment of Kent, lation are given in the arg. The
0. J., Dash v. Van Kleek, 7 Johns, WiUes Peerage, L. R. 4 H. L. H6.
(U.S.) R. 503 ct seq.t the rule as to (r) D. 50. 17. 75.
nova conttitulio is fully considered, (*) Taylor, Rlem. Civ. Law, 168.
EULES OF LEGISLATIVE POLICY.
29
thus stated : Leges et constitutiones futuris certum est
dareformam negotiis, non ad facta prcetevita rtvocavi;
nisi naniinatim et de prcrterito tempore et adkwc pen-
dentibu8 negotiis cautum sit (t). Laws should be con-
strued as prospective, not as retrospective, unless they are
expressly made applicable to past transactions, and to
such as are still pending (u). Nevertheless an intention
on the part of the legislature that an Act of Parliament
shall be retrospective, is sometimes inferred without ex-
press words, from the subject matter of the Act. Thus
alterations in Procedure have always a retrospective effect
unless some good reason appears to the contrary, so also
alterations in the law with respect to evidence in matters
both civil and criminal (x).
It is, however, in general tine, that a statute shall not
be so construed as to operate retrospectively, or to take
away a vested right, unless it contain either an enumera-
tion of the cases in which it is to have such an operation
or words which can have no meaning unless such a con-
struction is adopted (y).
On various occasions it has, in accordance with the above Examples.
doctrine, been laid down, that, where the law is altered
by statute pending an action, the law, as it existed when
the action was commenced, must decide the rights of the
parties in the suit, unless the legislature express a clear
(0 Cod. l, 14, 7.
(u) See 15 Tyng. (U.S.) R. 454.
(y) Gardner v. Lucas, L. R.
8 App. Cob. 582. Per Lord
Blackburn, p. 603 ; v. also judg-
ment of Lord Cairns. Phillips v.
£yre, L R. 6 Q. B. 1 ; 40 L J.
Q. B. 28 ; Wright r. Hale, 6 H. &
N. 227, 230, 232 ; followed in Kim-
bray r. Draper, L, R. 8 Q. B. 160,
{U) 7 Bac. Abr., 7th ed., "Sta-
tute '» (C), p. 439. See Latless y.
Holmes, 4 T. R. 660 ; cited WhiU
aberr. Wisbey, 12C. B. 52 ; Doe d.
Johnson t. Liversedge, 11 M. & W.
517 ; Dash r. Van Kleek, 7 John-
son (U.S.), R. 477 ; Quilter v. Ma-
pleson, 9 Q. B. D. 1, 672, per Jessel,
Mr R. (C A.).
30
EULES OF LEGISLATIVE POLICY,
intention to vary the relation of litigant parties to each
other (z). The Statute of Frauds (29 Car. 2, c. 3) was
passed in 1676, and by sect. 4 provides, that, from and
after the 14th June, 1C77, no action shall be brought
whereby to charge any person upon any agreement made
upon consideration of marriage, &c., unless the agreement
upon which such action shall be brought, or some memo-
randum thereof shall be in writing, and signed by the
party or some other person thereunto by him lawfully
authorised ; and the question was, whether a promise
of marriage made before the new Act, but to be per-
formed after, would sustain an action without note in
writing. The Court were of opinion that the action lay,
notwithstanding the statute, which it was agreed did not
extend to promises made before the 14th of June ; and
judgment was given for the plaintiff (a).
Moon v. Durden (b) may be cited as a leading decision
in reference to the application of the above maxim. The
8 & 9 Vict. c. 109, s. 18, which received the royal assent
on the 8th August, 1845, enacts that, " all contracts and
agreements by way of gaming and wagering shall be
null and void ; and that no suit shall be brought or
maintained in any court of law or equity for recovering
any sum of money or valuable thing alleged to be won
upon any wager, or which shall have been deposited in
(z) Hitchcock r. Way, 6 A. k B.
943, 951 ; Paddon r. BartleU, 8 A.
& E. 895, 896 ; per Lord Abinger,
0. B., ChappcU y. Purday, 12 M. &
W. 805, 806.
(a) Gilmore v. Shuter, Jones, K.
108; S. C., 2 Lev. 227.
(b) 2 Exch. 22, recognised in Pet-
taniberdass v. Thackoorseydass, 7
Moore, P. C. C. 289 ; org. James y,
Isaacs, 12 C. B. 795 ; Pinhorn v.
Souster, 8 Exch. 188, 142 ; Hobson
v. Neale, Id. 131 ; Yansittart v.
Taylor, 4 E. & B. 910 ; Lavgton v.
Haynes, 1 H. & N. 366: Reg. y.
Inhabs. of Madeley, 15 Q. B. 43 ;
Harris v. Lawrence, 1 Exch. 697;
Parker v. Crouch, Id. 699. See also
A. G. v, SMem, 10 H. L. Cas. 704,
RULES 0** LEGISLATIVE POLICY. 31
the hands of any person to abide the event upon which
any wager shall have been made : " this section was held
not to defeat an action for a wager which had been com-
menced before the passing of the Act In the case just
cited, Parke, B., observes that the language of the clause
above set out, if taken in its ordinary sense, " applies to
all contracts both past and future, and to all actions both
present and future on any wager whether past or future."
But it is as Lord Coke says, "a rule and law of Parlia-
ment that regularly nova consiitutio futuris formam
imponere debit non pvxeteritis. This rulei which is in
effect that enactments in a statute are generally to be
construed to be prospective, and intended to regulate the
future conduct of persons, is deeply founded in good sense
and strict justice, and has been acted upon in many
cases (c). * * * But this rule, which is one of construction
only, will certainly yield to the intention of the legisla-
ture ; and the question in this and every other similar
case is, whether that intention has been sufficiently ex-
pressed." In this case Rolfe, B., also remarks that the
principle as to nova constitviio " is one of such obvious
convenience and justice that it must always be adhered
to in the construction of statutes, unless in cases where
there is something on the face of the enactment putting
it beyond doubt that the legislature meant it to operate
retrospectively " (d). To a like effect, in Marsh v. Hig-
«
(0 Citing GUmore t. Shuter, T. Elliott y. Bishop, Id. 927 ; Boole
Jones, 108 ; 8. C, 2 Shaw, 16 ; Ed- ▼. Davis, 8 Exch. 361 ; Wavgh v.
monds v. Lavdey, 6 M. & W. 235 ; MiddUton, Id. 852 ; Zarpent v.
Moore v. Phillip?*, 7 M. & W. 536. Bibby, 5 H. L. Caa. 481 ; A. O. v.
(d) Bearing upon the above snb- Marquis of Hertford, 3. Exch. 670,
ject, see BmriUowht t. Vlivier, 13 687, 688 ; Reg. v. Inhabs. of St.
M. & W. 77, 87 ; A. 0. r. Bristol Mary, WhiteehapeZ, 12 Q. B. 120 ;
Waterworks Co., 10 Bxch. 884 ; leary v. Patrick, 15 Q. B. 266, 271 ;
BULES OF LEGISLATIVE POLICY.
gine{e), Wilde, C. J., says that "sometimes, no doubt,
the legislature finds it expedient to give a retrospective
operation to an Act to a considerable extent ; but then
care is always taken to express that intention in clear and
unambiguous language." And by a like rule of con-
struction have the courts been guided in construing tbe
first (/) and fourteenth (g) sections of " The Mercantile
Law Amendment Act, 1850."
In the case of Reg. v. Vine (A), the question of relro-
spectiveness was discussed in connection with the Act
33 & 34 Vict. c. 29, s. I+, which enacts that everyone
convicted of felony shall for ever be disqualified from
selling spirits by retail, and the question was raited
whether the licence held by a person who bad been con-
victed of felony before the passing of tbe Act became void
upon that event. It was held that it did, because, in
words of Cockbum, C. J. : " Here the object of the enact-
ment ib not to punish offenders, but to protect the public
against publichouses being kept by persons of doubtful
character." It is different where the primary object of a
statute is penal, " because it manifestly shocks our sense
of justice, that an act, legal at the time of doing it, should
be made unlawful by some new enactment " (i).
words of a statute are manifest
R. riaoa t. Stichitg, 2 H. L. Caa. 108,
}., 125.
JO ; if) Williams v. Smith, * H. 4 N.
12 559; a C.,2/d. 413.
lg) Jaei-mn v. Waotttg, 8 K. A B.
' (c) 9 C. B. 551, 567, and cases 778, 784,
there cited. There is do rule of law (?<] L. R. 10 Q. B. 105 ; 41 L. J.
which prohibits a retrospective rate : M. C. 60. See aim Amdtll v. Ant-
from the language of the Act under deU, 6 P. D. 138.
which it is laid most be gathered the (t) Per Erie, C. J., 10 C. B. N, S.
intention of the legislative; Ear- 101,
RULES OF LEGISLATIVE POLICT. 33
and plain, the Court will give effect to them, notwith- E*»Ptlon"-
standing any particular hardship, inconvenience, or detri-
ment, which may be thereby occasioned. For instance,
by letters patent granted to the plaintiff, it was amongst
other things provided that, if he should not particularly
describe and ascertain the nature of his invention, and in
what manner the same was to be performed, by an instru-
ment in writing under his hand and seal, and cause the
same to be enrolled in Her Majesty's High Court of
Chancery within four calendar months next and imme-
diately after the date of the said letters patent, then the
said letters patent should become void. By an Act of
Parliament, 4 & 5 Vict. c. 1, subsequently obtained, which
recited that letters patent had been granted to the plain-
tiff ; that the specification was enrolled within six months,
instead of being enrolled within four months after the
date thereof, as required by the letters patent ; that such
non-enrolment had arisen from inadvertence and misin-
formation ; and that it was expedient that the patent
should be rendered valid to the extent thereinafter
mentioned : it was enacted, that the letters patent should
during the remainder of the term, be considered, deemed,
and taken to be as valid and effectual to all intents and
purposes as if the specification thereunder so enrolled by
the plaintiff within six months after tbe date thereof, had
been enrolled within four months. In a case for infringe-
ment of the patent by the defendant, who had himself
obtained letters patent for a bond fide improvement upoTi
the plaintiff's invention prior to the passing of the said
Act of Parliament, and at a time when the plaintiff's
patent had ceased to have any validity, by reason of its
non-enrolment : it was held, that the Act of Parliament
in question operated as a complete confirmation of the
34
RULES OF LEGISLATIVE POLICY.
plaintiff's patent, although such a construction imposed
upon the defendant the hardship of having his patent
destroyed by an ex post facto law (&).
The preceding may perhaps be considered a strong, but
is by no means a solitary, instance (I) of a statute being
held to have a retrospective operation. Thus, the plaintiff
sued in Hilary Term, 1829, for a debt which had accrued
due more than six years previously : it was held that the
statute 9 Oeo. 4, c. 14, which came into operation on the
1st January, 1829, precluded him from recovering on an
oral promise to pay the debt made by defendant in
February, 1828 (m). In this case the action was brought
after the statute had begun to operate ; but the same
principle was applied where the action was brought befirre,
though not tried till after, the statute came in force (ri).
There are, moreover, several authorities for extending
remedial enactments to inchoate transactions (o), yet these
appear to have turned on the peculiar wording of par-
ticular Acts, which seemed to the Court to compel them
to give the law an ex post facto operation (p). We may
also, in connection with this part of the subject, observe
that where an Act of Parliament is passed to correct an
(i) Stead t. Carey, 1 0. B. 496.
See further as to retrospective statutes
per Dr. Lushington, The Ironsides,
Lush. Adm. R. 465.
(/) See, as to stat. 2 & 8 Vict c.
37, s. 1, Hodgkinson v. Wyattf 4
Q. B. 749 : as to stat. 6 & 7 Vict,
c. 78, s. 87, Brooks v. Bockett, 9
Q. B. 847 : as to stat 20 k 21
Vict. c. 85, s. 21, Midland JL C.
app., Pye resp., 10 C. B. N. S.
179 : as to stat. 21 k 22 Vict. c. 90,
Wright v. Greenivyd, 1 B. & S. 758,
762.
(m) Tordcr v. Chatterton, 6 Bing.
258, recognized in Reg. v. Leeds and
Bradford R. <?., 18 Q. B. 348. Sec
also Bradshaw v. Tasker, 2 My. &
K. 221 ; Fourdrin t. Gowdey, 3 My.
k K. 383.
(n) Kirkhaugh v. Herbert, and an
anonymous case, cited 6 Bitag. 265.
(o) See the cases cited, arg. 6 A. &
£. 946, and supra.
(p) Judgm., 6 A. k E. 951. See
Burn t. Carralho, 1 A. k E. 895.
RULES OF LEGISLATIVE POLICY.
35
error by omi&sion in a former statute of the same session,
it relates back to the time when the first Act passed,
and the two must be taken together as if they were one
and the same Act, and the first must be read as con-
taining in itself in words the amendments supplied by
the last (q).
The injustice and impolicy ot ex post facto (r) or retro- criminal
spective legislation are yet more apparent with reference
to criminal laws («) than to such as regard property or
contracts ; and with reference to the operation of a new
criminal law, the maxim of Paulus (t), adopted by Lord
Bacon applies, nunquam crescit ex post facto prceteriti
delicti cestimatw, the law does not allow a later fact, a
circumstance or matter subsequent, to extend or amplify
an offence : it construes neither penal laws nor penal facts
by intendment, but considers the offence in degree as it
stood at the time when it was committed (w).
AD EA QU.fi FREQUENTTUS ACCIDUNT JURA ADAPTANTUR.
(2 Inst 137.) — Tlie laws are adapted to those cases
which most frequently occur.
Laws ought to be, and usually are, framed with a view
to such cases as are of frequent rather than such as are
(q) 2 Dwarr. Stats. 685.
(r) Am to the meaning and deriva-
tion of this expression, Bee note, 2
Peters (U.S.), B. 683.
(s) "There can," moreover, "be
no donbt that every so-called Indem-
nity Act involves a manifest violation
of justice, inasmuch as it deprives
those who have suffered wrongs of
their vested right to the redress which
the law would otherwise afford them,
and gives immunity to those who
have inflicted those wrongs." Judgm.,
PhUlipt v. Eyre, L. R. 4 Q. B. 242.
(0 D. 50. 17. 138. § 1.
(u) Bac. Max., reg. 8.
D 2
36
RULES OF LEGISLATIVE POLICY.
of rare or accidental occurrence, or, in the language of
the civil law, jus constUui oportet in his quce ut
plurimum accidunt non quoe ex inopiiiato (x) ; for, neque
leges neque senatus-coyisvlta ita scribi possunt ut omnes
casus qui quandoque incideri/rvt comprehendantur, sed
sujjicit ea quce plerumque accidunt contineri (y), laws
cannot be so worded as to include every case which may
arise, but it is sufficient if they apply to those things
which most frequently happen. All legislation proceeds
upon the principle of providing for the ordinary course of
things^), and to this principle frequent reference is to be
found in the reports in answer to arguments, often spe-
ciously advanced, that the words of an Act of Parliament
cannot have a particular meaning, because in a certain con-
tingency that meaning might work a result that nobody
would approve of. In the case of Sir David Salomons (a),
it was contended that Parliament could not have intended
a Jew upon taking his seat to use the words "on the true
faith of a Christian," prescribed in the oath of affirmation
of 6 Geo. 3, c. 53, because the same oath might under 1
Geo. 1. st. 2, c. 13, be exacted from any one suspected of
popery at the discretion of two Justices of the Peace, and
any one who refused should be deemed a popish recusant,
and as such should forfeit the prescribed penalties, and be
proceeded against ; and this in the case of a Jew, it was
{x) D. 1. 3. 3. See Lord Cam-
den's judgment in Entick v. Carving-
ton, 18 How. St Tr. 1061. Sir R.
Atkyns observes, that ' ' laws are fitted
ad ea qua: frequentius accidunt, and
not for rare and extraordinary events
and accidents. n See his "Enquiry
into the Power of dispensing with
Penal Statutes," cited 11 St Tr.
1208. "The rule is ad ea qua fre-
quentius accidunt leges adaptantur,"
per Bramwell, 6., 9 H. L. Cas. 52 ;
per Willes, J., 10 H. L. Cas. 429.
(y) D. 1. 3. 10.
(z) Per Blackburn, J., Maxted v.
Paine, L. R. 6 Exch. 132, 172 ; 40
L. J. Ex. 57 ; 24 L. T. 149.
(a) Miller v. Salomons, 7 Exch.
475; Sid. 778 (Exch. Ch.).
RULES OF LEGISLATIVE POLICY. 37
said, would be the merest tyranny. But Baron Parke (b)
in that case thus replied to the argument : — " If in the
vast majority of possible- cases — in all of ordinary occur-
rence— the law is in no degree inconsistent or unrea-
sonable, construed according to its plain words, it seems
to me to be an untenable proposition, and unsupported by
authority, to say that the construction may be varied in
every case, because there is one possible but highly im-
probable one in which the law would operate with great
severity, and against our own notions of justice. The
utmost that can be reasonably contended is, that it should
be varied in that particular case, so as to obviate that in-
justice—no further."
Another illustration of the maxim is afforded by the
case of St. Margaret's Burial Board v. Thompson (c).
There the right of a sexton of a parish to enter and perform
his functions upon burial ground formed under 15 & 16
Vict. c. 85, s. 32, was contested, and it was urged that the
Act could not be supposed to confer such an absolute right,
because by the common law the rector could have dis-
missed the sexton, or excluded him from the churchyard
in the event of his drunkenness or misbehaviour. The
Court, however, considered that the Act should be con-
strued as " framed with a view to the ordinary position of
rector and sexton in respect of the latter's duties."
Where a private Act of Parliament, intituled, " An Act
to enable the N. Union Society for Insurance against Loss
by Fire, to sue in the name of their Secretary, and to be
sued in the names of their Directors, Treasurers, and
Secretary," enacted that all actions and suits might be
commenced in the name of the secretary, as nominal
plaintiff: it was held that this Act did not enable the
(6) 7 Exch. p. 549, (c) L. B. 6 C. P, 445.
38 BULBS OF LEGISLATIVE POLICY.
secretary to petition, on behalf of the society, for a com-
mission of bankruptcy against their debtor; for the
expression " to sue," generally speaking, means to bring
actions, and the legislature was providing for every-day
not for exceptional occurrences (d).
Again, where the construction of the stat. 11 Geo. 2,
a 19, which gives a remedy to a landlord whose tenant
has fraudulently removed goods from the demised pre-
mises, unless they have been bond fide sold to one not
privy to the fraud, was under consideration ; and it was
urged that it ought to be implied that the landlord was
not empowered by the statute to enter the close of a third
person, or to break his locks, for the purpose of seizing
the goods, unless he was a party to, or at least cognizant
of, their fraudulent removal ; and further that the breaking
open of his gates without a previous request to open them
was unjustifiable : the Court held that neither of these
conditions need be observed as necessary to the exercise of
the right given by the statute, "for, generally, goods
fraudulently removed are not secreted in a man's close or
house without his privity or consent. The legislature
may be presumed to have had this (e) in their con-
templation: ad ea qua frequentius accidunt jura
adaptantur."
The reader will also find the maxim forcibly applied by
Lord Blackburn in Dixon v. Caledonian Railway Co. (/),
and two other judgments (g) of the same great authority,
{d) Guthrie v. Fish, 3 B. & 0. 618, 628 ; Bee Thomas v. Walking,
178. Arg. A. G. v. Jackson, Cr. & Id\t 680.
J. 108 ; Wing. Max. 716. Argu- (/) 5 App. Orb. 888.
menturn & communiter accidcniibus (g) Clarke v. Wright, 6 H. & N.
in jure frequent est, Gtothofred, ad D. 862 ; DaUon v. Angus, L. B. 6 App.
44. 2. 6. Cas. 818.
(e) Williams v. Roberts, 7 Exch,
RULES OF LEGISLATIVE POLICY. 39
demonstrate that it has force, not only as a canon of con-
struction of statute law, but also as a principle of the
common law.
It is then true, that, " when the words of a law extend cmm
omissus.
not to an inconvenience rarely happening, but do to those
which often happen, it is good reason not to strain the
words further than they reach, by saying it is corns omis-
sus, and that the law intended qucc frequentius acciduiri"
"But," on the other hand, "it is no reason, when the
words of a law do enough extend to an inconvenience
seldom happening, that they should not extend to it as
well as if it happened more frequently, because it happens
but seldom " (h). Where, however, a casus omissus does
really occur in a statute, either through the inadvertence
of the legislature (i), or on the principle quod semel aut
bis existi prcetereunt legislatores (k), the rule is, that the
particular case thus left unprovided for, must be disposed
of according to the law as it existed prior to such statute
— Casus omissus et oblivioni dolus dispositioni com-
munis juris relinquitur (l) ; " a casus omissus" observes
Butter, J. (m), " can in no case be supplied by a Court of
Law, for that would be to make laws."
(A) Vangh. R. 373 ; FetUon v. (i) D. 1. 3. 6.
Hampton, 11 Moore, P. C. C. 865 ; (I) 5 Rep. 38. See Robinson v.
with which ace. Doyle v. Falconer, CottereU, 11 Exch. 470.
L R. 1 P. C. 328. (to) Jones v. Smart, 1 T. R. 52 ;
(t) Reg. v. Inhabs. of Denton, per Lord Abinger, C.B., Lane v. Ben-
5 8. & a 821, 828 ; Cobb v. Mid net*, 1 M. <k W. 73 ; arg. Shepherd
Wales R, C, L. R. 1 Q. B. 348, 349. ▼. Hills, 11 Exch. 64.
40
sovereign.
CHAPTER II.
MAXIMS RELATING TO THE CROWN.
The principal attributes of the Crown are sovereignty
or pre-eminence, perfection, and perpetuity ; and these
attributes are attached to the wearer of the crown by the
constitution, and may be said to form his constitutional
character and royal dignity. On the other hand, the
principal duty of the sovereign is to govern his people
according to law ; and this is not only consonant to the
principles of nature, of liberty, of reason, and of society,
but has always been esteemed an express part of the
common law of England, even when prerogative was at
the highest. In the pages immediately following are
collected some of the more important technical rules, em-
bodying the above general attributes of the Crown, with
remarks as to their meaning and qualifications (a).
Rex non debet esse sub homine, sed sub Deo et sub
LEGE, QUIA LEX FACIT REGEM. (Bract. Lib. i. fo. 5.) —
The king is under no man, yet he is in subjection
to Ood and to the law, for the law makes the king.
m
Two-fou The head of the state is regarded by our law in a two-
character ....
of th« fold character — as an individual liable like any other to
(a) Soe farther, on the subject of the Royal Prerogative, ed. 1849, and
this chapter, Mr. Allen's Treatise on Mr. Chitty's Treatise on the Pre-
MAXIMS RELATING TO THE CROWN.
41
the accidents of mortality and its frailties ; also as a cor-
poration sole (6), endowed with certain peculiar attributes,
the recognition whereof leads to important consequences.
Politically, the sovereign is regarded in this latter cha-
racter, and is invested with various functions, which the
individual, as such, could not discharge. " The person of
the king," it has been said (c), " is by law made up of two
bodies : a natural body, subject to infancy, infirmity, sick-
ness, and death ; and a political body, perfect, powerful,
and perpetual/' These two bodies are inseparably united
together, so that they may be distinguished, but cannot be
divided. More often, however, the sovereign would seem
to be regarded by our law in his political than in his indi-
vidual and natural capacity, and the attributes of his
former are blended with those of his latter character. As
conservator of the public peace, the Crown in any criminal
proceeding represents the community at large, prosecutes
for the offence committed against the public, and can
alone exercise the prerogative of pardoning. As the
fountain of justice, no Court can have compulsory juris-
diction over the sovereign ; an action for a personal wrong,
therefore, will not lie agaiust the king; for which rule,
indeed, another more technical reason has been assigned —
that the king cannot by his writ command himself to
appear coram judice. As the dispenser of law and equity,
rogative of the Crown, particularly
chaps, i., ii., xv., xvi. ; 1 Com. by
Broom & Hadley, chap. vii. ; For-
tescne de Laud. Leg. Aug., by Amos,
chap. ix. ; Finch's Law, 81 ; Plowd.
Com., chap. xi. ; Bracton, chap.
• ••
Till.
(6) Mr. Allen, however, observes,
at page 6 of his Treatise on the Royal
Prerogative, that " there is something
higher, more mysterious, and more
remote from reality in the conception
which the law of England forms of the
king than enters into the notion of a
corporation sole.*'
(c) Bagshaw, Rights of the Crown
of England, 29; Plowd. 212 a, 217
a, 288 ; Allen, Boyal Pre. 26 : Bac,
Abr. Prerogative (E. 2).
42
MAXIMS RELATING TO THE CROWK.
The king is
beneath the
lair.
the king is present in all bis Courts ; whence it is that he
cannot be nonsuit in an action, nor does he appear by
attorney {<!).
The case of Prohibitions (e) shows, however, that the
king is not above the law, for he cannot in person assume
to decide any case, civil or criminal, but must do so by his
judges ; the law being " the golden met- wand and mea-
sure to try the causes of the subjects, and which protected
his majesty in safety and peace," — the king being thus
in truth, swb Deo et lege. This case shows also that an
action will not lie against the Crown for a personal tort,
for it is there laid down that " the king cannot arrest a
man for suspicion of treason or felony, as others of his
lieges may ; " the reason given being that if a wrong be
thus done to an individual, the party grieved cannot have
remedy against the king. But although in these and
other respects, presently to be noticed, the king is greatly
favoured by the law, being exempted from the operation of
various rules applicable to the subject, he is on the whole,
and essentially, beneath not superior to it, theoretically in
some respects above, but practically bound and directed
by its ordinances (/).
(d) 1 Black. Com. 323 ; Finch's
Law (by Pickering), 82.
(f) Prohibitions del Ray, 12 Rep.
63 ; Plowd. 241, 553.
(/) flee the Debate in the House of
Lords on life Peerages, Hansard, vol
140, pp. 263, Ac. In Howard v.
Ooaet, 10 Q. B. 386, Coleridge, J.,
observes that " the law is supreme
oyer the House of Commons a* over
the Crown itself ; " et vide post,
p. 53.
MAXIMS RELATING TO THE CROWN. 43
Kex nunquam morttur. (Bmnch, Max. 5th ed., 197.)—
The king never dies.
The law ascribes to the king, in his political capacity, immortality
an absolute immortality ; and immediately upon the theoretically
decease of the reigning prince in his natural capacity, the
kingly dignity and the prerogatives and politic capacities
of the supremo magistrate, by act of law, without any
interregnum or interval, vest at once in his successor,
who is, eo instante, king, to all intents and purposes ; and
this is in accordance with the maxim of our constitution,
In Anglid non est interregnum (g).
" It is true," says Lord Lyndhurst (h), " that the king
never dies, the demise is immediately followed by the
succession, there is no interval; the sovereign always
exists, the person only is changed."
So tender, indeed, is the law of supposing even a
possibility of the death of the sovereign, that his natural
dissolution is generally called his demise — demissio regis
vel coronoe — an expression which signifies merely a transfer
of property; aud when we speak of the demise of the
Crown, we mean only that, in consequence of the disunion
of the king's natural body from his body politic (i), the
kingdom is transferred or demised to his successor ; and
so the royal dignity remains perpetual. It has, doubtless,
usually been thought prudent, when the sovereign has
been of tender years, at the period of the devolution upon
him of the royal dignity, to appoint a protector, guardian,
or regent to discharge the functions of royalty for a
limited time ; but the very necessity of such extraordinary
(g) Jenk. Cent 205. See Cooper's (A) Vise. Canterbury v. A. Q.t 1
Account of Public Records, vol. 2, Phill. 822.
823, 324. Allen, Royal Prerog. 44. (i) Ante, p. 41.
44 MAXIMS RELATING TO THE CROWN.
provision is sufficient to demonstrate the truth of that
maxim of the common law, that in the king is no
minority (k), for he has no legal guardian ; and the
appointment of a regency must, therefore, be regarded
merely as a provision made by the legislature, in order to
meet a special and temporary emergency (£).
It seems that the Duchy of Cornwall vests in the
king's eldest son and heir apparent at the instant of
his birth, without gift or creation, and as if minority
could no more be predicated of him than of the sovereign
himself (m).
The title of the sovereign is regulated by succession as
well as descent, and if lands be given to the king and his
"heirs," this word "heirs" will be held to include the "suc-
cessors " to the Crown, although on the demise of the sove-
reign, according to the course of descent recognised at the
common law, the land might have gone in some otherchannel.
Hence, if the king die without issue male, but leaving two
daughters, lands held to him and his heirs will go to his
eldest daughter as succeeding to the Crown ; whereas, in
the case of a subject, lands whereof he was seised would
pass to his daughters, in default of male issue, as copar-
ceners (n). Similarly, if real estate be given to the king
and his heirs, and afterwards the reigning dynasty be
changed, and another family be placed upon the throne,
the land in question would go to the successor, and then
descend in the new line (o). And a grant of land to the
king for ever creates in him an estate of perpetual inheri-
(jt) Bac. Abr. Prerogative (A.). (n) Grant on Corporations, 627.
(I) 1 Black. Com., 295 ; 1 Flowd. See also the Stats. 25 & 26 Vict. c.
177, 234. And see toe Stat. 3 & 4 37, and 36 & 37 Vict. c. 61, relating
Vict, c 52. to the private estates of the Sove-
(m) Per Lord Brougham, C, Coop, reign.
B, 125, (o) Grant, Corp. 627,
MAXIMS RELATING TO THE CROWN. 45
tance (p), whereas the like words would but give an estate
for life to any of his subjects.
In regard also to personal property, the Crown is
differently circumstanced from an individual or from a
corporation sole ; for, according to the ordinary rule, such
property will not, in the case of a corporation sole, go
to the successor — in the king's case, by our common law,
it does so (g). And it may be worthy of remark, that the
maxim, "the king never dies," founded manifestly on
notions of expediency, and on the apprehension of danger
which would result from an interregnum, does not hold
in regard to other corporations sole. A parson, for in-
stance, albeit clothed with the same rights and reputed
to be tbe same person as his predecessor, is not deemed
by our law to be continuously in possession of his office,
nor is it deemed essential to the preservation of his
official privileges and immunities that one incumbent
should, without any interval of time or interruption, fol-
low another. Such a corporation sole may, during an
interval of time, cease to be visibly in esse, whereas the
king never dies — his throne and office are never vacant.
Yet it would be an error to say that this fiction of the
constitution as to the continuity of the Royal Person is
always followed to its logical conclusions. One limitation
is illustrated by the case of The Att. Gen. v. Kohler (r), in
which the question was discussed in the House of Lords,
whether money which had through mistake been paid to
the Treasury during the reign of one sovereign, could be
recovered under his successor. It was held that the
sovereign could not be responsible for money paid over in
(p) 2 Black. Com. 216. (r) 9 H. L. Ca. 654.
{q) Grant, Corp. 626.
46 MAXIMS RELATING TO THE CROWN.
error to and spent by a predecessor, which that predecessor
might lawfully have disposed of for his own use, supposing
it to have rightfully come to his hands.
Rex non potest peccare. (2 Rolle, R. 304.) — The king
can do no wrong.
Mining of It is an ancient and fundamental principle of the
luaxiin. x *
English constitution, that the king can do no wrong (#).
But this maxim must not be understood to mean that
the king is above the laws, in the unconfined sense of
those words, and that everything he does is of course just
and lawful. Its true meaning is, First, that the sove-
reign, individually and personally, and in his natural
capacity, is independent of and is not amenable to any
other earthly power or jurisdiction ; and that whatever
may be amiss in the condition of public affairs is not
to be imputed to the king, so as to render him answer-
able for it personally to his people. Secondly, the above
maxim means, that the prerogative of the Crown extends,
not to do any injury, because, being created for the
benefit of the people, it cannot be exerted to their pre-
judice, and it is therefore a fundamental general rule,
that the king cannot sanction any act forbidden by law ;
so that, in this point of view, he is under, and not above
the laws, — and is bound by them equally with his sub-
jects (t). If, then, the sovereign personally command an
unlawful act to be done, tho offence of the instrument is
not thereby indemnified ; for though the king is not
himself under the coercive power of the law, yet in many
(«) Jenk. Cent. 9, 808. 208. See Fortescue de Land. Leg.
(0 Chitt. Pre. Cr. 5 ; Jenk. Cent. Ang. (by Amos) 28.
MAXIMS RELATING TO THE CROWN. 47
cases his commands are under the directive power of the
law, which makes the act itself invalid if unlawful, and
so renders the instrument of execution thereof obnoxious
to punishment (u). As in affairs of state the ministers of
the Crown are held responsible for advice tendered to it,
or even for measures which might possibly be known to
emanate directly from the sovereign, so may the agents of
the sovereign be civilly or criminally answerable for lawless
acts done — if that may be imagined — by his command.
The king, moreover, is not only incapable of doing Grant from
... Crown when
wrong, but even of thinking wrong. Whenever, there- void.
fore, it happens that, by misinformation or inadvertence,
the Crown has been induced to invade the private rights
of any of its subjects, — as by granting any franchise or
privilege to a subject contrary to reason, or in any way
prejudicial to the commonwealth or a private person, —
the law will not suppose the king to have meant either
an unwise or an injurious action, for eadem metis prce-
swmitUr regis quce est juris et quw esse debet jyrcesertim
in dubiis (x), but declares that the king was deceived in
his grant ; and thereupon such grant becomes void upon
the supposition of fraud and deception either by or upon
those agents whom the Crown has thought proper to
employ (y). In like manner, also, the king's grants are
void whenever they tend to prejudice the course of public
justice (z). And, in brief, to use the words of a learned
judge (a), the Crown cannot, in derogation of the right of
(«) 1 Hale, P. C, 43, 44, 127. Kcmpe, 1 Lord Raym. 49, cited Id.
Per Coleridge, J., Howard v. Gowct, 720; Finch's Law, 101; Vigers v.
10 Q. B. 386. Dean, <fcc, of St. Paul\ 14 Q. B.
(x) Hobart, 154. 909.
(y) GledstancsY.The Earl of Sand- (*) Chitt. Pre. Cr. 385.
wich, 5 Scott, N. R. 719; A v. (a) See jpw Piatt, B., 2E. &B.8S4.
48 MAXIMS RELATING TO THE CROWN.
the public, unduly limit and fetter the exercise of the
prerogative which is vested in the Crown for the public
good. The Crown cannot dispense with anything in which
the subject has an interest (6), nor make a grant in viola-
tion of the common law of the land (c), or injurious to
vested rights (d). In this manner it is, that, while the
sovereign himself is, in a personal sense, incapable of doing
wrong, yet his acts may in themselves be contrary to law,
and, on that account, be avoided or set aside by the law.
It must further be observed, that even where the king's
grant purports to be made de gratid speciali, certd
scientid, et rnero motu, the grant will, nevertheless, be
void, if it appears to the Court that the king was de-
ceived in the purpose and intent thereof: and this
agrees with a text of the civil law, which says, that the
above clause non vcdet in his in quibus prcesumitur pi~in-
cipem esse ignorantem ; therefore, if the king grant such
an estate as by law he could not grant, forasmuch as the
king was deceived in the law, his grant will be void (e).
Thus the Crown cannot by grant of lands and tenements
create in them a new estate of inheritance, or give them
a new descendible quality (/), and the power of the Crown
is alike restricted as regards the grant of a peerage or
honour (g).
It does not seem, however, that the above doctrine can
be extended to invalidate an act of the legislature, on
the ground that it was obtained by a suggestio falsi, or
(b) Thomas v. Waters, Hardr. 443, (/) Per Lord Chelmsford, The
448. Wiltes Peerage, LB.4H.L 152.
(c) 2 Roll. Abr. 164. (g) The WUtes Peerage, L. R. 4
\d) R. v. Butler, 3 Lev. 220; cited H. L. 126; and see Buckhunt Peer-
per Parke, B., 2 E. & B. 894. age Case, 2 App. Cas. 1, per Lord
(<*) Case of Alton Woods, 1 Rep. Cairns, pp. 20, 21.
53.
MAXIMS RELATING TO THE CROWN. 49
suppressio veri. It would indeed be something new, as
forcibly observed by Cresswell, J. (h), to impeach an
Act of Parliament by a plea stating that it was obtained
by fraud (i).
In connection with this part of our subject, it is worthy
of remark, that the power which the Crown possesses of
calling back its grants, when made under mistake, is not
like any right possessed by individuals ; for, when it has
been deceived, the grant may be recalled notwithstanding
any derivative title depending upon it, and those who
have deceived it must bear the consequences (k).
The doctrine just stated applies also in the case of a Patent
patent which has in some way improvidently emanated
from the Crown. Thus, in Morgan v. Seaward (I), Parke,
R, observed as follows : " That a false suggestion of the
grantee avoids an ordinary grant of lands or tenements
from the Crown, is a maxim of the common law, and such
a grant is void, not against the Crown merely, but in a
suit against a third person (m). It is on the same prin-
ciple that a patent for two or more inventions, where one
is not new, is void altogether, as was held in Hill v.
Thompson (n), and Brunton v. Uawkes (o); for although
the statute (p) invalidates a patent for want of novelty,
and consequently by force of the statute the patent would
be void, so far as related to that which was old ; yet the
(A) Stead r. Carey, 1 C. B. 516 ; 9C. B, 486. See Reg. v. BetU, 15
per TindaJ, G. J. Id. 522. Q. B. 540, 547.
(*) See M* Cormick v. Grogan, L. R. (m) Citing TravsU v. Carteret, 8
4 H. L. 96, per Ld. Westbuiy. Lev. 135; Alcock v. Cooke, 5 Bing.
(k) Jadgm. Cumming v. Forrester, 310.
2 Jac. & W. 842. (n) 8 Taunt. 375.
(J) 2 M. & W. 5U, cited arg. (o) 4 B. & Aid. 542.
Nickel* v. Bo$s, 8 C. B. 710 ; Beard (/>) 21 Jac 1, c. 8.
r. EgerUm, Id. 207; Croll v. Edge,
A
50 MAXIMS RELATING TO THE CROWN.
principle on which the patent has been held to be void
altogether is, that the consideration for the grant is the
novelty of all, and the consideration failing, or, in other
words, the Crown being deceived in its grant (q), the
patent is void, and no action maintainable upon it " (?').
The rule upon the subject now touched upon has been
yet more fully laid down (s), as follows : — " If the king
has been deceived by any false suggestion as to what he
grants or the consideration for his grant ; if he appears to
have been ignorant or misinformed as to his interest in
the subject-matter of his grant; if the language of his
grant be so general, that you cannot in reason apply it to
all that might literally fall under it ; or if it be couched
in terms so uncertain that you cannot tell how to apply
it with that precision which grants from one so especially
representing the public interest ought in reason to have ;
or if the grant reasonably construed would work a wrong,
or something contrary to law ; in these and such liko
cases the grant will be either wholly void or restrained
according to circumstances ; and equally «o, whether the
technical words, ex certd scientid et metro motu, be used
or not. But this is held upon the very same principle of
construction on which a grant from a subject is construed,
viz., the duty of effectuating the intention of the grantor."
To hold the grants valid or unrestrained in the cases just
put, would be, as is said, in deceptione domini regis, and
not secundum intentionem. It must, however, at the
(?) 5 & 6 Will. 4, c. 83, s. 1, v. London Oas Light Co., 5 H. & N.
allows a disclaimer of part of a 340.
patent. (*) Reg. v. Eastern Archipelago
(r) "The Crown is deceived if it Co., 1 E. & B. 310, 337, 888 ; S. C,
grants a patent for an invention which 2 E. & B. 856 ; The WiUes Peerage,
is not new," per Pollock, C. B., Hills L. R. 4 H. L. 126.
MAXIMS BELATING TO THE CROWN. 51
same time be noted, tbat long modern possession will often
make good and valid a title defective on account of
vagueuess or uncertainty in the original grant. This is
effected by a presumption of a supplementary and con-
firmatory grant, so as to preserve the fiction of royal
impeccability (t).
The principle that the king can do no wrong brought Petition of
about the institution of the Petition of Right, by which a
subject practically can obtain redress in all cases where
his rights have been invaded or infringed by the Crown
through its agents, and proceeds upon' the theory that the
king, of his free will, graciously orders right to be done
(8oit droit fait al partie). Where Petition of Right is not
available as a means of obtaining redress for the act of a
servant of the Crown, it is because the principle of
respodneai superior has no application ; and in such cases
an action will be against the servant himself. This is the
remedy in the case of a tortious act, or of the breach of
a contract entered into outside the scope of an official's
authority.
The procedure («) in Petition of Right is not affected Procedure.
bv the Judicature Acts of 1873 or 1875, and is still
regulated by the Act 23 & 24 Vict. c. 34, which had for
its object to render that procedure less intricate and
expensive. By this statute it is provided that the petition
shall be left with the Secretary of State for the Home
Department for Her Majesty's consideration, who, if she
shall think fit, may grant her fiat that right be done, (on
which fiat no fee or reward is to be taken), whereupon (the
(i) Dc* Barre v. Shty, 29 L. T. described by Blackstone, 3, 256, and
592. more at length in Chitty on the Pre-
(u) The procedure before the Act rogatire. It is well illustrated in the
mentioned in the text, is succinctly Baron de Bode's Ca<v, 8 Q. B. 208.
s 2
52 MAXIMS RELATING TO THE CROWN.
fiat having been served on the solicitor to the Treasury),
an answer, plea, or demurrer shall be made on behalf of
the Crown, and the subsequent proceedings be assimilated
as far as possible to the proceedings of an ordinary
action (x). Nevertheless, there are some important
differences, for instance, the suppliant, though himself
bound to give discovery as in an ordinary action (y), is
not entitled to have it at the hands of the Crown (z). It
is obvious that execution of a judgment in the proper
sense of the term, cannot be had against the Sovereign.
Formerly, if the question was determined against the
Crown, the judgment was that of ouster le main, or
amovcas mantis — or, in full, quod manus domini regie
amoveantur et posscssio restituatur petenti salvo jure
domini regis; which last clause, says Blackstone (a), is
always added to judgments against the king, to whom no
laches is ever imputed, and whose right, till some late
statutes, was never defeated by any limitation or length
of time. And by such judgment the Crown is immediately
out of possession ; so that there needs not the indecent
interposition of his own officers to transfer the seizin from
the king to the party aggrieved. By the statute above
mentioned it is provided that the Court may give judg-
ment that the suppliant is entitled to the whole or any
portion of the relief sought, or to such other relief as to
the Court may seem right, and that such judgment shall
have the same effect as a judgment of amoveas manus (b).
Costs, also, are to follow the same rules as prevail in
actions between subject and subject (c).
(x) For illustration see Tobin v. (z) Tkomat v. Reg., L. R. 10
Beg., 16 C. B. N. 8. 310. Q. B. 44 ; 44 L J. Q. B. 67.
(y) Tondine v. Reg. 4 Ex. D. 252 ; (a) iii. 257.
48 L. J. Ex. 453; Thomas v. The (6) 23 k 24 Vict, c 34, ps. 9, 10.
Queen, h. R. 10 Q. B. 44. (r) g. 12.
MAXIMS KELATINO TO THE CROWN. 63
Whether the subject has a right to the royal fiat jj« royal
to his petition has been much discussed. It would seem
clear that, uuder the statute 23 & 24 Vict. c. 34, at any
rate, the Courts have no jurisdiction until this has been
done, and that a minister who refused the royal sanction
in a proper case would be amenable to Parliament alone.
It is evident from the Act of Parliament that it was
intended to leave some discretion to the Crown, otherwise
the fiat of the Sovereign would have been dispensed with.
Cases may easily be conceived in which the interests of
the State would forbid the publication in open court of
matter which an aggrieved party might consider neces-
sary for his case. On the other hand, notwithstanding the
supplicating language of the petition, it never was the
theory of the Constitution that the remedy by petition of
right was one of pure grace and favour on the part of the
Crown. Although the petition may contain nothing of a
mandatory nature, " it is, substantially as well as nominally,
a petition of right " (d), and the prayer of it is grantable,
" ex debito justitice n being referred by many to the words
of Magna Charta,?ntZ/£ Tiegabimvsjustitiam vel rectum (e).
" I am far from thinking," said Lord Langdale, " that it
is competent to the king, or rather to his responsible
advisers, to refuse capriciously, to put into a due course
of investigation, any proper question raised on a petition
of right. The form and application being, as it is said, to
the grace and favour of the king appeal* no foundation for
any such suggestion " (/). It is now the common practice
{d) Cbitty Prerog. 345. tion was instituted as more compatible
(e) There would appear to be with the king's dignity,
ground for saying that previous to (/) Ryvcs v. Duke of Wellington,
Ed. I. the king could be sued by a 9 Bear. 600. V. also Coke Inst. 3,
subject, and that the form of peti- 240, 2.
54 MAXIMS RELATING TO THE CROWN.
of the Home Office to endorse " let right be done " as a
matter of course, without even referring the case to the
Attorney-General (g).
p2?tk*i of Even where the royal fiat is obtained, the question may
Right wm still be raised by the Crown, (and this is done generally
upon demurrer,) as to whether the case is one in which
petition of right may be brought. The only cases in
which petition of right is open to the subject are, where
the land, or goods, or money of a subject have found
their way into the possession of the Crown, and the purpose
of the petition is to obtain restitution, or if restitution
cannot be given, compensation in money, or where the claim
arises out of a contract as for goods supplied to the Crown
for the public service (A). It is also the proper method
of recovering damages for a breach of contract on the part
of the Crown (i). In considering whether, in any individual
case, recourse should bo had to Petition of Right, it must
be borne in mind that the petition is founded on the
violation of some right in respect of which, but for the
immunity from all process with which the law surrounds
the person of the sovereign, an action at law or in equity
might be maintained.
Thus in the case of a breach of contract entered into
between a subject and the servants of the Crown, whether
redress should be sought by petition from the sove-
reign as the principal, or by action from the officer as an
agent who has made himself personally liable, will depend
(g) Per Jervis, C. J., Eastern as to Petition of Right collected.
Archipelago Co. v. Reg. 2 E. B. (/*) Per Cockburn, C. J. Feather
914. See, however, a pamphlet v. Reg.f 6 B. & S. 294.
(publiBhed by V. & R. Stephens, (i) Chitty Prerog. 341-5, where
1863), on the case of Mr. Irwin, in the cases in which petition may be
which there is much interesting matter employed are set out
MAXIMS RELATING TO THE CROWN. 55
upon those broad principles of the Common Law which
regulate the relationship between principal, agent, and
third parties. Where a servant of the Crown has entered
into a contract within the scope of his authority and duty,
no action will lie against him for its breach. The remedy
of the subject in such case is by petition of right (k).
Since a petition must show on the face of it some ground
of complaint which, but for the inability of the subject to
sue the sovereign, might be made the subject of judicial
proceeding, it follows that no petition of right can be
brought in respect of a wrong or tortious act properly
so called, suffered by a subject at the hands of the Crown
or its servants (I). Redress cannot be had by petition even
for the negligence of the servants of the sovereign (on).
For apart altogether from the question of procedure, a
petition of right in respect of a wrong, in the legal sense
of the term, shows no right to legal redress against the
sovereign. If the king cannot do wrong, he cannot
authorise a wrong, for in law the act is the act of him by
whose authority it is done. By parity of reasoning the
king cannot be held responsible for the negligence of his
servants, because the principle upon which a master is liable
for his servant's negligence proceeds upon the assumption
that the master himself was negligent in the choice and
employment of the servant. But in all cases of tort an action
will lie against the person who has committed it, for the
civil irresponsibility of the supreme power could not be
(k) Churchward t. Reg., 6 B. & S. sariat).
807 (contract for carriage of mails) ; {I) Tobin v. Reg.y 16 C. B. N. S.
Thomas v. Reg., L. E. 10 Q. B. 31 ; 310, 33 L. J. C. P. 83 ; Feather v.
44 L. J. Q. B. 17 (contract by minister Reg., 6 B. & S. 257 ; 30 h. J. Q. B.
of war with an inventor of ordnance) ; 200.
Palmer v. Hutchinson, 6 App. Cas. (m) Vis. Canterbury v. Att.-Gen,
$19, 50 L. J. P. C. 62 (commis- 1 Phillip, 321.
56 MAXIMS RELATING TO THE CROWN.
maintained with any show of reason if its agents were not
personally responsible (n). So in Madrazo v. WUles (o),
a captain of a British man-of-war who had destroyed a
Spanish trader wrongfully, but, as he believed, in perform-
ance of his duty, was held liable to the Spanish owners.
Moreover, that a servant of the Crown is liable to the
subject for a tortious act done even with the sanction of
the highest authority of the State, " rests on principles
which are too well settled to admit of question, and which
are alike essential to uphold the dignity of the Crown on
the one hand, and the rights and liberties of the subject
on the other " (p).
Questions of greater difficulty have arisen with respect
to claims to participate in funds which the Crown has
become possessed of in war, or by convention with foreign
states, the distribution of which has been regulated by Act
of Parliament or the will of the sovereign. Thus, in the
case of Kiriloch v. The Secretary of State for India, (q),
where the Queen had by Royal Warrant granted the Banda
and Kirwee Booty to the Secretary of State for India, " in
trust " for the officers and men of certain forces, to be
distributed according to certain scales and proportions,
any doubts arising to be determined finally by him, unless
the Queen should otherwise order, an attempt was made to
compel the Secretary of State to account for those moneys,
on the footing of a trust, to persons who claimed to be
entitled to a share in them. It was held by the House of
Lords, affirming the Court of Appeal, that the warrant
did not transfer the property or create a trust which could
(n) Roycri v. Rajendoo Butt, 13 ubi supra.
M. P. C. 236. (p) Feather v. Reg., 6 B. k &
(o) 3 B. & Aid. 353 ; and see et ubi supra.
Tobin y, Reg. and Feather t. Reg., (q) 7 App. Gag. 019,
MAXIMS RELATING TO THE CROWN. 57
be enforced in equity, and that no action could properly
be brought against the Secretary of State, who was merely
the agent of the Crown for a specific purpose.
Whether upon petition of right the suppliant would
in such a case be entitled to recover may be doubtful.
Probably a Royal Warrant has not the effect of an Act of
Parliament, which has been held to preclude all claims
against the Crown by prescribing a particular mode for
the distribution of such funds (r). This was the ground
of the decision of the Exchequer Chamber and the House
of Lords in the important case of Baron de Bode (*).
There the petition suggested that under certain conven-
tions with the Government of France the Crown had
awarded moneys for the purpose of indemnifying British
subjects whose property had been confiscated by French
authorities during the wars following the French Revolu-
tion. The suppliant, as one entitled to participate,
claimed a large sum which remained in the Treasury
after the claims of others had been satisfied. It was held,
however, that Parliament, which was competent to do
whatever it liked with the money, having provided for its
application by the statute 59 Geo. 3, c. 31, the case must
turn entirely on the construction and effect of that statute.
"If," said Parke, B., delivering the judgment of the
Court (t), "no Act of Parliament had passed for the appli-
cation of this money, it might have been a question
whether the British sovereign could have applied it for
(r) Cooper v. Beg. 14 Ch. D. 311 ; Right are collected. It is worthy
49 L. T. Ch. 490 ; 42 L. T. 617. of note that it was contended by the
(s) 8 Q. B. 208 ; 13 Q. B. 380 Crown that petition of right would
(Bxch. Ch.) ; 3 H. L. 449. In this not lie for debt or damages. The
case the arguments in the Q. B. were of contrary was assumed bnt not decided
the most elaborate nature, and all by the Court,
the older authorities in Petition of (t) 13 Q. B. 883.
58 MAXIMS RELATING TO THE CROWN.
any purpose that he chose. It might have been contended
that, as it was received by him expressly as the price of
a release of the French Government from its obligation to
compensate his subjects for their losses, he took the money
clothed with a similar obligation to distribute it amongst
his subjects by way of compensation ; " and if so, that
such subjects had a remedy by petition of right. He
added that it was unnecessary to give an opinion on such
a supposed case. The point there suggested has been
since discussed and become the subject of judicial decision
in the case of Rustomjee v. The Queen (u). In that case
the suppliant claimed to participate in a sum of 3,000,000
dollars which had been received by the Crown from the
Emperor of China in pursuance of the treaty of Nanking
(1842) on account of debts due from certain Chinese
merchants licenced to deal with foreigners, who had
become insolvent, being largely indebted to British
merchants who had been compelled to deal exclusively
with them. The notion that the sovereign could, in
receiving a sum of money under treaty, become the agent
of or trustee for her subjects was described by Cockburn,
C. J., as wild and untenable, and that ^case clearly settles
that in performing or in making a treaty the sovereign
exercises her highest prerogative, and her acts cannot be
examined in her own Courts.
Moiutran* Closely analogous to petition was the form of Man-
straits de droit (x). This procedure was employed in
former times when the facts upon which the suppliant
and the Crown relied had already been established,
whether by commission, inquest of office, or otherwise, and
(m) 1 Q. B. D. 487 ; 2 Q. B. it was held that the Crown cannot
D. 69 ; 46 L. J. Q. B. 238 ; 25 W. plead the Statute of Limitations.
R. 333. Note also that in this case (x) Chitty, Prerog.
MAXIMS EELATING TO THE CROWN. 59
the judgment of the Court was required as upon a special
case. Although now obsolete, this form of procedure was
once of very great importance, and almost superseded that
by petition (y).
Where the Crown is actually in possession of lands or whew tuie
chattels, we have seen that its title can only be directly i* indirectly
* m y questioned.
questioned by petition of right. There sometimes arises
a question between subject and subject in which the rights
of the Crown may turn out to be indirectly involved, so
that a judgment as between the parties will affect the
interest of the Crown. In such cases, as for example in
an action concerning the property of an outlaw, the
Attorney-General must have notice of the proceedings, and
be made a party, otherwise the Courts will not adjudicate.
The necessity of making the Attorney-General a party
also extends to cases where the sovereign is interested as
parens patrite, or protector of the rights of his subjects,
as for instance in actions concerning testamentary dis-
positions where the subject-matter is appropriated for
general charitable purposes.
Non potest Rex Guateam facere cum Injuria et
Damno aliorum. (3 Inst 236.) — The king cannot
confer a favour on one subject which occasions
injury and loss to otJters.
It is an ancient and constant rule of law (z), that the
king s grants are invalid when they destroy or derogate
(y) Black. Com. iii. 256. Eastern Archipelago Co, v. Reg., 2
(z) 3 Inst. 236 ; Vaugh. R. 338. E. & B. 864. A similar doctrine
The maxim commented on supra, prevailed in the civil law. See Cod.
was cited per Talfourd, J., in the 7, 38, 2.
60
MAXIMS RELATING TO THE CROWN.
from rights, privileges, or immunities previously vested
in another subject : the Crown, for example, cannot enable
a subject to erect a market or fair so near that of another
person as to affect his interests therein (a). Nor can the
king grant the same thing in possession to one, which he
or his progenitors have granted to another (/>). If the
king's grant reciting that A. holds the manor of Black-
acre for life, grants it to B. for life : in this case the law
implies that the second grant is to take effect after the
determination of the first (c). And if- the king being
tenant for life of certain land, grant it to one and his
heirs, the grant is void, for the king has taken upon
himself to grant a greater estate than he lawfully could
grant (d).
On the same principle, the Crown cannot at common
law (e) pardon an offence against a penal statute after
information brought, for thereby the informer has acquired
a private property in his part of the penalty. Nor can
the king pardon a private nuisance while it remains un-
redressed, or so as to prevent an abatement of it, though
afterwards he may remit the fine ; and the reason is that
(a) Chitt. Pre. Cr. 119, 132, 386 ;
Earl of Rutland* Case, 8 Rep. 57 ;
Alcock v. Cooke, 5 Bing. 340 ; Oled-
ttane* v. Earl of Sandwich, 5 Scott,
N. R. 689, 719. Re Islington
Market BUI, 3 a & P. 513. See
Mayor of Exeter t. Warren, 5 Q. B.
773.
(b) Per Cresswell, J., 1 C. B.
528 ; arg. R. v. Amery, 2 T. R. 565 ;
Chitt. Pre. Cr. 125. But the grant
of a mere licence or authority from
the Crown, or a grant during the
king's will is determined by the
demise of the Crown. (Id, 400.
See n. (a), supra.
(c) Earl of Rutland?* ca*e, 8 Rep.
56 6.
(d) Cote of Alton Wood*, 1 Rep.
Ua.
(e) By Stat 22 Vict. c. 32, the
Crown is empowered "to remit, in
whole or in part, any sum of money
which, under any Act now in force,
or hereafter to be passed, may be im-
posed as a penalty or forfeiture on
a convicted offender, although such
money may be, in whole or in p*rt,
payable to some party other than the
Crown,"
MAXIMS RELATING TO THE CROWN. 61
though the prosecution is vested in the Crown, to avoid
multiplicity of suits, yet (during its continuance) this
offence savours more of the nature of a private injury to
each individual in the neighbourhood, than of a public
wrong (/). So, if the king grant lands, forfeited to him
upon a conviction for treason, to a third person, he cannot
afterwards, by his grant, devest the property so granted in
favour of the original owner.
Nullum Tempus occurrit Regi. (2 Inst 273.) —
Lapse of time does not bar the Right of the Crown.
In pursuance of the principle already considered, of
the sovereign's incapability of doing wrong, the- law also
determines that in the Crown there can be no negligence
or laches ; and, therefore, it was formerly held, that no
delay in resorting to his remedy would bar the king's
right ; for the time and attention of the sovereign must
be supposed to be occupied by the cares of government,
nor is there any reason that he should suffer by the
negligence of his officers, or by their fraudulent collusion
with the adverse party (g) ; aud although, as we shall
hereafter see, the maxim vigilantibus et non donnienr
tibus jura subveniv/nt is a rule for the subject, yet
nullum tempus occurrit regi is, in general, the king's
plea (h). From this doctrine it followed, not only that the
civil claims of the Crown sustained no prejudice by lapse
of time, but that criminal prosecutions for felonies or
(/) Vaugh. R. 338. ante, p. 62.
{g) Oodb. 295 ; Hobart, 347 ; Bac. (h) Hobart, 347.
Abr.,7th ed., " Prerogative," (E. 6) ;
62 MAXIMS RELATING TO THE CROWN.
misdemeanours might be commenced at any distance of
time from the commission of the offence ; and this is, to
some extent, still law, though it has been qualified by the
legislature in modern times ; ex. gra. by stat. 9 Geo. 3,
c. 16, in suits relating to landed property, the lapse of
sixty years and adverse possession for that period operate
as a bar even against the prerogative, in derogation of the
above maxim (i), that is, provided the acts relied upon as
showing adverse possession are acts of ownership done in
the assertion of a right, and not mere acts of trespass not
acquiesced in on the part of the Crown (k). Again, although
the Statute of Limitations, 21 Jac. 1, c. 16, s. 3, does not
bind the king (I), by 32 Geo. 3, c. 58, the Crown is barred,
in informations for usurping corporate offices or franchises,
by the lapse of six years ; and different statutes have im-
ported into our criminal jurisprudence various periods of
limitation for crimes (m).
An important instance of the application of the doctrine,
nullum tempus occurrit regi, presents itself where church
preferment lapses to the Crown. Lapse is a species of
forfeiture, whereby the right of presentation to a church
accrues to the ordinary, by neglect of the patron to
present, — to the metropolitan, by neglect of the ordinary,
— and to the Crown, by neglect of the metropolitan : the
term in which the title to present by lapse accrues from
(t) See Doe d. Watt y. Morris, 2 acquiescence in public user ; " per
Scott, 276 ; Goodtitle y. Baldwin, Lord Denman, C.J., Beg. v. East
11 East, 438, and Att-Gen. for Mark, 11 Q.B. 882-3.
BrtiisJi Honduras v. Bristoxot, 6 (Q Judgm. Lambert v. Taylor, 4
App. Cae. 143; 50 L. J. P. C. 15. B. & C. 151, 152; Bac. Abr., 7th
(*) Doe d. William IV. v. Bo- ed., " Prerogative " (E. 5).
beris, 13 M. & W. 520. "The (m) Archbold, Cr. PI. 19th ed.,
Crown certainly may dedicate a road 79, 80.
o the public, and be bound by long
MAXIMS RELATING TO THE CROWN. 63
one of the above parties to the other is six calendar
months, after the expiration of which period the right
becomes forfeited by the person neglecting to exercise it.
But no right of lapse can accrue when the original
presentation is in the Crown ; and in pursuance of the
above maxim, if the right of presentation lapses to the
Crown, prerogative intervenes, and, in this case, the patron
shall never recover his right till the Crown has presented ;
and if, during the delay of the Crown the patron him-
self presents, and his clerk is instituted, the Crown,
by presenting another, may turn out the patron's
clerk, or, after induction, may remove him by quare
impedit (n) ; though if neither of these courses is adopted,
and the patron's clerk dies incumbent, or is canoni-
cally deprived, the right of presentation is lost to the
Crown (o).
Again, if a bill of exchange be seized under an extent
before it has become due, the neglect of the officer of
the Crown to give notice of dishonour, or to make pre-
sentment of the bill, will not discbarge the drawer or
indorsers ; and this likewise results from the general
principle above stated, that laches cannot be imputed to
the Crown (p).
To high constitutional questions involving the prero-
gative, the maxim under our notice must doubtless be
applied with much caution, for it would be dangerous and
absurd to hold that a power which has once been exer-
cised by the Crown — no matter at how remote soever an
epoch — has necessarily remained inherent in it, and we
(n) 6 Rep. 50. kerville's case, 7 Rep. Ill ; Bac. Abr.,
(o) 2 Black. Com. 450-452.; cited 7th ed., "Prerogative" (E. 6);
arg. Storie v. Bishop of Winchester, Hobart, 166 ; Finch's Law, 90.
0 C. B. 90, and 17 C. B. 653 ; Bat- (p) West on Extents, 28-30.
64 MAXIMS RELATING TO THE CROWN.
might vainly attempt to argue in support of so general
a proposition. During the discussion in the House of
Lords on life peerages, it was said that although the
rights and powers of the Crown do not suffer from lapse
of time, nevertheless one of the main principles on which
our constitution rests is the long-continued usage of
Parliament, and that to go back for several centuries in
order to select a few instances in which the Crown has
performed a particular act by virtue of its prerogative
before the Constitution was formed or brought into a
regular shape — to rely on such precedents, and to make
them the foundation of a change in the composition of
either House of Parliament, would be grossly to violate
the principles and spirit of our Constitution (q). But
although the most zealous advocate of the prerogative
could not by precedents, gathered only from remote ages,
shape successfully a sound Constitutional theory touching
the powers and privileges of the Crown, it would be far
from correct to affirm that its rights can fall into desue-
tude, or, by mere non-user, become abrogated. Ex. gv.
Assuming that the right of veto upon a bill which has
passed through Parliament has not been exercised for a
century and a half, none could deny that such a right is
still vested in the Crown (r).
(5) Hansard, vol. HO, p. 263 tt (r) Id. p. 284.
seq.
MAXIMS RELATING TO THE CROWN. 65
Quando Jus Domini Regis et Subditi Concurrunt
Jus Regis preferri debet. (9 Rep. 129.) Where
the title of the king and the title of a subject concur,
tlie king' 8 title shall be preferred (s).
In the above case, detur dignioin, is the rule (t), and
accordingly, if a chattel be devised to the king and
another jointly, the king shall have it, there beitog this
peculiar quality inherent in the prerogative that the king
cannot have a joint property with any person in one JJrt™1fr>'
entire chattel, or such a property as is not capable of J5»ta?i'i Ac*'
Crown and
division or separation ; where the titles of the king and tmbject
of a subject concur, the king shall have the whole.
The peculiarity of this doctrine of our law, so favourable
to the prerogative, may justify the giving a few illustra-
tions of its operation : — 1st. As regards chattels real : if
the king either by grant or contract become joint tenant
of such a chattel with another person, he will ipso facto
become entitled to the whole in severalty. 2ndly. As
regards chattels personal : if a horse be given to the king
and a private person, the king shall have the sole pro-
perty therein; if a bond be made to the king and a
subject, the king shall have the whole penalty ; if two
persons possess a horse jointly, or have a joint debt
owing them on bond, and one of them assigns his part
to the king, the king shall have the horse or debt ; for
our law holds it not consistent with the dignity of
the Crown to be partner with a subject, and where the
king's title and that of a subject concur or are in conflict,
the king s title is to be preferred (?&). By applying this
maxim to one possible state of facts, a rather curious
(«) Co. Litt. 30 b. (u) 2 Com. by Broom & Hadley:
(0 2 Ventr. 268. 603, 604.
66 MAXIMS RELATING TO THE CROWN.
result is arrived at : if there be two joint tenants of a
chattel, one of whom is guilty of felony, this felonious act
works a forfeiture of one undivided moiety of the chattel
in question to the Crown, and the Crown being thus in
joint possession with a subject, takes the whole (#).
ft^sult'of1 Further, the king's debts shall, in suing out execution,
crown. be preferre(j to that of every other creditor who had not
obtained judgment before the king commenced his suit (y).
The king's judgment formerly affected all land which
the king's debtor had at or after the time of contracting
his debt (z) ; but now no debts or liabilities to the Crown
incurred after November 1, 18G5, affect land as to a bond
fide purchaser for valuable consideration, or a mortgagee,
whether with or without notice, unless registration of the
writ or process of execution has, previously to the convey-
ance or mortgage, been executed (a).
Again, the rule of law is, that, where the sheriff seizes
under a fi. fa., and, after seizure, but before sale (&),
under such writ, a writ of extent is sued out and delivered
to the sheriff, the Crown is entitled to the priority, and
the sheriff must sell under the extent, and satisfy the
Crown's debt, before he sells under the fi. fa. Nor does
it make any difference whether the extent is in chief or
in aid. i.e., whether it is directly against the king's debtor,
or brought to recover a debt due from some third party
to such debtor; it having been the practice in very
ancient times, that, if the king's debtor was unable to
satisfy the king's debt out of his own chattels, the king
(x) See Hales v. Petit, Flowd. 253. See further as to former legislation
(y) Stat 33 Hen. 8, c. 39, s. 74 ; on the above subject, Williams, Real
see also 82 & 33 Vict c. 46. Prop., 8th ed. 85-87.
(2) 13 Eliz. c. 4. (6) See IZ. v. Sloper, 6 Price, 114.
(a) 28 & 29 Vict. c. 104, s. 4.*
MAXIMS RELATING TO THE GROWN. 67
would betake himself to any third person who was
indebted to the king's debtor (c), and would recover of
such third person what he owed to the king's debtor, in
order to get payment of the debt due from the latter
to the Crown (d). And the same principle was held to
apply where goods in the hands of the sheriff, under a
fi. fa., and before sale, were seized by the officers of the
customs under a warrant to levy a penalty incurred by
the defendant for an offence against the revenue laws;
the Court observing, that there was no sound distinction
between a warrant issued to recover a debt to the Crown
and an extent (e).
In Reg. v. Edwards (/), decided under the former bank-
rupt law, the facts were as under : — An official assignee
having been appointed to a bankrupt's estate, later on the
day of his appointment an extent issued at the suit of the
Crown against the bankrupt for a Crown debt, and the
question was which should have priority, the Court decided
that where the title of the Crown and of the subject accrue
on the same day^ the king's title shall be preferred. The
seizure under the extent, therefore, was upheld, and the
title of the official assignee was ignored. The decision in
Reg. v. Edwards may however be supported on a principle
other than that just stated, viz. : that " whether between
the Crown and a subject, or between subject and subject,
judicial proceedings are to be considered as having taken
place at the earliest period of the day on which they are
done " (g).
(c) See jB. v. Larking, S Price, 12 M. &W.179; Reg. v. Austin, 10
683. 31. k W. 693.
(<*) GUcs t. Graver, 9 Ring. 123, (e) Grove v. Aldridge, 9 Bing. 428.
191, recognising R. ▼. Cotton, Parker, (/) 9 Exch. 32, 628.
R. 112. See A. G. r. Trueman, 11 (?) Wright r. Mills, 4 H. & N.
M. k W. 694 ; A, G. ▼. Walmsley, 491 : Judgm. 9 Exch. 631. Evans
r 2
G8
MAXIMS RELATING TO THE CROWN.
Bale in
market
overt.
In connection with the maxim before us we may add,
that the king is not bound by a sale in market overt, but
may seize to his own use a chattel which has passed into
the hands of a bond fide purchaser for value (h).
Sdtemoiit
nf rule.
Roy n'est lie per ascun Statute, si il ne soit
expressement nosme. (Jenk Cent. 307.) — The
king is not bound by any statute, if lie be not ex-
pi%essly named to be so bound (i).
The king is not bound by any statute, if he be not
expressly named therein, unless there be equivalent words,
or unless the prerogative be included by necessary impli-
cation ; for it is inferred, primA facie, that the law made
by the Crown, with the assent of the Lords and Commons,
is made for subjects, and not for the Crown (k). Thus in
considering the question — What is the occupation of real
property which is liable to be rated under the stat. 43
Eliz. c. 2, s. 1, it has been observed (I) that "the only
occupier of property exempt from the operation of the
Act is the king, because he is not named in the statute,
and the direct and immediate servants of the Crown,
whose occupation is the occupation of the Crown itself,
also come within the exemption No exemption is
v. Jones, 3 H. k 0. 423 ; but see
Clarke v. Bradlaugh, 7 Q. B. D. 157 ;
50 L. J. Q. B. 342, 678.
(h) 2 Inst. 713.
(t) Jenk. Cent. 307 ; Wing. Max. 1.
(k) Per Alderson, B., A. G. y.
Donaldson, 10 M. & W. 123, 324,
citing Willion v. Berkley, Plowd.
236 ; De Bode v. Beg. 13 Q. B.,
873, 5, 8. Per Lord Cottenham, C,
Ledsam v. Russell, 1 H. L. Caa.
697 ; Doe v. ArchbUhopof York, 14
Q. B. 81, 95.
(I) Per Lord Westbury, C, Mersey
Docks r. Cameron, Jones v. Mersey
Docks, 11 H. L. Gas. 501, 503 ; Reg.
t. McCann, L. R. 3 Q. B. 141,
145, 146.
MAXIMS RELATING TO THE CROWN.
69
thereby given to charity or to public purposes beyond
that which is strictly involved in the position that the
Grown is not bound by the Act." So the prerogative of
the Crown to remove into the Queen's Bench Division
of the High Court of Justice as inheriting the functions
of the Court of Exchequer, a cause which touches its
revenue, is unaffected by the County Court Acts(m).
Nor does the Lands Clauses Consolidation Act (8 it 9 Vict.
c. 18) affect the interests of the Crown (n). Neither is the
prerogative of the Crown to plead and demur without
Jeave to a Petition of Right under 23 & 24 Vict. c. 34,
affected by that statute (o).
The rule above stated seems, however, to apply only Buip, im*
' rr J J restricted.
where the property or peculiar privileges of the Crown
are affected ; and this distinction is laid down, that
where the king has any prerogative, estate, right, title, or
interest, he shall not be barred of them by the general
words of an Act, if he be not named therein (p). Yet, if
a statute be intended to give a remedy against a wrong,
the king, though not named, shall be bound by it (q) :
and the king is impliedly bound by statutes passed for
the public good, the preservation of public rights, and
the suppression of public wrongs, the relief aud mainte-
nance of the poor, the general advancement of learning,
religion, and justice, or for the prevention of fraud (r) ;
(m) Mount joy v. Woody 1 H. k
N. 53.
(n) Re Cuckfidd Burial Board, 19
Beav. 153. See also Reg. v. Beadle,
7 E. k B. 492.
(o) Tobiti v. Reg,, 14 C. B. N. S.
505 ; 8. C. 16 Id. 310 ; Feather v.
Reg., 6 B. & S. 293.
(p) Magdalen College case, 11 Rep.
74 b, cited Bac Abr. "Prerogative"
(E. 5) : Com. Dig. "Parliament"
B. 8. See the qualifications of this
proposition laid down in Dwarr.
Stats., '2nd cd. 523 et teq.
(q) Willion v. Berkley, Plowd.
239, 244, See the authorities cited
arg. R. v. Wright, 1 A. k B. 436 et
teq.
(r) Magdalen College case, 11 Bep.
70 6, 72 -, Chit Pre. Crown, 382,
70
MAXIMS RELATING TO THE CEOWN.
and, though not named, he is bound by the general
words of statutes which tend to perform the will of a
founder or donor (s); and the king may likewise take
the benefit of any particular Act, though he be not
especially named therein (t).
But, as above stated, Acts of Parliament which would
devest the king of any of his prerogatives do not, in
general, extend to or bind the king, unless there be
express words to that effect: therefore, the Statutes of
Limitation and Set-off, are irrelevant in the case of the
king, nor does the Statute of Frauds relate to him (u), nor
does a local Act imposing tolls and duties affect the
Crown (x). Also, by mere indifferent statutes, directing that
certain matters shall be performed as therein pointed out,
the king is not, in many instances, prevented from adopt-
ing a different course in pursuance of his prerogative (y).
In fine, the modern doctrine bearing on the subject
before us, is said (z) to be that by general words in an
Act of Parliament, the king may be precluded of such
inferior claims as might belong indifferently to him or to a
subject (as the title to an advowson or a landed estate), but
(«) Yin. Abr., Statute*" (E. 10),
pi. 11 ; 5 Rep. 146 ; Willion v.
Ucrldey, Plowd. 236.
(«) Judgm. R. v. Wrigld, 1 A. &
E. 447. In J. G. v. Radloff, 10
Exch. 94, Pollock, C. B., observes,
that "the Crown is not bound with
reference to matters affecting its pro-
perty or person, but is bound with
respect to the practise in the admin-
istration of justice." In Clarke v.
Bradlaugh, LK.8 App. Cos., Ld. Sel-
borne expressed an opinion that express
words are not necessary to make a
penalty originally appertaining to the
Crown recoverable by popular action.
(w) Chit. Pre. Crown, 366, 383 ;
R. v. Copland, Hughes, 204, 230;
Vin. Abr. "Statute*" (E. 10.)
(x) Mayor, <Lmc, of Wcymoutii v.
Nugent, 6 B & S. 22, 35.
(y) Chit. Pre. Crown, 383, 884.
(z) Dwarr. Stats., 2nd cd., 528-4.
See also Mayor, dte., of London x.
A. 0.t 1 H. L. Cas.440. As to the
mode of construing grants from the
Crown, see the maxim " Verba char-
tarum fortiu* accipiuntur contra
proferentem," post, Chap. VIII.
MAXIMS RELATING TO THE CROWN. 71
not stripped of any part of his ancient prerogative, nor of
those rights which are incommunicable and appropriate to
him as essential to his regal capacity.
Nemo Patriam in qua natus est exuere nec Lige-
antls: Debitum ejurare possit. (Co. Lit 129 a.)
A man cannot abjure his native country nor the
allegiance which he owes to his sovereign.
"The law of England, and of almost all civilised
countries, ascribes to each individual at his birth two
distinct legal states or conditions ; one by virtue of which
he becomes the subject of some particular country,
binding him by the tie of natural allegiance, and which
may be called his political status ; another by virtue of
which he has ascribed to him the character of a citizen of
some particular country, and, as such, is possessed of
certain municipal rights and subject to certain obligations,
which latter character is the civil status or condition of
the individual, and may be quite different from his
political status. The political status may depend on
different laws in different countries, whereas the civil
stains is governed universally by one single principle,
namely, that of domicile, which is the criterion established
by law for the purpose of determining civil status ; for it
is on this basis that the personal rights of the party, that
is to say, the law which determines his majority or
minority, his marriage, succession, testacy, or intestacy,
must depend " (a).
(a) Per Lord Westbury, Udny v. 272 ; Shaw v, Gould, L. R. 3 H. L.
Udny, L. R. 1 Sc. App. 457. . See 55.
Moorkouse v. Lord, 10 H. L. Cas,
72 MAXIMS RELATING TO THE CROWN.
Allegiance is defined, by Sir E. Coke, to be rt a true and
faithful obedience of the subject due to his sovereign " (6).
And in the words of the late Mr. Justice Story, " Alle-
giance is nothing more than the tie or duty of obedience
of a subject to the sovereign under whose protection he
is ; and allegiance by birth is that which arises from
being born within the dominions and under the protec-
tion of a particular sovereign. Two things usually occur
to create citizenship : first, birth, locally within the
dominions of the sovereign; secondly, birth, within the
protection and obedience, or, in other words, within the
legiance of the sovereign. That is, the party must be
born within a place where the sovereign is, at the time, in
full possession and exercise of his power, and the party
must also, at his birth, derive protection from, and conse-
quently owe obedience or allegiance to, the sovereign as
such de facto. There are some exceptions, which are
founded upon peculiar reasons, and which indeed illustrate
and confirm the general doctrine " (c).
Allegiance is the tie which binds the subject to the
Crown, in return for that protection which the Crown
affjrds to the subject, and is distinguished by our
customary law into two sorts or species, the one natural,
the other local. Natural allegiance is such as is due from
all men born within the dominions of the Crown, im-
mediately upon their birth ; and to this species of alle-
(b) Cabins case, 7 Rep. 5 ; S. C. Vict, c 93 (and as to Ireland the
Broom's Const. L. 4, and Note thereto, Btat. 31 & 82 Vict. c. 20), which
Id. 26 tt seq., where the cases which enables a person to establish, nmler
concern allegiance at common law, the circumstances specified in and as
and the operation of the statutes provided by the Act, his right to be
hitherto passed affecting it, are con- deemed a natural-born subject,
sidered. And see the stat. 21 & %% (c) 8 Peters (U. S.) B., 155,
MAXIMS RELATING TO THE CROWN. 73
giance it is that the above maxim is applicable ((J). It
cannot be forfeited, cancelled, or altered by any change of
time, place, or circumstance, nor by anything but the
united concurrence of the legislature. The natural-bom
subject of one prince cannot, by any act of his own, not
even by swearing allegiance to another, put off or dis-
charge his natural allegiance to the former (e), origine
proprid iieminem posse voluntate sud eximi manifes-
turn est (/); for this natural allegiance was intrinsic and
primitive, and antecedent to the other, and cannot be
devested without the concurrent act of that prince to
whom it was fiist due (g). Hence, although a British
subject may, in certain cases, forfeit his rights as such by
adhering to a foreign power, he yet remains at common
law always liable to his duties ; and if, in the course of
such employment, he violates the laws of his native
country, he will be exposed to punishment when he comes
within reach of her tribunals.
The tie of natural allegiance may, however, be severed
with the concurrence of the legislature — for instance,
upon the recognition of the United States of America, as
free, sovereign, and independent states, it was decided
that the natural-born subjects of the English Crown
adhering to the United States ceased to be subjects of the
Crown of England, and became aliens and incapable of
inheriting lands in England (h).
We shall merely add, that local allegiance is such as is
(d) Foster, Cr. Law, 184. Marryat, 8 T. B, 45 ; S. C. affirmel
{e) Vide'per Jervia, C. J., BarHck in error, 1 B. & P. 430.
▼. Buba, 16 C. B. 493 ; citing Air (h) Doe d. Thoma* v. Aclclam, 2
breUht v. 8u**man, 2 Ves. & B. 323. B. k C. 779 ; Doe d. Stansbury v.
(/) God. 10. 38. 4. Arkwright, 5 0. & P. 575. The
(?) See Foster, Cr. Law ; 184 ; 33 Vict. c. 14 removes the disabilities
Hale, P. C. 68 ; judgm. WUson v. of foreigners in respect of property.
7* MAXIMS RELATING TO THE CROWN.
due from an alien or stranger born whilst he continues
within the dominion and protection of the Crown ; but it
is merely of a temporary nature, and ceases the instant
such stranger transfers himself from this kingdom to
another. For, as the prince affords his protection to an
alien only during his residence in this realm, the alle-
giance of an alien is confined, in point of time, to the
duration of such his residence, and, in point %of locality,
to the dominions of the British Empire (i) ; the rule
being, th&t 2>rotectio trahit subjectionem et subject io 2^0-
tectionem (k) — a maxim which extends not only to those
who are born within the king's dominions, but also to
foreigners who live within them, even though their
sovereign is at war with this country, for they equally
enjoy the protection of the Crown.
Naturalize. The Naturalization Act, 1870 (I), provides means and pre-
1x70. ' scribes forms, by complying with which persons who may
have been born British subjects may declare themselves
aliens, and cease to be British subjects, and also enacts
that any one who voluntarily becomes naturalized in a
foreign country shall cease to be a British subject, while
five years' residence in the United Kingdom or service
under the Crown may, under certain conditions, make an
alien a subject of the Queen.
(*') Chit. Pre. Crown, 16. See v. Ramsay, Vaughan, R. 279; Co.
Wolff v. Oxholm, 6 M. k S. 92 ; I?. Litt 65 a,
v. Johnson, 6 East, 583. (0 33 Vict c. 14.
(it) Calvin's case, 7 Rep. 5 ; Craw
75
CHAPTEE III.
§ I. — THE JUDICIAL OFFICE.
The maxims contained in this section exhibit briefly
the more important of those duties which attach to persons
filling judicial offices, and discharging the functions which
appertain thereto. It would have been inconsistent with
the plan and limits of this volume to treat of such duties
at greater length, and would not, it is believed, have
materially added to its utility.
BONI JUD1CIS EST AMPLIABE JUBISDICTIONEM. (ChailC.
Prec. 329.) It is the duty of a judge, when requisite,
to amplify the limits of his jurisdiction.
This maxim, as above worded and literally rendered, Maxim w
might lead the student into error. Lord Mansfield once «*«*!.
suggested that for the word "jurisdietionem, justitiam
should be substituted (a), and in reference to it Sir R.
Atkyns (b) had before him remarked: — "It is indeed
commonly said boni judicis est ampliare jui^isdictionem.
But I take that to be better advice which was given by
(a) " The true text is, boni judicis (b) Arg. R. y. Williams, 13 St.
est ampliare justitiam, not jurisdic- Tr. 1430 ; Et vide per Cresswell, J.,
tionem, as it has been often cited ; » Dart t. Dart, 32 L. J. P. M. & A.
per Lord Mansfield, C.J., 1 Burr. 125.
304.
76
THE JUDICIAL OFFICE.
the Lord Chancellor Bacon to Mr. Justice Hutton upon
the swearing him one of the Judges of the Court of
Common Pleas, — that he should take care to contain the
jurisdiction of the Court within the ancient mere-stones
without removing the mark " (c).
The true maxim of English law accordingly is "to
amplify its remedies, and, witfiout usurping jurisdiction,
to apply its rules, to the advancement of substantial
justice "(<2); the principle upon which our Courts of law
act is, to enforce the performance of contracts not injurious
to society, and to administer justice to a party who can
make his claim to redress appear, by enlarging the legal
remedy, if necessary, in order to do justice; for the
common law of the land is the birthright of the subject,
and bonus judex secundum cuquum et bonum judicat,
et atquitatem stricto juri prcafert (e). " I commend the
judge," observes Lord Hobart, " who seems fine and
ingenious, so it tend to right and equity ; and 1 condemn
them who, either out of pleasure to show a subtle wit,
will destroy, or out of incurionsness or negligence will not
labour to support, the act of the party by the art or act of
the law " (/).
(c) Bacon's Works, by Montague,
vol. vii., p. 271. As on the one
hand a judge cannot extend his juris-
diction, so, on the other hand, "the
superior courts at Westminster, and
the judges, are not at liberty to
decline a jurisdiction imposed upon
them by Act of Parliament." Judgm.
Furberv. Slurmey, 3 H. & N. 531.
(d) Per Lord Abinger, C. B., Rut-
tell v. Smyth, 9 M. k W. 818 ; cited
arg. Kehall v. Marshall, 1 C. B.,
N. S. 255 ; see also per Lord Mans-
field, C. J., 4 Burr. 2239.
(e) Per Buller, J., 4 T. R. 344.
See Ashmole v. Waimvright, 2 Q. B.
837.
(/) Hobart, 125. " I do exceed-
ingly commend the judges that are
curious and almost subtle * * to in-
vent reasons and means to make acts
according to the just intent of the
parties, and to avoid wrong and injury
which by rigid rules might be wrought
out of the act." Per Lord Hobart,
Id. 227. Cited per Turner, V. C,
Squire v. Ford, 9 Hare, 57.
THE JUDICIAL OFFICE. 77
The old form of action for money had and received is ^SZd
peculiarly illustrative of the principle above set forth ; the recdved-
foundation of this action being that the plaintiff is in
conscience entitled to the money sought to be recovered ;
and it has been observed, that this kind of equitable
action to recover back money which ought not in justice
to be kept is very beneficial, and, therefore, much
encouraged, It lies only for money which, ex aequo et
bono, the defendant ought to refund (g). "The ground,"
observed Tindal, C. J., in Edwards v. Bates (h), " upon
which an action of this description is maintainable, is that
the money received by the defendants is money, which,
ex aequo et bono, ought to be paid over to the plaintiff.
Such is the principle upon which the action has rested
from the time of Lord Mansfield. When money has been
received without consideration, or upon a consideration
that has failed, the recipient holds it ex aequo et bono for
the plaintiff" (i).
The power of directing an amendment of the record, Power to
and dispensing with forms as to which the judges under
modern Judicature Acts enjoy the widest discretion, may
likewise be instanced as one which is confided to them by
the legislature, in order that it may be applied " to the
advancement of substantial justice."
The general maxim under consideration is of course jurisdiction
of judge at
chambers.
(g) Per Lord Mansfield, C. J., M. & Or. 590.
Motes v. Macfarlane, 2 Burr. 1012 ; (i) See Martin y. Andrews, 7 E.
LiU v. Martindale, 18 C. B., 314 ; & B. 1 ; Garton v. Bristol and.
per Pollock, C.B., Aikin v. Short, Exeter R. C.t 1 B. & S. 112; Baxen-
1 H. k N. 214 ; Holt v. Ely, 1 dale v. Great Western R. <?., 14 C. B.
E. & B. 795 ; Sonus v. British N. S. 1 ; S. C. affirmed, 16 C. B. N.
Empire Shipping Co., 8 H. L. Caa. S. 137 ; Roberts v. AuUon, 2 H. &
538. N. 432 ; Barnes t. Braithtoaite, Id.
(h) 8 Scott, N. R., 414 ; S. C. 7 569.
78 THE JUDICIAL OFFICE.
applicable with reference to the jurisdiction of a judge at
chambers, and to the important and arduous duties which
are there discharged by him.
The proceeding by application to a judge at chambers
has indeed been devised and adopted by the Courts, under
the sanction of the legislature, for the purpose of prevent-
ing the delay, expense, and inconvenience which must
ensue if applications to the Courts were in all cases, and
under all circumstances, indispensably necessary. A
judge at chambers is usually described as acting under
the delegated authority of the Court, and his jurisdiction
is different from that of a judge sitting at Nisi Prius ; in
the former case the judge has a wider field for the
exercise of his discretion, which the appellate Courts are
most reluctant to review, and with which they will only
interfere where he is shown to have been clearly wrong (k).
In a modern case, where it was held that a judge at
chambers has jurisdiction to fix the amount of costs to be
paid as the condition of making an order, the maxim to
which we have here directed attention, was expressly
applied. "As to the power of the judge to tax costs,"
remarked Vaughan, J., " if he is willing to do it, and can
save expense, it is clear that what the officer of the Court
may do, the judge may do, and bonijudici8 est ampliare
jiirisdictionem, i. e. justitiam " (I).
Qualification Although necessarily many things, especially in the
domain of procedure, are left to the discretion of our
judges, the maxim is also observed in our jurisprudence,
optima est lex qute minirnum relvnquit arbitrio judicis,
(k) Inman v. Jenkins, L. R. 5 C. (I) Collins v. Avon, 4 Bing. N. C.
P. 738, 39 L. J. C. P. 258. Per 233, 235. See Clement v. JFeaver,
Lord EUenborough, C.J., Alner v. 4 Scott, N. £., 229, and cases cited
George, 1 Camp. 393. Id. 231, n. (44).
THE JUDICIAL OFFICE. 79
optimus judex qui minimum sibi (m) — that system of
law is best, which confides as little as possble to the
discretion (n) of the judge — that judge the best, who
relies as little as possible on his own opinion.
And although where discretion is left to a judge, he
is to a great extent unfettered in its exercise, Coke's
definition still holds good, discretio est discernere per
legem quid sit justum (n), and " discretion, when applied
to a Court of justice, means sound discretion guided by
law. It must be governed by rule, not by humour ; it
must not be arbitrary, vague, and fanciful, but legal and
regular " (o).
Therefore, if in the presumed exercise of discretion, a
judge has decided in a manner absolutely unreasonable
and opposed to justice, his error will be corrected on
appeal. " Whatever the law may have been before the
Judicature Acts," says Jessel, M. R. (p), "the exercise of
discretion is now the subject of appeal. It has been very
truly said that a very strong case must be made out before
the exercise of discretion can be overruled. The Court of
Appeal must be satisfied that it has been wrongly
exercised." Although there must be a plain and clear
case to justify the Court of Appeal in interfering with the
discretion of the Court below, the former Court will
review the discretion if it be exercised in consequence of
(i») Bac. Aphorisms, 46. See per (n) 4 Inst. 41, cited per Tindal,
Wilmot, C.J., Collins v. Blantern, C.J., 6 Q. B., 700. See Rookes
2 Wilson, 341 ; per Buller, J., case, 5 Kep. 99-100 ; 1 W. Bla. 152 ;
Master v. Miller, 4 T. R. 344, 1 Burr. 670 ; 3 Bulstr. 128.
affirmed in error, 2 H. Bla. 141 ; Co. (o) Per Lord Mansfield, C. J., R.
'Litt. 24 b. ; per Tindal, C.J., 6 ▼. Wilkes, 2 Burr. 25, 39.
Scott, N. R. 180 ; 5 H. L. Gas. 785, (p)Xeg. v. Mayor of Maidenhead,
958. 9 Q. B. D. 503, 51 L. J. Q. B. 448.
80 THE JUDICIAL OFFICE.
an erroneous view of the law (q), or an obvious mistake of
fact, or where it is impossible to say that there has been a
reasonable exercise of discretion (r).
Further, be it remembered, that there is no court in
England which is entrusted with the power of adminis-
tering justice without restraint. That restraint has been
imposed from the earliest times. And, although instances
are constantly occurring where the courts might profitably
be employed in doing simple justice between the parties,
unfettered by precedent, or by technical rules, the law has
wisely considered it inconvenient to confer such power
upon those whose duty it is to preside in courts of
justice (s). The only court in this country which is not
so fettered is the supreme court of the legislature (s) ; for
"certain it is," says Lord Coke, u that Carta Parliament i
suis jwopriis legibus sub&istit" (/).
rule. No
action liett
De Fide et Officio Judicis non recipittjr Qu^estio,
SED DE SCIENTIA SIVE SIT ERROR JURIS SIVE FaCTI.
(Bac. Max., reg. 17.) — Tlie bona fides and honesty of
purpose of a judge cannot be questioned, but his
decision may be impugned for error either of law 07'
of fact
rai"enNo ^e law, says Lord Bacon, has so much respect for the
certainty of judgments, and the credit and authority of
(q) Hunt v. Chambers, 20 Cb. D. morden Mill Co., 8 Q. B. D. 664,
369 ; 51 L. J. Ch. 683. 51 L. J. Q. B. 348 ; Berdan v.
(r) Wigney v. Wigney, 7 P. D. Greenwood, 20 Ch. D. 767.
182, 51 L. J. P. 62. WaUingford v. (<) Per Maule, J., Freeman v.
Mutual Society, 5 App. Cas. 685, 50 Tranah, 12 C. B. 413-414.
L. J. Q. B. 49 ; Ormerod v. Tod- {t) 4 Inst. 50. Some remarks as
THE JUDICIAL OFFICE.
81
judges, that it will not permit any error to be assigned »«jin8ta
which impeaches them in their trust and office, and in
wilful abuse of the same (u). It is, moreover, a general
rule of great antiquity, that no action will lie against a
judge of record for any act done by him in the exercise of
his judicial functions, provided such act, though done mis-
takenly, were within the scope of his jurisdiction (x).
"The rule that a judicial officer cannot be sued for an
adjudication according to the best of his judgment upon
a matter within his jurisdiction, and also the rule, that a
matter of fact so adjudicated by him cannot be put in
issue in an action against him, have been uniformly
maintained " (y).
" The doctrine," says Mr, Chancellor Kent (z), " which
holds a judge exempt from a civil suit or indictment for
any act done or omitted to be done by him sitting as
judge, has a deep root in the common law. It is to be
found in the earliest judicial records, and it has been
steadily maintained by an undisturbed current of decision
in the English courts, amidst every change of policy
and through every revolution of their government. A
to the interpretation of statutes
which might, perhaps, have been
relevant under this maxim have been
postponed until Chap. VIII., which
deals generally with that subject.
(u) Bac. Max., reg. 17; Bushell't
cage, Vaugb. B. 138-139 ; 12 Rep. 25
jper Holt, C. J. QroenveU v. BurweU,
1 Lord Raym. 468; S. C, 1 Salk.
397 ; 12 Rep. 24, 25.
(x) Smith v. Boucher, Gas. Temp.
Hardw. 69 ; Colder v. Ealket, 3
Moo. F. G. C. 28, with which compare
Oahan v., Lafttte, 8 Moo. F. 0. G
382 ; Scott v. Stansfeld, L. R. 3 0.
P. 220 ; Taaffe v. Dowries, Id. 86 n.
(a) ; Hovlden v. Smith, 14 Q. B.
841 ; Judgm. Mottyn v. Fdbrigas,
Cowp. 161 ; Phillip v. Eyre, L R.
4 Q. B. 225, 229 ; Pease v. Chaytor,
1 B. k S. 658 ; Hamilton v. Ander
son, Macq. Sc App. Cus. 363.
(y) Judgm. Kemp v. Neville, 10
C. B. N. S. 549 ; per Erie, C.J.,
Wildes v. Russell, LR.1C, P.
730.
(2) Yates v. Lansing, 5 Johnson
(U.S.), R. 291 ; S. C. (in error), 9
Id. 396.
o
82
THE JUDICIAL OFFICE.
short view of the cases will teach us to admire the
wisdom of our forefathers, and to revere a principle on
which rests the independence of the administration of
justice."
This freedom from action and question at the suit of
an individual, it has likewise been observed, is given by
our law to the judges, not so much for their own sake as
for the sake of the public, and for the advancement of
justice, that, being free from actions, they may be free in
thought and independent in judgment, as all who are to
administer justice ought to be ; and it is not to be sup-
posed beforehand, that those who are seleoted for the
administration of justice will make an ill use of the
authority vested in them. Even inferior justices cannot
be called in question for an error in judgment, so long as
they act within the bounds of their jurisdiction. In the
imperfection of human nature, it is better that an indi-
vidual should occasionally suffer a wrong, than that the
general course of justice should be impeded and fettered
by constant and perpetual restraints and apprehensions
on the part of those who are to administer it. Corruption
is quite another matter ; so also are neglect of duty and
misconduct. For these there is, and always will be, some
due course of punishment by public prosecution (a).
An action, then, does not lie against a judge, civil (6)
(a) Jadgm., Garnett v. Ferrandt
6 B. & C. 625, 626; Thomas v.
Ckurton, 2 B. & S. 475 ; Vaugh. JL
383. See R. v. Johnson, 6 East,
583, S. C, 7 East, 65, in which ease
one of the judges of the Court of Com-
mon Pleas in Ireland was convicted
of a libel. The judges are not liable
to removal, except upon addresses of
both Houses of Parliament ;
Stats. 13 Will. 3, c 2, and 1 Geo. 3,
c.23.
(o) Dicas t. Lord Brougham, 6
C. & P. 249 ; Kemp v. Nevtil*, 10
C B. N. S. 523 (where the action
was brought against the Vice-
chancellor of the University of Gam-
bridge) ; Tinsfey v. JVTrsMrii, Mo. &
THE JUDICIAL OFFICE.
83
or ecclesiastical (c), acting judicially in a matter within the
scope of his jurisdiction (d). Nor can a suit be main-
tained against persons so acting with a more limited
authority, as the steward of a court baron (e), or commis-
sioners of a court of request ; and, as already intimated,
magistrates, acting in discharge of their duty, and within
the bounds of their jurisdiction, are irresponsible even
where the circumstances under which they are called upon
to act, would not have supported the complaint, provided
that such circumstances were not disclosed to them at the
time of their adjudication (/).
" If," as judicially remarked, " a magistrate commit a
party charged before him in a case where he has no juris-
diction, he is liable for trespass (g). But if the charge be
of an offence over which, if the offence charged be true
in fact, the magistrate has jurisdiction, the magistrate's
jurisdiction cannot be made to depend upon the truth or
falsehood of the facts, or upon the evidence being suffi-
cient or insufficient to establish the corpus delicti brought
under investigation " (h).
Mai 52 ; Johnstone v. Sutton, 1 T.
R. 513; per Holt, C.J., 1 Lord
Baym. 468 ; Garnett v. Ferrand, 6
B. & C. 611.
(e) Ackeriey v. Parkinson, 3 M.
& S. 411, 425 ; Beaurain v. Scott, 3
Camp. 388.
(d) lb. See Wingaie v. Waite, 6
M. & W. 739, 746; Hamilton, v.
Anderton, 3 Macq. Sc. App. Cas.
363.
(e) Holroyd v. Breare, 2 B. &
Aid. 473. Judgm. Bradley v.
Carr, 3 Scott, N. B. 521, 528;
CarraU v. Morley, 1 Q. B. 18;
Andrews v. Marrie, Id. 3, and cases
there cited. Morris v. Parkinson,
1 Cr. M. & R. 163.
(/) Pike v. Carter, 3 Bing. 78 ;
Lowther v. Earl of Radnor, 8 East
113 ; Brown v. Copley, 8 Scott, N.
E. 850 ; Pitcher ▼. King, 9 A. & E.
288 ; 2 Roll. Abr. 552, pi. 10.
(g) See, for instance, Newbould v.
Coltman, 6 fizch. 189 ; Pedley v.
Davis, 10 C. B. N. S. 492.
(h) Per Tindal, C.J., Cave v.
Mountain, 1 M. & Gr. 257, 261,
recognised Reg. v. Bolton, 1 Q. 11
66. 75 i Reg. v. Grant, 14 Q. B. 43.
See Reg. v. Inhabs. of Bidding,
7 Q. B. 880, following Brittain v.
Kinnaird, 1 B. & B. 432 ; Ayrton v.
Abbott, 14 Q. B. 1, 23.
03
84
THE JUDICIAL OFFICE.
Distinction
to be ob-
nerved in
applying
rule.
And where the authority is given to justices by statute,
and they appear to have acted within the jurisdiction so
given, and to have done all that the particular statute
requires them to do, in order to originate their jurisdiction,
their conviction, drawn up in due form, and remaining in
force, is a protection and conclusive evideuce for them in
any action which may be brought against them for the
act so done (i). That is to say, " in an action brought
against a magistrate, a subsisting conviction — good upon
the face of it, in a case to which his jurisdiction extends,
being produced at the trial, is a bar to the action,
provided that the conviction was not made maliciously
and without reasonable and probable cause, and provided
also that the execution has been regular, although the
magistrate may have formed an erroneous judgment upon
the facts ; for that is properly the subject of appeal " (Jc).
Ample protection, it will be remembered, is, by a recent
enactment, the provisions of which cannot here be set out,
extended to justices of the peace (I).
Having thus briefly stated the broad rule applicable
to the right of action against persons invested with
judicial functions, we may remark that there is one
very extensive class of cases which may, on a cursory
observation, appear to fall within its operation, but which
is, in fact, governed by a different, although not less
(t) Per Abbott, C.J., Batten v.
Carcw, 5 B. & C. 652, 653 ; S. C, 5
D. & R. 558 ; Baylis v. Strickland,
1 Scott, N. R., 540 ; Fernlty v.
JVorthmytOrt, 1 Scott, N. It., 432.
Painter r. Liverpool Gas Co., 3 A.
& E. 433; Webb v. Bachelour,
Ventr. 278 ; Tarry v. Newman, 15
M. & W. 645 ; Stamp v. Sweetland,
8 Q. B. 13, See also UazeWne y.
Grove, 8 Q. B. 997, 1006.
{Jc) Paley, Conv. 4th ed. 388.
(0 11 & 12 Vict c. 44 (repealed
in part Stat. Law Rev. Act, 1875), as
to which see Paley Conv., 4th ed.t
399 ct seq. ; SommerviUe v. Afire-
house, 1 B. & S. 652; Pease v.
Chaytor, Id. 658 ; Pedley v. Davis,
10 C. B. N. S. 492 ; Gelen v. Hall, 2
fr & N. 379.
THE JUDICIAL OFFICE. 85
important, principle. We refer to cases in which the
performance of some public duty is imposed by law upon
an individual who, by neglecting or refusing to perform it,
causes an injury to some other party ; here, as a general
rule, the injury occasioned by the breach of duty, without
proof of mala fides, lays the foundation for an action for
recovery of damages (m). This principle, moreover,
applies where persons required to perform ministerial acts
are at the same time invested with the judicial character,
and in accordance therewith, in the celebrated Auchter-
arder case (n), the members of the presbytery were held
liable, collectively and individually, to make compensation
in damages, for refusing to take the presentee to a church
on trial, as they were bound to do, according to the law
of Scotland. The legislature, observed Lord Brougham,
in the case referred to, can, of course, do no wrong, and
its branches are equally placed beyond all control of the
law. So, "the Courts of justice, that is, the superior
Courts, Courts of general jurisdiction, are not answerable,
either as bodies or by their individual members, for acts
done within the limits of their jurisdiction. Even inferior
Courts, provided the law has clothed them with judicial
functions, are not answerable for errors in judgment ;
and where they may not act as judges, but only have a
discretion confided to them, an erroneous exercise of that
discretion, however plain the miscarriage may be, and
however injurious its consequences, they shall not
answer for. This follows from the very nature of the
■
(wi) See Barry ▼. Arnaudt 10 A. & B. 620 ; Scott v. Mayor of Man*
k E. 646 ; cited Mayor of Lichfield ohester, 2H.&N. 204.
t. Simpton, 8 Q. B. 65. Per Lord (n) Ferguson v. Earl of Kinnoul,
Brougham, M'Kenna r. Pope, 1H. 9 CL & Fin. 251.
L. Gm. 7 ; Steel v. Sternberg, 4 E.
8G THE JUDICIAL OFFICE.
thing. It is implied in the nature of judicial authority,
and in the nature of discretion, where there is no such
judicial authority. But where the law neither confers
judicial power, nor any discretion at all, but requires
certain things to be done, every body, whatever be its
name, and whatever other functions of a judicial or of a dis-
cretionary nature it may have, is bound to obey ; and with
the exception of the legislature and its branches, every
body is liable for the consequences of disobedience ; that is,
its members are liable, through whose failure or contumacy
the disobedience has arisen, and the consequent injury to
the parties interested in the duty being performed " (o).
Appeal. But although the honesty and integrity of a judge
acting in his judicial capacity cannot be questioned, as a
rule his errors may be corrected by appellate tribunals.
There are, however, some limitations to the right of appeal
even in civil causes. For example, there can be no appeal
from a judge, who has discretion as to costs, upon a ques-
tion of costs, except by leave of the judge, whose decision
it may be desired to question (p). Again, in the case of
County Courts, there can be no appeal on a question of
fact (q), except by leave of the judge who tried the action,
nor without similar leave on a question of law, where
the plaintiff's claim does not exceed £20 (r).
Moreover, there is an unwritten rule invariably followed
by the Superior Courts that, except under very special
circumstances, new trials should not be had where the
subject matter in dispute does not exceed £20.
(o) Per Lord Brougham, 9 CI. & (q) This rule frequently works
Fin. 289, 290, whose judgment has great injustice,
throughout an especial reference to (r) Hey wood's C. C. Pr., 2nd ed.,
the subject of judicial liability. See 199, 80 & 31 Vict, c 142, s. 13;
GathereoU ▼. Miall, 15 M. & W. Blowers v. Rackham, 20 L. J. Q. B.
319, 832, 333. 397.
(/>) Judicature Act, 1873, sect. 49.
THE JUDICIAL OFFICE. 87
When an award has been made in pursuance of a Award*.
submission to arbitration, which is by rule of Court, or a
submission which has been made, or has the effect of, a
rule of Court under the statute 9 & 10 WilL 8, c. 15, or
the Common Law Procedure Acts, the Court has power,
upon motion, to set it aside, or to send it back for recon-
sideration. An award will only be set aside where the
arbitrator has been subject to corrupt influence or bias,
or has acted in an unjudicial manner, as, e.g., by refusing
to hear certain claims, or taking evidence in the absence
of one of the parties, or where it can be shown from the
award itself that it is not a settlement of the matters
referred, as either not final or not disposing of all the
matters referred, or where it exceeds the authority con-
ferred upon the arbitrator by the reference^). An
award will not be set aside because the arbitrator may
have made mistakes, in law or in fact, even to the extent
of a wrong ruling as to the admission or exclusion of
evidence.
When the submission is made out of Court, and does
not fall within the statute of Will. 3, nor the Common
Law Procedure Acts, an award can only be vitiated by the
corruption or misbehaviour of the arbitrator. Such faults
cannot be pleaded to an action upon the award, and
therefore the only remedy of a person against whom
an award has been made upon a submission made out of
Court, or not falling within the Common Law Procedure
Acts, is by action to set aside the award (t).
(«) Russell on Awards, chap. ix. (t) Russell on Award*.
88
THE JUDICIAL OFFICE.
General
utle.
Qui Jussu Judicis aliquod fecebit non vjldetuk
Dolo Malo fecisse, quia parere necesse est. (10
Rep. 76.) — Wliere a person does an act by command
of one exercising judicial authority, the law will
not suppose that he acted from any wrongful or
improper motive, because it was his bov/nden duty
to obey (u).
Where a Court has jurisdiction of the cause, and pro-
ceeds inverso ordine, or erroneously, then the party who
sues, or the officer or minister of the Court who executes
according to its tenor (v) the precept or process of the
Court, will not be liable to an action (x). But when the
Court has not jurisdiction of the cause, then the whole
proceeding is coram non judice (y), and actions will lie
against the above-mentioned parties without any regard
to the precept or process ; for in this case it is not neces-
sary to obey one who is not judge of the cause, auy more
than it is to obey a mere stranger, for the rule is, judicium
a non swo judice datum nullius est momenti (z).
(v) This maxim is derived from
the Roman law, see D. 50, 17, 167,
n.
(v) See Munday v. Stubbs, 10 C.
B. 432.
(x) Sec Prentice v. Harrison, 4
Q. B. 852 ; Brown, t. Jones, 15 M.
& W. 191 ; Judgm. Ex parte Story,
8 Exch. 201. See Cotes ▼. MichiU,
3 Ley. 20 ; Moravia v. Sloper,
Willes, 30, 34.
(y) See Tmniswood v. Pattison,
3 C. B. 243 ; Pactum a judice quod
d oficium ejus non pertinet ratum
non est: D. 50, 17, 170.
(r) Martltahea case, 10 Rep. 70 ;
Taylor t. CUmson, 2 Q. B. 1014,
1015 ; S. C, 11 CL & F. 610 ; cited
Ostler v. Cooke, 13 Q. B. 143, 162 ;
Morrett v. Martin, 4 Scott, N. R.
313, 814; Jones t. Chapman, 14
M. & W. 124 ; BaylU t. Strickland,
I Scott, N. R, 540; Marshall v.
Lamb, 5 Q. B. 115 : Watson v.
Bodtll, 14 M. & W. 57 ; Thomas v.
Hudson, Id, 353 ; Van Sandau v.
Turner, 6 Q. B. 773 ; Lloyd v.
Harrison, 6 B. & 8. 86. Andrews
v. Morris, 1 Q. B. 8, 16, 17, recog-
nised in CarraU v. Morley, Id. 29 ;
and distinguished in Dews v. Riley,
II 0. B. 434, 444 ; Levy v. Moylan,
THE JUDICIAL OFFICE.
89
Accordingly, in Oosset v. Howard (a), it was held, that Examples,
the warrant of the Speaker of the House of Commons,
having issued in a matter over which the House had
jurisdiction, was to be construed on the same principle as
a mandate or writ issuing out of a superior court acting
according to the course of common law, and that it
afforded a valid defence to an action for assault and false
imprisonment brought against the Serjeant-at-Arms, who
acted in obedience to such warrant
In the last-mentioned case it is observable that the
matter in respect of which the warrant issued was ad-
mitted to be within the jurisdiction of the House, and it
is peculiarly necessary to notice this, because, in the
previous case of Stockdale v. Hansard (6), it was held to ^^"J v
be no defence at law to an action for publishing a libel,
that the defamatory matter was part of a document, which
was, by order of the House of Commons, laid before the
House, and thereupon became part of the proceedings of
the House, and which was afterwards, by order of the
House, printed and published by the defendant. The
decision in this case resulted from the opinion enter-
tained by the Court being adverse to the existence of the
privilege under which the defendant sought to justify
the alleged wrongful act, and, in consequence of this
decision, the stat 3 & 4 Vict. c. 9, was passed, which
10 C. B. 189. As to the liability of
the party at whose suit execution
issued, or of his attorney, see CarraU
y. Motley, supra ; Coomer v. La-
tham, 16 M. & W. 713 ; Ewart y.
Jones, 14 M. & W. 774 ; Green t.
Egie, 5 Q. B. 99; K inning v.
Buchanan, 8 C. B.271 ; Abley v.
Dale, 11 0. B. 378, 389 ; pott, p.
124, nl(^). As regards the liability
of ministerial officers, an important
distinction to be observed is between
cases in which there has been an
adjudication and those in which there
has been an order only, see Foster v.
Dodd, L. B. 3 Q. B. 67, 76.
(a) 10 Q. B. 411. See Ex yartt
Fernandez, 10 C. B. N. S. 8 ; S. C,
6 H. & N. 717.
(b) OA.&E. ],/(/.
90
THE JUDICIAL OFFICE.
Constable—
liability of
at common
law.
enacts, that all proceedings, whether by action or
criminal prosecution, similar to the above, shall be stayed
by bringing before the Court or judge a certificate, under
the hand of the Chancellor or of the Speaker of the
House of Commons, to the effect, that the publication in
question is by order of either House of Parliament,
together with an affidavit verifying such certificate (c).
The case of a justification at common law by a constable
under the warrant of a justice of the peace offeis another
illustration of the rule now under consideration ; for if
the warrant issued by the justice of the peace, in the shape
in which it is given to the officer, is such that the party
may lawfully resist it (d), or, if taken on it, will be released
on habeas corpus, it is a warrant which, in that shape, the
magistrate had no jurisdiction to issue, which, therefore,
the officer need not have obeyed, and which, at common
law, on the principle above laid down, will not protect
him against an action at suit of the party injured (e).
Where the cause is expressed but imperfectly, the officer
may not be expected to judge as to the sufficiency of the
statement ; and, therefore, if the subject-matter be within
the jurisdiction of the magistrate, he may be bound to
execute it, and, as a consequence, be entitled to protection ;
but where no cause is expressed, there is no question as to
the want of jurisdiction (/).
(c) Entick v. Carrington, 19
Howell, St. Tr. 1030, is the leading
case in regard to the power of arrest-
ing the person, and seizing papers,
under a Secretary of State's warrant.
See Leach v. Money, Wtikc* t.
Woody and Entick v. Carrington,
Broom's Const. L. 525, 548, 558,
and Note thereto, Id. 613 et scq. ;
Foster t. Dodd, L. R. 3 Q. B. 67.
(d) Reg. v. Tooley, 2 Lord Raym.
1296, 1302.
(e) As to the legality of an arrest
under a warrant which is not in pos-
session of the constable, in felony and
misdemeanour, see GalUard, app.f
Laxton, resp., 2 B. & S. 363, and
Reg. t. Chapman, 12 Cor, C. C. 4.
(f) Per Coleridge, J., 10 Q. B.
890. See in illustration of the re
THE JUDICIAL OFFICE. 91
"A rule," observes Lord Denman, C. J., delivering
judgment in Beg. v. Inhabitants of Stavnforth (g)9 " has
been often recognised in respect of proceedings by magis-
trates requiring all the facts to be stated which are
necessary to show that a tribunal has been lawfully
constituted and has jurisdiction. There is good reason for
the rule where a special authority is exercised which is
out of the ordinary course of common law, and is confined
to a limited locality, as in case either of warrants for
arrest, commitment, or distress, or of convictions, or orders
by local magistrates where the duty of promptly enforcing
the instrument is cast on officers of the law, and the duty
of unhesitating submission on those who are to obey. It
is requisite that the instrument so to be enforced and
obeyed should show on inspection all the essentials from
which such duties arise."
A plea of justification by a constable acting under the
warrant of a justice, will accordingly by the common law
be bad, if it does not show that the justice had jurisdic-
tion over the subject-matter upon which the warrant is
granted.
By stat. 24 Geo. 2, c. 44, s. 6, it is enacted, that no Effector
action shall be brought against any constable, head- o«o. 2,c
borough, or other officer, or against any person or persons
acting by his order or in his aid, for anything done in
obedience to any warrant under the hand or seal of any
justice of the peace, until demand shall have been made
for the perusal and copy of such warrant, and the same
refused or neglected for the space of six days after such
demand ; that in case, after such demand and compliance
marks, supra, Clark v. Woods, 2 Inhabs. of Totncss, Id. 80 ; Agtuw
Exch. 395, and cues there cited. v. Jobson, 14 Cox, C. C. 625.
(g) 11 Q. B. 75. See also Reg. v.
92 THE JUDICIAL OFFICE.
therewith, any action shall be brought against such
constable, &c., for any such cause as aforesaid, without
making the justice or justices who signed or sealed the
said warrant defendant or defendants, then, on producing
or proving such warrant at the trial, the jury shall give
their verdict for the defendant or defendants, notwith-
standing any defect of jurisdiction in such justice or
justices ; and if such action be brought against the justice
and constable jointly, then, on proof of such warrant, the
jury shall find for such constable, notwithstanding such
defect of jurisdiction as aforesaid : and this statute
applies as well where the justice has acted without juris-
diction, as where the warrant which he has granted is im-
proper (A).
It should be observed, however, that the officer must
show that he acted in obedience to the warrant (i), and
can only justify that which he lawfully did under it (k) ;
and where the justice cannot be liable, the officer is not
entitled to the protection of the statute ; for the Act was
intended to make the justice liable instead of the officer :
where, therefore, the officer makes such a mistake as will
not make the justice liable, the officer cannot be excused.
statutory Besides the statute 24 Geo. 2, c. 44, above-mentioned
protection < *
in general, there are other enactments, which, on grounds of public
policy, specially extend protection to persons who act
band fide } though mistakenly, in pursuance of their
provisions ; and as throwing light upon their practical
operation, attention may specially be directed to Hughes
v. Buckland (l)t which was an action of trespass against
(?t) Per Lord Eldon, C. J., Price v. E. 86.
Messenger, 2 B. & P. 158 ; Atkins y. [k) Peppercorn v. Hoffman, 9 M.
KiUby, 11 A. & E. 777. k W. 618, 628.
(i) See Uoye v. Bush, 2 Scott, N. (I) 15 M. & W. 346.
THE JUDICIAL OFFICE. 93
the defendants, being servants of A. B., for apprehending
the plaintiff whilst fishing in the night-time near the
mouth of a river in which A. B. had a several fishery ;
at the trial, much evidence was given to show that A. B.'s
fishery included the place where the plaintiff was appre-
hended; the jury, however, defined the limits of the
fishery so as to exclude that place by a few yards, but they
also found that A. B. and the defendants, " bond fide and
reasonably " believed that the fishery extended over that
spot : it was held, that the defendants were entitled to
the protection of the stat. 7 & 8 Geo. 4, c. 29, s. 75, which
is framed for the protection "of persons acting in the
execution " of that Act, and doing anything in pursuance
thereof. " The object of the clause in question," observed
Pollock, C.B., in the course of his judgment, " was to give
protection to all parties who honestly pursued the statute.
Now, every act consists of time, place, and circumstance.
With regard to circumstance, it is admitted, that, if one
magistrate acts where two are required, or imposes twelve
months' imprisonment where he ought only to impose six,
he is protected if he has a general jurisdiction over the
subject-matter, or has reason to think he has. With
respect to time, the case of Cann v. Clipperton (m) shows
that a party may be protected although he arrests another
after the time when the statute authorises the arrest.
Place is another ingredient ; and I am unable to distin-
guish the present case from that of a magistrate who is
protected, although he acts out of his jurisdiction. A
party is protected if he acts bond fide, and in the reason-
able belief that he is pursuing the Act of Parliament" (n).
(m) 10 A. & E. 188. the person who does it ia acting
(n) "A thing is considered to be honestly and band fide, either under
done in pursuance of a statute, when the powers which the Act confers, or
94
THE JUDICIAL OFFICE,
Territorial
limits of
And the proper question for the jury in a case such as
referred to will be this : — " Did the defendant honestly
believe in the existence of those facts which, if they had
existed, would have afforded a justification under the
statute ? " — the belief of the defendant resting upon some
reasonable grounds (o).
Lastly, we may observe, that, when considered with
jurisdiction. reference to foreign communities, the jurisdiction of every
court, whether in personam, or in rem, must so far as
regards the compelling obedience to its decrees (p),
necessarily be bounded by the limits of the kingdom in
which it is established, and unless, by virtue of inter-
national treaties (q), such jurisdiction has been extended,
it clearly cannot enforce process beyond those natural
limits, according to the maxim, Extra territorium jus
dicenti impune non paretur (r). Moreover, it is to be
observed that, although the laws of a state propria vigore
have no force beyond its territorial limits, they are fre-
quently permitted, by the courtesy of another, to operate
in the latter, when neither that state nor its citizens will
suffer any inconvenience from the application of the
in discharge of the duties which it
imposes." Per Parke, B., Jowlcv.
Taylor, 7 Bzch. 61 ; Dawning v.
Capel, L. R. 2 C P. 461 ; Poulsum
t. Thirst, Id, 449 ; Whatman
v. Pearson, L. R. 3 C. P. 422.
(o) Per Williams, J., Roberts v.
Orchard, 2 H. & C. 774, as ex-
plained in Leete v. Hart, L. R. 3
C. P. 322, 324, 325; Heath v.
Brewer, 15 C. B. N. S. 803 ; Cham-
berlain v. King, L.R.6C. P. 474.
"The calendar month required by
the statute 5 & 6 Yict. c. 97, s. s. 4,
begins at midnight of the day on
which the notice was given; and
generally it ends at midnight of the
day with the corresponding' number
of the next ensuing month in' the
calendar ; " per Blackburn, J. , Free-
man v. Read, 4 B. k S. 185, 186.
(p) See per Lord Cranworth, C,
Hope v. Hope, 4 De G. M. & Qt.
345-6.
(q) See In re Tivnan, 5 B. & S.
645.
(r) D. 2, 1, 20; Story, Confl.
Laws, § 539 ; arg. Canadian Pri-
soners* Case (rep. by Fry), p. 48 ;
Reg. v. Lewis, Dearal. k B. 182 ;
Reg. t. Anderson, L. R. 1 C. C.
161.
THE JUDICIAL OFFICE. 95
foreign law («). This is the principle of International
Comity.
Municipal law may provide that proceedings may be
instituted, and judgments and decrees lawfully pronounced,
against natural-born subjects when absent abroad, and
even against aliens who are not resident within the state
when the subject-matter is peculiarly within the jurisdic-
tion of the Courts. The conditions under which a writ
will be allowed in this country to issue are regulated by
Order XL of the Rules of Court, 1883 (<).
Even Parliament has no power, save in respect of
matters of procedure, to legislate for foreigners out of the
dominions and beyond the jurisdiction of the British
Crown (u). " It is clear," observed Parke, B., in Jefferys
v. Boosey (x), " that the legislature has no power over any
persons except its own subjects, that is, persons natural-
born subjects or resident or whilst they are within the
limits of the kingdom. The legislature can impose no
duties except on them; and when legislating for the
benefit of persons, must pri/md facie be considered to
mean the benefit of those who owe obedience to our laws,
and whose interests the legislature is under a correlative
obligation to protect"
(*) Per Buggies, C. J., Hoyt v. ed. p. 198 et seq.
Thompson, 1 Seidell (U. S.), H. 340. (u) Lopez v. Burdem, 4 Moore,
As . illustrating the maxim, supra, P. C. C. 300, 805.
see Be Maiuergh, 1 B. & S. 400. (x) 4 H. L. Gas. 815, 926.
(0 See Wilson's Judic. Acts, 4th
96 THE JUDICIAL OFFICE.
Ad QujESttonem Facti non respondent Judices ad
QUjESTIONEM LEGIS NON RESPONDENT JURATORES.
(8 Rep. 308.) — It is the office of tlie judge to instruct
tlte jury in points of law — ofthcjui*y to decide on
matters of fact (a).
The object in view on the trial of a cause is to find out,
by due examination, the truth of the point in issue
between the parties, in order that judgment may there-
upon be given, and therefore the facts of the case must,
in the first instance, be ascertained (usually through the
intervention of a jury (6)), for ex facto jus oritur — the law
arises out of the fact (c). If the fact be perverted or mis-
represented the law which arises thence will unavoid-
ably be unjust or partial ; and, in order to prevent this
it is necessary to set right the fact and establish the truth
contended for, by appealing to some mode of probation or
trial which the law of the country has ordained for a
criterion of truth and falsehood (d).
The tendency of modern reform is to substitute trial
before a judge alone for that by judge and jury, and the
Rules of Court, 1883 (e), may render the employment of
juries the exception rather than the rule. In certain im-
portant classes of action the ancient mode of trial is
certain for a long time to prevail, and the maxim at the
head of the chapter must retain considerable importance.
(a) Co. Lift. 295 b. ; 9 Rep. 13 ; in ancient times, see Sir F. Palgrave's
Bishop of MeaUiY. Marquis of Wirt" Essay on the Original Authority of
Chester, 3 Bing. N. C. 217 ; S. C, the King's Council, p. 53.
4 CI. & Fin. 557 ; Btuhell's case, (c) See for instance CatteraJl v.
Vaugh. & 149 ; per Lord Westbury, Hindle, LR.2C. P. 368.
Fernie v. Young, L. R. 1. H. L. 78. (d) 2 Inst. 49.
(6) As to the province of the jury (<) Order xxxyi,
THE JUDICIAL OFFICE.
97
A few instances must suffice to show its application. Examples
m? "ii showing
Thus, there are two requisites to the validity of a deed : ^J!^tion
1st, that it be sufficient in law, on which the Court shall
decide ; 2ndly, that certain matters of fact, as sealing and
delivery, be duly proved, on which it is the province of the
jury to determine (/) ; and, where interlineations or
erasures are apparent on the face of a deed, it is now the
practice to leave it to the jury to decide whether the
rasing or interlining was done before the delivery (g).
Again, it is the duty of the Court to construe all
written instruments (h) as soon as the true meaning of
the words in which they are couched, and the surrounding
circumstances, if any, have been ascertained as facts by
the jury (i); and it is the duty of the jury to take the
construction from the Court either absolutely, if there be
no words to be construed or explained (k), as words of art
or phrases used in commerce, and no surrounding circum-
stances to be ascertained, — or conditionally, when those
words or circumstances are necessarily referred to them (I).
(/) Co. Litt. 255, a. ; AUham's
case, 8 Rep. 308 ; Dr. LeyfielcCs
cote, 10 Rep. 92, cited JenJcin v.
Peace, 6 M. & W. 728.
ig) Co. Litt. 225, b. See Doe d.
Fryer v. Coombs, 3 Q. B. 687 ;
Msager v. Close, 10 M. & W. 576.
ind aee the maxim, ubi eadem ratio
tin idem jus {post, Chap. IV.), where
additional cases on this subject are
cited.
(h) " The construction of a specifi-
cation, like other written documents,
is for the Court. If the terms used
require explanation, as being terms
of art or of scientific use, explanatory
evidence must be given, and with its
did the Court proceeds to the office of
construction ; " per Lord Chelmsford,
C, Simpson v. HoUiday, L. R. 1
H. L. 820.
(t) Even where a written instru-
ment has been lost, and parol evi-
dence of its contents has been received,
its construction is for tho Court.
Berwick v. HorsfaU, 4 C. B. N. S.
450.
(*) See Elliott v. The South Devon
R. C.t 2 Ex. 725.
(I) "Parcel or no parcel," is a
question of fact for the jury, but the
judge should tell the jury what is
the proper construction of any docu-
ments which may have to be con-
sidered in deciding that question ;
Lyle v. Richards, L. R. 1 H. L. 222.
98
THE JUDICIAL OFFICE.
The convenience of this course is apparent, for a niiscon
struction by the Court may be set right upon appeal or
new trial, but a mistake by the jury is not easily cor-
rected (m). Accordingly, the construction of a doubtful
document given in evidence to - defeat the Statute of
Limitations is for the Court (n), and not for the jury ; but
if it be explained by extrinsic facts, from which the inten-
tion of the parties may be collected, they are for the con-
sideration of the jury (o).
With respect to mercantile contracts, the law is clearly
explained by Lord Cairns in Bowes v. Shand(p). It is
for the Court, when once it is in possession of the circum-
stances surrounding the contract, and of any peculiarity of
meaning which may be attached by reason of the custom
of the trade, to place the construction upon the contract ;
and it would seem that the evidence of custom must be
strong to overrule the natural meaning of words of
(m) Judgm., Neilson v. Harford,
8 M. & W. 823. Per Erskine, J.,
Shore ▼. Wilson, 5 Scott, N. R.
988 ; ChevcUy v. Fuller, 13 C. B.
122. See per Maule, J., Doe d.
Strickland v. Strickland, 8 C. B.
743-4 ; Booth v. Kennard, 2 H. &
N. 84; BovtU v. Pimm, 11 Exch.
718 ; Lindsay v. Janson, 4 H. & N.
699, 704 ; Parker v. Ibbetson, 4 C.
B. N. S. 346.
(n) Chasemore v. Turner, 10 L.
R. Q. B. 500 ; 45 L. J. Q. B. 66 ;
33 L. T. 323. Quincey v. Sharpet
1 Ex. D. 72 ; 45 L. J. Ex. 347
(Ex. Ch.). Skeet v. Lindsay, 2 Ex.
D. 314; 46 L. J. Ex. 249. Myer-
hoffy. Froelich, 8 C. P. D. 333 ; C.
A. 4 C. P. D. 63. Banner v. Bcr-
ridge, 18 Ch. D. 254 ; 50 L. J. Ch,
630.
(o) MorreU v. Frith, 3 M. k W.
402 ; Doe d. Curson v. Edmonds,
6 M. & W. 295. See WorOtington v.
GrimsdUch, 7 Q. B. 479 ; Rackham
v. Marriott, 2 H. & N. 196 ; S. C,
1 Id. 605 ; SidweU v. Mason. 2 H.
k N. 306 ; Godwin v. Culling, 4 Id.
373 ; Cornforth v. Smithard, 5 H. &
N. 13 ; Buckmaster v. Russell, 10 C.
B. N. S. 745 ; Holmes v. Mackrdl, 3
C. B. N. S. 789 ; Cockrill v. Sparkes,
1 H. & C. 699 ; Francis v. Haukcs-
ley, 1 E. k E. 1052.
(p) 2 App. Cft. 455 ; 46 L. J. Q.
B. 561, explaining Alexander v.
Vanderzee, L. B. 9 C. P. 530 (Ex.
Ch.)
THE JUDICIAL OFFICE. 99
common parlance. This rule of construction is based
upon and limited by the principle which allows parol
evidence to explain, but not to contradict, a written docu-
ment, upon which basis also depends the function of a
jury to put a meaning upon expressions in mercantile con-
tracts, which, apart from mercantile usage, are obscure
or meaningless (q). It may indeed be laid down gene-
rally, that although it is the province of the Court to
construe a written instrument, yet where its effect depends
not merely on the construction and meaning of the instru-
ment, but upon collateral facts and extrinsic circumstances,
the inferences to be drawn from them are to be left to the
jury (r). And where a contract is made out partly by
written documents and partly by parol evidence, the whole
must be submitted to the jury so that they may deter-
mine what was the real contract, if any, between the
parties («).
In actions for malicious prosecution two elements must Malicious
i i • •«• • i i * prosecution
concur to give the plaintiff a right to recover — absence of
reasonable and probable cause for the charge brought
against him by the defendant, and malice on the part of
the latter. The first of these questions is for the judge,
and if he determine it in favour of the plaintiff, the
second must then be left to the jury, a course which the
judges have frequently described as productive of much
(?) Ashforth v. Bedford, L. R. 9 (s) Bolckow v. Seymour, 17 C. B.
C P. 20 ; 43 L J. C. P. 57. N. S. 107 ; Roger* v. Hadley, 2 H.
(r) Etting v. U. S. Bank, 11 & C. 227.
Wbeaton ^U. S.), B. 59. The construction of a foreign con-
As to the office of the jury in tract is for the Court, which may
interpreting an ambiguous contract, avail, as far as necessary, of expert
»ee Smith ▼. Thompson, S 0. B. 44, evidence. Di Sora v. Phillips, 10
cited pott, Chap. VIII. H. L. Cas. 633.
H 2
100
THE JUDICIAL OFFICE.
difficulty and confusion. Malice may be inferred by the
jury from the absence of reasonable and probable cause
(t), but the inference is not necessary (u). Where the
question of reasonable and probable cause depends upon
more or less numerous and complicated facts and infer-
ences to be derived from them, there is much confusion in
the earlier cases as to the respective duties of judge and
jury. It is now settled that the question as to reasonable
and probable cause is for the judge in all these cases, and
that he must direct the jury as to the existence of such
cause, according to their findings upon the facts or infer-
ences upon which the defendant relies (x).
It is a convenient and not unfrequent course for the
judge at Nisi Prius to take the findings of the jury upon
the matter of fact in dispute, and then to determine the
question of reasonable cause upon their answers, leaving
to them that of malice, where he himself has ruled that the
defendant acted without reasonable and probable cause.
It will be for the jury to say in many cases not only what
were the facts as to the charge, but also, what was the
knowledge and belief of the defendant with regard to
them, and whether he acted bond fide upon such know-
ledge (y). Where the plaintiff has made out a primd
facie case, and the judge, in order to determine the ques-
(t) Basley v. Bcthune, 5 Taunt.
583.
(u) Heath v. Heaps, 26 L. J. M.
C. 49.
(a;) Panton v. William*, 2 Q. B.
169 ; Lister v. Ferryman, L. R. 4 H.
L. 521 ; 39 L. J. Ex. 177 ; 23 L. T. 269.
This was a case of false im-
prisonment, bat the] principle is not
affected by the fact that in such an
action the onus of showing reasonable
and probable cause is on the de-
fendant.
(y) Turner v. AmUer, 10 Q. B-
252 ; James v. Phelps, 11 A. & E.
483; Delegal v. Bighley, 3 Bing.
N. C. 950 ; ffeslqp v. Chapman, 23
L. J. Q. B. 52 ; Hicks v. FatOkner,
8 Q. B. D. 173.
THE JUDICIAL OFFICE. 101
tion of reasonable and probable cause, leaves subsidiary
questions of fact to the jury, the onus of proving such
facts as tend to establish reasonable and probable cause
lies upon the defendant (z).
The question of the respective functions of judge and Libel,
jury, and in actions and prosecutions for libel, was once very
warmly canvassed, and was the subject of Fox's Act, 32
Geo. 3, c. 60, s. 1. This Act, which was occasioned by the
State Trials in the reign of George 3, enacts (s. 1) that in
trials for libel the jury may give a general verdict of guilty
or not guilty upon the whole matter put in issue, and shall
not be directed or required by the Court to find the defen-
dant guilty or not guilty merely on proof of publication (s. 2).
The judge shall, according to his discretion, give his opinion
upon the matters in issue (a) to the jury, who may (s. 3)
find a special verdict. It is customary under this Act for
the judge, whether in civil or criminal causes, to give a
definition of libel to the jury, and then leave the entire
question to the jury. He may, as a matter of ipere
advice, give his own opinion as to the nature of the pub-
lication, but is not bound to do so (6). It is the duty of
the judge to say whether or not the writing complained
of is capable of the meaning ascribed ; but if satisfied of
that, he must leave it to the jury to say whether it actually
has that meaning (c). Again, it is for the judge to say
whether a communication is privileged or not; but if the pri-
vilege is not an absolute one, as that enjoyed by witnesses
(*) Ahrath v. N. E. BaUway, 11 {c) Start v. Blagg, 10 Q. B. 908 »
Q. B. D. 79. Hunt v. GoocUake, 43 L. J. C. P.
(a) Baylti v. Lawrence, 11 Ad. & 64. As to slander, Hemming* v.
B. 924. Gossan, E. B. E. 846 ; and see
(b) Parmiter v. Copdand, 6 M. & BusheWs case, Vaugh. R. 147 ; Ewart
W. 108 ; R. ▼. Watwn, 2 T.R. 106. v. Jones, 14 M. & W. 774.
102
THE JUDICIAL OFFICE.
Exceptions
to rule.
and advocates in a cause, the further question remains*
whether it was made bond fide and without malice, and
this is always for the jury (d). It is to be remembered
that where this qualified privilege is established, it has
the effect of shifting the onus of proof of malice upon
the plaintiff. If he fail to give evidence beyond that of
mere defamation, it is the duty of the judge to non-
suit (e).
But although the general principle is as above laid
down, there are many exceptions to it (/). Thus, ques-
tions of reasonableness — reasonable cause, reasonable time,
and the like — are, strictly speaking, matters of fact, even
where it falls within the province of the judge or the
Court to decide them (g), but are properly left to
the judge, as requiring legal training for their appre-
ciation.
So, where a question arises as to the admissibility of
evidence, the facts upon which its admissibility depends
are to be determined by the judge, and not by the jury.
If the opposite course were adopted, it would be equiva-
lent to leaving it to the jury to say whether a particular
thing were evidence or not (/i). And the question,
whether a document comes from the proper custody or
{d) Stace v. Griffith, L. R. 2 P. C.
420.
(e) Taylor v. Hawkins, 16 Q. B.
S21 ; Spill v. Maule, L. R. 4 Ex.
232.
(/) Judgm., Watson t. Quitter,
11 M. &W. 767.
(g) See per Lord Abinger, 0. B.,
Startup v. Macdonald, 7 Scott, N.
R. 280; Co. Litt. 566; Barton v.
Griffiths, 11 M. k W. 817 ; Graham
v. Van Diemens Land Co.. 11 Exch.
101 ; per Crompton, J. , Great Western
R. C. ▼. Crouch, 3 H. k N. 189 ;
Hogg v. Ward, Id. 417 ; Goodwyii
v. Cheveley, 4 H.&N. 631 ; Brighly
v. Norton, 3 1). & 8. 305 ; Matsey
v. Sladen, L. R, 4 Ex. 1&; Vestry
of Shoreditch v. Hughes, 17 C. B.
N. S. 137.
(h) Per Alderson, B., Bartfett r.
Smith, 11 M. k W. 486 ; Boyle v.
Wiseman, 11 Ex. 360.
THE JUDICIAL OFFICE. 103
whether it is properly stamped must be decided by the
judge, for the jury are not sworn to try any such
issues (i).
There are also certain statutes which give to the Court
in particular cases cognizance of certain facts ; and there
is another and distinct class of cases in which the Court,
having a discretionary power over its own process, is
called upon to depart from the usual course, upon the
suggestion of some matter which renders such departure
expedient or essential for the purposes of justice ; as where
a venue is to be changed because an impartial trial cannot
be had, or where the sheriff is a party (&).
If at the close of the plaintiff's case there is no evidence Nonsuit
upon which the jury could reasonably and properly find a
verdict for him, the judge ought to direct a nonsuit.
Formerly, if there were a scintilla of evidence in support
of a case, the judge was held bound to leave it to the
jury. " But a course of recent decisions (most of which
are referred to in Ryder v. Wombwell (I) ) has established
a more reasonable rule, viz., that in every case, before the
evidence is left to the jury, there is a preliminary question
for the judge, not whether there is literally no eyidence
but whether there is any upon which a jury can properly
proceed to find a verdict for the party producing it, upon
whom the emus of proof is imposed " (m). But where
there is conflicting evidence upon a question of fact, what-
ever may be the opinion of the judge as to the value of
(»; Per Pollock, C. B. Heslop v. 125, § 31.
Chapman. 23 L. J. Q. B. 52 ; Siordet (£) See some instances mentioned,
y. Kuczymki, 17 C. B. 251 ; per Pol- Jndgm. 11 M. & W. 768.
lock, C. B., Sharpies v. Richard, 2 (I) L. R. 4 Ex. 32.
H. & N. 57 ; TattenaU v. Ftarrdy, (tn) Jndgm. Gjblin y. McMullen,
17 C. B. 368. See 17 & 18 Vict, c L. B. 2 P. C. 385.
tioii.
104 THE JUDICIAL OFFICE.
that evidence, he must leave the consideration of it for
the jury (n).
Muurec- When there is a case tried before a judge sitting with a
jury, and there arises any question of law mixed up with
the facts, the duty of the judge is to give a direction upon
the law to the jury, so far as is necessary to make them
understand the law as bearing upon the facts before them.
When once it is established that a direction was not
proper, either wrong in giving a wrong guide, or imperfect
in not giving the right guide to the jury, when the facts
were such as to make it the duty of the judge to give a
guide, the appellate Court cannot inquire whether or no
the verdict was wrong, as having been against the weight
of evidence or not, but there having been an improper
direction, there must be a new trial (o).
So, likewise, in a penal action, the Court will grant a
new trial when they are satisfied that the verdict is in
contravention of law, whether the error has arisen from
the misdirection of the judge or from a misapprehension
of the law by the jury, or from a desire on their part to
take the exposition of the law into their own hands (p).
In conclusion, it may be observed that although there is
a growing tendency to dispense with juries in many purely
civil actions, in cases of a criminal and quasi-criminal
nature, most people will probably still agree with Lord
Hardwicke, that " It is of the greatest consequence to
the law of England and to the subject that these powers
(n) Dublin and WicUow Ry. ▼. (p) See A.-O. v. Rogers, 11 M. &
Slattery, 3 App. Cas. 1155 ; 39 L. W. 670, cited in A.-Q. t. SiUem, 2
T. 865. H. & C. 469.
(o) Prudential Assurance Co. v. A new trial cannot be had in a case
Edmunds, 2 App. Cas. 487 ; at p. of felony, Reg. v. Pcrlrand, L. R. 1
507. Per Ld. Blackburn. P. C. 520 ; Reg. v. Murphy, 2 Jtf.35.
THE JUDICIAL OFFICE. 105
of the judge and jury be kept distinct, that the judge
determine the law, and the jury the fact ; and if ever they
come to be confounded it will prove the confusion and
destruction of the law of England " (q).
In pjelesentia majokis cessat potentia minoris. (Jenk.
Cent 21 4.) — In jyresence of the major the power of
the minor ceases (r).
This maxim has been usually (s) cited with special
reference to the transcendant nature of the powers vested
in the Court of Queen's Bench, now in the Queen's Bench
Division of the High Court of Justice (t).
It is the function of this Court to keep all inferior juris-
dictions within the bounds of their authority and to correct
irregularities in their proceedings. It commands magis-
trates and others to do what their duty requires in every
case where there is no other specific remedy. It protects
the liberty of the subject by speedy and summary inter-
position. It takes cognizance both of criminal and civil
causes ; the former in what is called the Crown side, or
Crown Office ; the latter in the plea side of the court (u).
To it also appeal lies from some inferior criminal courts.
To this supremacy of the Court of Queen's Bench may
be attributed the fact, that on its coming into any county
the power and authority of other criminal tribunals
{q) R. ?. Poole, Cas. tern. Hardw. char's case,d Rep. 118, b.; 2 Inst. 166.
28. (t) See Rules of Court. 1883, 0.
(r) See the maxim, Omnc majus ■ LXVIII.
coniintt in se minus, post, Chap. IV. (u) Reg. v. QiUyard, 12 Q. B. 530.
(t) See 10 Rep. 73, b. ; Lord San*
106 THE MODE OF ADMINISTERING JUSTICE.
therein situate are pro tempore suspended (x) ; in prce-
sentid majoris cesmt potestas minoris (y).
It has been held {z\ however, that the authority of a
Court of Quarter Sessions, whether for a county or a
borough, is not in law either determined or suspended by
the coming of the judges into the county under their com-
mission of assize, oyer and terminer, and general gaol
delivery, though " it would be highly inconvenient and
improper, generally speaking, for the magistrates of a
county to hold their sessions concurrently with the assizes,
even in a different part of the county.0
§ II. THE MODE OF ADMINISTERING JUSTICE.
Having in the last section considered some maxims
relating peculiarly to the judicial office, the reader is here
presented with a few which have been selected in order
to show the mode in which justice is administered in our
courts, and which relate rather to the rules of practice
than to the legal principles observed there.
Audi alteram Partem. No man should be condemned
unheard.
statement It has long been a received rule (a), that no one is to
be condemned, punished, or deprived of his property in
{x) 4 Inst. 73. See Stat. 25 Geo. 416, Erie, C. J., says it is "an indis-
8, c 18, § 1. pensable requirement of justice that
(y) Per Coleridge, J. , 13 Q. B. 740. the party who has to decide shall hear
(z) Smith v. Reg. 13 Q. B. 738, both sides, giving each an opportunity
744. of hearing what is urged against
{a) In Re Brook, 16 C. B. N. S. him."
THE MODE OF ADMINISTERING JUSTICE.
107
any judicial proceeding, unless he has had an opportunity
of being heard (b) ; in the words of the moralist and
poet —
Quieunque aliquid statuerit, parte inauditd alterd,
AZquum licet statuerit, hand ocquusfuerit (c).
A writ of sequestration, therefore, cannot properly Example*
issue from the Consistory Court of the diocese to a vicar <*uotl
who has disobeyed a monition from his bishop, without
notice previously given to the incumbent, to show cause
why it should not issue ; for the sequestration is a pro-
ceeding partly in pcenam, and no proposition is more
clearly established than that "a man cannot incur the
loss of liberty or property for an offence by a judicial
proceeding until he has had a fair opportunity of answer-
ing the charge against him, unless, indeed, the Legislature
has expressly or impliedly given an authority to act with-
out that necessary preliminary " (</).
An award made in violation of the above principle may
be set aside (e).
No person should be punished for contempt of court,
which is a criminal offence, unless the specific offence
(b) Per Parke, B., Re Hammer-
smith Rent-charge, 4 Ex. 97 ; per
Lord Campbell, C.J., Reg. v. Archs.
bishop of Canterbury, 1 E. & E.
559 ; per Lord Kenyon, C.J., Harper
v. Carr, 7 T. R. 275, and in R. v.
Benn, 6 Id. 198 ; ptr Bayley, B.,
Capet v. Child, 2 Cr. & J. 558 (see
Daniel r. Morton, 16 Q. B. 198) ;
Bang's case, 11 Rep. 93 b. ; R. v.
Chancellor, &c., of University of
Cambridge, 1 Str. 557 ; R. v. Gas-
kin, 8 T. R. 209 ; Reg. v. Saddler's
Co., 10 H. L. Caa. 404.
(c) Seneca Trag. Medea, cited 6
Hep. 52, a. ; 11 Rep. 99, a; per
Parke, B., Ex. 97 ; 14 C. B. 165.
(d) Bonaker v. Evans, 16 Q. B.
162, 171, followed, but distinguished
in BartleU v. Kirwood, 2 B. & B
771. See Daniel v. Morton, 16 Q. B.
198 ; Ex parte I/opwood, 15 Q. B.
121 ; Ex parte Story, 8 Ex. 195 ;
12 C. B. 767, 775 ; Reynolds r. Pen-
ton, 3 C. B. 187 ; Meeus v. Thcllus-
son, 8 Ex. 638; Ferguson v. Mahon,
11 A. & E. 179.
(c) Thorbum v. Barnes, L. R.
2 C. P. 384, 401 ; Re Brook, 16 C.
B. N. S. 403.
108 THE MODE OF ADMINISTERING JUSTICE.
charged against him be distinctly stated, and an oppor-
tunity of answering it be given to him (/). " The laws of
God and man/' says Fortescue, J., in Di\ Bentleys case (g),
" both give the party an opportunity to make his defence,
if he has any." And immemorial custom cannot avail in
contravention of this principle (h).
In conformity also with the elementary principle under
consideration, when a complaint has been made, or an
information exhibited before a justice of the peace, the
accused person has due notice given him, by summons or
otherwise, of the accusation against him, in order that he
may have an opportunity of answering it(/).
A statute establishing a gas-light company enacted that
if any person should refuse or neglect, for a period of ten
days after demand, to pay any rent due from him to the
company for the supply of gas, such rent should be re-
covered by the company or their clerk by warrant of a
justice of the peace and execution thereunder. A war-
rant issued by a justice under this Act, without previously
summoning and hearing the party to be distrained upon,
was held to be illegal, though a summons and hearing
were not in terms required by the Act ; for the warrant
is in the nature of an execution ; without a summons the
party charged has no opportunity of going to the justice,
and a man shall not " suffer in person or in purse without
an opportunity of being heard " (1c).
(/) In re PoUard, L. R. 2 P. C. (h) Williams ▼. Lord Bagot, 3
106, 120. B. & C. 772.
(g) R. v. Chancellor, 4'c., of Cam- (t) Paley, Conv., 4th ed., 67, 98,
bridge, 1 Str. 557 ; per Maule, J., where mauy cases illustrating the
Alley v. Dale, 10 C. B. 71 ; per text are collected. See Bcssell v.
Lord Campbell, C.J., Ex parte Bam- Wilson, 1R&B. 489.
thay, 18 Q. B. 190 ; per Byles, J., 14 (h) Painter v. Liverpool Oil Gas-
C. B. N. S. 194. light Co., 3 A. & B. 433 ; Hammond
THE MODE OF ADMINISTERING JUSTICE. 109
The Metropolis Local Management Act, 1855 (18 & 19
Vict. c. 120), s. 76, empowers the vestry or district board
to alter or demolish a house where the builder has
neglected to give notice of his intention to build seven
days before proceeding to lay or dig the foundation. Held,
that this enactment does not empower the board to
demolish such building without first giving the party
guilty of the omission an opportunity of being heard (/),
for " a tribunal which is by law invested with power to
affect the property of one of Her Majesty's subjects, is
bound to give such subject an opportunity of being heard
before it proceeds," and " that rule is of universal appli-
cation and founded upon the plainest principles of jus-
tice n (m).
Although cases may be found in the books of decisions
under particular statutes which at first sight seem to
conflict with the maxim, it will be found on consideration
that they are not inconsistent with it, for the rule, which
is one of elementary justice, only requires that a man shall
not be subject to final judgment or to punishment without
an opportunity of being heard (n).
v. Bendyshe, 13 Q. B. 869 ; Reg. v. 8. 419.
Totne* Union, 7 Q. B. 690 ; BcuelL (m) Per WiUes, J., 14 0. B. N. S.
y. Wilson, 1 E. & B. 489 ; Gibbe v. 190.
Stead, 8 B. & C. 528. (») Re Hammersmith Rent-charge,
(0 Cooper v. Wandsworth Board 4 Ex. 87, citing Re Camberweli
of Works, 14 C. B. N. S. 180, cited Rent-charge, 4 Q. B. 151, per Alder-
per Bylea, J., Re Brook, 16 C. B. N. son, B., 4 Ex. 95.
110
THE MODE OF ADMINISTERING JUSTICE.
Rule stnte.l.
Nemo debet esse Judex in propria sua Causa. (12
Rep. 113.) — No man can be judge in his otvn
cause.
It is a fundamental rule in the administration of justice,
that a person cannot be judge in a cause wherein he is
interested (o) : nemo sibi esse judex vel suis jus dicere
debet (p) ; and, therefore, in the reign of James I., it was
solemnly adjudged that the king cannot take any cause,
whether civil or criminal, out of any of his courts, and
give judgment upon it himself; but it must be determined
and adjudged in some court of justice according to the
law and custom of England ; and in the case referred to,
"the judges informed the king that no king, after the
conquest, assumed to himself to give any judgment in any
case whatsoever which concerned the administration of
justice ; but these were solely determined in the courts of
justice " (q), and Rex non debet esse sub homine zed sub Deo
et lege (r).
It is, then, a rule observed in practice, and of the
application of which instances not uufrequently occur,
that, where a judge is interested in the result of a cause,
he cannot, either personally or by deputy, sit in judgment
upon it (#). If, for instance, a plea allege a prescriptive
(o) Per Cur. 2 Stra. 1173 ; Roll.
Abr. Judges, PI. 11 ; 4 H. L. Caa.
96, 240.
(j>) C. 8, 5, 1.
{q) Prohibition* del Roy, 12 Rep.
63 (cited Bridgman v. Holt, 2 Show.
P. Ca. 126) ; 4 Inst. 71. In Gor-
ham v. Bishop of Exeter t 15 Q. B.
52, & C., 10 C. B. 102, 5 Ex.
G30, an argument based on the maxim
above exemplified was vainly urged.
See also Ex parte Medicin, 1 R & B.
609 ; B. v. Hoseason, 14 East, 606.
(r) Fleta, fo. 2,a5; ante, p. 40.
(*) Brooks v. Earl of Rivers,
Hardw. 503 ; Earl of Derby* t Case,
12 Rep. 114 ; per Holt, C. J., Anon.
1 Salk.396 ; Wwsley v. South Devon
R. C, 16 Q. B. 539.
Grand Jit it r-
nnl
THE MODE OF ADMINISTERING JUSTICE. Ill
right vested in the lord of the manor to seize cattle
damage feasant, and to detain the distress until fine paid
for the damages, at the lord's will, this prescription will
be void, and the plea consequently bad ; " because it is
against reason, if wrong be done any man, that he thereof
should be his own judge (t) ; and it is a maxim of law,
that aliquis non debet esse judex in propiHd ccrn&d, quia
non potest esse judex et pars (u) ; nemo potest esse simul
actor et judex (x) ; no man can be at once judge and
suitor.
A leading case in illustration of this maxim is Dimes Dims v.
v. The Proprietors of the Grand Junction Canal (y) tum cvi
where the facts were as under : — the canal company filed
a bill in equity against a landowner in a matter touching
their interest as copyholders in certain land. The suit
was heard before the Vice-Chancellor, who granted the
relief sought by the company, and the Lord Chancellor
— who was a shareholder in the company, this fact being
unknown to the defendant in the suit — affirmed the order
of the Vice-Chancel lor. It was held on appeal to the
House of Lords, that the decree of the Lord Chancellor
was under the circumstances voidable and ought to be
reversed. Lord CamjjbeU, C. J., observing : " It is of the
last importance that the maxim that ' no man is to be a
judge in his own cause ' should be held sacred. And that
is not to be confined to a cause in which he is a party,
(0 Lift. § 212, (y) 3 H. L. Cas. 759 ; as to which
(u) Co. Litt 141, a. see London and North- Western R. C.
{x) See Reg. v. Great Western r. Lindsay, 3 Macq. Sc App. Caa.
H. C., 13 Q. B. 327 ; Reg. v. Dean, 114. Re Dimes, 14 Q. B. 554 ;
Ac. of Rochester, 17 Q. B. 1 ; followed Ellis v. Hopper, 3 H. & N. 766;
in Reg. y. Rand, L. B. 1 Q. B. 230, Williams v. Great Western R. C.9
233 ; Re OUerton, 15 0. B. 796 ; Re Id. 869 ; Lancaster and Carlisle
Chandler, 1 C. B. N. S. 323. R. C. v. Heaton, 8 E. k B. 952.
112 THE MODE OF ADMINISTERING JUSTICE.
• but applies to a cause in which he has an interest. * * *
We have again and again set aside proceedings in inferior
tribunals, because an individual, who had an interest in a
cause, took a part in the decision. And it will have a
most salutary effect on these tribunals when it is known
that this high court of last resort, in a case in which the
Lord Chancellor of England had an interest, considered
that his decree was on that account a decree not according
to law, and should be set aside. This will be a lesson
to all inferior tribunals to take care, not only that in their
decrees they are not influenced by their personal interest,
but to avoid the appearance of labouring under such an
influence."
The opinion delivered by the Judges to the House in
the case just cited (s) shows, however, that the decision of
a judge made in a cause in which he has an interest is,
in a case of necessity, unimpeachable, ex. gr., if an action
were brought against all the Judges of the Court of
Common Pleas in a matter over which they had exclusive
jurisdiction (a), or where a judge commits for contempt of
court (6). Nor does the principle under considera-
tion apply to avoid the award of a referee to whom,
though necessarily interested in the result, parties have
contracted to submit their differences (c), though ordi-
narily it is "contrary to reason that an arbitrator or
umpire should be sole and uncontrolled judge in his own
cause" (d).
(z) 8 H. L. Cas. 787 ; citing Tear Albans, 9 Q. B, D, 454, 457 ; 46
Book, 8 Hen. 6, 19 ; 2 Roll. Abr. 93. L. T., 692.
(a) Per Lord Cran worth, C, Ranger (c) Ranger v. (heat Western & C,
v. GreatWestern R. C.> 5 H. L. Cas. 5 H. L Cas. 72.
88. See Ex parte Menhennet, L. R. {d) Per Parke, B., Re Coombs, 4
5 C. P. 16. Ex. 841. Russell, Arbitr. 2nd ed.
(*) Per Field, J. , Reg. v. & of St 375,
THE MODE OF ADMINISTERING JUSTICE. 113
Conformable to the general rule was a decision in the
following case : — Upon an appeal to the Quarter Sessions
of the borough of Cambridge, by a water company against
an assessment to the poor rate, the deputy recorder of the
borough presiding, the rate was reduced and costs given to
the appellants; at the time of hearing the appeal the
deputy recorder was a shareholder in the company, and
although he had in fact sold his shares he had not com-
pleted the transfer of them ; he was held incompetent to
try the appeal (e).
In like manner, proceedings had before commissioners
under a statute which forbad persons to act in that capa-
city when interested, have been adjudged void (/).
Any direct pecuniary interest, however small, in the
subject-matter of inquiry will disqualify a judge (g), and
any interest will have the same effect, which is sufficiently
substantial although not pecuniary. Thus, a justice of the
peace may be disqualified if he himself be a litigant in a
matter before the Court (h), or a party in a similar matter
(i) ; but he is not precluded from trying offences under the
Cruelty to Animals Prevention Act, 1849, merely because
he is a subscriber to the society formed for the purpose of
enforcing the Act (A). Nor is a justice disqualified from
adjudicating upon a summons against a ratepayer in
arrear merely upon the ground that he is a member of a
(e) Reg. v. Recorder of Cambridge, Manchester, Sheffield, and Lincoln-
8R4R 637. shire X. C, L. B. 2 Q. B. 336, 339.
(/) Reg. v. Aberdare Canal Co., (h) Reg. v. Meyers, 1 Q. B. D.
14 Q. B. 854. 173 ; 84 L. T. 247.
(g) Per Blackburn, J., Reg. v. (i) Reg. v. Justices of Great Yar-
Rand, L R. 1 Q. B. 232. mouth, 8 Q. B. D. 525 ; 51 L. J. M.
See further aa to the interest which C. 39.
wiB or will not disqualify, Wildes v. (k) Reg. v. Mayor of Deal, 45 L.
RuneUy L. K. 1 C. P. 722 ; Reg. v» T. 489 ; 30 W. R. 154.
I
114
THE MODE OF ADMINISTERING JUSTICE.
town council, whose officer has taken out the sum-
mons (I).
It may be generally stated that a justice of the peace,
who is interested in a matter pending before the Court of
Quarter Sessions, may not take any part iu the proceedings,
unless indeed all parties know that he is interested and con-
sent, either tacitly or expressly, to his presence and interfer-
ence (in). In such a case it has been receutly held that
the presence of one interested magistrate will render the
Court improperly constituted, and vitiate the proceedings ;
it being no answer to the objection, that there was a
majority in favour of the decision, without reckoning the
vote of the interested party (ri). And, on the same prin-
ciple, where a bill preferred before the grand jury at
the assizes against a parish for non-repair of a road, the
liability to repair which was denied by the parish, had
been thrown out by the grand jury, the Court of
Queen's Bench granted a criminal information against
the parish, on the ground that two members of the grand
jury were large landed proprietors therein, and had taken
part in the proceedings on the bill, and put ques-
tions to the witnesses examined before them ; one of
(/) B. v. Handdey, 8 Q. B. D. 383 ;
51 L. J. M. C. 137. In which R. v.
Gibbon, 6 Q. B. D. was disapproved.
Sed alitor if the Justice is connected
with the prosecution. R. v. Milledgc,
4 Q. B. D. 832 ; 48 L. J. M. C. 139 ;
R. v. Lee, 9 Q. B. D. 894 ; 30 W.
R. 460. £ contra R. v. Huntingdon,
4 Q. B. D. 522.
(m) Reg. v. The Cheltenham Com-
muiionert, 1 Q. B. 467 ; Wakefield
Board of Health t. West Riding,
<bc, R. C, 6 B. k S. 794 ; Reg. v.
Justice* of West Riding, Id. 802.
cc
Nothing is better settled than this,
that a party aware of the objection of
interest cannot take the chance of a
decision in his favour, and afterwards
raise the objection." Per Cock barn,
C. J., 6 B. k S. 802. See also R. t.
Great Yarmouth J J., 8 Q. B. D.
525 ; 51 L. J. M. C. 39.
(n) Reg. v. Justices of Hertford-
shire, 6 Q. B. 753. See Re Under-
u*ood and Bedford and Cambridge
R. C, 11 C. B. N. S. 442; A v.
Meyers, 1 Q. B. P. 173; 34 L.
T. 247.
THE MODE OF ADMINISTERING JUSTICE.
115
them, moreover, had stated to the foreman that the
road in question was useless (o) ; for, " It is very
important that no magistrate who is interested in the
case before the Court should interfere while it is being
beard in any way that may create a suspicion that
the decision is influenced by his presence or interfer-
ence" (p).
The mere presence on the bench, however, of an inte-
rested magistrate during part of the hearing of an appeal,
will not be deemed sufficient ground for setting aside an
order of sessions made on such hearing, if it be expressly
shown that he took no part in the hearing, came into
court for a different purpose, and did not in any way
influence the decision (q).
It has been laid down (r) that " even an Act of Parlia-
ment made against natural equity, as to make a man a
judge in his own case, is void in itself; for jura naturae
sunt immrUabilia and they are leges legum." But
although it is contrary to the general rule of law, not
only in this country but in every other, to make a person
judge in his own cause, " the legislature can, and no doubt
in a proper case would, depart from that general rule," and
an intention to do so being clearly expressed, the Courts
would give effect to their enactment («). And if a par-
(o) Reg. v. Upton St. Leonard's,
10 Q. B. 827. See Esdaile v. Lund,
12 M. & W. 734.
{p) Per Wightman, J., Reg. v.
Justice* of Suffolk, 18 Q. B. 416,
421. See Reg. y. Justices of Surrey,
21 L. J. M C. 195.
(4) fty- v- Jwtict* of London, 18
Q. B. 421 (e).
(r) Day v. Savadge, Hob. 85, 87,
cited arg. 5 Exch. 671.
(«) Per Blackburn, J., Mersey
Docks Trustees v. Oibbs, L. R. 1 H.
L. 110.
The 40 Vict. c. 11, onacts that no
judge of the Superior Courts shall be
disqualified from acting in any pro-
cecding upon the ground that he is a
ratepayer, or interested in a rating
question.
I 2
116 THE MODE OF ADMINISTERING JUSTICE.
ticular relation is created by statute between A. and B.,
and a duty is imposed upon A. to investigate and decide
charges preferred against B., the maxim nemo sibi esse
judex vel suisjus dicere debet would not apply (t).
Lastly, " There is no ground whatever for saying that
the governor of a colony cannot give his official consent to
a legislative measure in which he may be individually
interested. It might as well be asserted that the sove-
reign of these realms could not give assent to a bill in
Parliament in which the sovereign was personally con-
cerned n (u).
Actus Curls Neminem gravabit. (Jenh Cent, 118.
An Act of the Court sludl yyi%ej\idice no man.
The above maxim " is founded upon justice and good
sense ; and affords a safe and certain guide for the
administration of the law " (x). In virtue of it where a
case stands over for argument from term to term on
account of the multiplicity of business in the Court, or for
judgment, from the intricacy of the question, the party
ought not to be prejudiced by that delay, but should
be allowed to enter up his judgment retrospectively to
meet the justice of the case (y) ; and, therefore, if one
(t) Wildes t. Rus$dlt L R, 1 C. he himself has promoted, may award
P. 722, 747 ; Beg. y. Bishop c/St. himself costs.
Albany 9 Q. B. D. 454 (C. A.); («) Judgm., Phillip* r. Eyre, L.
46 L. T. 692. In this case the R. 4 Q. B. 244.
curious question was raised, but not (x) Per Creeswell, J., 12 C.B. 415.
decided, whether a bishop, in deter- (y) Per Garrow, B., 1 Y. k J.
mining a charge against a clerk which 872.
THE MODE OF ADMINISTERING JUSTICE.
117
party to an action die during a curia advitari wit, judg-
ment may be entered nunc pro tunc, for the delay is the
act of the Court, and therefore neither party should suffer
for it (z).
In a case involving issues both of law and fact, the
issues of fact -were tried in the month of August, 1843,
a verdict was found for the plaintiff, and a rule for a new
trial was discharged in Trinity Term, 1844 ; in the same
term the demurrers were set down in the special paper,
but did not come on for argument until May, 1845, when
judgment was given upon them for the plaintiff. The
plaintiff having died in March, 1845, the Court made
absolute a rule to enter judgment as of Trinity Term,
1844 (a). It may be here mentioned that the power of
the Court to enter judgment nunc yro tunc does not
depend upon statute (h). It is a power at Common Law,
and in accordance with the ancient practice of the Court,
adopted in order to prevent prejudice to a suitor from delay
occasioned by the act of the Court (c).
Where, however, the delay is not attributable to the act
of the Court, the maxim mpra does not apply ((Z).
Again, a peremptory undertaking to proceed to trial is
(z) Cumber v. Wane, 1 Stra. 425 ;
Mooty. Roberts, 8 G. B. N. S. 844 ;
per Tindal, C.J., Hwrwon v. Ilea-
thorn, 6 Scott, N. &, 797 ; ToulmU
v. Anderson, 1 Taunt. 384; Jenk.
Cent. 180. See Lamnan v. Lord
Audio/, 2 M. & W. 535.
(a) Miles v. Bough, 3 D. k L. 105,
recognising Lawrence v. Hodgson, 1
Ya & J. 368, and Brgdjes v. Smith,
8 Bing. 29 ; Miles v. Williams, 9
Q. B. 47.
(&) Aa to the effect of 17 Car. 2,
c 8, and 15 k 16 Vict. c. 76, s. 139,
Bee Archbold's Practice, 13th ed.
101.
(c) Evans v. Recs, 12 A. & K. 167 ;
Miles v. Bough, supra, and cases
there cited ; Vaughan v. Wilson t
4 B. N. C. 116 ; Green v. Cobden,
4 Scott, 486.
(d) Freeman v. Trqrnch, 12 C. B.
406 ; recognised in Ilcathcotc v.
Wingt 11 Ex. 358 ; Fishmonger's
Co. v. Robertson, 3 C. B. 970.
118 THE MODE OF ADMINISTERING JUSTICE.
not an undertaking to try at all events : and where the
plaintiff having peremptorily undertaken to try at a par-
ticular sittings, gave notice of trial, and entered the cause
as a special jury cause, on the last day, and there being
only two days' sittings, it was made a remanet : the Court
held that the plaintiff was not in default, so as to entitle
the defendant to judgment as in case of a nonsuit, for not
proceeding to trial pursuant to the undertaking (e).
And if the plaintiff is under a peremptory undertaking
to try at a particular sittings, and when the cause comes
on to be tried, applies to the judge and obtains leave to
pospone it, and it is thereupon postponed, the defendant
will not be entitled to make absolute the rule for judg-
ment as in case of a nonsuit, for the non-trial of the cause
arose from the act of the judge, not by the neglect of the
plaintiff (/). Where, however, a plaintiff under a peremp-
tory undertaking to try at the first sitting in term, duly
gave notice of trial, but passed the record within two days
before the sitting day, and obtained a rule for a special
jury, in consequence of which the cause was passed over
and made a remanet, the plaintiff was held to have
broken his undertaking (g) ; in this case the plaintiff's
own act effectually prevented the trial from taking place,
as he had undertaken that it should do.
The preceding examples will probably be sufficient to
illustrate the general doctrine, which is equally founded
on common sense and on authority, that the act of a
Court of law shall prejudice no man ; and in conformity
•
(c) LumUy v. Dubourg, 14 M. & Ex. 41. See Bcnett v. Peninsular
W. 295 ; Rizzi v. Foletti, 5 C. B. and Oriental Steam Boat Co., 16
852 ; Rogers v. Vandercombe, 1 C. B. 29.
B. C. B. 188. (g) Levy r. Moylan, 10 C. B. 657.
(/) Jaclton t. Carrington, 4
THE MODE OF ADMINISTERING JUSTICE.
119
with this doctrine, it has been observed, that, as long as
there remains a necessity in any stage of the proceedings
in an action, for an appeal to the authority of the Court,
or any occasion to call upon it to exercise its jurisdiction,
the Court has, even if there has been some express
arrangement between the parties, an undoubted right,
and is, moreover, bound to interfere, if it perceives that
' its own process or jurisdiction is about to be used for
purposes which are not consistent with justice (h).
Cases do, however, occur, in which injury is caused by
the act of a legal tribunal, as by the laches or mistake of
its officer ; and where, notwithstanding the maxim as to
actus curiae, the injured party is altogether without
redress (i).
Lastly, it is the duty of a judge to try the causes set
down for trial before him, and yet, if he refused to hold
his court, although there might be a complaint in Parlia-
ment respecting his conduct, no action would lie against
liim (fc). So, in the case of a petition to the Crown to
establish a peerage, if, in consequence of the absence of
peers, a committee for privileges could not be held, the
claimant, although necessarily put to great expense, and
perhaps exposed to the loss of his peerage by death of
witnesses, would be wholly without redress (Z). In the
(*) Wade ▼. Simeon, 13 M. & W.
647 ; TJwmson v. Harding, 8 C. B.
N. S. 254 ; Sherborn v. Lord Hun-
lingtover, 13 C. B. N. S. 742;
Burns v. Chapman, 5 C. B. N. S.
4S1, 492.
(i) See Grace v. Clinch, 4 Q. B.
606 ; Letch v. Lamb, 11 Ex. 437 ;
In re Llanbeblig and Llandyfrydog,
15 L. J. M. 0. 92. In Winn v.
Nicholson, 7 C. B. 824, however,
Coltman, J., remarks that "no
doubt, the Court will correct the
mistake of its own officer." See
Wilkes v. Perks, 5 If. & Gr. 376 ;
Xazer v. Wade, 1 B. & S. 728 ;
Morgan v. Morris, 3 Macq. Sc. App.
Caa. 323.
(A) Ante, p. 85 etseq.
{I) Arg. 9 CI. k F. 27*.
120 THE MODE OF ADMINISTERING JUSTICE.
above, and other similar cases, a wrong might be inflicted
by a judicial tribunal, for which the law could supply no
remedy.
Actus Legis Nemini est damnosus. (2 Inst. 287.) —
An act in law shall prejudice no man (m).
Thus, the general principle is, that if a man marry his
debtor, the debt is thereby extinguished (n) \ but still a
case may be so circumstanced as not to come within that
rule ; for instance, a bond conditioned for the payment of
money after the obligor's death, made to a woman in
contemplation of the obligor s marrying her, and intended
for her benefit if she should survive, is not released by
the marriage, but an action will lie at her suit against the
executor ; and this results from the principle that the
law will not work a wrong, for the bond was given for the
purpose of making provision for the wife in the event of
her surviving the obligor, and it would be iniquitous to
set it aside on account of the marriage, since it was for
that very event that the bond was meant to provide (o).
So, where the authority given by law has been abused,
the law places the party so abusing it in the same situa-
tion as if he had, in the first instance, acted wholly with-
out authority (p) ; and this, it has been observed (q), is a
(m) 6 Rep. 68. Battle, 5 East, 147 ; 1 Prest. Abs. of
(n) 1 Inst. 264, b. Tit. 346.
(o) MUhoum v. Ewart, 5 T. R. (/>) 6 Bac. Ab. 559, Trespass (B.);
381, 385 ; Cage v. Acton, 1 Lord Six Carpenters* cote, 8 Rep. 290,
Raym. 515 ; Fitzgerald v. Fitzgerald, 1 Sm. L. C, cited under the maxim
L. R. 2 P. C. 83 ; Smith v. Stafford, acta exteriora indicant inter iora
Hobart, 216. See another instance secreta, post, Chap. V.
of rule, CaUandv, Troward, 2 H. (q) Arg. 11 Johnson (U. S.), R.
Bla. 324, 334 ; and see Nadin v. 380.
THE MODE OF ADMINISTERING JUSTICE.
121
salutary and just principle, founded on the maxim, that
the law wrongs no man : actus legis nemini facit in~
juriam.
Executio Juris non habet Injuriam. (2 Inst 482.) —
Legal process, if regular, does not afford a cause of
action.
It was a rule of the Roman, as it is of our own, law,
that if an action be brought in a court which has juris-
diction, upon insufficient grounds or against the wrong
party, no injury is thereby done for which an action can
be maintained — Is qui jure publico utiter non videtur
injuria^ faciendcB causd hoc facere, juris enim executio
non habet injuriam (?•) ; and Nullus videtur dolo facere
qui suo jure utitur («), he is not to be esteemed a
wrongdoer who merely avails himself of his legal rights.
(r) D. 47, 10, 13, 8. 1 ; Hobart,
266.
(«) D. 60, 17, 55.
In connection with this rule may
be noticed the following cases: —
If an individual prefers a complaint
to a magistrate and procures a war-
rant to be granted upon which the
accused is taken into custody, the
complainant in such case is not liable
in trespass for the imprisonment,
even though the magistrate had no
jurisdiction. Brown v. Chapman, 6
C. B. 365, 376. See further on this
subject, Broom's Com. One who
mistakenly prefers a charge against
another before a magistrate will not
be liable in trespass for a remand
judicially ordered by him. Lock v.
Ashton, 12 Q. B. 871. See also
Fretgard v. Barrier, 7 Ex. 827.
Nor is an execution creditor liable to
the person whose goods have been
wrongfully taken in execution for
damage sustained by him in conse-
quence of their sale under an inter-
pleader order, Walker v. Olding, 1
H. & C. 621. The above and similar
cases seem properly referable to the
rule, Nullus videtur dolo facere qui
jure suo utitur, D. 50, 17, 55.
On the other hand, a defendant
who is taken in execution under
a ca. sa. issued on a judgment
for less than £20, without the
order of the judge who tried the
cause, may maintain an action of
trespass against the plaintiff and his
122 THE MODE OF ADMINISTERING JUSTICE.
This is the primary meaning of the maxim. On the other
hand, if an individual, under colour of the law, does an
illegal act, or if he abuses the process of the Court to make
it an instrument of oppression or extortion, this is a fraud
upon the law, by the commission of which liability will be
incurred (t). In this, which is obviously a different sense,
the leading maxim has also been applied.
Example*. Jn a leading case (u), illustrative of this latter propo-
sition, the facts were as follows : — A ca. «a. having been
sued out against the Countess of Rutland, and the officers
entrusted with the execution of the sheriff's warrant being
apprehensive of a rescue, the plaintiff was advised to
enter a feigned action in London, according to the custom,
against the said countess, to arrest her thereupon, and
then to take her body in execution on the ca. sa. In pur-
suance of this advice, the countess was arrested and taken
to the Compter, "and at the door thereof the sheriff
came, and carried the countess to his house, where she
remained seven or eight days, till she paid the debt." It
was, however, held, that the said arrest was not made by
force of the writ of execution, and was, therefore, illegal ;
" and the entering of such feigned action was utterly con-
demned by the whole Court, for, by colour of law and
justice, they, by such feigned means, do against law and
justice, and so make law and justice the author and cause
of wrong and injustice."
attorney ; Brooks v. Hodgkinson, 4 being used for tbe purpose of oppres-
H. & N. 712. See Gilding v. Eyre, sion and injustice." Per Jervis, C.
IOC. B. N. S. 592; Hufferv. Allen, J., Webb v. Adkins, 14 C. B. 407.
L. R. 2 Ex. 15. See AlUyne v. Reg., 5 K. k B. 399 ;
(t) See per Pollock, C.B., Smith M'Gregor v. Barrett. 6 C. B. 262 ;
v. Montxith, 13 M. & W. 439. "The ante, p. 120.
Court has a general superintending (u) Countess of Rutland's case, 6
power to prevent its process from Hep. 53.
THE MODE OF ADMINISTERING JUSTICE. 123
Again, in Hooper v. Lane (x) it was held in accordance
with the spirit of the maxim under oar notice, that if the
sheriff having in his hands two writs of ca. sa., the one
valid and the other invalid, arrests on the latter only, he
cannot afterwards justify the arrest under the valid writ.
Nor can the sheriff, whilst a person is unlawfully in his
custody by virtue of an arrest on an invalid writ, arrest
that person on a good writ : " to allow the sheriff to make
such an arrest while the party is unlawfully confined by
him, would be to permit him to profit by his own wrong (y)
and therefore cannot be tolerated " (z).
We shall hereafter (a) have occasion to consider the
general doctrine respecting the right to recover money
paid under compulsion. We may, however, take this
opportunity of observing, that, where such compulsion
consists in an illegal restraint of liberty, a contract
entered into by reason thereof will be void ; if, for
instance, a man is under duress of imprisonment, or if,
the imprisonment being lawful, he is subjected to undue
and illegal force and privation, and in order to obtain
his liberty, or to avoid such illegal hardship, he enters
into a contract, he may allege this duress in avoidance
of the contract so entered into ; but an imprisonment is
not deemed sufficient duress to avoid a contract obtained
through the medium of its coercion, if the party was in
proper custody under the regular process of a court of
competent jurisdiction ; and this distinction results from
the above rule of law, executio juris non habet in-
juriam (b)
(jr) fi H. L. Cas. 443. (a) See the maxim, Volenti non
(y) Post, Chap. V. fit injuria, pott, Chap. V.
(z) Per Lord Cranworth, 6 H. L. (6) 2 Inst. 482 ; Stepney v. Uoyd,
Cas 551. Cro. Elis. 646; Anon., 1 Lev. 68 ;
124
THE MODE OF ADMINISTERING JUSTICE.
Further, although, as elsewhere stated, an action will
not lie to recover damages for the inconvenience occa-
sioned to a party who has been sued by another without
reasonable or sufficient cause (c), yet, if the proceedings
in the action were against A., and a writ of execution is
issued by mistake against the goods of B., trespass will
clearly lie, at suit of the latter, against the execution
creditor (d), or against his attorney, who issued execu-
tion (e) ; and where an attorney deliberately directs the
execution of a warrant, he, by so doing, takes upon him-
self the chance of all consequences, and will be liable in
trespass if it prove bad (/). In cases similar to the above,
however, the maxim as to executio juris is applicable, if
at all, only in the secondary sense above noticed ; because
the proceedings actually taken are not sanctioned by the
law, and therefore the party taking them, although acting
under the colour of legal process, is not protected.
In Fictione Juris semper ^Equitas existit. (11 Rep.
51.) — Equity is the life of a legal fiction (g).
The meaning of fiction in English law is not easily
defined. Fictio, in the old Roman system, was a tech-
Watcrer v. Freeman , Hobart, 266 ;
R. v. Southcrton, 6 East, 140 ;
Anon, Aleyn, R. 92 ; 2 Roll. R.
301.
(c) Per Rolfe, R, 11 M. & W.
7 "6 ; and cases cited under the maxim
r hi jus, ibi rcm.cdiu.rn, post, Chap. V.
id) Jarmiin v. Hooper, 7 Scott,
N.R. 663; Walley v. M'Connell,
13 Q. B., 903 ; see Ristley v. Rylc,
11 M. & W. 16 ; Collett v. Foster, 2
H. & N. 356 ; Churchill ▼. Siggtrs,
3E.&B. 929 ; Roret v. Letch, 5 D.
& L. 371 ; Dimmack v. Bowlcy, 2
C. R N. S. 542.
(e) Davits v. Jenkins, 11 M. &
W. 745 ; Routes v. Senior, 8 Q. B.
677, and cases there cited.
(/) Gi«» v. Ebjit, 5 Q. B. 99.
(j) 3 Bl. Com. 43; Co. Litt. 150
a. ; 10 Rep. 40 a. ; 11 Rep. 50 a.
THE MODE OF ADMINISTERING JUSTICE. 125
nical form of pleading, a false averment by one party
which the other was not allowed to traverse, ex. gr. that, a
peregrinus was a Roman citizen (h). It is, therefore,
defined by the commentators as nihil aliiul quam legis
adverms veritatem in re possibili ex justd causd dis-
positio (i). The strict meaning of fiction in English
jurisprudence is closely allied to prcemmptio juris et de
jure, or irrebuttable presumption of law. There is, how-
ever, this difference, that a presumption of law de jure
assumes a fact which may or may not be true, but which
is probably true; while in fiction the falsehood of the
assumption is understood and avowed (k). Super falso
et certo frigitur, mper incerto et vero jure sumitur.
Thus the presumption that a child under seven is doll
incapax is probably true, but the fiction was almost cer-
tainly false that the plaintiff in former times suing in the
Court of Exchequer, was an accountant to the Crown (/),
and avowedly so that a contract entered into on the
high seas had been made at the Royal Exchange in
London (m). The object of fiction will be apparent if it
be considered that every decision of a court of justice
involves a syllogism, of which the major premiss is a
general proposition of law, the minor is supported by the
facts of the particular case, and the conclusion is the deci-
sion of the Court. In the infancy of jurisprudence pro-
positions of law were rigid, unbending rules, which
lawyers were loath to qualify or weaken by exceptions.
In order to arrive at that conclusion to the syllogism
(h) Mayne, Ancient Law, Ch. 2. (*) Best on Presumptions of Law
(i) Gothofred ad Dig. lib. 22, tit. p. 24. '
3, b. 3. Sheffield v. Xadcliffe, 2 Rol. (J) 3 BL Com. 46.
B. 502. Palm, 354. Pinch, C. L. (*) 3 Bl. Com. 107, 4 Inst. 134
Bk. 1, c. 5.
126
THE MODE OF ADMINISTERING JUSTICE.
which justice obviously demanded, the major premiss
was not touched, but by a fiction of law something was
assumed in the minor which was avowedly not true. An
examination of the older cases would seem to show that
fiction originally operated by an averment in the record,
which, although known to be false, was for the purpose of
doing substantial justice assumed to be true. It must,
however, be remarked that fiction is frequently employed
in a less accurate sense to include the extension by Courts
of Equity of Rules of Law (n). The modification of
pleading in modern times has tended to diminish the ope-
ration of fiction strictly so called, although the effect of
its former prevalence is ineradicable. The tendency to
set out with truth and detail the actual facts of a case is
incompatible with the use of fictitious averments, which
are no longer necessary, when the rules of law are them-
selves modified and developed so as to meet the ends of
justice. The analogy between fiction and presumption
juris et de jure has been already noticed. It may here be
added, that while the latter may never be rebutted, and
are absolute propositions of the law ; of fiction, it has been
said, " Although it shall never be contradicted so as to
defeat the ends for which it was invented, for every other
purpose, it may be contradicted " (o). It is not to be used
(n) The doctrine that " money to
be laid oat in land is to be treated as
land," long established in Courts of
Equity, " is in truth a mere fiction."
Vide per Kelly, C.B. in Re De
Lancejf, L. R. 4 Ex. 358 ; S. C,
affirmed, 5 Id. 102. So the doctrine
that a deed executing a power refers
back to the instrument creating the
power, so that tho appointee takes
under him who created the power,
and not under him who executes it,
has been called a fiction ; and so it
was considered in BartleU ▼. Rams-
den, 1 Keb. 570. See also per Lord
Hardwicke, C, Duke of Marlborough
v. Lord Godolphin, 2 Ves. sen. 78,
who explains the above proposition ;
Clerc't case, 6 Rep. 17.
(o) Mostyn v. Fabrigas, per Lord
Mansfield, Cowp. 177 ; per Bramwell,
B., A.-G. t. Kent, 1E&C, 28,
THE MODE OF ADMINISTERING JUSTICE. 127
at all, except " ad conciliandam sequitatem cum ratione et
subtilitate juris" (p). Since equity is the life of legal
fiction, where substantial justice does not require its
interference, still more where it would suffer from its ope-
ration, fiction has no place (<?). Fictions, therefore, are
only to be made for necessity, and to avoid mischief (r), and
must never be allowed to work prejudice or injury to an
innocent party (a). Fictio legis neminevi loedit, nemini
operatur damnum vel injuriam (t).
The following examples must suffice to illustrate the Examples.
important rule which we have been discussing. If a man
disseises me, and during the disseisin cuts down the
trees or grass, or the corn growing upon the land, and
afterwards I re-enter, I shall have an action of trespass
against him, for after my regress the law as to the
disseisor and his servants supposes the freehold always
to have continued in me; but if my disseisor makes a
feoffment in fee, gift in tail, or lease for life or years,
and afterwards I re-enter, I shall not have trespass
against those who came in by title; for this fiction of the
law, that the freehold always continued in me, is moulded
to meet the ends of justice, and shall not, therefore, have
relation to make him who comes in by title a wrongdoer,
but in this case I shall recover all the mesne profits
against my disseisor (u). It has been held also in a
modern case (x), that, although the customary heir of a
(j>)Soct.adPand. 22,3,Voctn.l9. (t) 2 Rol. R. 502; Palmer, 854;
(q) Johnson r. Smith, 2 Burr. 962, also 3 Rep. 36 a.
per Lord Mansfield, C.J. ; and see («) Liffortfs case, 11 Rep. 51;
10 Rep. 40, Id. 89. Hobart, 98, cited per Coleridge, J.,
(r) 3 Rep. 30 a, Butter and Baker's Garland v. Carlisle, 4 CI. & Pin.
case. 710.
(*) Hid. 29 b. ; 11 Rep. 51 a. ; (a?) BarneU v. Earl of Guildford,
13 Rep. 21a. 11 Ex. 19, 83.
128 THE MODE OF ADMINISTERING JUSTICE.
copyhold tenement cannot maintain trespass without
entry, there is after entry a relation back to the time
of accruing of the legal right to enter, so as to support
an action for trespasses committed prior to such entry;
this relation being "created by law for the purpose of
preventing wrong from being dispunishable upon the
same principle on which the law has given it in other
cases."
Again, although for some other purposes the whole
assizes are to be considered as one legal day, " the Court
is bound, if required for the purpose of doing substantial
justice, to take notice that such legal day consists of
several natural days, or even of a fraction of a day."
Evidence may therefore be adduced to show that an
assignment of his goods by a felon bond fide made for a
good consideration after the commission day of the
assizes, was in truth made before the day on which he
was tried and convicted, and, on proof of such fact, the
property will be held to have passed by the assign-
ment (y).
And in a recent case, where it appeared that the writ
was issued on the 2nd of July, and on the same day, but
before the issuing of the writ, the cause of action arose, it
was argued, on demurrer, that the issuing of the writ of
summons being a judicial act, must be considered as
having taken place, at the earliest moment of the day,
and therefore before the cause of action accrued. It was
held, however, that the Court could take cognizance of
(y) Whitoker v. Wisbey, 12 C. B. an analogous fiction relating to judg-
44, 58, 59. See Reg. r. Edwards, ments in LyUUton y. Cross, SB. &C.
and Wright y. Mills, cited ante, p. 817, 325, but now vide Rules of
67, and the maxim de minimis non Court, 1883, 0. XLI. r. 3.
curat Ux, post. There was formerly
THE MODE OF ADMINISTERING JUSTICE. 129
the fact, that the writ did not issue until after the act
had been committed for which the penalty was sought to
be recovered (z).
Still less will a legal fiction be raised so as to operate
to the detriment of any person, as in destruction of a
lawful vested estate, for fictio legis inique operator
alicui damnum vd injui*iam (a). The law does not
love that rights should be destroyed, but, on the contrary,
for the supporting of them invents notions and fictions (b).
And the maxim in fictione juris subsistit cequitas is
often applied by our Courts for the attainment of substan-
tial justice, and to prevent the failure of right (c).
" Fictions of law," as observed by Lord Mansfield, " hold
only in respect of the ends and purposes for which they
were invented. When they are urged to an intent and
purpose not within the reason and policy of the fiction,
the other party may show the truth " (d).
Cursus Curle est Lex Curijs. (3 Bulst. 53.)—T7ie
practice of the Court is the law of the Court (e).
"Every court is the guardian of its own records and
master of its own practice " (/) ; and where a practice
(2) Clarke v. Bradlaugh, 7 Q. B. Freeman v. Tranah, 12 C. B. 414.
D. 151 ; 50 L. J. Q. B. 678. « The power of each Court over its
(a) 3 B«p. 86 ; per Cur. Waring own prooe88 is unlimited ; it is a
t. Dewbury, Gilb. Eq. R. 223. poWer incident to all Courts, inferior
(b) Per Gould, J., Cage v. Acton, M weu M superior ; were it not so,
1 Lord Raym. 516, 517. the Court would be obliged to sit Btill
(e) Low v. Little, 17 Johnson, R. an(j eee its own process abused for the
(U. S.), 348. purpose of injustice." Per Alderson,
(rf) Morris v. Pugh, 3 Burr. 1243. B> Cocher v Tempest, 7 M. & W.
(e) "It was a common expression 502, cited, per Willes, J., Stammers
of the late Chief Justice Tindal, that v. Hughes, 18 C. B. 535.
the course of the Court is the practice (/) Per Tindal, C. J., Scales v.
of the Court ;" per Cresswell, J., Cheese, 12 M. & W. 687; Gregory v.
130
THE MODE OF ADMINISTERING JUSTICE.
has existed it is convenient (unless in cases of extreme
urgency and necessity (g) to adhere to it, because it is
the practice, even though no reason can be assigned for
it(Zt); for an inveterate practice in the law generally
stands upon principles that are founded in justice and
convenience (i). Hence, if any necessary proceeding in
an action be informal, or be not done within the time
limited for it, or in the manner prescribed by the practice
of the Court, it may sometimes be set aside for irregularity,
for via trita via tuta (Jc) ; and the Courts of law will not
sanction a speculative novelty without the warrant of any
principle, precedent, or authority (t).
It has been remarked, moreover, that there is a material
distinction between those things which are required to be
done by the common or statute law of the land, and
things required to be done by the rules and practice of the
Court. Anything required to be done by the law of the
land must be noticed by a court of appellate jurisdiction,
but such a court does not of necessity regard the practice
of an inferior one(m). In matters of procedure and
practice, as in matters of discretion, the practice of the
Duke of Brunswick, 2 H. L. Cas.
415 ; Mdlish ▼. Richardson, 1 CI.
& Fin. 221, cited Neioton v. Boodle,
6 0. B. 529 ; per Alderson, B., Ex
parte Story, 8 "Ex. 199 ; Jackson v.
Galloway, 1 C. B. 280 ; Beg. v. Jus-
tices of Denbighshire, 15 L. J. Q. B.y
335 ; per Lord Wynford, Ferrier t.
Howdcn, 4 CI. & Fin. 32. But see
Fleming v. Dunlop, 7 CI. & Fin. 43.
ig) See, for instance, Finney v.
Beesley, 17 Q. B. 86.
(h) Per Lord Ellenborough, C. J.,
BoviU 7. Wood, 2 M. & S. 25 ; 15
East, 226 ; per Lord Campbell, C. J.,
Edwards ▼. Afartyn, 21 L. J. Q. B.
88 ; S. C. 17 Q. B. 693.
(0 Per Lord Eldon, C, Buck,
279. See per Lord Abinger, C. B.,
Jacobs t. Layborn, 11 M. & W. 690.
(*) Wood v. Uurd, 3 B. N. C. 45 ;
10 Rep. 142.
(Z) See jodgm. Ex parte Oversews
ofToUerton, 3Q. B. 799.
(to) Per Holroyd, J., Sandon v.
Proctor, 7 B. & C. 806, cited arg.
Bradley v. Warburg, 11 M. & W.
455.
THE MODE OP ADMINISTERING JUSTICE. 131
House of Lords has been not to interfere with the
decisions of courts below, unless perfectly satisfied that
they are based upon erroneous principles (n).
Lastly, even where the course of practice in criminal
law has been unfavourable to parties accused, and con-
trary to the principles of justice and humanity, it has
been held that such practice constituted the law, and
could not be altered without the authority of Parlia-
ment (o).
Consensus tollit Erborem. (2 Inst. 123.)— The acqui-
escence of a party who might take advantage of an
error obviates Us effect.
In accordance with this rule, if the venue in an action
is laid in the wrong place, and this is done per assensum
partium, with the consent of both parties, and so entered
of record, it shall stand (p) ; and where, by consent of both
plaintiff and defendant, the venue was laid in London, it
was held, that no objection could afterwards be taken to
the venue, notwithstanding it ought, under a particular
Act of Parliament, to have been laid in Surrey, for per
Curiam — Consensus tollit errorem (q). Consent cannot,
however (unless by the express words of a statute), give
jurisdiction (r), for mere nullity cannot be waived.
(») Per Lord Selborne, Cowan v. Hob. 5.
Duke ofBucdeugh, 2 App. Gob. 344, (q) Furniral v. Stringer, 1 B. N.
at p. 847. C. 68.
(o) Per Maule, J., 8 Scott. N. R., (r) See Andrewes v. Elliott, 6
599, 600. K. & B. 388 (recognised in Tyerman
(p) Fineux ▼. Hovenden, Cro. Eliz. v. Smith, tb. 719, 724), which illns-
664 ; Co. Litt. 126, a., and Mr. trates the above maxim ; Lawrence
Hargrave'a note (1); 5 Rep. 37; v. WUcoch, 11 A. & E. 941 ; Van-
Dyer, 367. See Crow v. Edwards, sittart v. Taylor, 4 E. & B. 910,912.
132
THE MODE OF ADMINISTERING JUSTICE.
Doctrine of
waiver.
Pleading.
On the maxim under consideration depends also the
important doctrine of waiver, that is, the passing by of a
thing («) ; a doctrine which is of veiy general application
both in the science of pleading and in those practical pro-
ceedings which are to be observed in the progress of a
cause from the first issuing of the writ to the ultimate
signing of judgment and execution.
With reference to pleading, however, the rule, that an
error will be cured by the consent or waiver of the oppo-
site party, must be taken with considerable limitation ;
a mere mistake in form is now of little moment, but in
the time of Lord Holt such an error might have defeated
a substantial case, and was condoned if the other party
pleaded over to it (t). The effect of a demurrer was to
admit the truth of all matters which were sufficiently
stated in the pleading demurred to, a result which might
be obviated by obtaining leave to plead and demur to the
same matter. The equivalent of which can now be
attained without leave by raising the point of law upon
the pleadings (u). By pleading over, however, a party
was not formerly considered to waive his right to take
subsequently any substantial objection in law to the
pleading of the other side. It is conceived that, under
the system introduced by the Rules of 1883 (x), this must
still be the case. For the judgment of the Court must
ultimately be based upon and consistent with the record,
and cannot give to a party that to which, upon his own
shewing, he is not in law entitled. It must not, however,
(*) Toml. Law. Diet. tit. Waiver.
See Earl of Darnlcy, v. London,
Cfoatham, and Dover & C, L. R.
2 H. L. 43 ; JRamsden v. Dyson, L.
KIEL. 129, cited post.
(0 Anon. 2 Falk. 519.
(u) Rules, 1883, 0. XXV. r. 2.
(x) Except in cases where the
defendant relies upon the Statute of
Frauds or Limitations, which must
now, as formerly, be pleaded. 0.
XIX. r. 15.
THE MODE OF ADMINISTERING JUSTICE. 133
be forgotten that the Courts now use the widest dis-
cretion in directing such amendments as may be necessary
in order to determine the real question in controversy (y).
When applied to the proceedings in an action, waiver Practice.
may be defined to be the doing something after an
irregularity committed, and with a knowledge of such
irregularity, where the irregularity might have been cor-
rected before the act was done; and it is essential to
distinguish a proceeding which is merely irregular from
one which is completely defective and void. In the latter
case the proceeding is a nullity, which cannot be waived
by any laches or subsequent proceedings of the opposite
party.
Where, however, an irregularity has been committed,
and where the opposite party knows of the irregularity,
it is a fixed rule observed by all the Courts in this
country, that he should come in the first instance to
avail himself of it, and not allow the other party to pro-
ceed to incur expense. " It is not reasonable afterwards
to allow the party to complain of that irregularity, of
which, if he had availed himself in the first instance, all
that expense would have been rendered unnecessary " (z) ;
and, therefore, if a party, after any such irregularity has
taken place, consents to a proceeding which, by insisting
on the irregularity, he might have prevented, he waives
all exceptions to the irregularity (a). This is a doctrine
(y) Jud. Act, 1873, s. 24, s-s. 7, Beretford v. Geddes, L. B. 2 0. P.
Boles, 1888, 0. XXVIII. r. 2. 285, 26 L. J. C. P. 116 ; Moseley v.
(s) Per Lord Lyndhurst, C, St. Simpson, L. E. 16 Eq. 226 ; 42 L.
Victor v. Devereux, 14 L. J., Ch. J. Ch. 739. Ex parte Moore, 2
246. Oh. D. 802. Ex parte Morgan, 2
(a) Ex parte Alcack, 10. P. D. 68; Ch. D. 772, 45 L. J. Bk. 36,
45 L. J. C. P. 86. Ex parte Yeatmaa, per Brett, J.
16 Ch. D. 283; 44 L. T. 260.
134 THE MODE OF ADMINISTERING JUSTICE.
long established and well known, and extends so far, that
a person may be materially affected in a subsequent
criminal prosecution by proceedings to the irregularity of
which he has, by his silence, waived objection (ft).
il'ient1 ^ mav ^P6811 *n some measure superfluous to add, that
the consent which cures error in legal proceedings, may be
implied as well as expressed : for instance — where, at the
trial of a cause, a proposal was made by the judge in
the presence of the counsel on both sides, who made no
objection, that the jury should assess the damages contin-
. gently, with leave to the plaintiff to move to enter a
verdict for the amount found by the jury, it was held that
both parties were bound by the proposal, and that the
plaintiff's counsel was not therefore at liberty to move for
a new trial on the ground of misdirection (c), for qui tacit
consentire videtur (d), the silence of counsel implied their
assent to the course adopted by the judge, and " a man
who does not speak when he ought shall not be heard
when he desires to speak (e).
Communis Error facit Jus. (4 Inst, 240.) — Common
erroi* sometimes passes current as law.
Rtiipami The law so favours the public good, that it will in some
example.
(6) Reg. v. TFiddop, L K 2 C. C. Houldsworth ▼. Evans, L. H. 3 H.
R. 3 ; 42 L. J. M. C. 9. L. 263.
(c) Morrishr. Murrey, 13 M. & (c) 2 Comstock (U. S.), R. 281.
W. 52. Booth v. dive, 10 C. B. See Martin t. Great Northern R. C,
827 ; Hughes v. Great Western R. 16 C. B. 179, 196-7 ; Perry v.
C 14 C. B. 637. Sec also Harrison Davis, 3 C. B. N. S. 769 ; Beaudry
v. Wright, 13 M. & W. 816. y. Mayor, &c. of Montreal, 11 Moo.
(d) Jenk. cent 32. See judgment, P. C. 0. 399.
Gosling ▼. Yeley, 7 Q. B. 455 ;
THE MODE OF ADMINISTERING JUSTICE.
135
cases permit a common error to pass for right (/) ; as an
instance of which may be mentioned the case of common
recoveries, which were fictitious proceedings introduced by
a kind of pia fraus to elude the statute de Donis, and
which were at length allowed by the courts to be a bar to
an estate tail, so that these recoveries, however clandes-
tinely introduced, became by long use and acquiescence
a most common assurance of lands, and were looked upon
as the legal mode of conveyance whereby tenant in tai
might dispose of his lands and tenements (g).
However, the above maxim, although well known, and Rule must
therefore here inserted, must be received and applied with
very great caution.
"It has been sometimes said," observed Lord Ellen-
borough, " communis error fadt jus ; but I say, com-
munis opinio is evidence of what the law is — uot where
it is an opinion merely speculative and theoretical, floating
in the minds of persons ; but where it has been made*
the groundwork and substratum of practice " (k). So it
was remarked by another learned and distinguished
judge (i), that he hoped never to hear this rule insisted
(/) Noy, Mar., 9th ed., p. 37 ; 4
Inst. 240 ; per Blackburn, J., Reg.
v. Justice* of Sussex, 2 B. & S. 680,
and in Jones ▼. Tapling, 12 C. B.
N. 8. 846, 847 ; S. C, 11 H. L. Cas.
290 ; Waltham ▼. Sparkes, 1 Lord
Raym. 42. Soe also the remarks of
Lord Brougham in Phipps v. Ackers,
9 CI. k Fin. 598 (referring to Cadett
t. Palmer, 10 Bing. 140), and in
the Earl of Waterford's Peerage
claim, 6 CI. & Fin. 172 ; also in
Devaynes t. Nolle, 2 Buss. & My.
506 ; Janvrin v. De la Mart> 14
Moo. P. C. C. 834.
(g) Noy, Max., 9th ed., pp. 37,
38 ; Plowd. 33 b.
(A) Isherwood t. Oldknow, 3 M.
& S. 396, 397 ; per Vaughan, B.,
cited in Treharne v. Layton, L. R. 10
Q. B. 459, at p. 463, 44 L. J. Q.
B. 202 ; Garland v. Carlisle, 2 Cr.
& M. 95 ; Co. Litt. 186, a.
(t) Mr. Justice Foster, cited per
Lord Kenyon, C. J., R. y. Ermcell,
3 T. R. 725 ; arg. Smith v. Edge, 6
T. R. 563.
136 THE MODE OF ADMINISTERING JUSTICE.
upon, because it would be to set up a misconception of
the law in destruction of the law ; and, in another case,
it was observed that " even communis error, and a long
course of local irregularity, have been found to afford no
protection to one qui spondet peritiam artisfj). Some
useful and stringent remarks on the practical application
and value of the above maxim were made also by Lord
Denman, C. J., delivering judgment in the House of
Lords, in a well-known case, involving important legal
and constitutional doctrines ; in the course of this judg-
ment, which is well worthy of careful perusal, his lordship
took occasion to remark, that a large portion of the legal
oinnioii which has passed current for law falls within the
description of " law taken for granted ; " and that, " when
in the pursuit <tf truth, we are obliged to investigate the
grounds of the law, it is plain, and has often been proved
by recent experience, that the mere statement and re-
statement of a doctrine — the mere repetition of the
cantilena of lawyers— cannot make it law, unless it can
be traced to some competent authority, and if it be irre-
concileable to some clear legal principle " (&).
The foregoing remarks may be thus exemplified : A
general understanding had prevailed, founded on the
practice of a long series of years, that if patented inven-
tions were used in any of the departments of the public
service, the patentees would be remunerated by the
ministers or officers of the crown administering such
departments, as though the use had been by private
0") 6 CL & Fin. 199. to HuUon v. Balm, and Reg. v.
(k) Lord Denmau'e judgment in MiUis, id., pp. 23, 24. Et vide
O'Conndl ▼. Reg., edited by Mr. per Pollock, C. B., 2 H. & N. 139.
Leahy, p. 28. See also the allusions
THE MODE OF ADMINISTEBINQ JUSTICE. 137
individuals. In numerous instances payments had been
made to patentees for the use of patented inventions in
the public service, and even the legal advisers of the
Crown appeared also to have considered the right as well
settled. There was, further, little doubt that on the faith
of the understanding and practice many inventors had,
at great expense of time and money, perfected and
matured inventions, in the expectation of deriving a
portion of their reward from the adoption of their inven-
tions in the public service. It was, nevertheless, held
that the language of the patent should be interpreted
according to the legal effect of its terms, irrespective of
the practice (I).
But where a decision of the Courts, originally wrong, or
an erroneous conception of the law, especially of real
property, has been made, for a length of time, the basis
upon which rights have been regulated and arrangements
as to property made. In such case the maxim, com-
munis error facitjus applies (m). Indeed, this is strictly
in accordance with the view of Lord Ellevhorough, above
cited, and it will be found, that where the Courts of
justice have declined to correct misconceptions of long
standing, the reluctance has been due to a wholesome
fear of interference with titles and vested rights based
upon them (n).
(0 Feathers v. Reg., 6 B. & S. 5 App. Cas. 925, at p. 948; and
289, 292. Campbell v. Campbell, ibid 787, at
(to) Davidson v. Sinclair, 3 App. p. 81 5.
Cas. 765, at p. 788, per Lord Black- (») See pottea omnia innovatio,
burn, and see bis remarks in Dalton &c., and the case of Bain v. Fother-
v. Angus, 6 App. Caa. 812 ; 50 L. gill, L. R. 7 H. L. 158, per Lord
J. Q. B. 089. As to errorof convey- Hatherley, at pp. 208, 209, 43 L. J.
ances in tbe judgment of Lord Black- Bz. 243.
burn, in Brownlie v. Campbell,
138
THE MODE OF ADMINISTERING JUSTICE.
De minimis non curat Lex. (Cro. Eliz. 353.) — The
law does not concern itself about trifle*.
Courts of justice do not in general take trifling and
immaterial matters into account (o), except under peculiar
circumstances, such as the trial of a right, or where per-
sonal character is involved (p), they will not, for instance,
take notice of the fraction of a day, except in those cases
where there are conflicting rights, for the determination of
which it is necessary that they should do so (q) ; as, for
instance, in a claim for demurrage of a ship, in which case
it has been expressly held, that a fraction of a day counts
for a day (?').
A familiar instance of the application of this maxim
damages are occurs likewise in the rule observed by the Courts at
KliJUlU *
Westminster, that new trials shall not be granted, at the
instance either of plaintiff or defendant, on the ground of
the verdict being against evidence, where the damages are
less than £20 (s).
" In ordinary," as remarked by Lord Kenyon, C. J. (t),
Now trial
when the
(o) Bell, Diet and Dig. of Scotch
Law, 284 ; per Sir. W. Scott* 2 Dods.
Adm. R., 163 ; Oraham v. Bern/, 3
Moo. P. C. C. N. S. 223.
(ji) Joyce v. Metrop. Bd. of Works,
4 L. T. 81.
(q) Judgm., 14 M. & W. 582 ; per
Holt, C. J., 2 Lord Raym. 1095 ;
Reg. v. St. Mary, Warwick, 1 E.
6 B. 816 ; Wright v. Mills, 4 H.
k N. 488, 493,494 ; Evans y. Jonc,
3 H. & C. 423 ; Page v. Moore, 15
Q. B. 684-6 ; Clarke v. Bradlaugh,
7 Q. B. D. 151 ; Campbell v. Strange-
ways, 8 C. P. D. 105; 37 L. J. M. C. 6.
In case of copyright, see Boosey v.
Purday, 4 Exch. 145 ; Chatterton y.
L. R. 10 C. P. 573.
(r) Commercial S. S. Company v.
Boullon, L. & 10 Q. B. 346.
(*) Branson v. Dulsbury, 12 A. &
E. 631 ; Manion r. Bales, 1 C. B.
444 ; Macro w v. Hull, 1 Burr. 11 ;
Burton v. Thompson, 2 Burr. 664 j
Apps ▼. Bay, 14 C. B. 112 ; Haxo-
kins v. Alder, 18 C. B. 640 ; see
Allum v. BouUbee, 9 Exch. 738,
743 ; per Maule, J., 11 C. B. 653.
(0 Wilson v. BastaU, 4 T. R.
753. See Vaughan v. Wyatt, 6 M.
& W. 496, 497 ; per Parke, B.,
Twigg v. Potts, 1 Or., M. & R. 93 ;
THE MODE OF ADMINISTERING JUSTICE.
139
"where the damages are small, and the question too
inconsiderable to be retried, the Court have frequently
refused to send the case back to another jury. But
wherever a mistake of the judge has crept in and swayed
the opinion of the jury, I do not recollect a single case
in which the Court have ever refused to grant a new
trial.1'
In further illustration of the maxim, de minimis non ™m?s
1 injuries.
curat lex, we may observe that there are some injuries
of so small and little consideration in the law that no
action will lie for them (u) ; for instance, in respect to
payment of tithe, the principle which may be extracted
from the cases appears to be, that for small quantities of
com, involuntarily left in the process of raking, tithe shall
not be payable, unless there be any particular fraud or
intention to deprive the parson of his full right. Where
however a farmer pursued such a mode of harvesting
barley, that a considerable quantity of rakings was left
scattered after the barley was bound into sheaves, the
Court held, that tithe was payable in respect of these
rakings, although no actual fraud was imputed to the
farmer, and although he and his servants were careful to
leave as little rakings as possible in that mode of har-
vesting the crop (#).
Lee r. Evans, 12 C. B. N. S. 368 ;
Mostyn v. Coles, 7 H. & N. 872,
876. In Haine v. Davey, 4 A. & E.
8? 2, a new trial was granted for
misdirection, though the amount
in question was less than £1. See
Poole t. WkUcomb, 12 C. B. N. S.
770.
(m) See per Powys, J., Athby y.
White, 2 Lord Raym. 944, answered
by Holt, C. J., id. 953 ; Whitcher v.
IfaB, 5 B. & C. 269, 277 ; 2 Bla.
Com. 21st ed., 262, where the rule
respecting land gained by alluvion is
referred to the maxim treated of in
the text. The maxim "would apply
only with respect to gradual accre-
tions not appreciable except after the
lapse of time," per Pollock, C. B., 2
H. & N. 138 ; and in Ford v. Lacey
7 id. 155.
(x) Glanville v. Stacey, 6 B. &, C.
543.
140
THE MODE OF ADMINISTERING JUSTICE.
Trespass to
realty.
It may be observed, however, that for an injuiy to real
property incorporeal, an action may be supported, how-
ever small the damage, and therefore a commoner may
maintain an action on the case for an injury done to the
common, though his proportion of the damage be found
to amount only to a farthing (y).
Where trifling irregularities or even infractions of the
strict letter of the law are brought under the notice of the
Court, the maxim de minimis non curat lex is of frequent
practical application (z). It has, for instance, been applied
to support a rate, in the assessment of which there were
some comparatively trifling omissions of established
forms (a). So, with reference to proceedings for an in-
fringement of the revenue laws (6), Sir W, Scott observed
— " The Court is not bound to a strictness at once harsh
and pedantic in the application of statutes. The law
permits the qualification implied in the ancient maxim,
de minimis non curat lex. Where there are irregu-
larities of very slight consequence, it does not intend that
the infliction of penalties should be inflexibly severe. If
the deviation were a mere trifle, which, if continued in
practice, would weigh little or nothing on the public
interest, it might properly be overlooked."
(y) Pindar v. Wadsvmth, 2 East,
154. See 22 Vin. Abr. "Waste,"
(N.); Harropv. Hirst, L. R. 4 Ex.
43, and other cases cited post, Chap.
V.
(2) 8ee in connection with criminal
liability for a nuisance, Reg. v.
Charlmcorth, 16 Q. B. 1012 ; Reg.
v. Bctts, id. 1022 ; Reg. v. Russell,
3 E. & B. 942.
(a) White v. Beard, 2 Curt. 493.
But where the amount of a poor-
rate so roach in the pound on the
assessable value of premises involves
the fraction of a farthing, a demand
by the overseer of the whole farthing
is excessive and illegal. Morton,
app., Brammer, resp., 8 C. B. N. S.
791, 798, citing Baxter v. Eaulani,
1 Wils. 129.
(b) "The Reward, 2 Dods. Adm. R,,
269, 270.
THE MODE OF ADMINISTERING JUSTICE. 141
Lastly, in an indictment against several for a misde- indictment
meanour all are principals, because the law does not meanour.
descend to distinguish different shades of guilt in this
class of offences.
Omnis Innovatio plus Novitate perturbat quam
Utilitate prodest. (2 Bulstr. 338.)— Every inno-
vation occasions move harm and derangement of
order by its novelty, than benefit by its abstract
utility.
It has been an ancient observation in the laws of
England, that, whenever a standing rule of law, of which
the reason, perhaps, could not be remembered or dis-
cerned, has been wantonly broken in upon by statutes or
new resolutions, the wisdom of the rule has in the end
appeared from the inconveniences that have followed the
innovation (c) ; and the judges and sages of the law have
therefore always suppressed new and subtle inventions in
derogation of the common law (d).
It is, then, an established rule to abide by formtr
precedents, stare decisis, where the same points come
again in litigation, as well to keep the scale of justice
even and steady, and not liable to waver with every new
judge's opinion, as also, because the law in that case
being solemnly declared and determined, what before
was uncertain and perhaps indifferent, is now become a
(c) 1 Black. Com. 60. See Ram's living creatures at first are ill-shapen,
Science of Legal Judgment, 112 so are all innovations which are the
ct 9tq. births of time."
Lord Bacon tells us in his Essay on (d) Co. Litt. 282 b., 879 b. ; per
Innovations, that, " as the births of Grose. J., 1 M. & S. 394.
142
THE MODE OF ADMINISTERING JUSTICE.
permanent rule, which it is not in the breast of any
subsequent judge to alter or swerve from according to
his private sentiments ; he being sworn to determine, not
according to his own private judgment (e), but according
to the known laws and customs of the land— not dele-
gated to pronounce a new law, but to maintain and
expound the old one (f)—ju8 dicere et nonjus dare (g).
u The province of the legislature is not to construe but
to enact, and their opinion not expressed in the form of
law as a declaratory provision would be, is not binding on
courts whose duty is to expound the statutes they have
enacted " (h) ; for the maxim of the Roman law, ejus est
interpretari cujus est condere (i), does not under our con-
stitution hold.
Our common-law system, as remarked by a learned
judge, consists in the applying to new combinations of
circumstances those rules of law which we derive from
legal principles and judicial precedents (k) ; and for the
(e) See per Lord Camden, 19
Howell, St. T., 1071 ; per Williams,
J., 4 CI. &Fin. 729; per Best, C. J.,
Newton v. Cowie, 4 Bing. 241 ; per
Alderson, R, 4 Ex. 806.
(/) Per Lord Kenyon, C.J., 5 T.
E. 682 ; 6 id. 605 ; and 8 id. 289;
per Grose, J., 13 East, 821 ; 9 John-
son (U.S.), & 428 ; per Lord Hard-
wicke, C, EUU v. Smith, 2 Ves.
jun. 16.
{</) 7 T. R. 696 ; 1 B. A B. 563 ;
Ram's Science of Legal Judgment, p.
2 ; arg. 10 Johnson (U.S.), R. 566 ;
"My duty," says Alderson, B., in
Miller v. Salomons, 7 Ex. 543,
" is plain. It is to expound and not
to make the law— to decide on it as I
find it, not as I may wish it to be ; "
and see per Colman, J., 4 C. B.
560-561.
(h) Judgm., 14 M. &W. 589.
(*) See TayL Civ. L., 4th ed.,
96.
(it) As to the value of precedents,
Palgr. Orig. Auth. King's Council,
9, 10. "An unnecessary departure
from precedents, whether it spring
from the love of change, or be the
result of negligence or ignorance on
the part of the pleader, ought not to
be encouraged. It can only lead to
useless litigation, delay, and ex-
pense. ** See per Cur. Austin v.
Holmes, 3 Denio (U.S.), R. 224.
THE MODE OF ADMINISTERING JUSTICE.
143
sake of attaining uniformity, consistency, and certainty,
we must apply those rules where they are not plainly
unreasonable and inconvenient to all cases which arise,
and we are not at liberty to reject them, and to abandon
all analogy to them, in those to which they have not yet
been judicially applied, because we think that the rules
are not as convenient and reasonable as we ourselves could
have devised. " It appears to me to be of great impor-
tance to keep this principle of decision steadily in view,
not merely for the determination of the particular case,
but for the interests of law as a science " (I).
Accordingly where a rule has become settled law, it is settled iaw
i * it ill i 'ii- • ,J,ust Ilot 1 e
to be followed, although some possible inconvenience may disturbed.
grow from a strict observance of it, or although a satis-
factory reason for it is wanted, or although the principle
and the policy of the rule may be questioned (m). If, as
has been observed, there is a general hardship affecting
a general class of cases, it is a consideration for the legis-
lature, not for a court of justice. If there is a particular
hardship from the particular circumstances of the case,
nothing can be more dangerous or mischievous than upon
those particular circumstances to deviate from a general
rule of law (n) ; " hard cases," it has repeatedly been said,
are apt to " make bad law " (o), and rnisera est servitua
if) Per Parke, J., Mirehouse ▼.
RenneU, 1 CI. & Fin. 546. " When
the law has become settled, no specu-
lative reasoning upon its origin,
policy, or expediency, should prevail
against it." 3 Denio (U.S.), R. 50.
(in) Per Tindal, C. J., M (rehouse
t. RenneU, 8 Bing. 557. See the
authorities cited, Rain's Science of
Legal Judgment, 33-35, and Smith
v. Doe, 7 Price, 509 ; S. C, 2 B, &
B. 599. Ralston v. Hamilton, 4
Macq., Sc. A pp. Gas. 405, per Lord
Westbury, C.
(n) Per Lord Loughborough, 2 Ves.
jun., 426, 427; per Tindal, C. J.,
Doe d. Clarke v. Ludlarn, 7 Bing.
180 ; per Pollock, C. B., Reg, v.
Woodrow, 15 M. & W. 412; per
Wilde, C. J., Kepp v. Wiggett, 16
L. J. C. P: 237 ; 8. C, 6 C. B. 280.
(o) See 4 CI. & Fin. 378 ; per
144
THE MODE OF ADMINISTERING JUSTICE.
ubi jus est vagum aut . inceHum (j>) — obedience to law
becomes a hardship when that law is unsettled or doubt-
ful ; which maxim applies with peculiar force to questions
respecting real property ; as, for instance, to family
settlements, by which provision is made for unborn
generations; "and if, by the means of new lights
occurring to new judges, all that which was supposed
to be law by the wisdom of our ancestors, is to be swept
away at a time when the particular limitations are to
take effect, mischievous indeed will be the consequence to
the public (q).
It is for considerations such as those just noticed that
the Courts are reluctant to upset former decisions which,
although anomalous, have been accepted by the public as
the basis of their transactions for a length of time, a rule
embodied in the maxim above considered, communis
error facit jus (r). It is pointed out by Lord Hatherley
in Bain v. Fothergill (s) that the House of Lords has
frequently acted upon the mistaken practice of con-
veyancers, and will regard the necessity for following
previous decisions as more imperative, where the common
dealings of mankind are in question. However, it has
been said that the House of Lords, as the Court of
ultimate appeal, considers itself bound by former decisions
Coleridge, J., 4 H. L. Cas. 611.
11 It is necessary that courts of justice
should act on general rules, without
regard to the hardship which in par-
ticular cases may result from their
application." Judgm. 4 Exch, 718.
See also Judgm. 8 Exch. 278.
( p) 4 Inst. 246 ; Shepherd v. SJicp-
licrd, 5 T. R. 51 n. (a) ; 2 Dwarr.
Stats. 786 ; Bac. Aphorisms, voL 7,
p. 148; arg. 9 Johnson (D. S.), R.
427, and 11 Peters (U. S.), R. 286.
{q) Per Lord Kenyon, C. J., Doe
v. Allen, 8 T. R. 504. See per
Ashhurst, J., 7 T. R. 420, and see
per Brett, L. J., Hearne v. Bellman,
4 Ex. D. 210 ; 48 L. J. Ex. 681.
(r) V. P. 134, and cases there
referred to.
(a) L. R. 7 H. L. p. 158 at p. 209.
THE MODE OF ADMINISTERING JUSTICE. 145
of its own tribunal, although clearly wrong (f). This prin-
ciple has not been adopted by other Courts in matters in
which they may have ultimate appellate jurisdiction.
With respect to matters which do not affect existing
rights or properties to any great degree, but tend prin-
cipally to influence the futv/re transactions of mankind, it
is for similar reasons generally considered more important
that the rule of law should be settled, than that it should
be theoretically correct (u).
The judicial rule — stare decisis (%)— does, however, JJj"™to
admit of exceptions, where the former determination is hold'
most evidently contrary to reason, — much more, if it be
clearly contrary to the divine law. But, even in such
cases, subsequent judges do not pretend to make a new
law, but to vindicate the old one from misrepresentation.
For, if it be found that the former decision is manifestly
absurd or unjust, it is declared, not that such a sentence
was bad law, but that it was not law ; that is, that it is
not the established custom of the realm, as has been
erroneously determined (y).
We may appropriately conclude these remarks with
observing that, whilst on the one hand innovation on
settled law is to be avoided, yet " the mere lateness of
time at which a principle has become established is not a
strong argument against its soundness, if nothing has
been previously decided inconsistent with it, and it be
in itself consistent with legal analogies " (z). Nay, it
(/) V. per Brett, J. in Hadfield'a (jc) As to which, see Gifford v.
case, L. K. 8 C. P. 306, 42 L. J. Livingston, 2 Denio (U.S.), R. 392-3.
C. P. 146. (y) 1 Black, Com. 60.
(u) See per Lord Cottenham, C, (z) Ji&dgm. Gating v. VeUy, 7Q. B.
Logon ▼. Pryte, 4 My. & Or. 617, 441 ; per Lord Denman, C. J., 10 Q.
618. B. 960.
1*6 THE MODE OF ADMINISTERING JUSTICE.
is even true that " a froward retention of custom is as
turbulent a thing as an innovation ; and they that
reverence too much old times are but a scorn to the
nej? " (a).
(a) Bacon's Sways, "Of Innovation*."
147
i
I
CHAPTER IV.
RULES OF LOGIC.
The maxims immediately following have been placed
together, and intitled "Rules of Logic," because they
result from simple processes of reasoning. Some of them,
indeed, may be considered as axioms, the truth of which
is self-evident, and consequently admit of illustration
only. A few examples have in each case been given,
showing how the particular rule has been held to apply,
and other instances of a like nature will readily suggest
themselves to the reader (a).
Ubi eadem Ratio ibi idem Jus. (Co. Litt. 10 a.) —
Like reason doth make like law (6).
The law consists, not in particular instances and pre-
cedents, but in the reason of the law(c); for reason is
the life of the law, — nay, the common law itself is nothing
else but reason ; which is to be understood of an artificial
perfection of reason, acquired by long study, observation,
and experience, and not of every man's natural reason (d).
(a) The title of this division of the 957 ; the judgment of Lord Holt in
subject has been adopted from Noy's this celebrated case well illustrates
Maxims, 9th ed., p. 5. the position in the text.
(6) Co. Litt. 10 a. (<t) Co. litt 97 b.
(c) AMhby ▼. White, 2 Lord Baym.
L 2
148
RULES OF LOGIC.
Illustration
of rule.
The following instances will serve to show in what
manner the above maxim may be practically applied : —
When any deed, as a bond, is altered in a point mate-
rial (e) by the obligee, or by a stranger without his
privity, the deed thereby becomes void (/) ; for the law
will not permit a man to take the chance of committing a
fraud, and when that fraud is detected, of recovering on
the instrument as it was originally made. In fcuch a case
the law intervenes, and says, that the deed thus altered
no longer continues the same deed, and that no person
can maiutain an action upon it ; and this principle of the
law is calculated to prevent fraud and to deter men from
tampering with written securities^). The broad prin-
ciple thus recognised has been likewise established in
regard to bills of exchange and promissory notes (h) ; on
all such instruments a duty arises analogous to the duty
arising on deeds, and " a party who has the custody of an
instrument made for his benefit, is bound to preserve it in
its original state." The law having been long settled as
(e) Secus, if the alteration be in a
point immaterial, Aldous v. CornvxU,
L. R. 3 Q. B. 573, where the action
was on a promissory note. See An-
drews v. Latorcnce, 19 C. B. N. S.
768.
(/) Pilot's cote, 11 Rep. 26 b.,
cited Davidson v. Cooper. 11 M. &
W. 799: S. C, in error, 13 Id. 343.
Whclpdale's case, 5 Rep. 119 a ; per
Lord Denman, C.J. Harden v.
Clifton, 1 Q. B. 524 ; Agricultural
Cattle Insurance Co. v. Fitzgerald,
16 Q. B. 432 ; Doe d. Tatum v.
Catomore, 16 Q. B. 745 ; Keane v.
Smallbone, 17 0. B. 179 ; aig. Bam-
berger v. Commercial Credit Mutual
Ass. Soc., 15 C. B. 676, 692. See
Oollan y. Gollan, 4 Macq. Sc App.
Cas. 585.
(g) Mastery. Milltr, 4T.R. 320 ;
S. 0. affirmed in error, 2 H. Bla.
140. Gardner v. Walsh, 5R&B.
83 (overruling Cation v. Simpson, 8
A. & E. 136) ; Burchfieid v. Moore,
3 E. & B. 633 ; Saul v. Jones, 1 E.
& E. 63 ; Warrington v. Early, 2
E. & B. 763. See Green v. Atten-
boroiigk, 3 H. & C. 468 ; West v.
Steward, 14 M. & W. 47 ; Fazalccr-
ley v. M'Knight, 6 E. & B. 795 ;
Hamelin v. Bruch, 9 Q. B. 306.
(h) Master t. Miller, 4 T. R. 820.
RULES OF LOGIC.
149
to deeds, was held to be also applicable to those mercantile
instruments, which, though not under seal, yet possess
properties, the existence of which, in the case of deeds,
was, it must be presumed, the foundation of the rule
above stated, — ubi eadem est ratio eadem est lex ; and
therefore in the case below cited, it was held that an
unauthorised (i) alteration in the date of a bill of ex-
change after acceptance, whereby the payment would be
accelerated, even when made by a stranger, avoids the
instrument, and that no action can be afterwards brought
upon it by an innocent holder for a valuable considera-
tion (Jc). An alteration in the date of a cheque has been
recently held to have a similar effect (I) ; and the principle
was carried even further in the case of Suffett v. Bank of
England, where it was held that an alteration of the
numbers and ciphers on Bank of England notes will
invalidate such notes, the alteration being material to the
currency (m). The same doctrine has been extended to
the case of bought and sold notes ; and it was held, that
a vendor, who, after the bought and sold notes had been
exchanged, prevailed on a broker, without the consent of
the vendee, to add a term to the bought note, for his (the
vendor's) benefit, thereby lost all title to recover against
the vendee (n). And the same principle applies to a
(i) See Tarleion v. Shingler, 7 C
B. 812 ; 4 Scott, N. B. 732, n. (29).
(h) Motor y. Miller, supra;
HWschfeU v. Smith, L. R. 1 0. P.
340 ; Lord Falmouth v. BoberiSt
9M. ft W. 471 ; Judgm. Davidson
v. Cooper, 11 M. & W. 800 ; S. C. in
error, 13 M. & W. 343 ; Mason ▼.
Bradley, 11 M. & W. 590 ; Parry v.
Nicholson, 13 M. & W. 778 ; Gould
v. Coombs, 1 C. B. 543 ; Bradley v.
Bardslcy, 14 M. k W. 878 ; CroUy
v. Hodges, 5 Scott, N. B. 221 ; Bell
v. Qardiner, 4 Scott, N. B. 621 ;
Baker v. Jubber, 1 Id. 26. See
Harrison v. Cotgreave, 4 C. B. 562.
(I) Vance v. Lowther, 1 Ex. D.
176 ; 45 L. J. Ex. 200.
(m) 9 Q. B. D. 555 ; 51 L. J. Q.
B. 401.
(n) Powell v. DiveU, 15 East, 29 ;
MoUeU v. Wackerbarth, 5 C. B. 181.
150
RULES OF LOGIC.
Caution ne-
censary in
reasoning.
guarantee, for that it is a good ground of defence that
the instrument has, whilst in the plaintiff's hands, received
a material alteration (o) from some person to the defendant
unknown, and without Ins knowledge or consent (p).
So, the insertion of material words in the margin of a
charter-party by the broker, even without the knowledge
of the owner, has in a recent case(g) been held to make it
void as against the charterer.
We may add, in connection with the subject here
touched upon, that, inasmuch as a deed cannot be altered,
after it is executed, without fraud or wrong, and the
presumption is against fraud or wrong, interlineations or
erasures apparent on the face of a deed will be presumed
to have been made before its execution ; but, as a testator
may alter his will after execution without fraud or wrong,
the presumption is, that an alteration (r) appearing on its
face, was, in the absence of evidence to the contrary,
made subsequent to its execution (#).
There are, however, some things, for which, as Lord
Coke observes, no reason can be given (t) : and with refer-
ence to which the words of the civil law hold true — non
omnium quce d, majoribus covstituta sunt ratio reddi
(o) See Sanderson v. Symonds, 1
B. & B. 426.
(p) Davidson v. Cooper, 11 M. &
W. 778, 800 ; S. C, 13 M. & W.
343 ; Parry v. Nicholson, 13 M. k
W. 773 ; Mason t. Bradley, 11 M.
& W. 590 ; Hemming v. Trenery, 9
A. & E. 926; Calvert v. Baker,
4 M. & W. 407.
(?) Croochewit v. Fletcher, 1 H.
& N. 893. As to the effect of an
erasure in an affidavit, see Re Bingle,
15 0. a 449. As to altering a
record, see Sukcr v. Neale, 1 Exch.
468.
(r) There is, however, a "marked
distinction'' between an alteration and
an interlineation. In the goods of
Cadge, L. K. 1 P. & D. 543.
(*) Doe d. Tatum v. Catomore, 16
Q. B. 745 ; Doe d. ShaUcross v.
Palmer, Id. 747 5 In the goods of
Hardy, SOL. J., P. M. & A. 143.
(t) Rix v. Gardiner, 2 Bulstr.
196 ; cited arg. Zeuekhart y, Cooper,
3 Bing. N. C, 104.
RULES OF LOGIC. 151
potest (u); and, therefore, we are compelled to admit, that
in the legal science, qui rationem in omnibus qucerunt
rationem subvertunt (x). It is, indeed, sometimes dan-
gerous to stretch the invention to find out legal reasons
for what is undoubted law (y) ; and this observation applies
peculiarly to the mode of construing an Act of Parliament,
in order to ascertain and carry out the intention of the
legislature : in so doing, the judges will bend and conform
their legal reason to the words of the Act, and will rather
construe them literally, than strain their meaning beyond
the obvious intention of Parliament (2). The spirit of
the maxim prefixed to these remarks, here, however, mani-
festly prevails; for, as we read in the Digest (a), non
po88unt omnes articuli dingillatim aut legibus aut sen-
atiU-consrdtis comprehendi: sed cum in aliqud causd
8ententia eorum manifesto, est, is, qui jurisdictioni
prceest, ad similia procedeiv atque ita jus dicere debet.
Nam, ut ait Pedius, quotiens lege aliquid unum vel
alterum introductum est, bona occasio est, ccetera, quce
tendunt ad eamdem utilitaiem, vel interpretation, vel
certe jurisdictions suppleri.
Further, although it is laid down that the law is the Qualification
perfection of reason, and that it always intends to con- proposition.
form thereto, and that what is not reason is not law, yet
this must not be understood to mean, that the particular
reason of every rule in the law can at the present day be
always precisely assigned : it is sufficient if there be
nothing in it flatly contradictory to reason, and then
(if) D. 1, 3, 20. Brougham, C., Leiih v. Irvine, 1 My.
(x) 2 Rep. 75, a, & K. 289. As to the mode of con-
(y) Per Alderson, B., EUU v. strung Acts of Parliament, see fur-
Gripth, 16M.&W. 110. ther, post, Chap. VIII.
(z) T. Raym. 855, 356 ; per Lord (a) D. 1, 3, 12, and 13,
1
152 BULES OF LOGIC.
the law will presume that the rule in question is
well founded, mvlta in jure communi, as Lord Coke
observes, contra rationem disputandi, pro comviuni
utilitate introducta aunt (b) — many things have been
introduced into the common law, with a view to the
public good, which are inconsistent with sound reason.
Quod verb contra rationem juris receptum est, non est
fyi%oducendum ad consequential (c).
JJSn?abl6 The maxim cited from Lord Coke, is peculiarly applic-
custom. a^je when the reasonableness of an alleged custom has
to be considered : in such a case, it does not follow,
from there being at this time no apparent reason for such
custom, that there never was (tZ). If, however, it be in
tendency contrary to the public good, or injurious or pre-
judicial to the many, and beneficial only to some parti-
cular person, such custom is and must be repugnant to
the law of reason, for it could not have had a reasonable
commencement (e).
Again — A clerk who has held preferment in one bishopric
is not, on being presented to a living in another bishopric,
bound, as a condition precedent to his examination on the
question of fitness, to produce letters testimonial and com-
mendatory from his former bishop— if such a rule existed
a door would thus be opened to very arbitrary and
capricious proceedings, rendering the title of the clerk and
the right of the patron dependent on the will of the prior
bishop — such a conclusion would be at variance with
(6) Go. Litt. 70 b. MuUa autem (d) Aig. Tyson v. Smithy in error,
jurecivUi contra rationem disputandi 9 A. & K. 406, 416.
pro utilitaU communi receptaesse in- (c) Judgm., 9 A. & B. 421, 422.
numerabilibus rebus probari potest ; See farther as to the reasonableness
D. 9, 2, 61, § 2. and validity of a custom, post,
(c) D. 1, 3, 14. Chap. X.
RULES OF LOGIC. 153
reason, and therefore repugnant to what is called "the
policy of the law " (/).
We may conclude these remarks with calling to mind
the well-known saying: lex plus laudatur quando
ratione probalur(g) — then is the law most worthy of
approval, when it is consonant to reason ; and with Lord
Coke we may hold it to be generally true, "that the
law is unknown to him that knoweth not the reason
thereof, and that the known certainty of the law is the
safety of all " (h).
Cessante Ratione Legis cessat ipsa Lex. (Co. Litt.
70 6.) — Reason is the sovl of the law, and when tlve
reason of any particular law ceases, so does the law
itself (i).
For instance, a Member of Parliament is privileged Example*:
from arrest during the session, in order that he may dis- fomam«t.
charge his public duties, and the trust reposed in him ;
but the reason of this privilege ceases at a certain time
after the termination of the parliamentary session, because
the public has then no longer an immediate interest in
the personal freedom of the individuals composing the
representative body, and cessante causd cessat effectus (k).
(/) Bishop of Exeter v. Marshall, common law aims at certainty ; " per
L. R. 3 H. L. 17, 54. Lord Hard wicke, C., 1 Dick. 245.
(?) 1 Inst Bpil., cited per Lord (i) 7 Rep. 69 ; per Willes, C.J.,
Kenyon, C.J., Porter v. Bradley, 8 Davis y. Powell, Willes, 46, cited
T. R. 146 ; and Dalmer v. Barnard, arg. 8 C. B. 786.
7 Id, 252 ; arg. Doe d. Cadogan v. (k) See arg. Cas. temp. Hardw.
Ewart, 7 A. & E. 657. 82 ; Oowdy v. Buncombe, 1 Exch.
{h) 1 Inst. Epil. " Certainty is the 480.
mother of repose, and therefore the
154 RULES OF LOGIC.
£pud from Again, where trees are excepted out of a demise, the
demiue. g()jj j^jf ^ not excepted, but sufficient nutriment out of
the land is reserved to sustain the vegetative life of the
trees, for, without that, the trees which are excepted
cannot subsist ; but if, in such a case, the lessor fells
the trees, or by the lessee's license grubs them up, then,
according to the above rule, the lessee shall have the
dromon goil (I). The same principle applies where a right exists
vicinage. 0f common jAiv cause de vicinage: a right depending
upon a general custom and usage, which appears to have
originated, not in any actual contract, but in a tacit
acquiescence of all parties for their mutual benefit. This
right does not, indeed, enable its possessor to put his
cattle at once on the neighbouring waste, but only on the
waste which is in the manor where his own lands are
situated ; and it seems that the right of common of vici-
nage should merely be considered as an excuse for the
trespass caused by the straying of the cattle, which excuse
the law allows by reason of the ancient usage, and in
order to avoid the multiplicity of suits which might arise
where there is no separation or inclosure of adjacent
commons (m).
But the parties possessing the respective rights of
common, may, if they so please, inclose against each
other, and, after having done so, the right of common *pur
cause de vicinage can no longer be pleaded as an excuse
to an action of trespass if the cattle stray, for cessante
vatione legis cessat lex (ri).
(I) Litfbrfacaie, 11 Rep. 49, cited 604 ; Prichard v. PoweU, Id. 689.
Hewitt y. Mam, 7 Exch. 79, and (») 4 Rep. 38 ; Co. Lit*. 122 a. ;
pod. Chap. VI. 8. 8. Find i, Law, 8 ; per Powell, J.,
(m) Jones v. Robin, 10 Q. B. 581, Broomfield ▼. Kirber, 11 Mod 72 ;
020, See also Clarice y. Tinker, Id. OiUlett v. Lopes, 13 East, 848 j
RULES OF LOGIC. 155
As regards the consent of parents to the marriage of uw m u>
? r ° validity of
their minor children, the Judge Ordinary recently ob- m*"*1*^-
served (o) that " any analogy which existed between
marriages by banns and marriages by notice to the
registrar has been effaced — the attempt at securing that
consent in marriages to the latter class by publicity re-
linquished— and the procurement of actual consent sub-
stituted in the same manner as had always been used in
marriages by licence. There is no reason, therefore, why
those decisions which have hitherto only been applied to
marriages by banns, and which have their foundation in
the necessity for securing that publicity through which it
is the object of banns to reach the parents' consent, should
be applied to marriages in which that consent is otherwise
attained and secured, cessante ratione cessat et lex"
Another illustration is afforded by the rule, which,
through neglect of the principle under discussion has often
been misunderstood, viz., that a person may not make
felony the foundation of a civil action. This is true
only where the felon himself is defendant or a necessary
party, and the claim is founded on the felony. " The rule
is founded on a principle of public policy, and where the
public policy ceases to operate, the rule shall cease also
and the familiar phrase, ' The action is merged in the
felony ' is not at all times literally true v (p).
jndgm. Well* y. Pearcy, 1 Bing. Marsh, 6B. & C. 551, at p. 564. V.
N. C. 556, 566 ; Heath v. Elliott, 4 also interesting review of this question
Bing. N. 0. 3S8. by Watkin Williams, J. in Midland
(o) Holmes v. Simmon*, L. R. 1 Insurance Co, v. Smith, 6 Q. B. D.
P. & D. 528. 561 ; 51 L. J. Q. B. 329 ; and Roopcr
(p) Per Lord Tenterden, Stone v. v. D'Avigdor, 10 (J. B. D. 412.
156 BULES OF LOGIC.
De non apparentibus et non existentibus eadem est
Ratio. (5 Rep. 6.) — That which does not ajypear
will not be presumed to exist (q).
**& how r^ie ftt>ove " old and well-established maxim in legal
proceedings," which " is founded on principles of justice
as well as of law " (r) ; applies where reliance is placed by
a party on deeds or writings which are not produced in
court, and the loss of which cannot be accounted for or
supplied in the manner which the law has prescribed, in
which case they are to be treated precisely as if non-
existent (»).
special On the consideration of a special verdict, the Court will
verdict . . .
neither assume a fact not stated therein nor draw inferences
of facts necessary for the determination of the case from
other statements contained therein (t).
In reading an affidavit also, the Court will look solely
at the facts deposed to, and will not presume the existence
of additional facts or circumstances in order to support
the allegations contained in it. To the above, therefore,
and similar cases occurring not only in civil, but also in
criminal proceedings, the maxim quod non apparet non
est (u) — that which does not appear must be taken in law
as if it were not (x) — is emphatically applicable.
Bond. In an action by two commissioners of taxes (y) on a
(q) See per Buller, J., B. v. (t) Tancred v. Christy, 12 M. k
Bishop of Chester, 1 T. R. 404, W. 316 ; Caudreys case, 5 Rep. 5 ;
arg. 5 C. B. 53 ; per Cockburn, 0. J., ante, p. 103.
Beg. y. Overseers of Walcot, 2 B. & (u) 2 Inst. 479 ; Jenk. Cent. 207.
S. 560. (z) Vaugh. B. 169.
(r) See 12 Howard (U.S.)R. 253. (y) Gwynne v. BwncU, 6Bing. N.
<*) Bell's Diet, of Scotch Law, C. 453; S. C, 1 Scott, N. B. 711;
287 7 CI. & Fin. 572.
RULES OF LOGIC. 157
bond against the surety of a tax-collector, appointed
under the provisions of the stat. 43 Geo. 3, c. 99, it ap-
peared that the Act contained a proviso that no such
bond should be put in suit against the surety for any
deficiency, other than what should remain unsatisfied after
sale of the lands, tenements, &c, of such collector, in pur-
suance of the powers given to the commissioners by the
Act ; it further appeared, that, at the time when the said
bond was put in suit, the obligor had lands, &c, within
the jurisdiction of the plaintiffs, but of which they had no
notice or knowledge : it was held, that seizure and sale of
lands and other property of the collector, of the existence
of which the commissioners had no notice or knowledge,
was not a condition precedent to their right to proceed
against the surety; this conclusion resulting, as was
observed, from the plain and sound principle contained in
the above maxim (z).
So, where a notice of dishonour of a bill of exchange Notice <>r
dishonour.
described the bill generally as " Your draft on A B.," the
Court held, on motion for a nonsuit, that if there were
other bills or drafts to which the notice could refer, it was
for the defendant to show such to be the fact ; and as he
had not done so, that the above maxim must bo held to
apply ; for, inasmuch as it did not appear that there were
other bills or notes, the Court could not presume that
there were any (a).
Again, the increase r>er alluvionem is described to be increase j*r
when the sea, by casting up sand and earth by degrees,
increases the land, and shuts itself within its previous
(z) Per Vaughan, J., 6 Biog. N. (a) Shelton v. BraUhioaite, 7 M. &
C. 539 ; S. C, 1 Scott, N. R. 798. W. 436 ; Bromage y. Vaughan, 9
See aig. Mather v. Thomas, 10 Q. B. 608 ; MeUenh v. Rippen, 7
Bing. 47. Exch. 678.
158 RULES OF LOGIC.
limits (6). In general, the land tbus gained belongs to
the Crown, as having been a part of the very fundus
maris ; but if such alluvion be formed so imperceptibly
and insensibly, that it cannot by any means be ascer-
tained that the sea ever was there — idem est non esse et
non apparere, and the land thus formed belongs as a
perquisite to the owner of the land adjacent (c).
Process of Lastly, it has been suggested (d) that " there is a dis-
tinction between process of superior and inferior courts ;
in the former, omnia pi^cesumuntur mtb esse acta (e), in
the latter the rule de non apparentibus et non exvstenti-
bus eadem est ratio applies/'
court.
Non potest adduci Exceptio ejusdem Rei cujus peti-
tur Dissolutio. (Bac. Max. reg. 2.) — A matter, the
validity of which is at issue in legal proceedings^
cannot be set tip as a bar th&reto.
Where the legality of some proceeding is the subject-
matter in dispute between two parties, he who maintains
its legality, and seeks to take advantage of it, cannot rely
upon the proceeding itself, as a bar to the adverse party.
It is obvious that to do so would involve the logical fallacy
of jwtitio principii, and would in many cases preclude all
redress to an aggrieved party. " It were impertinent and
(b) See Oxford v. Lord Yarbo- non curat lex, arg. 3 B. & C. 99.
rough, 5 Bing. 163. {d) Arg. Kinning y. Buchanan, 8
(c) Hale, De Jure Maris, pt. 1, C. B 286.
c. 4, p. 14 ; R. v. Lord Yarborough, (e) A presumption which appears
3B. AC. 96, 106; S. C, 1 Dow, to be sound, per Lord Chelmsford,
N. S. 178. This right ha* also been L. R. 5 H. L. 234, at p. 248, see
referred to the principle, de minimis potty Chap. X.
RULES OF LOGIC.
159
contrary in itself," says Lord Bacon, " for the law to allow
of a plea in bar of such matter as is to be defeated by the
same suit, for it is included ; and otherwise a man could
never arrive at the end and effect of his suit " (/).
A few instances will be sufficient to show the appli- instances:
cation of this rule. Thus, if a man be attainted and
executed, and the heir bring error upon the attainder, it
would be bad to plead corruption of blood by the same
attainder; for otherwise the heir would be without
remedy ever to reverse the attainder (g). In like manner,
although a person attainted cannot be permitted to sue
for any civil right in a court of law, yet he may take pro-
ceedings, and will be heard for the purpose of reversing
his attainder (h).
On the same principle, in a court of equity, although a
party in contempt is not generally entitled to take any
proceeding in the cause, he will nevertheless be heard if
his object be to get rid of the order or other proceeding
which placed him in contempt, and he is also entitled
to be heard for the purpose of resisting or setting aside
for irregularity any proceedings subsequent to his con-
tempt (i). And where a man does not appear on a
vicious proceeding, he is not to be held to have waived
that very objection which is a legitimate cause of his
non-appearance (&).
(/) Bac. Max. reg. 2. Puscyv.
Deebouvrie, 8 P. Wms. 317.
{ff) Bac M. reg. 2. Louket v. Hoi'
beach, 4 Bing. 420, 424, cited and
commented on, Byrne v. Manning,
2 Dowl. N. S. 403.
(h) See 1 Taunt. 34, 93.
The same principle applies in the
case of proceedings to reverse out-
awry. Jenk. Cent. 106; Finch,
Law, 46 ; Matthew y. Gibson, 8
East, 527 ; Craig v. Levy, 1 Exch.
570.
(t) Ptr Lord (Tottenham, C., Chuck
v. Cremer, 1 Coop. 205 ; King v.
Bryant, 3 My. & Or. 191. See 1
Daniell, Ch. Pr., 3rd ed., 354 et seq.
(*) Per Knight Bruce, V. C, 15
L. J. (Bankruptcy) 7.
160
BULES OF LOGIC.
Ap]«aL
Fx tension of
rule.
Where the judge of an inferior court had illegally com-
pelled a plaintiff who appeared to be nonsuited, and,
upon a bill of exceptions being brought, the nonsuit was
entered on the record, the defendant was not allowed to
contend that the entry on record precluded the plaintiff
from showing that he had refused to consent to the non-
suit, for that would have been setting up as a defence the
thing itself, which was the subject of complaint, — a course
prohibited by the above maxim (I). So, the judgment or
opinion of the court below cannot, with propriety, be cited
as an authority on the argument, because such judgment
and opinion are then under review (w).
The principal maxim seems also to apply, when the
matter of the plea is not to be avoided in the same but
in a different suit : and, therefore, if a writ of error be
brought to reverse an outlawry in any action, outlawry
in another action shall not bar the plaintiff in error ;
for otherwise, if the outlawry was erroneous, it could
never be reversed (n) ; the general rule, however, being
that an outlaw cannot enforce any proceeding for his
own benefit (o).
(I) Strothery. Hutchinson 4 Bing.
N. C. 83, 90 ; cited arg. Penney v.
Slade, 5 Bing. N. C. 327; com-
mented on and distinguished in Cor-
tar v. Feed, 17 Q. B. 540.
(m) See per Alexander, C. B., R.v.
Westtcood, 7 Bing. 83 ; jx r North,
C. J., Bamardiston v. Soame, 6 St
Tr. 1094. See also, in farther illus-
tration of the above maxim, Masters
v. Lewis, 1 Lord Kaym. 57.
l») Jenk. Cent. 37 j Gilb. For.
Rom. 54. See Bac Max. reg. 2.
(o) Per Parke, B., Reg. y. Lowe, 8
Exch. 698. See Re Pyne, 5 C. B.
4C7 ; Davis r. Trevanion, 2D.&L.
743 ; Walker y. Thdluson, 1 Dowl.
N. S. 578.
RULES OF LOGIC.
161
Allegans contraria non est audiendus. (Jenk. Cent
16.) — He is not to be heard who alleges things con-
tradictory to each other.
The above, which is obviously an elementary rule of
logic, and applied with corresponding frequency in our
courts of justice, will receive occasional illustration in the
course of this work. We may for the present observe
that it expresses, in technical language, the trite saying
of Lord Kenyon, that a man shall not be permitted to
"blow hot and cold" with reference to the same trans-
action, or insist, at different times, on the truth of each of
two conflicting allegations, according to the promptings
of his private interest (p).
In Cave v. Mills (q), the maxim under notice was by
the majority of the Court of Exchequer held applicable.
There the plaintiff was surveyor to the trustees of certain
turnpike roads ; as such surveyor it was his duty to make
all contracts, and to pay the amounts due for labour and
materials required for the repair of the roads, he being
(p) See Woodv. Dwarris,ll Exch.
493 ; Andrews v. Elliott, 5 E. & B.
502 ; Tyerman ▼. Smith, 6 K. & B.
719 ; Morgan v. Couchman, 14 C. B.
100 ; HumbUstonc v. Wdham, 5 C.
B. 195 ; William* v. Thomas, 4 Exch.
479 ; Taylor v. Best, 14 C. B. 487 ;
Rej. v. Eoans, 3 E. & B. 363 ; Wil-
liam* v. Lewis, 7 B. & B. 929 ;
General Steam Navigation Co. v.
Slipper, 11 C. B. N. & 493 ; Ellcin
t. Baker, Id. 526, 543 ; Green v.
SUM, 7 0. B. N. S. 747 ; Pearson
v. Dawson, KB.&E. 448 ; Haines
t, East India Co., 11 Moo. ?. C. Q.
39; Smith v. Uodson, 4 T. R. 211,
217 ; Brewer v. Sparrow, 7 B. & C.
810 ; Lythgot v. Vernon, 4 H. k N.
180.
A man is not entitled to stand by
and allow proceedings to go on against
him to judgment, and then to ask the
Court to interfere on his behalf on
the ground that his name was mis-
spelt. Judgm. Churchill v. Churchill,
L. R. 1 P. & D. 486.
{q) 7 H. & N. 913, See Van
Hasselt v. Sack, 13 Moo. P. C. C.
185.
W
1G2 RULES OF LOGIC.
authorized to draw on the treasurer to a certain amount
His expenditure, however, was not strictly limited to that
amount, and in the yearly accounts presented by him to
the trustees a balance was generally claimed as due to
him, and was carried to the next year's account. Accounts
were thus rendered by the plaintiff for three consecutive
years showing certain balances due to himself. These
accounts were audited, examined, and allowed by the
trustees at their annual meeting, and a statement based
on them of the revenue and expenditure of the trust was
published as required by stat 3 Geo. 4, c. 126, s. 78. The
trustees, moreover, believing the accounts to be correct,
paid off with monies in hand a portion of their mortgage
debt. The plaintiff afterwards claimed a larger sum in
respect of payments which had in fact been made by him,
and which he ought to have brought into the accounts of
* the above years, but had knowingly omitted. It was
held that the plaintiff was estopped from recovering the
sums thus omitted, for "a man shall not be allowed
to blow hot and cold — to affirm at one time and deny
at another — making a claim on those whom he has
deluded to their disadvantage, and founding that claim
on the very matters of the delusion. Such a principle
has its basis in common sense and common justice, and
whether it is called € estoppel/ or by any other name, it
is one which courts of law have in modern times most
usefully adopted."
EatoppeL The doctrine of estoppel, at any rate by deed and in
pais, is in great measure a development of the principle
expressed in this maxim. Indeed, the learned editor of
Smith's Leading Cases, who was the first to reduce to any
system the many applications of the theory of estoppel,
would seem to connect estoppel by record also with the
RULES OF LOGIC. 163
present maxim. He defines estoppel generally (r) as a
conclusive admission, or something which the law treats
as equivalent to an admission.
It is impossible within the limits of this present work to
give a satisfactory account of estoppel. The reader is
referred to Smith's Leading Cases (a), and the maxim nullus
•cvnimodum capere potest de injuria sua propria (t),
where some account will be found of estoppel in pais.
There arc, however, cases in which estoppel operates to
preclude a person from contradicting that which has been
accepted and acted upon as truth and fact by others,
under circumstances which do not constitute injuria, i.c.
wilful and culpable deception. Such cases are referable
to the present rather than to the maxim just cited. An
illustration of this is afforded by the case of Previice v.
London Building Society (u). In that case to an action
by a transferree of shares against the trustee of the
Society, the latter pleaded that the matter was a dispute
between the Society and a person claiming on account of
a member, and one that ought to be settled by arbitration.
It appeared at the trial that the shares in respect of
which the plaintiff claimed had been forfeited by the
defendants to make good a debt due from an absconding ,
secretary who had transferred them to the plaintiff. It
was accordingly held that as the trustees denied the right
of the plaintiff to be a member of the Society, they were
estopped from saying that the dispute was one with a
member.
So where a vendor has recognised the right of his
(r) Sm. L. C. 8th ed. 803. («) L. B. 10 C. P. 679 ; v. also
(s) Dachas of Kingston's ease. Smith v. Baker, L. R. 8 C. P. 35 ;
(t) Posted, p. 273 ; 44 L. J. C. 42 L. J. C. P. 155.
P. 353.
m 2
164
RULES OF LOGIC.
vendee to dispose of goods remaining in the actual pos-
session of the vendor, he cannot defeat the right of a
person claiming under the vendee on the ground that no
property passed to the latter by reason of the want of
a specific appropriation of the goods (x). Nor can an indi-
vidual who has procured an act to be done sue as one of
several co-plaintiffs for the doing of that very a.ct(y)m
Where a party accepts costs under a judge's order, which,
but for such order, would not at that time be payable, he
cannot afterwards object that the order was made without
jurisdiction (z). And if A. agrees with B. to pay him so
much per ton for manufacturing and selling a substance
invented and patented by B., it is not competent to A.,
having used the invention by B.'s permission, to plead
in answer to an action for monies due in respect of such
use that the patent was void and the licence given
superfluous (a). And a licensee of a patent cannot in any
way question its validity during the continuance of the
licence (b). A person cannot act under an agreement
and at the same time repudiate it (c).
Again, " where a person is charged as a member of a
partnership, not because he is a member, but because he
has represented himself as such, the law proceeds on the
principle, that if a person so conducts himself as to lead
(x) Woodhy v. Coventry, 2 H. &
0. 164.
(y) Brandon v. Scott, 7 E. & B.
234.
(r) Tinkler v. HUder, 4 Excb.
187. See Wilcoxv. Odden, 15 C. B.
N. S. 837; Freeman app., Read
reap., 9 C. B. N. S. 301.
(a) Lawes v. Purser, 6 E. ft B.
930, See Ifarrup v. Bayley, 6 E,
& B. 218, cited under the maxim
volenti non fit injuria, post, Chap. V.
(6) Clark v. Adit, 2 App. Cas.
423 ; 46 L. J. Ch. 585.
{c) Crosdey v. Dixon, 10 H. L.
293, 310; v. also Morrison ▼. Uni-
versal Marine Insurance Co., L. R.
8 Ex. 40 ; S. C. ibid. 197 ; 42 L. J.
Ex. 115,
RULES OF LOGIC. 165
another to imagine that he fills a particular situation, it
would be unjust to enable him to turn round and say
that be did not fill that situation. If, therefore, he
appears to the world — or as the common and more correct
expression is, if he appears to the party who is seeking to
charge him— to be a partner, and has represented himself
as such, he is not allowed afterwards to say that that
representation was incorrect, and that he was not a part-
ner^). So a person cannot in the same transaction
buy in the character of principal, and at the same time
charge the seller for commission as his agent (e). And a
person acting professedly as agent for another, may be
estopped from saying that he was not such agent (/).
Also it seems a true proposition that " where parties have
agreed to act upon an assumed state of facts, their rights
between themselves depend on the conventional state of
facts, and not on the truth (g), and it is not competent to
either party afterwards to deny the truth of such state-
ment (A).
So, where rent accruing due subsequently to the expira-
tion of a notice to quit, is paid by the tenant and accepted
by the landlord, that is an act of the parties which
evidences an intention that the tenancy should be con-
sidered as still subsisting. So, if there be a distress, the
distrainor affirms by a solemn act that a tenancy sub-
(d) Per Rolfe, B., Ness v. Angasy surance, which however does not
3 Exch. 813. effect estoppel for purposes collateral
(c) Salomons y. Pender, 3 H. k to the contract, per Lord Selhorne,
C. 689. Burnand v. Rodoconachi, 1 App.
(/) foyers v. Hadky, 2H.AC. Cas. 333 at p. 335 ; 50 L. J. Q. B.
227. 284.
fa) Blackb. Contr. Sale, 163. As (h) M'Catuxv. London and Ninth
t.Q. a valued policy in Marine In- Western R. Cv 3 H. & C. 343.
166 RULES OF LOGIC.
sists ; and it is not competent to him afterwards to deny
it (i).
In like manner, the maxim under consideration applies,
in many cases, to prevent the assertion of titles incon-
sistent with each other, and which cannot contemporane-
ously take effect (k). And it is laid down that " a person
who has a power of appointment, if he chooses to create
an estate or a charge upon his estate, hy a voluntary
act, cannot afterwards use the power for the purpose of
defeating that voluntary act;" and if ?i bond be given
to the Crown under the stat. 33 Hen. 8, c. 39, binding all
lands over which he has at the time of executing the
bond a disposing power, the giving such bond is to be
deemed a voluntary act on the part of the obligor, so that
he cannot by afterwards exercising the power, defeat the
right of the Crown (£).
(k°n»Sietoha11 Closely allied with the principle of the decisions just
own'grant. noticed, is the rule of law that " a man shall not derogate
from his own grant," as an illustration of which may be
cited the case of Saint v. Pilley (m), in which it was
held, that the surrender of a term by a trustee in bank-
ruptcy could not defeat the right of one who had
previously purchased the fixtures, but had, without laches,
allowed them to remain upon the premises. And where a
man parts with land, knowing that it is intended to erect
substantial buildings upon it, he will not be allowed
(i) Per Maule, J., Blyth v. Den- (!•) 1 Swanst. 427, note.
nett, 13 C. B. 181 ; per Crompton, {I) Reg. v. EIU*} 4 Rxch. 652,
J., Ward v. Day, 4 B. & S. 353 ; 661 ; S. C. affirmed in error, 6 Kxch.
S. C. affirmed in error, 5 B. & S. 921.
359 ; and see per Lord Brougham, (m) L. R. 10 Ex. 137, 44 L. J.
C, Chytonv. A.~G., 1 Coop. (Rep. Ex. 83.
ttmp. CottenhaniS 124*
KULES OF LOGIC.
167
afterwards to use his adjoining land so as to injure or
interfere with those buildings (n).
Further, if a stranger begins to build on land, supposing
it to be his own, and the real owner, perceiving his mis-
take, abstains from setting him right, and leaves him to
persevere in his error, a Court of Equity will not afterwards
assist the real owner asserting his title to the land (o).
The principle is further to be discovered as underlying Election,
the doctrine which is known in England as that of
election, in Scotland as approbate and reprobate (p),
which is thus explained by Lord Cairns : " Where a deed
or will professes to make a general disposition of property
for the benefit of a person named in it, such person cannot
accept a benefit under the instrument, without at the
same time conforming to all its provisions, and renouncing
every right inconsistent with them " (q)m
Lastly, where a witness in a court of justice makes
contradictory statements relative to the same transaction,
the rule applicable in determining the degree of credi-
bility to which he may be entitled obviously is, allegans
contraria non est audiendvs.
(i») Siddons v. Short, 2 C. P. D.
572 ; 46 L. J. C. P. 795.
(o) Ramtden r. Dyson, L. B. 1 H.
L. 129, 141, 168.
(p) Codrington y. Codrington,
LR.7H.L 854 at p. 861; 45 L. J.
Ch.660.
(q) Aa instances of which doctrine
see Talbot v. Earl of Radnor, 8 My.
& K. 252. Messenger v. Andrews,
4 Boss. 478. Cooper v. Cooper, L.
R. 7 H. L. 53; for "Approbate
and Reprobate" v. Kerr v. Wau-
chope, 1 Bligh. 121.
168
RULES OF LOGIC.
Tender of
larger sum
tliau due.
Omne majus continet in se minus. (5 Hep. 115.) —
TIic greater contains the less (?•).
On this principle, if a man tender more than he ought
to pay, it is good ; and the other party ought to accept so
much of the sum tendered as is due to him ($). But a
tender by a debtor of a bank-note of a larger amount
than the sum due, and out of which he requires change,
is not a good tender, for the creditor may be unable to
take what is due and return the difference (t) ; though if
the creditor knows the amount due to him, and is offered
a larger sum, and, without any objection on the ground
of change, makes quite a collateral objection, that will be
a good tender (w). Where, however, a party has separate
demands for unequal suras against several persons, an
offer of one sum for the debts of all, not distinguishing
the claims against each, is not a valid tender, and will not
support a plea by one of the debtors, that his debt was
tendered (jt).
(r) Finch, Iaw, 21 ; D. 60. 17.
113. 110, pr.
(a) 3rd Resolution in Wade's cote,
6 Rep. 115 ; cited arg. Riven r.
Griffiths, 5 1). k Aid. 631, and recog-
nized Dean v. James, 4 B. & Ad.
546 ; Astley v. Reynolds, 2 Stra.
916 ; Wing. Max. p. 208.
A demand of a larger sum than is
due may be good as a demand of the
lesser sum, Carr v. Martinson, 1 E.
k R 456.
See, as another instance of the
maxim, supra, Rylands v. Kreitman,
19 C. B. N. S. 351.
(0 Betterbee v. Davis, 8 Camp.
70, cited 4 B. k Ad. 648 ; Robin wn
v. Cool-, 6 Taunt 336; Blo\r v.
Russell, 1 C. & P. 365.
(u) Per Lord Abinger, C. B.,
Berans v. Rett, 5 M. k W. 308 ;
Blank v. Smith, Peake, N. P. C. 88 ;
Saunders v. Graham, Gov, R. 121;
Douglas v. Patrick, 3 T. R. 683.
See Hardirigham v. Alien, 5 C. B.
793 ; Ex parte Danks, 2 Be G. M .
& G. 936.
(jt) Strong ▼. Harvey, 3 Bing. 304.
See also Dougl/ts v. Patrick, supra.
Tender of part of an entire debt is a
had tender : Dixon v. Clark, 5 C. B.
365 ; SearUs y. Sadgrave, 5 E. &
B. 639. Nor is a tender qualified
or clogged with a condition good,
RULES OF LOGIC. 169
The maxim admits of familiar and obvious illustration
in the power which a tenant in fee-simple possesses over
the estate held in fee ; for he may either grant to another
the whole of such estate, or charge it in any manner he
thinks fit, or he may create out of it any less estate or
interest ; and to the estate or interest thus granted he
may annex such conditions, provided they be not re-
pugnant to the rules of law, as he pleases (y). In like
manner, a man having a power may do less than such
power enables him to do ; he may, for instance, lease for
fourteen years, under a power to lease for twenty-one
years (z) ; or, if he have a licence or authority to do any
number of acts for his own benefit, he may do some of
them and need not do all (a). In these cases, the rule of
the civil law applies — Non debet cui plus licet quod
minus est non licere (b) ; or, as it is usually found
expressed in our books, cui licet quod majus non debet
quod minus est non licere (c)— he who has authority to
do the more important act shall not be debarred from
doing that of less importance; a doctrine founded on
common sense, and of very general importance and appli-
cation, not only with reference to the law of real property,
but to that likewise of principal and agent, as we shall
hereafter see. On this principle, moreover, if there be a
custom within any manor that copyhold lands may be
Finch ▼. Miller, 5C. B. 428; Bowen (a) Per Lord Rllenboroogh, C.J.,
v. Owen, 11 Q. B. 130. Isherwood v. Oldknotc, 3 M. k S.
(y) 1 Prest. Abstr. Tit. 316, 392.
377. WD. 50, 17, 21.
(z) Isherwood v. Oldknow, 3 M. (c) 4 Rep. 23 ; also majus dignum
& S. 382. See an instance of syllo- trahit ad Be minus dignum ; Co. Litt
gistic reasoning founded on the above 355 b ; 2 Inst. 307 ; Noy, Max.
maxim, Johnstone v. Sutlon, in error, 0th ed. p. 26 ; Finch, Law, 22.
1 T. R. 519.
170
RULES OF LOGIC.
Merger.
Extension
or principle.
granted in fee-simple, by the same custom they are
grantable to one and the heirs of his body for life, for
years, or in tail (d). So, if there be a custom that copy-
hold lands may be granted for life, by the same custom
they may be granted durante viduitate, but not i converso,
because an estate during widowhood is less than an estate
for life (e).
The doctrine of merger may also be specified in illus-
tration of the maxim now before us, for " when a less
estate and a greater estate, limited subsequent to it, coin-
cide and meet in one and the same person without any
intermediate estate, the less is immediately annihilated ;
or in the law phraseology is said to be merged, that is
sunk or drowned in the greater ; or to express the same
thing in other words, the greater estate is accelerated so
as to become at once an estate in possession " (/).
Further, it is laid down as generally true, that, where
more is done than ought to be done, that portion for
which there was authority shall stand, and the act shall bo
void quoad the excess only (g)t quando plus fit quam fieri
debet, videtur etiam illud fieri quod faciendum est (It) :
as in the instance of a power above referred to, if a man
do more than he is authorized to do under the power, it
shall be good to the extent of his power. Thus, if he have
power to lease for ten years, and he lease for twenty years,
the lease for the twenty years shall in equity be good for
ten years of the twenty (/).
So, if the grantor of land is entitled to certain shares
(d) 4 Rep. 23 ; Wing. Max. p. 206.
(c) Co. Copyholder, s. 38 ; Noy,
Max. 9th ed. p. 25. See another
example, 9 Rep. 48.
(/) 2 Black. Com. 826-7.
ig) Noy, Max. 9th ed. p. 25.
(h) 5 Rep. 115.
(0 See BartleU v. Bendle, 3 M. *
S. 99 ; Doed. William**. Matthars,
5 B. & Ad. 298.
RULES OF LOGIC.
only of the land granted; and if the grant import to
pass more shares than the grantor has, it will never*
theless pass those shares of which he is the owner (k).
Where also there is a custom that a man shall not
devise any greater estate than for life, a devise in fee
will be a good devise for life, if the devisee will claim
it as such (I).
Lastly, in criminal law the principle above exemplified
sometimes applies, ex. gr., on an indictment charging a
misdemeanor the jury may find the prisoner guilty of any
lesser misdemeanor which is necessarily included in the
offence as charged (m). But it is only by virtue of the
statute 14 & 15 Vict. c. 100, s. 9, that where a person has
been indicted for a crime, a jury may find him guilty of
an attempt to commit the same crime.
171
Quod ab initio non valet in Tractu Temporis non
convalescit. (Noy, Max. dth ed. p. 16, Dig. 50, 17,
29, 210.) — Tliat which was originally void, does not by
lapse of time become valid.
The above rule is one of very general importance in importance
practice, in pleading, and in the application of legal practice and
principles to the occurrences of life (n).
(*) 3 Prest. Ahstr. Tit 35. y. Livingttone, 3 Macq. Sc App.
(0 Gr. k Bud. of Law, p. 242. Cas. 497, 555 ; of the surrender of a
(m) Reg. v. Taylor, L. R. 1 C. 0. copyhold, Doe d. Tqfield v. Tofidd,
194, 196. See Reg. v. Hodglcin, 11 Bast, 246 ; of a parish certificate,
Id. 212. R. v. Upton Gray, 10 B. k C. 807 ;
(n) See instances of the application R. v. Whitchurch, 7 B. k C. 573 ;
of this role in the case of marriage of an order of removal, R. r. Chilurs-
with a deceased wife's sister, Fenton colon, 8 T. R. 178.
172 RULES OF LOGIC.
MnMeation Instances in which it applies will be found to occur
in various parts of this work, particularly in that which
treats of the law of contracts. The following cases have
here been selected, in order to give a general view of
its application in different and distinct branches of the
law.
I*"* If a bishop makes a lease of lands for four lives, which
is contrary to the stat. 13 Eliz. c. 10, s. 3, and one of
the lives falls in, and then the bishop dies, yet this lease
will not bind his successor, for those things which have
a bad beginning cannot be brought to a good end (o).
So, if a man seised of lands in fee make a lease for
twenty-one years, rendering rent to begin presently, and
the same day he make a lease to another for the like
term, the second lease is void ; and even if the first lessee
surrender his term to the lessor, or commit any act of
forfeiture of his lease, the second lessee shall not have
his term, because the lessor at the making of the second
lease had nothing in him but the reversion (p).
Again, in the case of a lease for years, there is a dis-
tinction between a clause by which, on a breach of cove-
nant the lease is made absolutely void, and a clause
which merely gives the lessor power to re-enter. In the
former case, if the lessor make a legal demand of the
rent, and the lessee neglect or refuse to pay, or if the
lessee be guilty of any breach of the condition of re-
entry, the lease is void and absolutely determined, and
cannot be set up again by acceptance of rent due after
the breach of the condition, or by any other act; but
if, on the other hand, the clause be, that for non-payment
(o) Noy, Max. 9th ed. p. 16. Taniere, 12 Q. B. 998.
Sec Doe d. BrammaU ▼. Cottinge, 7 (p) Smith v. StapUton, Plowtl. 432
C. B. 939 ; Doe d. Pennington v. Noy, Max. 9th ed. p. 16.
*c.
RULES OF LOGIC. 173
of the rent it shall be lawful for the lessor to re-enter,
the lease is only voidable, and may be affirmed by accept-
ance of rent accrued afterwards, or other act, provided
the lessor had notice of the breach of condition at the
time; and it is undoubted law that, though an accept-
ance of rent or other act of waiver may make a voidable
lease good, it cannot make valid a deed (q) or a lease
which was void ab initio (?•).
Where a remainder is limited to A., the son of B., he Remaind*.
having no such son, and afterwards a son is born to him,
whose name is A., during the continuance of the par-
ticular estate, he will not take by this remainder (a).
So, where uses are raised by a deed which is itself void,
as in the instance of the conveyance of a freehold in,
futuro, the uses mentioned in the deed cannot arise (t\
When the estate to which a warranty is annexed is
defeated, the warranty is also defeated (it) ; and when a
spiritual corporation to which a church is appropriate is
dissolved, the church is disappropriated (x).
So, where a living becomes vacant by resignation or
canonical deprivation, or if a clerk presented be refused
for insufficiency, these being matters of which the bishop
alone is presumed to be cognizant, the law requires him
to give notice thereof to the patron (y) ; otherwise he can
(q) See De Montmorency v. Af- (u) lift. s. 741, and Butler's note,
vereux, 7 CL & Fin. 188. (1) ; Co. Litt. 389 a ; but this may
(r) Doe d. Bryan v. Banks, 4 B. with more propriety be referred to
ft Aid. 401 ; Co. Iitt. 215 a ; Jones the maxim, suUato principal* tollitur
t. Carter, 15 M. & W. 719. adjunctum. lb.
(«) Noy, Max. 9th ed. p. 17 ; 2 (x) Noy, Max. 9th ed. p. 20.
Black. Com. 820-1. (y) See Bishop of Exeter v. Mar-
ti) Arg. QoodiUU y. Qibbs, 5 B. Jthall, L. R. 3 H. L. 17 ; 37 L. J.
& C. 714. C. P. 881.
174
RULES OF LOGIC.
Qualifica-
tion of
rule.
Aider by
verdict.
Further
exceptions.
take no advantage by way of lapse ; neither in this case
shall any lapse accrue to the metropolitan or to the Crown,
for the first step or beginning fails — quad nan habet prin-
cipium nan habet jinem (z), it being universally true, that
neither the archbishop nor the Crown shall ever present
by lapse, but where the immediate ordinary might have
collated by lapse within the six months, and has exceeded
his time (a).
An important qualification of the rule expressed by the
maxim we have been discussing is effected by the doctrine
of aider by verdict When an averment which is necessary
for the support of a pleading is improperly stated, and the
verdict on an issue involving that averment is found, if it
appears to the Court after verdict, that the issue could
not have been determined without proof of the averment,
the defective averment, which might have been fatal on
demurrer, is cured by the verdict (b). It is to be observed
that this principle is applicable in criminal as well as in
civil proceedings (c). Aider by verdict does not, however,
extend to a case where a necessary averment is totally
omitted (</). In such cases the more general rule applies,
(fab Uefunda men turn fall it opus(e). A still more marked
qualification of the leading maxim is afforded by cases
where an act done contrary to the express direction or
established practice of the law will not be found to
(2) Wing. Max. p. 70 ; Co. Litt.
345 a.
(a) 2 Black. Com. 452; Co.
Litt 345 a.
(ft> Beyman ▼. Regina, L. R. 8
Q. B. 102 ; per Blackburn, J. P. 105 ;
and see Jackton v. Peaked, 1 M. & S.
234 ; 1 Wms. Saund. 228, 1.
(c) Reg. v. Aspinoll, 2 Q. B. D.
48 ; 45 L. J. M. C. 229.
(rf) Per Brett, J. A., ibid. p. 58.
(«) Finch, Law, 14, 36; Wing.
Max. 113, 114. See, also, the judg-
ment, Davie* dcm. Lowndes ten., 8
Scott, N. R. 567, where the above
maxim is cited and applied.
RULES OF LOGiO. 175
invalidate the subsequent proceedings, and where, con-
sequently, quod fieri non debet factum valet (/).
The Banwen Iron Company v. Burnett (g) seems to
fall within the class of cases to which the maxim just
cited applies. There a certificate of complete registration
had been granted by the Registrar of Joint Stock Com-
panies, pursuant to the stat 7. & 8 Vict. c. 110, s. 7;
although the deed of settlement omitted some of the
provisions required to be inserted therein : and it was
held that a shareholder could not, in answer to an action
brought against him for calls, object that the certificate
had been granted upon the production of an insufficient
deed.
The case of Rey. v. Lord NewboroiighQt) also well
illustrates this exception to the maxim. There the ques-
tion was as to the payment of special constables by a
county treasurer, neither the appointment of the special
constables, nor the order for their payment, having been
made in accordance with the requirements of the 1 &
2 Wm. 4, c. 41. It was urged in the argument quod
fieri non debet factum valet, a view which was adopted
by Lush, J., who decided that, as the order for payment
had been acted upon, the account allowed, and the money
paid, the proceedings should not be re-opened.
Conformably to the principle on which the foregoing
case was decided, the maxim quod fieri non debet factum
valet, will in general be found strictly to apply wherever
(/) Gloss, in 1, 5, Cod. 1. 14. Pro W. 20, 1 in Exch. Ch. ; 0 M. &
infectis: B. 1, 14, 3. Wood, Inst., W. 640.
25 ; 5 Rep. 38. As will be seen for) 8 a & 406, 433.
hereafter, this and the leading maxim (h) L. R. 4 Q. & 586. y. also
hare frequent application in the per Blackburn, J., Wituor v. Reg., 6
case of contracts. 8eo McOattan v. B. & 8. 183.
Mortimer, 6 M. A W. 53 j 7M, 4
176 RULES OF LOGIC.
a form has been omitted which ought to have been
observed, but of which the omission is ex post facto
immaterial (i). It frequently happens, indeed, that a par-
ticular act is directed to be done by one clause of a
statute, and that the omission of such act is, by a separate
clause, declared immaterial with reference to the validity
of proceedings subsequent thereto. In all such cases it
is true, that what ought not to have been done is valid
when done. Thus, residence in the parish before pro-
clamation is directed by the stat 26 Geo. 2, c. 33, " For
the better preventing of Clandestine Marriages/' as a
requisite preliminary to the celebration of a marriage by
banns; but if this direction, although very material for
carrying out the object of that Act, be not complied with,
the marriage will nevertheless be valid under the 10th
section, for here the legislature has expressly declared,
that non-observance of this statutory direction shall, after
the marriage has been solemnised, be immaterial (k). The
applicability of this maxim, in regard to the validity of a
marriage irregularly solemnised, was also discussed in
Beamish v. Beamish, which will hereafter more conve-
niently be noticed (/).
Lastly, it is said, that " void things " may nevertheless
be " good to some purpose " (m) ; as if A., bjT indenture,
let B. an acre of land in which A. has nothing, and A.
*
\
(f) Per Lord Brougham, 6 CI. & Southampton Dock Co. v. Richard*,
Fin. 708; arg. 9 Wheaton (U. S.\ 1 Scott, 239, and cited arg. 7 Id.
K. 478. " There is a known dis- 695.
tinction between circumstances which (£) See per Lord Brougham, 6 CI.
are of the estejice of a thing required & Fin. 708 et seq.
to be done by an Act of Parliament, (I) 5 Irish C. L. Rep. 136 ; 8. C,
and clauses merely directory." Per 6 Id. 142 ; 9 H. L. Cas. 274.
Lord Mansfield, C.J., R. v. Loxdale, (m) Finch, Law, 62,
1 Burr. 447, adopted jwrTindal, C.J.,
HULKS OF LOGIC.
177
purchase it afterwards, this will be a good lease (n) ; and
the reason is, that what, in the first instance, was a lease
by estoppel only(o), beeomes subsequently a lease in
interest, and the relation of landlord and tenant will then
exist as perfectly as if the lessor had been actually seised
of the land at the time when the lease was made (p).
ABGUMENTyM AB INCONVENIENT! PLUBIMUM VALET IN
Lege. (Co. Lift. 66 a.) — An argument drawn from
inconvenience is forcible inlaw (q).
It has been stated, in treating one of the preceding
maxims (r), that where the law is clearly defined, its strict
letter will not be departed from because inconvenience or
hardship may result from its strict observance. Never*
theless, in cases where the law is not clear, or where
the circumstances give rise to doubt, the Courts will
frequently allow their decision to be determined by such
considerations (#).
Thus, arguments of inconvenience are sometimes of
great value upon the question of intention. If there be
(») Noy. Max., 9th ed., p. 17, and
authorities cited, Id. n. (a).
(o) See Cuthbertson v. Irving, 4
H. &N. 742, 754 ; S. C, 6 Id. 135;
Duke y. AMy, 7 Id. 600.
(p) Blake t. Foster, 8 T. It. 487 ;
Stokes v. Russdly 8 T. R. 078 ; per
AMeraon, B., 6 M. & W. 662 ; Webb
t. Austin, 8 8cott, N. R. 419 ; Par*
geter v. Harris, 7 Q. B. 708 ; Co.
Litt. 47 b., 1 Piatt on Leases, 53,
54 ; Bac. Abr. Leases (o).
(q) Oo. Litt. 97, 152 b. As to
the argument ab inconvenient*, see
per Sir W. Scott, 1 Dods. 402 ; per
Lord Brougham, 6 CI. & Fin. 671 ;
1 Mer. 420. Sheppard v. Phillimore,
L. R. 2 P. C. 450, 460.
(r) Omnis innoratio, dc
(«) Per Heath, J., 1 H. Bla. 61 ;
per Dallas, C.J., 7 Taunt. 527 ; 8
Id. 762 ; per Holroyd, J., 3 B. & C.
131 ; Judgm., Doe v. Acklam, 2 B. &
C. 798.
N
178 RULES OF LOGIC.
in any deed or instrument equivocal expressions, and
great inconvenience must necessarily follow from one
construction, it is strong to show that such construction
is not according to the true intention of the grantor ; but
where there is no equivocal expression in the instrument,
and the words used admit only of one meaning, argu-
ments of inconvenience prove only want of foresight in
the grantor. This reasoning was applied in the case of
Glyn, Mills, <b Co. v. The East and West India Dock Co.,
in which the meaning of the expression in bills of lading,
" the one being accomplished, the other to stand void," was
discussed (t). But because a man has been wanting in fore-
sight, the courts of justice cannot make a new instrument for
him : they must act upon the instrument as it is made (u) ;
and generally, if there be any doubts what is the law,
judges solve such doubts by considering what will be the
good or bad effects of their decision ; but if the law is
clear, inconveniences afford no argument of weight with
the judge: the legislature only can remedy them (a*).
And, hence, the doctrine, that nihil qwod est inconveniens
est licitum(y)t which is frequently advanced by Sir E.
Coke, must certainly be received with some qualification,
and must be understood to mean, that against the intro-
duction or establishing of a particular rule or precedent
inconvenience is a forcible argument (z).
(t) 7 App. Cos. 591 ; & see per (x) Per Lord Northington, C,
Jessel, M. R., Bottomley's case. 10 Pile v. Uoart, 2 Eden, 184; per
Ch. D. at p. 686. Abbott, C.J., 8 B. & C. 471. See
(u) Per Sir J. Leach, V.-C, A.-G. Vaughan, R. 87, 88.
y. Duke of Marlborough, 3 Madd. (ij) Co. Litt. 66 a. ; cited per Pol-
540; per Burrough, J., Deane v. lock, C.B., 4 H. L. Caa 145, and
Clayton, 7 Taunt 496 ; per Best, per Lord Truro, Id. 195.
C.J., Fletcher v. Lord Sondes, 3 (z) Ram. Science of Legal Judg-
Bing. 590. ment, 57.
RULES OF LOGIC. 179
This argument ah inconvenienti, moreover, is, under ruwicin.
COll VCllifSIl CC
many circumstances, valid to this extent, that the law will
sooner suffer a private mischief than a public incon-
venience,— a principle which we have already had occasion
to consider in its general application. It is better to
suffer a mischief which is peculiar to one, than an incon-
venience which may prejudice many (a).
Lastly, in construing an Act of Parliament, the same Argument,
. how applied
rule applies. If the words used by the legislature, in !nln^T1^
framing any particular clause, have a necessary meaning,
it will be the duty 'of the Court to construe the clause
accordingly, whatever may be the inconvenience of such
a course (6). Where a statute is imperative no reasoning
ab iTiconvenienti should prevail But, unless it is very
clear that violence would be done to the language of the
Act by adopting any other construction, any great incon-
venience which might result from that suggested, may
certainly afford fair ground for supposing that it could
not be what was contemplated by the legislature, and
will warrant the Court in looking for some other inter-
pretation (c).
Although, according to Lord Bacon (d), judges ought
above all things to remember the conclusion of the Roman
Twelve Tables, Salus populi mprema lex, and that laws,
unless they be in order to that end, are but things captious
and not well inspired, he reminds them elsewhere that
their function is to interpret, and not make the law.
(a) Co. Litt. 07 b. 152 b. ; Ilobart, (r) Judgm., Doe d. Governors of
224 ; $al us populi, &c, antea. Bristol Hospital v. Norton, 11 M. &
{b) Per Eric, J., Wansey, app., W. 928 ; Judgm., Turner v. Sheffield
Perkins, resp., 8 Sc N. R. 9«9 ; per R. C., 10 M. & W. 434.
Parke, J., Mirehouse v. Rennell, 1 (d) Essay " Of Judicature," see
a. k Fin. 546. Wilberforce on Stat, per Pollock, O.B., 4 H. L. Cas. 152.
Law, Chap. 3.
* 2
180
CHAPTER V.
FUNDAMENTAL LEGAL PRINCIPLES.
Many of the principles set forth and illustrated in this
chapter are of such general application that they may be
considered as exhibiting the very grounds or foundations
on which the legal science rests. To these established
rules and maxims the remark of Sir W. Blackstone (Com.,
21st ed., vol. i., p. 68) is peculiarly applicable : — Their
authority " rests entirely upon general reception and
usage, and the only method of proving that this or that
maxim is a rule of the common law, is by showing that it
hath been always the custom to observe it" It would,
indeed, be highly interesting and useful to trace from a
remote period, and through successive ages, the gradual
development of these principles, to observe their primitive
and more obvious meaning, and to show in what manner
and under what circumstances they have been applied by
the " living oracles " of the law to meet the increasing
exigencies of society, and those complicated facts which
are the result of commerce, civilization, and refinement
Such an inquiry would, however, be too extensive to be
compatible with the plan of this work ; our object, there-
fore, in the following pages, is limited to exhibiting a
series of the elementary and fundamental rules of law,
accompanied by a few observations, when necessary, with
occasional references to the civil law, and a sufficient
FUNDAMENTAL LEGAL PRINCIPLES. 181
number of cases to exemplify the meaning and qualifica-
tions of the maxims cited.
These will be found to comprise the following impor-
tant principles : that where there is a right there is a
remedy, that the law looks not at the remote, but at the
immediate cause of damage — that the act of <3od shall
not, by the instrumentality of the law, work an injury—
that damages shall not in general be recovered for tho
non-performance of that which was impossible to be done
—that ignorance of the law does not, although ignorance
of facts does, afford an excuse — that a party shall not con-
vert that which was done by himself, or with his assent,
into a wrong — that a man shall not take advantage of his
own tortious act — that the abuse of an authority given by
law shall, in some cases, have a retrospective operation in
regard to the liability of the party abusing it— that the
intention, not the act, is regarded by the law, — and that a
man shall not be twice vexed in respect of the same cause
of action.
Ubi Jus ibi Kemedium. (See 1 T. R. 512.)— Tliere is no
uvrong without a remedy (a).
Jus, in the sense in which it is here used, signifies " the Jmand
» i i • i i i i • i nmfdim
legal authority to do or to demand something "(6). detincd.
Remedium may be defined to be the right of action, or
the means given by law for the recovery or assertion of a
right, and, according to the above elementary maxim,
(a) Johnstone v. Sutton (in error), (6) Mackeld. Civ. Lav, 6. For a
IT. R. 51*2 ; Co. Litt. 197, b. See general definition of the word "jus"
ateo Lord Camden's judgment in see Wharton's Law Lexicon, 6th
Entiek v. Carrington, 19 How. St. ed. 515.
Trial*, 1066.
182
FUNDAMENTAL LEGAL PRINCIPLES.
whenever the law gives anything, it gives a remedy for
the same : lex semper dabit remediwni (c). If a man has
a right, he must, it has been observed in a celebrated case,
have a means to vindicate and maintain it, and a remedy
if he is injured in the exercise and enjoyment of it ; and,
indeed, it is a vain thing to imagine a right without a
remedy, for want of right and want of remedy are re-
ciprocal (d).
It appears, then, that remedium, although sometimes
used as synonymous with actio, has, in the maxim which
we now propose to consider, a more extended signification
than the word " action " in its modern sense. An
" action " is, in fact, one peculiar mode pointed out by the
law for enforcing a remedy, or for prosecuting a claim or
demand, in a court of justice — action n'est auter chose
que kyall demande de son droit (c), an action is merely
the legitimate mode of enforcing a right, whereas remc-
dium must here be understood to signify rather the right
of action, or jus persequendi in judicio quod sibi
debetur (/), which is in terms the definition of the word
actio in the Roman law (g).
The maxim ubi jus ibi remedium has been considered
(c) Jacob, Law Diet, title "/fe-
maty:99 Bac. Abr., "Actions in
General, " (B). The reader is referred
for general information as to tbe
nature of legal rights and remedies
to Broom's Com., 4th ed., Bk. i.
chap. 3. "Upon principle, wherever
the common law imposes a duty, and
no other remedy can be shown to
exist, or only one which has become
obsolete or inoperative, the Court of
Queen's Bench will interfere by man-
damus." Jndgin., 12 A. & K. 266.
See, also, Gosling v. Vdey, 7 Q. B.
451.
(d) Per Holt, C. J., AMy v.
JFhitc, 2 Lord Raym. 953 ; per
Willes, C. J., Wintmort v. Green"
ban*, Willes, 577; Vaugh. R. 47,
253.
(e) Co. Litt. 285, a, ; Wharton's
Law Lexicon, 6th ed. 26.
(/) I. 4. 6. pr.
{g) See Phillimore, Introd. to Horn.
L., 61.
FUNDAMENTAL LEGAL PRINCIPLES. 183
so valuable, that it gave occasion to the first invention of
that form of action called an action on the case ; for the
statute of Westminster 2 (13 Edw. 1, c. 24), which is only statute 13
v n J Edw. 1,0.24.
in affirmance of the common law on this subject, and was A.ctlou on
J ' the case.
passed to quicken the diligence of the clerks in the Chan-
cery, who were too much attached to ancient precedents,
enacts, that, " whensoever from thenceforth a writ shall be
found in the Chancery, and in a like case, falling under
the same right and requiring like remedy, no precedent of
a writ can be produced, the clerks in Chancery shall agree
in forming a new one ; and if they cannot agree, it shall
be adjourned till the next Parliament, where a writ shall
be framed by consent of the learned in the law, lest it
happen for the future that the Court of our Lord the
King be deficient in doing justice to the suitors."
The principle adopted by courts of law accordingly is*
that the novelty of the particular complaint alleged in an
action on the case is no objection, provided that an injury
cognisable by law be shown to have been inflicted on the
plaintiff (h) ; in which case, although there be no prece-
dent, the common law will judge according to the law of
nature and the public good (i).
It is, however, important to observe this distinction, Distinction
, _ ....,.• tol>e ob-
tnat, where cases are new in principle, it is necessary to served.
have recourse to legislative interposition in order to
remedy the grievance ; but where the case is only new in
the instance, and the sole question is upon the application
of a principle recognised in the law to such new case, it
will be just as competent to courts of justice to apply the
(h) Per Piatt, C. J., Chapman v. 4 H. L. Cas. 768 ; CaichpoU v. Am-
PickertgiU, 2 Wila. 146 ; Novello v. bergaU, dcf R.C.1K&B. 111.
Sudloic, 12 C. B. 177, 190 ; et vide (i) Jenk. Cent. 117.
per Coleridge, J., Gosling v. Veley,
184
FUNDAMENTAL LEGAL PRINCIPLES.
Athhjjv.
1VKIU.
Principle
rioriuciole
therefrom.
principle to any case that may arise two centuries hence
as it was two centuries ago (k).
In accordance with the spirit of the maxim, vJbi jus \hi
remedium, it was held, in a case usually cited to illustrate
it, that a man who has a right to vote at an election for
members of Parliament, may maintain an action against
the returning officer for maliciously (2) refusing to admit
his vote, though his right was never determined in Par-
liament, and though the persons for whom he offered to
vote were elected (m) ; and in answer to the argument,
that there was no precedent for such an action, and that
establishing such a precedent would lead to multiplicity
of actions, Lord Holt observed that if men will multiply
injuries, actions must be multiplied too, for every man
that is injured ought to have his recompense (?i).
It is true, therefore, that, in trespass and for torts
generally, new actions may be brought as often as new
injuries and wrongs are repeated (o). And every statute
(I) Per Ashhurst, J., PasUy v.
Freeman, 3 T. E. 63 ; per Park, J.,
7 Taunt. 515; Fletcher v. Lord
Sondes, 3 Bing. 550.
(I) Proof of malice is essential to
the maintenance of such an action.
Tozer v. Child, 7 E. & B. 377;
S. C, 6 Id. 289, citing Lord Holt's
judgment in Ashby v. White (ed.
1837).
Where damage is occasioned by a
wrongful act, i.e., an act which the
law esteems an injury, malice is not
a necessary ingredient in the right
of action. Judgm., Royerrs v. Dutt,
13 Moo. P. C. C. 236.
(m) Ashby v. White, 2 lid. Raym.
33S ; cited Stocl-dale v. Hansard, 9
A. k E. 135, and in Rochdale Camd
Co. v. Kinj, 14 Q. B. 122, 138. In
connection with Ashby v. White, see
also Pryce v. Bdcher, 3 C. B. 58 ;
S. C, 4 Id. 866 (where the maxim
above illustrated was much consi-
dered), and Tozer v. Child, supra;
et vide Jenkins v. Waldron, 11 Johns.
(U. S.), R. 120.
(n) 2 Ld. Raym. 955 ; Millar v.
Taylor, 4 Burr. 2344.
(o) Hambleton v. Veere, 2 Wms.
Saund. 171, b (1) ; cited per Lord
Denman, 0. 7., HodsoU v. Stalk-
brass, 11 A. & B. 306. In an action
for damage to the plaintiff's lands
and buildings by the removal of
lateral support it has been held that
prospective as well as the actual
damage must be recovered once and
FUNDAMENTAL LEGAL PRINCIPLES.
185
made against an injury, mischief, or grievance, impliedly
gives a remedy, for the party injured may, if no remedy
be expressly given, have an action upon the statute ; and
\f a penalty be given by statute, but no action for the
recovery thereof be named, an action of debt will lie for
the penalty (p), and an action can also be maintained if
the remedy given by the statute does not cover the whole
right (q). So, where a statute requires an act to be done
for the benefit of another, or forbids the doing of an act
which may be to his injury, though no action be given in
express terms by the statute for the omission or com-
mission, the general rule of law is, that the party injured
shall have an action (r) ; for, "where a statute gives a
right, there, although in express terms it has not given a
remedy, the remedy which by law is properly applicable
to that right follows as an incident " («). And, in like
manner, when a person has an important public duty to
perform, he is bound to perform that duty, and if he
neglects or refuses so to do, and an individual in conse-
quence sustains injury, that may lay the foundation for an
action to recover damages by way of compensation for the
injury that he has so sustained (0*
Where, however, the Legislature has imposed a statutory
for all. Lamb v. Walker, 3 Q. B. D.
389 ; 45 L. J. Q. B. 451 ; 38 L. T.
643.
(p) 2 Dwarr. Stats. 677.
\q) Shepherd v. Hills, 11 Kxch.
55, explained per Williams, J., in
St. Paneras v. BatUrbury, 2 C. B.
N. S. 477 at p. 487.
(r) Athby r. White, supra, cited
aig. 9 CI. & Pin. 274 ; BUeoat v.
Archbishop of Canterbury, 10 C. B.
327 : Caledonian li. C. v. Cort, 3
Macq. Sc. App. Cas. 833.
(«) See per Maule, J., Braitkwaile
v. Skinner, 5 M. & W. 327; citing
per Holt, C. J., Ewer v. Jones, Salk.
415 : S. C, 2 Ld. Baym. 937 ; per
Willes, J., Wolverhampton New
Waterworks Co. v. Hawkesford, 6
C. B. N. S. 356.
(t) Per Lord Lyndhurst, C, 9 CI.
& Fin. 279 ; citing Sutton v. John-
stone, 1 T. R. 493 ; BartleU v. Cro-
sier, 15 Johna. (U. S.), B. 254, 255.
18C
FUNDAMENTAL LEGAL PRINCIPLES.
Damnum
ab#inc in-
jur id.
duty for a purpose altogether foreign to any individua
interests there, a breach of that duty causing loss to an
individual will not entitle the injured party to maintain
an action in respect of it (u).
There is, however, a class of cases, from which it is
important to distinguish those above referred to, in which
a damage is sustained by the plaintiff, but a damage not
occasioned by anything which the law esteems an injury.
This kind of damage is termed in law damnum
absque injuria (x), and for it no action can be main-
tained {y).
For instance, if a person build a house on the edge of
his land, or by alterations in an existing house increase
the lateral pressure, and the proprietor of the adjoining
land after twenty years have elapsed dig so near that the
building falls down or is injured, an action will lie, pro-
vided the enjoyment of support to the building from the
adjacent land has been open, peaceable, and continuous.
(ti) GorrU v. Scott, L. B. 9 Bx.
125 ; 43 L. J. Bx. 92 ; 30 L. T. 431.
(x) As to the distinction between
damnum and injurul, see Hall v.
Mayor of Bristol, L. R. 2 C. P.
322 ; Smith v. Thackerak, L. R. 1
C. P. 564.
(y) Broom's Com., 4 th ed. 75 et
9tq. ; Cooke v. Waring, 2 H. & C.
332.
" In this country we do not recog-
nise the absolute right of a person to
a particular name to the extent of
entitling him to prevent the assump-
tion of that name by a stranger. The
right to the exclusive use of a name
in connection with a trade or business
is familiar to onr law; and any
person using that name after a rela-
tive right of this description has been
acquired by another, is considered to
have been guilty of a fraud, or at
least of an invasion of another's right,
and renders himself liable to an
action, or he may be restrained from
the use of the name by injunction.
But the mere assumption of a name
which is the patronymic of a family
by a stranger who had never before
been called by that name, whatever
cause of annoyance it may be to the
family, is a grievance for which our
law affords no redress/' Per Sir B.
Phillimore, Die Boulay v. Du Boulay,
L. R. 2 P. C. 441-2.
FUNDAMENTAL LEGAL PRINCIPLES.
187
The plaintiff has thereby acquired an absolute right to sup-
port, and to infringe that right is an injury (z). But if the
owner of land adjoining a newly-built house, within twenty
years after its erection, dig in a similar manner, and produce
similauresults, in this case, though there is damage, yet, as
there is no right to the support, no injury is in legal
contemplation committed by withdrawing it, and conse-
quently no action will be maintainable, unless the weight
of the house did not contribute to the subsidence (a). The
cases infra (b) are worthy of perusal, with reference not
merely to the proposition just stated, but to the right of
the surface owner under various and dissimilar circum-
stances to the support of the subjacent strata.
Further, it often happens, in the ordinary proceedings
of life, that a man may lawfvMy use his own property so
as to cause damage to his neighbour, which is not inj tu-
fa) Stantell v. JoUard, Selw. N. P.
10th ed. 435 ; Hide v. Thomborough,
2 Car. & K. 350 ; Dodd y. Holme,
1 A. & E. 493 ; Backhouse v. Bo*
nomi, 9 H. L. Cas. 503; & 0., E.
B. & E. 422 ; Smith r. Thacl-erah,
L. R. 1 C. P. 564 ; Angus v. Dalton,
Lu R. 3 Q. B. D. 85 ; 4 Q. B. D.
162 ; 6 Ap. Oases, 740 ; 47 L. J. Q.
B. 163 ; 48 L. J. Q. B. 225 ; 33 L.
T. 510 ; 40 L. T. 605.
(a) Brown v. Robins, 4 H. & N.
186 ; Stroyan v. Knowles, 6 H. & N.
454 ; Angus v. Bolton, supra,
(b) Wyatt v. Harrison, 3 B. & Ad.
876; Gayford y. NichoUs, 9 Exch.
702 ; HUton y. Whitehead, 12 Q. B.
734 ; Rowbotham y. Wilson, 8 H. L.
Cas. 348, cited M archie y. Black,
19 C. B. N. S. 208 ; Humphries v.
Brogden, 12 Q. B. 739 ; as to which
see Solomon v. Vintners' Co., 4 II.
6 N. 598-9, cited per Wood, V.-C,
Hunt y. Peahe, 29 L. J. Chanc. 785 ;
North-Eastern R. C. r. Elliot, 10 H.
L. Cas. 333 ; AUaway v. Wagstaff,
4 H. & N. 681 ; Rogers r. Taylor,
2 H. & N. 828, 834 ; Brown v.
Robins, 4 H. & N. 186 ; Smart v.
Morton, 5 E. 4 B. 30 ; Richards v.
Rose, 9 Exch. 218 ; Smith v. Kenrick,
7 C. B. 515 ; Haines v. Roberts, 6 E.
& B. 625, 643 ; Fletcher v. Great
Western R. C.t 4 H. & N. 242 ; ap-
proved in Great Western R. C. v.
Bennett, L. B. 2 H. L. 27 ; Judgm.,
Keyse v. Powell, 2 E. & B. 144 ;
Caledonian R. C. v. Sprot, 2 Macq.
Sc. App. Cas. 449 ; Richards v.
Harper, L. R. 1 Ex. 199 ; Popptc-
well y. Hodlinson, L. R. 4 Ex. -248.
188
FUNDAMENTAL LEGAL PRINCIPLES.
ti%io8fVbm{c)\ or he may, whilst pursuing the reasonable
exercise of an established right (YZ), casually cause an
injury, which the law will regard as a misfortune merely,
and for which the party from whose act it proceeds wall
not be liable. Thus, where certain mineral workings had
caused a subsidence of the surface soil and a consequent
fall of rain into an adjacent coal field, it was held no
action could be maintained for the injury done to the
coal field by the influx of water (e).
In cases of this nature a loss or damage is indeed
sustained by the plaintiff, but no action will lie because
the act complained of is not an infringement of any legal
right (/), and results from an act done by another free
and responsible being which is neither unjust nor
illegal (g). Thus, the establishment of a rival school,
which draws away the scholars from a school previously
established, is illustrative of such a loss (It). So, a man
may lawfully build a wall on his own ground in such a
manner as to obstruct the lights of his neighbour, who
may not have acquired a right to them by grant or
adverse user. He may obstruct the prospect from his
neighbour's house (i). He may build a mill near the mill of
(c) Roger* v. DuU, 18 Moo. P. 0.
C. 209, 237, 241, well illustrates the
above proposition.
(cQ ThcEUanor, 2 Wheaton (U.S ),
B. 358 ; Panton v. Holland, 1;
Johns. (U. S.), R. 100.
(e) Wilson v. Waddell, 2 App.
Can. 95; 35 L. T. 639. See also
Hopkins v. 0. N. R. Co., 2 Q. B. D.
224 ; 46 L. J. Q. B. 265 ; 86 L. T.
898 ; where the Court of Appeal
held that the owner of a ferry could
not maintain an action for loss of
traffic canped by the erection by the
company of a bridge oyer the river.
(/) Barker v. Green, 2 Bing.
317.
(g) See Kemtet and Avon Naviga-
tion Co, v. Withcrington, 18 Q. B.
531 ; laing v. Whalley, 3 H. & N.
675, 901 ; S. C, 2 Id, 476 ; with
which compare Hodgkinson v. En nor t
4 B. k S. 229.
(h) Bell, Diet, and Dig. of Scotch
Law, 252; Bac. Abr., " Actions in
General" (B).
(t) See Re Penny t 7 E. & B. 660,
671.
FUNDAMENTAL LEGAL PRINCIPLES.
189
his neighbour, to the grievous damage of the latter by loss of
custom (fc), and so increase the height of his own premises
as to obstruct the access of air to his neighbour's chim-
neys (I). He may, by digging in his own land, intercept or
drain off the water collected from underground springs in
his neighbour's well. In these and similar cases, the
inconvenience caused to his neighbour falls within the
description of damnum absque injurid, which cannot
become the ground of an action (m). But a distinction
must be observed between cases where the water has
percolated or gravitated through the adjacent land, uncon-
fined in any channel, and where flowing water passing
along a well-defined channel has been diverted ; in the
latter case a landowner will be restrained if he by
any acts on his own land causes the stream to be
diverted from its original bed (n).
Although it may seem to be a hardship upon the
party injured to be without a remedy, by that considera-
tion courts of justice ought not to be influenced. Hard
cases, it has been already observed, are apt to introduce
bad law (o).
(k) As to liability for obstructing
the current of air to a windmill, see
Webb v. Bird, 10 C. B. N. S. 263.
(J) Bryant y. Lefever, 4 C. P. D.
172 ; 48 L. J. Ch. 380; 40 L. T.
579.
(m) Acton y. BlundcU, 12 M. k
W. 841, 354 ; cited judgm. Dickin-
mm y. Grand Junction Canal Co., 7
Exch. 300 ; S. C, 15 Beav. 260 ; and
in Smith v. Kenrick, 7 O. B. 566,
and commented on per Coleridge, J.,
dies., Chaeemore y. Richarde, 2 H.
k N. 190 et eeq. ; S. C, 7 H. L. Gas.
349 ; Bairdv. Williamson, 15 C. B.
N. S. 376; per Bramwell, B., lbott-
son y. Peat, 3 H. k C. 647, 650 ;
per Pollock, C. B., Duddtn v. Guar-
dians of Clutton Union, 1 H. k N.
630. See Rawdron y. Taylor, 11
Exch. 369 ; Broadbent y. Rams-
botham, Id. 602 ; Beeston y. Weate,
5 E. k B. 936 ; Wardie v. Brockle-
hunt, 1 B. k B. 1058.
(») Grand Junction Canal Co. v.
Shvgar, L. R. 6 Ch. App. 483 ; 24
L. T. 402.
(o) Ante, p. 150. Per Lord St.
Leonards, 7 H. L. Caa. 93 ; per Lord
Campbell, Id. 628; per Kolfe, B.,
190
FUNDAMENTAL LEGAL PRINCIPLES.
mistake.
wiunuittrty Again, where process is served by mistake on a wrong
person and all the proceedings in the action are taken
against him, the defendant so wrongfully sued will un-
doubtedly have a good defence to the action, and will
consequently recover his costs ; but if it be asked what
further remedy he has for the inconvenience and trouble
he has been put to, the answer is, that, in point of law, if
the proceedings have been adopted purely through mis-
take, though injury may have resulted to him, it is
damnum absque injurid, and no action will lie. Indeed,
every defendant against whom an action is unnecessarily
brought, experiences some injury or inconvenience beyond
what the cost will compensate him for (p).
It has been held too that an action does not lie.
against a man for a statement made by him in the course
of a judicial proceeding, even though it be alleged to have
been made "falsely and maliciously, and without any
reasonable and probable cause " (q).
Again, if the legislature directs or authorises the doing
of a. particular thing, the doing of it cannot be wrongful ;
though, if damage thence results, it may be just and proper
Action-
against
witness.
Act autho
riaetl by
statute.
10 M. & W. 116. In Walker v.
llaUon, 10 M. & W. 259, Gurney,
B., says, "Tho plaintiff may have
been extremely ill-used, but I think
he has no remedy."
(p) Per Rolfe, B., Davies v. Jen-
hint, 11 M. & W. 755, 756 ; CotUreU
v. Jones, 11 C. B. 713; Hobart,
266 ; Ewart v. Jones, 14 M. & W.
774 ; Yearsley v. Heane, Id. 322 ;
recognised judgm. Phillips v. Naylor,
3 H. & N. 25 ; S. C, 4 Id. 565 ;
Daniels v. Fielding, 16 M. & W.
200 ; De Medina v. Grove, 10 Q. B.
152, 172; Churchill v. Sogers, 3 B.
& B. 929; Farley v. Danb, 4 E. &
B. 493 ; Fivaz v. Nkholls, 2 C. B.
501 ; ColleU v. Foster, 2 H. k N.
356 : Jennings r. Florence, 2 C. B.
N. S. 467. See, further, judgm.,
Wren v. Weihl, L. E. 4 Q. B. 735.
(q) Jlevis v. Smith, 18 C. B. 126,
143 ; ace, Henderson v. Broomhead,
4 H. & N. 569. The class of cases
supra is adverted to by Oockburn,
C. J., diss, in Dawkms v. Lord
PauleU, L. R. 5 Q. B. 107. See
Blagrave v. Bristol Waterworks Co.,
1H.&N. 369.
FUNDAMENTAL LEGAL PRINCIPLES. 191
that compensation should be made for it And so the
owner of a locomotive, which was being lawfully and pro-
perly driven along the highway and which was in all re*
specta constructed according to the Locomotive Acts, was
held liable to compensate the owner of a stack which
had been damaged and burnt by sparks from the engine (?•).
No action lies, however, for what is damnum sine injurid;
the remedy, if any, being to apply for compensation under
the provision of the statute legalising what would other-
wise be a wrong. And this is so whether the thing be
authorised for a public purpose or for private profit For
example, no action will lie against a railway company for
erecting a line of railway authorised by its Acts, so long as
the directors pursue the authority given them, any more
than it would lie against the trustees of a turnpike road
for making their road under their Acts ; though the one
road is made for the profit of the shareholders in the com-
pany and the other is not In either case the act is not
wrongful, because it is authorised by the legislature («).
"The rule," accordingly, " is well established that for any
act done which is injurious to property, but which an Act
of Parliament has authorised to be done, though the conse-
quence of the act is damnum to the owner, it ceases to be
injurid, because no action will lie for doing that which
the legislature has authorised if it be done without negli-
gence, and provided the act done does not cause needless
injury, and reasonable steps are taken to prevent injury (t).
To prevent injustice, the legislature sometimes says that
(r) Powil v. Fall, 5 Q. B. D. L. 112. And we Mill v. Metropolitan
597 ; 49 L. J. Q. B. 428 ; 43 L. T. Asylum Board, 4 Q. B. D. 433 ; 5
562. See 28 & 29 Vict c. 83, see. 12. App. Cob. 582 ; 49 L J. Q. B. 228.
(t) Per Blackburn, J., Mersey (t) OeddU v. Proprietor* of Bann
Dock* Trustees r. Gibbs, L. R. 1 H. Reservoir, 3 App. Caa. 430.
192
FUNDAMENTAL LEGAL PRINCIPLES.
Every Injury
ti» right
imports
in lieu of an action the party affected shall have compen-
sation in the manner provided by the Act Where, how*
ever, the particular Act of Parliament does not authorise
the wrong, and consequently the action is not taken away,
the case is not one for compensation, but the remedy is by
action (u).
In most of the cases to which we have just been advert-
ing the party aggrieved has no remedy, because no right
has, in contemplation of law, been invaded. Every injury,
however, to a legal right necessarily imports a damage in
the nature of it, though there be no pecuniary loss (x).
Thus, where a prisoner is in execution on final process,
the creditor has a right to the body of his debtor, every
hour till the debt is paid ; and an escape of the debtor, for
ever so short a time, is necessarily a damage to him, and
the action for an escape lies (y). In like manner, if a
banker has received sufficient funds from his customer, he
is bound to honour his cheque ; and if he make default in
doing so he will be liable in substantial damages, if the
(u) Per Blackburn, J., Reg. v.
Darlington Board of Health, 5 B. k
S. 526 ; S. C, affirmed in error, 6 B.
k S. 562 ; CraclneU v. Mayor, <{r.,
of Thetford, L. B. 4 C. P. 629 ; Cot
v. Wise, L. B. 1 Q. B. 711 : Ham-
mersmith and City R. C. v. Brand,
L. R. 4 H. L. 171 ; Broadbeni v.
Imperial Gas Co., 7 H. L. Cas. 600 ;
and cases cited ante, p. 4.
(x) Per Lord Holt, C. J., Ashby v.
White, 2 Lord BAym. 955.
(y) William* v. Mostyn, 4 M. k
W. 153, recognised in Wylie v. Birch,
4 Q. B. 566, 577 ; and Clifton v.
Hooper, 6 Q. B. 468 ; Uoyd v. Har-
rison, 6 B. k S. 86 ; S. C, affirmed
in error, L R. 1 Q. B, 502. See
Macrae v. Clarke, L. R. 1 C. P. 403 ;
Ardcn v. Goodacre, 11 C. B. 367,
371 ; Hemming v. Hole, 7 C. B. N. S.
487.
The reasoning in the text has no
application to the case of not levying
on goods, to support an action for
which actual damage must be shown ;
Ifobson t. Thelluson, L. R. 2 Q. B.
642, 651.
An action lies at suit of the tenant
against his landlord for an excessive
distress without proof of actual da-
mage ; Chandler v. Dmdton, 3 H. &
C. 553.
FUNDAMENTAL LEGAL PRINCIPLES.
193
customer . be a trader, although no actual damage be
proved by the customer as a consequence of such default (z),
and an attorney who compromises a suit contrary to in-
structions from his client will be liable without proof of
special damage (a).
From the preceding examples it will be inferred, that Misfeasance
an injury to a right may consist either in a misfeasance or a *■*»<».
nonfeasance ; and it may not be improper here to remark,
that there is in fact a large class of casee, in which the
foundation of the action lies in a privity of contract be-
tween the parties, but in which, nevertheless, the remedy
for the breach or non-performance is indifferently either
assumpsit or case. Such are actions against attorneys,
surgeons, and other professional men, for want of compe-
tent skill or proper care in the service they undertake to
render. Actions, also, against common carriers, against
shipowners on bills of lading, or against bailees of different
descriptions, may often be brought in tort or contract,
at the election of the plaintiff. Nor is it true that this
election is only given where the plaintiff sues for a mis-
feasance and not for a nonfeasance, for the action of case
upon tort very frequently occurs where there is a simple
(z) Marzctti v. Williams, 1 B. &
Ad. 415, recogniBed 6 Q. B. 475
BoUn r. Steward, 14 C. B. 595
Warwick r. Roger*, 6 Scott, N. B. 1
Gray r. Johnston, L. E. 3 H, L 1,
14, where Lord Westbury Bays, "A
banker is bound to honour an order
of hie customer with respect to the
money 'belonging to that customer
which is in the hands of the banker;
and it is impossible for the banker to
set up *ju$ tertii against the order of
the customer, or to refuse to honour
his draft, on any other ground than
some sufficient one resulting from an
act of the customer himself.1'
As to the duty of a banker towards
his customer, see also Hardy v.
Vcatey, L. B. 3 Ex. 107 ; Prehn v.
Royal Bank of Liverpool, L. B. 5 £xr
92.
(a) Godefroy y. Jay, 7 Bing. 413 ;
Fray v. Voules, 1K&K 839, 848,
849, recognising Marzeiti r. Wil-
liam*, tupra ; see Butter v. Knight,
L. B. 2 Ex. 109.
194
FUNDAMENTAL LEGAL PRINCIPLES.
Costs.
Action
founded on
contract or
in tort
non-performance of the particular contract, as in the ordi-
nary instance of case against shipowners for not safely and
securely delivering goods according to the bill of lading ;
the principle in all such cases being, that the contract
creates a duty, and the neglect to perform that duty, or
the nonfeasance, is a ground of action upon tort (b).
By the County Courts Act, 1867, sect. 5, if the plaintiff
in an action founded on contract recovers a sum not ex-
ceeding £20 he is not entitled to his costs except upon a
judge's certificate, and therefore in cases where the action
may be framed on the contract or in tort it becomes mate-
rial in considering the question of costs to determine what
is the foundation of the action, and it appears that if no
right to sue exists independently of the contract, the action
though in form ex delicto, in substance is an action founded
on contract ; thus in Fleming v. Manchester and SJwflield
Railxvay Co. (c), where the statement of claim alleged that
certain goods had been delivered to the defendants as
common carriers to be carried from Sheffield to Dundee,
and that the defendants did not safely and securely cany
the goods, and not regarding their duty in that behalf care-
lessly and negligently lost the same, the Court of Appeal
held that the real ground of complaint being the breach of
the contract to deliver, the action was founded on contract
and not in tort.
" An action," however, " will not lie at the suit of A. for
(b) Judgm., Boorman y. Brovm,
8 Q. B. 525, 526; S. C, affirmed
11 CI. &Fin. 1 ; FarratU v. BarrUt,
11 C. B. N. S. 553 (following Bran
y. Maitland, 6 E. & B. 470), and
cases there cited. PresUm r. Nor*
folk, R. C.t 2 H. & N. 735, 752 ;
per Lord Abinger, C. B., Winter*
bottom r. Wright, 10 M. & W. 115 ;
Marzrtti v. Williams, 1 B. & Ad.
415, 426.
(c) 4 Q. B. D. 81 ; 89 L. T. 565,
distinguishing Pontifex v. Midland
By. Co., 3 Q. B. D. 23 ; and virtually
overruling Tatton y. G. W. R. Co.,
2 E. & E. 844.
FUNDAMENTAL LEGAL PRINCIPLES. 195
the breach by B. of a duty which B. owes to C." (d), be-
cause in order to support an action there must either be a
contract with the person sued or some relation establishing
a duty on the part of the defendant towards the plaintiff (e).
Having stated it as generally true, that, when a right Damages
has been invaded, an action for damages will lie (/), nominal.
although no damage has been actually sustained, we may
observe, that the principle on which many such cases
proceed, is, that it is material to the establishment and
preservation of the right itself, that its invasion should
not pass with impunity ; and in these cases, therefore,
nomiTiaZ damages only are usually awarded, because the
recovery of such damages sufficiently vindicates the
plaintiff's right ; as, for instance, in trespass qua. cl. fr„
which is maintainable for an entry on the land of another,
though there be no real damage, because repeated acts of
going over the land might be used as evidence of a title to
do so, and thereby the right of the plaintiff might be injured;
or in an action by a commoner for an injury done to
his common, in which action evidence need not be given
of the exercise of the right of common by the plaintiff (gr).
And where a riparian owner had built an obstruction out stream,
* obstruction
from his bank into the stream, the Court ordered its removal ^JJo^h !'
no damage
shown.
{d) Per Willes, J., Barkerr. Mid- Watling, 2 W. Bla. 1233 ; Pindar
land JL C, 18 G. B. 59, referring v. Wadsworth, 2 East, 154 ; ante,
to Winterbottom v. Wright, 10 M. k p. 192.
W. 109. (?) Per Taunton, J., 1 B. & Ad.
(e) Heaven y. Pindar, 9 Q. B. D. 426 ; WtU$ v. Waiting, 2 W. Bla.
302, overruled, but not on this point, 1233 ; 1 Wins. Saunds. 346 a, note :
in the Court of Appeal, 11 Q. B. D. cited per Martin, B., and Kelly, C. B.,
$03. ffarrop v. Hirst, L. B. 4 Ex. ,43,
(/) This proposition is more fully 45, 47, which shows the test to be
stated and illustrated in Blofeld v. whether the act complained of would
Payne, 4 B. & Ad. 410; Roger* v. if repeated operate in derogation of the
NowiU, 5 C. B. 109 ; Well* v. right of another ; if so, an action will
O 2
196
FUNDAMENTAL LEGAL PRINCIPLES.
although no immediate damage could be described or any
actual loss predicated to the owner of the opposite bank (A).
It is not, indeed, by any means true, as a general pro-
position, that the actual injury offers in an action ex
delicto, the proper measure of damages to be given ; for
instance, my neighbour may take from under my hou8e
coal, which I had no means of getting. at, and yet I may
recover the value, notwithstanding I have sustained no
real injury (i) ; and other cases might readily be instanced
showing that such an action may be maintainable without
evidence being adduced of pecuniary loss or damnum to
the plaintiff (k) ; as in cases of libel and slander, where
the words are actionable per se, the jury are at liberty to
give substantial damages, although no actual damage be
proved (I).
c*u» in The maxim, however, ubi jus ibi remedium, though
SSrhSd06" gSBCTftlly* is n°t universally true, and various cases occur
lie at the suit of the person whose
right may be affected, without proof
of individual or specific damage.
{h) BirhcU t. Morris, LR.1H.
L. 8ch. 47. And see Siddons v.
Short, 2 C. P. D. 572 ; 46 L. J. C.
P. 795, as to when an injunction
will be granted where no actual injury
has been sustained but is appre-
hended.
(i) See per Maule, J., Clow v.
Brogden, 2 Scott, N. E., 315, 316 ;
per Lord Denman, C.J., Taylor v.
Menniher, 12 A. k E., 488, 492 ;
which case is overruled by Tancred
t. Leyland (in error), 16 Q. B. 669.
Pontifcx v. Bignold, 3 Scott* N. R.,
390 ; Collingridge r. Royal Exchange
Ass^ 8 Q. B. D. 173 ; 47 L J. Q. R
32 ; 37 L. T. 525.
(k) JSmbrcy v. Owen, 6Kxck 653;
Dickinson r. Grand Junction Canal
Co., 7 Bxch. 282 ; Northam y.Hur*
ley, 1 B. & B. 665, recognized in
Whitehead r. Parks, 2 H. & N. 870;
Rolin v. Steward, 14 C. B. 595 'r
Matthews v. Discount Corp., L. IL
4 C. P. 228. In reference to the
question whether substantial damage-
must be proved, the wording of a>
statute may be material ; ex. gr., see*
Rogers v. Parker, 18 C. B. 112 ;
Mcdway Navigation Co. v. Earl of
Romney, 9 C. B. N. S. 575.
(0 Tripp v. Thomas, 3 B. & C.
427. In slander, if the words are
not actionable in themselves, special
damage must be shown to support
the action. As to what constitutes
proof of special damage, see Riding
v. Smith, 1 Ex. D. 91 ; 45 L. J. Ex.
281 ; 84 L. T. 500.
FUNDAMENTAL LEGAL PRINCIPLES.
197
to which it does not apply, or at least in which the f*****1*
* * J Indictment.
remedy cannot be in the shape of a civil action to
recover damages. Some of these are cases in which the
act done is a grievance to the entire community, no one of
whom is injured by it more than another. In such
cases, the mode of punishing the wrong-doer is usually by
indictment only (m) ; although, if any person has suffered
a particular damage beyond that suffered by the public*
he may maintain an action in respect thereof; thus, if A.
dig a trench across the highway, this is the subject of an
indictment, but if B. fall into it and sustain a damage,
then the particular damage thus sustained will support an
action (n) ; and though particular damage must b'j shown
and established, it is not necessary to prove special
damage in its technical sense (o), but the particular
damage must be direct, and of a substantial character (p).
So, in the ordinary case of a nuisance arising from the
act or default of a person bound to repair ratione tenurce,
an indictment may be sustained for the general injury to
the public, and an action on the case for a special and
particular injury to an individual (q). It is indeed an im-
(m) Co. Litt. 56 a ; per Channell,
R, Earrop v. Hirst, L. R. 4 Ex.
47. See Beg. v. Train, 2 B. & S.
640.
(») Per Holt, C. J., 2 Lord Eaym.
955 ; Winlerbottom v. Lord Derby,
L. B. 2 Ex. 316 ; arg. Davison v.
Wilson, 11 Q. B. 895 ; Simmons t.
Mlystone, 8 Exch. 431 ; Hart v.
Bassett, T. Jones, 156 ; Chichester
▼. LethJbridge, Willes, 78 ; Rose r.
Jfifes,4M.&S.101; J2oKY. Grows,
6 Scott, N. R., 645, and cases there
cited ; Kearns ▼. Cordwainers' Co.,
6 C. B. N. S. 888, 401 ; Dobson v.
Blackmorc, 9 Q. B. 991.
(o) Rose v. Groves, 5 M. & G.
613.
(p) Benjamin v. Storr, L. R. 9
C. P. 400; 43 L. J. C. P. 162;
30 L. T. 362 ; Borough of Bathurst
v. Maepherson, 4 App. Cas. 256 ; 48
L. J. P. 0. 61 ; and see Mayor, Sc.,
of Lyme Regis v. Henley (in error), 3
B. & Ad. 77 ; 8. C, 2 CI. &. Pin.
331 ; NiehoU v. Allen, 1 B. k & 916,
934, 936. See R. v. Ward, 4 A. &
B. 384.
(?) 8 B. ft Ad. 93, citing Tear
Book, 12 Hen. 7, fol. 18 ; Co. Litt.
198 FUNDAMENTAL LEGAL PRINCIPLES.
portant rule, that the law gives do private remedy for any-*
thing but a private wrong ; and that, therefore, no action
lies for a public or common nuisance ; and the reason of
this is, that the damage being common to all the subjects
of the Crown, no one individual can ascertain his particular
proportion of it, or if he could, it would be extremely
hard if every subject in the kingdom were allowed to
harass the offender with separate actions (?•). So " where
a statute prohibits the doing of a particular act affect-
ing the public, no person has a right of action against
another merely because he has done the prohibited act.
It is incumbent on the party complaining to allege and
prove, that the doing of the act prohibited has caused
him some special damage, some peculiar injury beyond
that which he may be supposed to sustain in common
with the rest of the Queen's subjects by an infringement
of the law. But where the act prohibited is obviously
prohibited for the protection of a particular party, there
it is not necessary to allege special damage " («).
statute Where the statute creating the duty has provided a
penalty penalty for its non-performance, it appears that the
or breach
whence recovery of the penalty is the sole compensation for a
pronation private injury caused by the breach of the duty, provided
recoverabe. ^e penau-y ^ ma(je recoverable only by the party
aggrieved (t) ; and it may be stated as a general rule that
56 a; Rose v. Groves, 6 Scott, N. B., 7. H. & N. 760.
645, and the cases there cited. See (r) Co. Lift. 56 a. ; 1 Chit. Gen.
also, aa to the liability to repair, Fr. Law, 10.
Russell v. Men of Devon, 2T. B. 667, (s) Judgm., Ckamberlainc v. The
671, cited Judg., M'Kinnon y. Chester and Birkenhead 2?. C, 1
Penson, 8 Exch. 327 ; S. G, affirmed Exch. 876-7.
in error, 9 Exch. 609 ; Young v. (t) Steavens v. Jeacoch, 11 Q. B.
Davit, 2 H. & C. 197, affirming 8. G., 781.
FUNDAMENTAL LEGAL PRINCIPLES.
199
where a statute creates an offence or a duty, and defines
particular remedies against the person committing that
offence or not performing that duty, primd fade a private
individual who is injured can avail himself of the remedies
so defined and no others (u).
Again, where the damage resulting from the act of Damage, too
another is too remote (x), or, in other words, flows not
naturally, legally, and with sufficient directness from the
alleged injury, the plaintiff will not be entitled to
recover (y) ; for instance, the temporary obstruction of a
highway, which prevented the free passage of persons
along it, and so incidentally interrupted the resort to the
complainant's public house, is not, by reason of remote-
ness, the subject of an action at common law as an
individual injury sustained by the plaintiff distinguish-
ing his case from that of the rest of the public, and
such interruption of persons who would have resorted to
the plaintiffs house but for the obstruction of the high-
way, is a consequential injury too remote to be within the
(«) Atkinson v. The Newcastle and
Gateshead Waterworks Co., 2 Ex. D.
441 ; 46 L. J. Exch. 775 ; 86 L T.
761 ; in C. A. L. R. 6 Ex. 404 ;
questioning Couch v. Steel, 3 E. k B.
402 ; Brain v. Thomas, 50 L. J.
Q. B. 662.
{x) Com. Dig., "Action upon the
case for Defamation " (F. 21). See
Fitzjohn r. Machinder, 9 C. B. N.
8. 605 ; &C.8 Id. 78 ; Barber t.
Lesiter, 7 Id. 175 ; Steward r.
Gromett, Id. 191 ; Walker r. Ooe, 4
H. k N. 850 ; 3 Id. 895 ; Assop v.
Totes, 2 H. k N. 768 ; Hoey v. Pel-
ton, 11 C. B. N. S. 142 ; Collins r.
Cave, 6 H. k N. 131 ; S. C, 4 Id.
225 ; AUsop v. Allsop, 5 H. k N. 534,
approved in Lynch r. Knight, 9 H. L.
Cas. 577, 592 ; Martinez v. Oerber,
7 Scott, N. R., 386 ; Dawson t. The
Sheriffs of London, 2 Yentr. 84, 89 ;
Everett y. London Assurance, 19 C.
B. N. S. 126 ; Burrows v. March
Cos Co., L. E. 5 Ex. 67.
(y) Per Patteson, J., Kelly v. Par-
tington, 5 B. k Ad. 651 ; Bac Abr.,
" Actions in General " (B) ; ff addon
y. Lett, 15 C. B. 411 ; Butler v. Kent,
19 Johns. (U.S.), R. 223. See also
Boyle v. Brandon, 1 M. & W. 738,
and cases cited unde the maxim, In
jure non remota causa sed prorima
spectatur, post, p. 216.
200
FUNDAMENTAL LEGAL PRINCIPLES.
provisions of the 16th section of the Railway Clauses
Consolidation Act (8 & 9 Vict. c. 20), entitling " parties
interested " to compensation (z).
In an action for slander, the special damage must be
the legal and natural consequence of the words spoken,
otherwise it will not sustain the declaration. It is not
sufficient to prove a mere wrongful act of a third person
induced by the slander, as, that he dismissed the plaintiff
from his employ before the end of the term for which
they had contracted ; for this is an illegal act, which the
law will not presume to be a natural result of the words
spoken (a). So, where the plaintiff, being director of
certain musical performances, brought an action on the
case against the defendant, for publishing a libel on a
public singer, engaged by the plaintiff, alleging that she
was thereby debarred from performing in public through
the apprehension of being ill received, so that the
plaintiff lost the profits which would otherwise have
accrued to him as such director, it was held, that the
damage was too remote, and the action not maintain-
able (b).
Damages in In actions on contract the damages sought to be re-
contract and covered must be such as may fairly and reasonably be
in tort. . . . .
considered as arising naturally, i.e., according to the usual
(2) Ricket v. Metropolitan R. C,
L. R. 2 H. L. 176, 188, 196;
Cameron v. Charing Cross R. C.t
19 C. B. N. S. 764 ; Herring v.
Metropolitan Board of Works, Id.
510 ; Reg. v. Vaughan, L. B. 4. Q.
B. 190; Reg. v. Metropolitan Board
of Works, Id. 358 ; Hammersmith
and City R. C. v. Brand, L. B. 4
H. L. 171 ; Beckett v. Midland R.
C., L R. 8 C. P. 82 ; Eagle v.
Charing Cross R. C, L. R. 2 C. P.
638.
(a) Vicars r. Wilcocks, 8 Bast, 1;
observed upon in Lynch v. Knight,
9 H. L. Cas. 577, 590, 600. See
Knight v. Gibbs, 1 A. k E. 43 ;
Ward t. Weeks, 4 M. & P. 706.
(b) Ashley v. Harrison, 1 Eep. 48 ;
Chamberlain v. Boyd, 11 Q. R D.
407.
FUNDAMENTAL LEGAL PRINCIPLES.
SOI
course of things, from such breach of contract itself or such
as may be reasonably supposed to have been in the con-
templation of both parties at the time they made the
contract, as the probable result of the breach of it (c), and
in actions of tort the same principles are applicable (d),
although, in certain cases, an action is maintainable, where
the damage does not appear at first sight to flow either
directly or naturally from the wrongful act, the immediate
cause of the accident or injury being the act of a third
party ; thus, where the defendant had wrongfully placed
a cheveaux de /rise across a private road, which some
person removed from the place where it stood, and placed it
in an upright position across the footpath by the side of
the road, and the plaintiff whilst lawfully passing along the
footpath in the dark came into collision with one of the
spikes and injured his eye, the Court held the defendant
liable, on the ground that if a person places a dangerous
obstruction on a highway or private road over which there
is a right of way, he is bound to take all necessary pre-
cautions to protect persons exercising their right of way,
and if he neglects to do so he is liable for the conse-
quences (i). The same case also decides that if the thing
{c) Borne y. Midland R. Co., L.
R. 8 C. P. 131 ; 42 L. J. C. P. 50 ;
28 L. T. 312 ; cited in The Parana,
2 P. D. 118 ; 36 L. T. 388. For a
case where the damage was due to
two independent causes, one being a
breach by the defendant of his con-
tract with the plaintiff, and the other
the negligence of a third person, see
Burrow* v. March Gas and Coke
Company, L. R. 7 Ex. 96 ; 41 L. J.
Ex. 46.
(d) Sharp y. Powell, L. R. 7 C. P.
253 ; 41 L. J. C. P. 95 ; 26 L. T.
436.
(e) Clark v. Chambers, 8 Q. B. D.
327 ; 47 L. J. Q. B. 427 ; 38 L. T.
454 ; Scott v. Shepherd, 2 W. Bla.
892 ; S. €., 3 Wils. 403 ; Collins ▼.
Middle Level Commissioners, L. R,
4 C. P. 279, 287. Per Lord Ellen-
borough, O.J., Leame v. Bray% 3
East, 596 ; GUbertson v. Richard-
ton, 5 C. B. 502 ; Worms v. Storey,
11 Exch. 427 ; Ouille v. Swan, 19
Johns. (U. S.), R. 381 ; Vandcr-
202
FUNDAMENTAL LEGAL PRINCIPLES.
Motives of
policy, &c.
is in itself dangerous, wheresoever placed, and may by
original author of the mischief is responsible should an
innocent party be injured, thus illustrating the doctrine
of causa causans.
There are also cases in which, on grounds of public
policy, an action may not lie (/), ex. gr. an action on the
case for a malicious prosecution, though the act complained
of be admitted to be malicious ; as, at the suit of a
subordinate against his commanding officer for libellous
statements contained in an official report (gr); or for
defamatory statements made by witnesses or officials to
a court martial or to a court of inquiry instituted under
articles of war (A) ; and a witness in a court of justice is
absolutely privileged as to anything he may say as a
witness having reference to the inquiry on which he is
called as a witness (i). An action will not lie for an act
done in the course of discipline and under the powers
legally incident to the situation of a commanding officer,
notwithstanding that the perversion of his authority is
made the ground of the action (&), and the principle of all
such cases is, that the law will rather suffer a private
burgh y. Truax, 4 Denio (U. 8.), B.
464 ; Piggot v. Eastern Counties
R. a, 8 C. B. 229 (which was case
for damage caused by a spark from
an engine) ; per Martin, B., Blyth v.
Birmingham Waterworks. Co., 11
Exch. 783. See the maxim, Sic utcre
tuo ut alienum non ladas, post) p.
347.
(/) Seeder North, C.J., Barnard-
iston y. Soame, 6 St. Tr. 1099;
Swinfcn y. Lord Chelmsford, 5 H.
& N. 890 (see Chambers y. Mason, 5
C. B. N. S. 59) ; Kennedy r. Broun,
13 C. B. N. 8. 677.
(a) Dawkins v. Lord Paulet, L.
B. 5 Q. B. 94.
(A) Dawkins v. LordRoktby, L. R.
8 Q. B. 255 ; L. R. 7 H. L. 744.
(•) Seaman y. Netherdift, 2 C. P.
D. 53 ; 46 L. J. C. P. 128.
(k) Johnstone v. Sutton (in error),
1 T. R. 510, 548.
FUNDAMENTAL LEGAL PRINCIPLES. 203
mischief than a public inconvenience (I). We have,
moreover, already seen that, from motives of public
policy, the sovereign is not personally answerable for
negligence or misconduct ; and if such misconduct occurs
in fact, the law affords no remedy. We may add, that a
mandamus, the object of which writ is to enforce a clear
legal right where there is no other means of doing it, will
not lie to the Crown, or its servants strictly as such, to
compel the payment of money alleged to be due from the
Crown (m).
In cases where the act of another, though productive of where the
injury to an individual, amounts to a felony, it has been felonious.
held (except where the statute 9 & 10 Yict. c. 93
applies) (n) that the private remedy is suspended until
after the prosecution of the offender, and in the case of
Wellock v. Constantine (o), where the plaintiff, a
young woman, alleged that the defendant had forcibly
violated her person and debauched her, whereby she
became pregnant ; after proof of a forcible connection
amounting to rape, the learned judge nonsuited the
plaintiff, holding that unless a forcible connection without
the plaintiff's consent were proved no cause of action was
shown, and if the cause of action was proved it would
amount to a rape, in which case the action could not be
maintained. This case, however, was practically overruled
(l) Johnetone r. Sutton (in error), (w) Reg. v. Commisrioners of the
1 T. B. 510, 548 ; Dawkms t. Lord Treasury, L. R. 7 Q. B. 887 ; 41
Paulet, L. B. 5 Q. B. 94. An L. J. Q. B. 178 ; Viscount Canter-
action does not lie against a man for bury r. A.-G., 1 Phill. 306 ; In re
malicioaaly doing his duty, Id. 114 ; Baron de Bode, 6 Bowl. P. 0. 776.
Dawkim t. Lord Bokeby, 4 F. & F. (n) Amended by 27 & 28 Yict c.
841. See Hodgkin*m y. Fernie, 3 95.
C. B. N. 8. 189. (o) 2 H. & 0. 145.
204 FUNDAMENTAL LEGAL PRINCIPLES.
in Wills v. Abrahams (p), and the whole question has
recently undergone discussion, and the previous authorities
reviewed in Ex parte Ball, re Shepherd (q) and the Mid-
land Insurance Company v. Smith(r). Lord Bramwell, in
Ex parte Ball, points out that there are only four ways in
which a felonious origin of the cause of action can be an
impediment to an action. 1. That no cause of action
arises at all out of a felony. 2. That it does not arise
till prosecution. 3. That it arises on the act, but is sus-
pended till prosecution. 4. That there is neither defence
to nor suspension of the claim by or at the instance of the
defendant, but that the Court of its own motion or on the
suggestion of the Crown should stay proceedings till public
justice is satisfied. The learned judge, after considering
each of these ways, observes that although he should hesi-
tate to say that there was no practical law by which the
civil remedy was suspended, the difficulties in the appli-
cation of the law were great. Mr. Justice Williams, in
the Midlcmd Insurance Co. v. Smith, considers the true
principle of the common law to be that there is neither a
merger of the civil] right, nor is it a strict condition pre-
cedent to such right that there should have been a prose-
cution of the felon, but that there is a duty imposed upon
the individual not to resort to the prosecution of his pri-
vate suit to the neglect and exclusion of the vindication of
the public law. Assuming, however, the existence of the
duty as laid down by the learned judge, the difficulty of
enforcing that duty still remains. It would seem, how-
ever, that the Court, acting under its summary jurisdiction,
might interfere and prevent the plaintiff from trying his
(p) L. R. 7 Q. B. 554 ; 41 L. J. 57; 40 L. T. 141.
Q. B. 306 ; 26 L. T. 433 (r) 6 Q. B. D. 561 ; 50 L. J. Q. B.
(2) 10 Ch. D. 667; 48 L. J. Bank. 329 ; 45 L. T. 411.
FUNDAMENTAL LEGAL PRINCIPLES. 205
action until after the defendant had been prosecuted (0).
In the present somewhat conflicting state of the authori-
ties it would be extremely difficult to lay down any definite
principle of law as correctly applicable to the subject under
consideration, but the following principle is submitted as
not being inconsistent with the most recent decisions, i.e.
that where the alleged cause of action in itself discloses a
felony the party injured is not thereby prevented from
pursuing his civil remedy against the offender, and the
latter cannot set up the felony as an answer to the
action (t), but the Court may interfere and suspend the
trial of the action until either the offending party has
been prosecuted or the matter laid before the Public Pro-
secutor, and that official has declined to institute criminal
proceedings. This principle is no doubt in conflict with
some of the earlier cases (u), and the law on the point'can
hardly as yet be said to be completely settled (t). For a
mere misdemeanor, however, such as an assault, battery,
or libel, the right of action is subject to no such impedi-
ment as just mentioned ; and even where a felony has been
committed, it seems that the rule of public policy above
set forth applies only to proceedings between the plaintiff
and the felon himself, or, at the most, the felon and those
with whom he must be sued, and does not apply where the
action is brought against a third party, who is innocent of
the felonious transaction (x). Moreover, it is clear that
($) Per Blackburn, J., Will* y. 409; Williams y. Bay ley, L. B. 1
Abrahams, L.B.7Q.B. at p. 562 ; H. L. 200 ; per Bolfe, B., 13 M. k
41 L. J. Q. B. SOS ; 26 L. T. 433. W. 608. See also, per Sir W. Scott,
(0 The defendant may not laise The Hercules, 2 Doda. 375-6 ; 1 H.
ike objection upon demurrer, Roope Bla. 588 ; Biggins v. Butcher, YeW.
t. 1/ Avignon, 10 Q. B. D. 412. 89 ; Chowne y. Baylis, 31 L. J.,
(«) Judgm., Stone v. Marsh, 6 B. Chanc. 757.
k C. 564 ; Crosby y. Leng, 12 Bast. (x) White y. SpeUigue, 13 M. ft
206
FUNDAMENTAL LEGAL PRINCIPLES.
the liability to an action cannot of itself furnish any
answer to an indictment for fraud (y).
Rule ex-
plained.
Doctrine of
remitter.
Right by
action.
Quod Remedio destituitur ipsa Re valet si Culpa-
absit. (Bac. Max., reg. 9.) — That which is without
remedy avails of itself, if there be nofardt in the
party seeking to enforce it.
There are certain extra-judicial remedies as well for
real as personal injuries, which are furnished or permitted
by the law, where the parties are so peculiarly circum-
stanced as to make it impossible to apply for redress in
the usual and ordinary methods.
"The benignity of the law is such," observes Lord
Bacon, "that, when, to preserve the principles and
grounds of law, it deprives a man of his remedy without
his own fault, it will rather put him in a better degree
and condition than in a worse ; for if it disable him to
pursue his action, or to make his claim, sometimes it will
give him the thing itself by operation of law without any
act of his own ; sometimes it will give him a more bene-
ficial remedy " (z).
On this principle depended the doctrine of remitter,
which, prior to the abolition of real actions, was applicable
where one who had the true property, or jus proprietatis,
in lands, but was out of possession, and had no right to
W. 603, 606 ; Lee v. Bayes, 18 C. B.
599 ; Stone v. Mar$h, 6 B. & C. 551 ;
Marsh r. Keating, 1 Bing., N. C,
198.
(y) Judgm., Beg. v. Kenrick, 5 Q.
B. 64, 65 ; in connection with which
case, see Reg. v. Abbott, 1 Den. C. C.
273 ; Beg. v. Eagleton, Dears!. 376,
515 ; Beg. v. Burgon, Dears!, k B.
11 ; Reg. y. Boebuck, Id. 24 ; Beg.
r. KeigUty, Id. 145 ; Beg. t. Sher-
wood, Id. 251 ; Beg. v. Bryan, Id.
265 ; Beg. r. Gou, Bell, 208 ; Beg.
r. Bagg, Id. 214 ; Beg. v. Zee, L. &
C. 418.
(z) Bac. Max., reg. 9 ; 6 Bep. 68.
FUNDAMENTAL LEGAL PRINCIPLES. 207
enter without recovering possession by real action, had
afterwards the freehold cast upon bim by some subsequent
and, of course, defective title, in which case he was re-
mitted or sent back by operation of law to his ancient and
more certain title, and the right of entry which he had
gained by a bad title was held to be, ipso facto, annexed to
his own inherent good one, so that his defeasible estate was
utterly defeated and annulled by the instantaneous act
of law, without his participation or consent (a). The
reason of this was, because he who possessed the right
would otherwise have been deprived of ail remedy ; for, as
he himself was the person in possession of the freehold,
there was no other person against whom he could bring
an action to establish his prior right ; and hence the law
adjudged him to be in by remitter, that is, in the like
condition as if he had lawfully recovered the land by
suit (6). There could, however, according to the above
doctrine, be no remitter where issue in tail was barred by
the fine of his ancestor, and the freehold was afterwards
cast upon him; for he could not have recovered such
estate by action, and, therefore, could not be remitted to
it(c). Neither will the law supply a title grounded upon
matter of record ; as if a man be entitled to a writ of
error, and the land descend to him, he shall not be in by
remitter (d). And if land is expressly given to any
person by Act. of Parliament, neither he nor his heirs
shall be remitted, for he shall have no other title than is
given by the Act (e).
(a) See this subject treated at (c) 8 Com. by Broom & Hadley,
length, Yin. Ab., "Remitter ;" 17. See also Bac. Max., vol 4,
Bhep. Touch., by Preston, 156, n. p. 40.
(82), 286. (d) Bac. Max., reg. 9 adfinem.
(b) Finch, Law, 19 ; 3 Com. by (c) 1 Rep. 48.
Broom & Hadley, 16 ; Litt, s. 661.
■__ I
208 FUNDAMENTAL LEGAL PRINCIPLES.
The following instance is that usually given, in order
to show the operation, and explain the meaning of the
doctrine of remitter. Suppose that A. disseises B., that
is, turns him out of possession, and afterwards demises the
land to B. (without deed) for a term of years, by which B.
enters, this entry is a remitter to B., who is in of his
former and better title (/).
Doea.Daniei jn j)^ & Daniel v. Woodroffe, which went by writ of
woodrofe. error before the Court of Exchequer Chamber and House
of Lords (g\ the law of remitter was much considered,
and several important points were decided, which are here
stated shortly, for the consideration of the reader. The
facts of this case were as under : —
H. W. being tenant in tail in possession of certain
lands, with the reversion to the heirs of her late husband,
executed a deed-poll in 1735, which operated as a cove*
nant to stand seised to the use of her only son, O. W., in
fee. Q. W. afterwards, and during the lifetime of his
mother, suffered a recovery of the same lands to the use
of himself in fee. He died in 1779, without issue, having
by his will devised the lands to trustees and their heirs>
in trust to pay an annuity to his nephew, and subject
thereto to his great-nephew, W. B., for life, with certain
remainders over. The trustees entered into and con-
tinued in possession until the death of the annuitant, in
1790, when they gave possession to W. B., who continued
in possession of the rents and profits of the entirety up to
the time of his death, in 1824 ; and did various acts
showing that he claimed and held under the will Upon
(/) Finch, Law, 61. in Cowan r. MUbourn, L. R. 2 Ex.
(g) 2 H. L. Caa. 811 : S. 0. 15M. 235 ; and arg. Tarleton v. LiddeUy.
& W. 769 ; cited per Rolfe, B., Spot*- 17 Q. B. 406.
wood v. Barrow, 5 Exch. 113 ; and
FUNDAMENTAL LEGAL PRINCIPLES. 209
the facts thus shortly stated, the Court decided, 1st, that
the base fee created by the deed-poll, did not, upon
H. W.'s death, become merged in the reversion in fee in
G. W. ; as the estate tail still subsisted as an intermediate
estate : 2ndly, that G. W. was not remitted to his title
under the estate tail, the recovery suffered by him having
estopped him : 3rdly, that W. B., although taking by the
Statute of Uses, was capable of being remitted, as the
estate tail had not been discontinued : 4thly, that the
acts done by W. B. did not amount to a disclaimer by
him of the estate tail, as a party cannot waive an estate
to which he would be remitted, where the remitter would
enure to the benefit of others as well as himself : 5th ly,
that the right of entry first accrued on the death of G. W.,
in 1779, when there was first an available right of entry ;
and, consequently, that the entry by W. B. in 1790 was
not too late ; and, 6thly, it was held, reversing the judg-
ment given in the court below, that the entry and remitter
of W. B. in 1790, did not operate to remit A. W. (his
co-parcener) to the other moiety of the estate ; the Court
observing, with reference to the last of the above points,
that possession of land by one parcener cannot, since the
passing of the statute 3 & 4 Will. 4, c. 27, be considered
as the possession of a co-parcener, and, consequently, that
the entry of one cannot have the effect of vesting the
possession in the other (A).
The principle embodied in the above maxim likewise Retainer.
applies in the case of retainer (i)9 that is, where a creditor
is made executor or administrator to his debtor. If a
(/<) Judgm., 15 ML & W. 769. writers referred to the maxim, Potior
(t) Bac. Max., reg. 9 ; arg. Thorn- est conditio possidentis. See 2 Wms.
sonr. Grant, 1 Buss. 540(a). But Exors., 5th ed., 937 (n) ; 2 Fonblan.
the principle of retainer is by some Eq., 5th cd., 406 (m).
210 FUNDAMENTAL LEGAL PRINCIPLES.
person indebted to another makes his creditor his executor,
or if such creditor obtains letters of administration to his
debtor, in these cases the law gives him a remedy for his
debt, by allowing him to retain so much as will pay him-
self before any other creditor whose debts are of equal
degree. This, be it observed, is a remedy by the mere act
of law, and grounded upon this reason, that the executor
cannot, without an evident absurdity, commence a suit
against himself (A;) as representative of the deceased to
recover that which is due to him in his own piivate
capacity; but having the whole personal estate in his
hands, so much as is sufficient to answer his own demand
is, by operation of law, applied to that particular pur-
pose (I) : and, in this case, the law, according to the
observation of Lord Bacon above given, rather puts him
in a better degree and condition than in a worse, because
it enables him to obtain payment before any other creditor
of equal degree has had time to commence an action. An
executor de son tort is not, however, allowed to retain, for
that would be contrary to another rule of law, which will
be hereafter considered — that a man shall not take
advantage of his own wrong (m).
(k) A man cannot be at once actor case is questioned per Williams, J.,
and reus in a legal proceeding — nemo Aulion y. Atkins, 18 C. B. 253};
a (/it in teipsum — (Jenk. Cent. 40). Rose v. Poulion, 2 B. & Aid. 822.
See in support and illustration of this (I) 3 Com. by Broom & Hadley,
rule, Shnpton y. Thompson, 3 App. 11.
Cas. 279; 88 L. T. 1 ; per Best, C.J., (m) Id. 12. See Thornton v. Hard-
4 Bing. 151 ; Faulkner v. Lowe, 2 ing, 2 E. & B. 630.
Eich. 595 (the authority of which
FUNDAMENTAL LEGAL PRINCIPLES.
211
V %
In Jure non remota Causa sed proxima spectatur.
(Bac. Max., reg. 1.) — In law the immediate, not the
^remote, cause of any event is regarded.
" It were infinite for the law to consider the causes of How para-
phrased by
causes, and their impulsions one of another ; therefore it Lord Bacon.
contenteth itself with the immediate cause, and judge th
of acts by that, without looking to any further degree (n).
The above maxim thus explained, or rather paraphrased,
by Lord Bacon, although of general application (o), is, in
practice, usually cited with reference to that particular
branch of the law which concerns marine (p) insurance ;
and we shall, therefore, in the first place, illustrate it
by briefly adverting to some cases connected with that
subject.
It is, then, a well-known and established rule, that in JJJJjJJJ^
order to entitle the assured to recover upon his policy, Perils of sea.
the loss must be a direct and not too remote a consequence
of the peril insured against ; and that if the proximate
cause of the loss or injury sustained be not reducible
to some one of the perils mentioned in the policy, the
(a) Bac. Max., reg. 1, cited in
Sneesby v. Lancashire and Yorkshire
Railway, L. R. 9 Q. B. 267 ; 1 Q. B.
D. 42 ; 45 L. J. Q. B. 1 ; 33 L. T.
372 ; Babcock v. Montgomery County
Mutual Insurance Co., 4 Comst.
(U. &), B. 326.
(o) As to remote damage and the
liability of one who is the causa
eausans, ante, p. 199. See per Lord
Mansfield, G.J., Wadhamv. Marlow,
1 H. Bla. 439, note.
(p) In Marsden v. City and
County As*. Co., L. R. 1 C. P. 232,
the same principle was applied to an
insurance on plate glass in a shop
front ; in Everett v. London Ass., 19
0. B. N. S. 126, it was applied to an
insurance against fire, the damage
having been directly caused by an
explosion of gunpowder ; in Fitton v.
Ace. Dcatfi Ins. Co., 17 C. & N. S.
122, to an insurance against death by
accident. For a striking illustration
of this principle, see Winspear v.
Accidental Insurance Co. Ld., 6 Q.
B. D. 42 ; 50 L. J. Q. B. 292 ; 43
L. T. 459.
p 2
212
FUNDAMENTAL LEGAL PRINCIPLES.
underwriter will not be liable (q). If, for instance, a
merchant vessel is taken in tow by a ship of war, and
thus exposed to a tempestuous sea, the loss thence arising
is properly ascribable to the perils of the sea (r). And
where a ship meets with sea damage, which checks her
rate of sailing, so that she is taken by an enemy, from
whom she would otherwise have escaped, the loss is to be
ascribed to the capture, not to the sea damage («). So,
the underwriters are liable for a loss arising immediately
from a peril of the sea, or from fire, but remotely from
the negligence of the master and mariners (t) ; and, where
a ship, insured against the perils of the sea, was injured
by the negligent loading of her cargo by the natives on
the coast of Africa, and being pronounced unseaworthy
was run ashore in order to prevent her from sinking and
to save the cargo, the Court held, that the rule Causa
proxima turn rernota spectator must be applied, and that
the immediate cause of loss, viz., the stranding, was a
peril of the sea (u).
(q) Taylor v. Dunbar, L. R. 4 C.
P. 206.
" The general rule is clear, that to
constitute interest insurable against a
peril it must be an interest such that
the peril would by it* proximate
effect cause damage to the assured."
Judgm., Seagrave v. Union Mar.
Ins. Co., L. B. 1 C. P. 320.
(r) Hagedom v. Whitmore, 1
Stark., N. P. C, 157. See Grill y.
General Iron Screw Colliery Co.%
L. R. 3 C. P. 476 ; S. C, L. R. 1 C.
P. 600.
{») Judgm., Livie v. Janson, 12
East, 653 ; citing Green v. Elmdie,
Peake, N. P. C, 212 ; Hahn v. Cor-
belt, 2 Bing. 205.
(0 Walker v. Maitland, 5 B. &
Aid. 171 ; Busk v. R. E. A. Co., 2
B. & Aid. 73; per Bayley, J.,
Bishop v. PenUand, 7 B. & C. 223 ;
Phillips v. Nairne, 4 C. B. 343,
350-1. See Hodgson v. Malcolm, 2
N. R. 336; Judgm., Waters v. Louis-
ville Insurance Co. 11 Peters (U.
S.), R. 220, 222, 223; Columbine
Insurance Co. r. Lawrence, 10
Peters (U. S.), R. 517 ; The Pa-
tapsco Insurance Co. r. Coulter, 3
Peter* (U. S.), R. 222; General
Mutual Insurance Co, v. Sherwood,
14 Howard (U. S.), R. 351.
(u) Redman y, Wilson t 14 M, &
FUNDAMENTAL LEGAL PRINCIPLES. 213
The maxim under consideration was discussed in the
recent case of Dudgeon v. Pembt%6ke{x), where a ship
insured under a time policy (which does not contain an
implied warranty of the seaworthiness of the ship at the
inception of the risk) was lost under circumstances which,
the House of Lords in giving judgment assumed, showed
that the vessel was unseaworthy at the time of the loss,
and would not have been lost but for her unseaworthiness,
bat that the immediate cause of her destruction was the
violent action of the winds and waves operating from
without on the hull of the vessel ; it was contended on
behalf of the underwriters that this did not amount to a
loss by perils of the seas within the meaning of her policy ;
the House of Lords nevertheless held that it did, on the
ground that a long course of decisions in the Courts of
this country had established that Causa proximo, et non
vemota spectator is the maxim by which these contracts
of insurance are to be construed, and that any loss caused
immediately by perils of the seas is within the policy,
though it would not have occurred but for the concurrent
action of some other cause which is not within it (y).
Where a ship, being delayed by the perils of the sea from
pursuing her voyage, was obliged to put into port to
repair, and, in order to defray the expenses of such repairs,
the master, having no other means of raising money, sold
part of the goods, and applied the proceeds in payment of
these expenses, the Court held, that the underwriter was
W. 476 ; Laurie v. Douglas, 15 Id, Panama Telegraph Co. Ld. v. The
746 ; Corcoran v. Gurney, 1 E. & Home and Colonial Marine Ins. Co.
B. 456. Ld.9 6 Q. B. D. 51 ; 50 L. J. Q. 1$.
(*) 2 App. Cas. 284 ; 46 L. J. Ex. 41 ; 43 L. T. 420, where the negli-
409 ; 36 L. T. 382. gence of the engineer contributed to
(y) Dudgeon v. Pembroke, supra, the bursting of a boiler, whereby the
*aa followed in the West India \espcl insured was sunk and lost.
214 FUNDAMENTAL LEGAL PRINCIPLES.
not answerable for this loss, for the damage was to be
considered, according to the above rule, as not arising
immediately from, although in a remote sense it might be
said to have been brought about by, a peril of the sea (2).
A policy of insurance on bags of coffee on a voyage from
Rio to New Orleans and thence to New York, contained
the following exception : " Warranted free from capture,
seizure, and detention, and all the consequences thereof,
or of any attempt thereat, and free from all consequences
of ItostUities, &c." The insured ship, whilst on her
voyage, ran ashore, and was eventually lost south of Cape
Hatteras. It appeared in evidence that at Cape Hatteras,
until the secession of the Southern States of America, a
light had always been maintained, and that the light had
for hostile purposes been extinguished by the Confederates
whilst in possession of the adjacent country. If the light
had been maintained the ship might have been saved.
Whilst she was ashore near the land a portion of the
coffee was saved by certain officers acting on behalf of the
Federal Government, and a further portion thereof might
in like manner have been got ashore but for the inter-
ference of the Confederate troops, in consequence of which
the entire residue of the cargo was wholly lost. The
question upon the above facts arose — had the goods in-
sured, or any, and if so, what portion of them, been lost by
the perils of the sea, or by perils from which they were by
the policy warranted free ? The Court unanimously held
that the insurers were liable as for a partial loss in respect
of the coffee which remained on board incapable of being
(z) Poiccll v. Gudgeon, 5 M. & S. cd., 138. Sec also Bradlie v. Mary-
431, 436; recognised Sarquy v. land Insurance Co., 12 Peters (U.S.),
Jlobmn, 4 Bing. 131 ; Gregton v. R. 404, 405.
Gilbert, cited Park, Mar. Insur., Sth
FUNDAMENTAL LEGAL PRINCIPLES.
215
saved — the proximate cause of the loss being a peril of
the sea — but that as to so much of the coffee as was got
ashore, and as to so much as would have been saved but
for the interference of the troops, this was a loss by a con-
sequence of hostilities within the warranty, so that in
respect of it the insurers were not liable (a).
The preceding cases, conjointly with those below cited,
in which the maxim before us has, under different states
of facts, been applied (b), will sufficiently establish the
general proposition, that, in order to recover for a loss on
a maritime policy, the loss must be shown to have been
directly occasioned by some peril insured against (c) ; and
it is not enough that the loss has happened indirectly
through a peril insured against ; the loss must be occa-
sioned by a peril insured against acting immediately on
the thing insured ; and, therefore, where a policy in the
ordinary form insured a cargo of pilchards against capture
and restraint of princes, and the captain, the ship being
under convoy, on being told that if he entered the port
of his destination the vessel would be lost by confisca-
tion, was ordered by the commander of the convoy to
proceed to another port, which he did, and there sold the
(a) lonides v. Universal Marine
Insurance Co., 14 C. B. N. S. 259 ;
cited per Willes, J., Marsden v. City
and County Ass. Co., L. R. 1 C. P.
240. Lloyd y. Oeneral Iron Screw
Collier Co., 3 H. & C. 284 ; Sully v.
Duranty, Id, 270 ; Cory t. Burr, 8
Aft>. Cas. 393.
Dent v. Smith, L R. 4 Q. B. 414,
is important in reference to the sub-
ject supra.
(6) NayUr v. Palmer, 8 Exch.
739 ; S. C. (affirmed in error), 10
Exch. 882, where the low resulted
from the piratical act of emigrant
passengers ; Mf Sidney v. Royal Ex-
change Assurance Co., 14 Q. B. 634,
646, which is observed upon per Cur.
Chope v. Reynolds, 5 C. B. N. S.
651, 652.
(<•) See also, per Story, J., Smith
v. Universal Insurance Co., 6 Whea-
ton (U. S.), R. 185 ; per Lord Al-
ranley, C.J., Hadkinson v. Robin-
son, 3 B. & P. 388; Phillip* v.
Nairnc, 4 C. B. 343.
216
FUNDAMENTAL LEGAL PRINCIPLES.
Exceptions
In Bills of
Lading.
Contribu-
tory
negligence,
when no
defence.
cargo for a nominal sum. The underwriters on the above
principle were held not liable (cZ).
It should be noticed that exceptions in bills of lading
are not construed strictly according to the maxim Causa
proximo, non remota spectatur, but the efficient, or as it
is sometimes called the causa causans, is regarded, to
determine the liability of the shipowner on his contract
of affreightment. Thus where the bill of lading contained
an exception of accidents or damage of the seas, rivers,
and steam navigation of whatever nature or kind soever,
the shipowner was held liable for a loss of goods by
collision caused by the gross negligence of the master or
crew (e).
Where contributory negligence i3 not the proximate
cause of the damage it cannot be set up as a defence.
A vessel under the charge of a compulsory .pilot and also
in tow of a steam tug was damaged directly by the conduct
of the tug. In an action brought by the owners of the vessel
against the owner of the tug, the latter was not permitted
to set up as a legal defence that if the pilot when the
mischief was about to happen had himself done a certain
thing, the mischief might have been avoided (/). Lord
Selborne, in delivering judgment, remarked that " great
injustice might Ge done if in applying the doctrine of
contributory negligence to a case of this sort the maxim
Causa proxima non remota spectator were lost sight of.
(d) Hadicinson v. Robinson, 3 B.
& P. 388 ; Halhead v. Young, 6 K. &
B. 312.
(e) Lloyd v. Genernl Iron Scren-
Collier Co., 3 H. & C. 284 ; Grill v.
The General Iron Screw Collier Co.,
L. R. 1 C. P. 600 ; The Chartered
Mercantile Bank of India, <t-c, v.
The Nctlurland Steam Navigation
Co., Limited, 10 Q. 1J. D. 521 ; 4G
L. T. (N. S.) 530.
(/) Spaight y. TedcasUe, 6 App.
Cas. 217 ; 44 L. T. 589.
FUNDAMENTAL LEGAL PRINCIPLES. 217
When the direct and immediate cause of damage is clearly
proved to be the fault of the defendant, contributory
negligence by the plaintiff cannot be established merely
by showing that if those in charge of the ship had in some
earlier state of navigation taken a course or exercised a
control over the course taken by the tug which they did
not actually take or exercise, a different situation would
have resulted, in which the same danger might not have
occurred. Such an omission ought not to be regarded as
contributory negligence if it might in the circumstances
which actually happened have been unattended with
danger but for the defendant's fault, and if it had no
proper connexion as a cause with the damage which
followed as its effect " (g).
Again, it may, in general, be said, that everything which
happens to. a ship in the course of her voyage, by the
immediate act of God, without the intervention of human
agency, is a peril of the sea (Zt) ; for instance, if the ship
insured is driven against another by stress of weather, the
injury which she thus sustains is admitted to be direct,
and the insurers are liable for it ; but if the collision
causes the ship injured to do some damage to the other
vessel, both vessels being in fault, a positive rule of the
Court of Admiralty (i) requires that the damage done to
both ships be added together, and that the combined
amount be equally divided between the owners of the
two ; and, in such a case, if the ship insured has done
more damage than she has received, and is consequently
obliged to pay the balance, this loss can neither be con-
sidered a necessary nor a proximate effect of the perils of
(g) P. 219. 136.
(A) Park, Mar. Insur., 8th ed., (/) Now observed in all the Courts.
218
FUNDAMENTAL LEGAL PRINCIPLES.
Maxim-
how quali-
fied in In-
surance
carat.
Assured
cannot take
advantngo
»f his own
wrongful
act.
the sea. It grows out of a provision of the law of nations,
and cannot be charged upon the underwriters (k).
The maxim before us, however, is not to be applied in
the class of cases above noticed, if it would contravene the
fundamental rule of insurance law that the assurers are
not liable for a loss occasioned by the wrongful act of the
assured, and the manifest intention of the parties (I).
" It is a maxim," says Lord Campbell (m) " of our
insurance law and of the insurance law of all commercial
nations that the assured cannot seek an indemnity for a
loss produced by his own wrongful act. The plaintiffs said
truly that the perils of the seas must still be considered
the proximate cause of the loss, but so it would have been
if the ship had been scuttled or sunk by being wilfully
run on a rock."
It has been said that the misconduct of the assured
need not, in order to exempt the insurers from liability, be
the direct and proximate cause, the causa eausans, of the
loss ; if their misconduct was the efficient cause of the
loss, the assured will be disentitled to recover (n). But
this rule does not apply to the negligent act of the assured
or his servants. If, therefore, ballast is thrown over-
board by the negligent and improper, though not
barratrous act of the master and crew, whereby the
(h) De Vavx v. Salvador, 4 A.
& R 420, 431 (cited 6 E. & B. 790),
the decision in which case is contro-
verted, 14 Peters (U. S.), R. Ill ; but
agreed to by Mr. Phillips in his Work
on Insurance, Vol. 2, No. 1416. See
per Lord Campbell, C.J., Dmcell v.
General Steam Nav. Co., 5 E. & B.
195 ; per Sir W. Scott, 2 Dods. 85,
and the maxim, Sic utcre tuo ut
alienum non laxUis—pott, Cbap. VI.
§2.
(0 Judgm., 6 B. & B. 948-9.
(m) Thompson v. Hopper, 6 E.
&B.
(r?) The above test was applied by
Pollock, C. B., in Wilton v. Nevrport
Dock Co., 4 H. & C. 235, in regard
to the conduct of the insurers.
Alston v. Herring, 11 Ex. Cb. 822.
Fee
FUNDAMENTAL LEGAL PRINCIPLES. 219
ship becomes tmseaworthy and is lost by perils of the sea,
which otherwise she would have overcome, the under-
writers will be liable (o).
And where a loss arises through the negligence of the
captain in not having a pilot on board at any intermediate
stage of the voyage or on entering the port of destination
(except where required by the positive provisions of an
Act of Parliament), the underwriters will not be discharged
from their liability, if such loss be proximately caused by
the perils insured against, and the master and crew were
originally competent (p).
The remarks just made, as well as the general principle Actions
agntiiHt
— that the law looks to the immediate, not to the remote, camew.
cause of damage, may be further illustrated by the follow-
ing cases : — An action was brought against the defendants,
as carriers by water, for damage done to the cargo by water
escaping through the pipe of a steam-boiler, in consequence
of the pipe having been cracked by frost ; and the Court
held that the plaintiff was entitled to recover, because the
damage resulted from the negligence of the captain in fill-
ing his boiler before the proper time had arrived for so .
doing, although it was urged in argument, that the above
maxim applied, and that the immediate cause of the
damage was the act of God (q).
The maxim as to remoteness has an important applica- Maxim
applies in
tion in connection with the measure of damages (r) : the determining
(o) Sadler v. Dixon, 8 M. & W. general, it has been said that they
895, cited Wilton t. Atlantic Royal are of three kinds : 1st, nominal
Mail Steam Co., 10 C. B. N. S. 465. damages, which occur in cases where
(p) Arnold's Marine Insurance, 5th the judge is bound to tell the jury
ed. 646. only to give such ; as, for instance,
(q) Siordet v. Half, 4 Bing. 607, where the seller brings an action for
post, p. 280. the non-acceptance of goods, the
(r) With respect to damages in price of which has risen since the
220
FUNDAMENTAL LEGAL PRINCIPLES.
Principle
on which
8i»ecial
damage is
recoverable
in action*
on con-
tracts.
ofeiiaumSUr8 (l,ie8*^on which in practice roost frequently presents itself
being — is a particular item of damage properly referable
to the cause of action alleged and proved by the com-
plainant (a) ? The general rule (t) for our guidance upon
this subject where the action is founded on contract or in
tort has already been adverted to (u).
The principle on which special damage is held to be re-
coverable in actions on contracts has been very frequently
discussed in our Courts (x). As a general rule the ques-
tion whether the damage is recoverable or not is a ques-
tion for the Court and not for the jury, and in a recent
case it was stated that that question may be considered
under three different aspects : first, was the damage the
necessary consequence of the breach ; secondly, was it the
probable consequence ; or thirdly, was it in the contempla-
tion of the parties when the contract was made (y).
There would seem to be at least three classes or kinds of
actions on contracts in which it is possible to formulate more
or less accurately the rule of law which has generally been
recognized and followed by the Courts in determining
contract was made ; 2ndly, genera)
damages, which are such as the jury
may give when the judge cannot
point out any measure by which they
are to he assessed except the opinion
and judgment of a reasonable man ;
3rdly, special damages, which are
given in respect of any consequences
reasonably or probably arising from
the breach complained of, per Martin,
B., Prthn v. Royal Bank of Liver-
pool, L. B. 5 Ex. 99, 100.
(t) Hodgson v. Sidney y 4 H. & 0.
492.
(t) Which was much considered in
Wilson y. Newport Dock Co., 4 H.
& 0. 232.
(w) Supra, p. 220.
(x) British Columbia Saw Mills
Co. t. Nettleship, L. R. 3C. P. 499 ;
Home v.' Midland Railway Co.,
L. R. 8 C. P. 131 ; 42 L. J. C.
P. 59 ; 28 L. T. 312 ; Simpson v.
London «fc North- Western Railway
Co, 4 Q. B. D. 274 ; 45 L. J. Q.
B. 182 ; a decision not reconcilable
with some of the previous authorities.
It is, however, to be noticed that the
Court had power to draw inferences
of fact,
(y) McMahon v. Fido\ 7 Q. B. D.
591, 595 ; 50 L. J. Q. B. 552.
Fundamental legal principles.
221
whether or not the special damage claimed is recoverable ;
firstly, in actions on contracts of sale where the defendant
is the manufacturer, or where the plaintiff relies on the de-
fendant's judgment in the selection of the article required,
if the defendant has notice of the circumstances out of
which the claim to special damages arises, and contracts
with reference thereto, the law will imply a promise on his
part to make good those injuries which he is aware his de-
fault may occasion to the plaintiff (z) ; secondly, in actions
on warranties or for false representations the plaintiff is en-
titled to recover special damage which he may have suffered
by having incurred some liability or done some act upon the
faith of the warranty or false representation, although
the defendant had no express notice of the circumstances
out of which the claim to special damage arose (a) ; thirdly,
in actions against carriers of goods, the defendant, to be
liable for special damage, must be shown either expressly
or impliedly to have so con tracted with the plaintiff as
to make it a term of the bargain between the parties that
he would be liable to the pi aintiff for the particular damage
sought to be recovered (6), and this must, it is submitted,
be a question of fact for a j ury to decide under all the cir-
cumstances of the case. The question is further complicated
by the difficulty of defining special damage, and here again
the decisions are somewhat conflicting. The classification
Hydraulic Engineering Co. v.
McHofc 4Q.B.D. 670 ; 27 W. R.
221, C. A.
(a) Randall v. Raper, B. B. & E.
64 ; Wilton v. Dunville, 6 L. R. Ir.
210 ; Mullett v. Mason, L. R, 1 C. P.
559 ; Smith r. Green, 1 0. P. D. 92 ;
45 L. J. C. P. 28 ; 33 L T. 572. In
Randal v. Raper it is to be observed
that although the defendant had no
express notice of the purpose for which
the barley was purchased, it is ques-
tionable to what extent under the cir-
cumstances he would not be presumed
to know that the plaintiffs as corn fac-
tors would re-sell the barley to sowers,
(o) Home v. Midland Railway
Co. cited supra.
222
FUNDAMENTAL LEGAL PRINCIPLES.
Rule does
not apply to
traniuction
founded in
fraud.
already adopted may be of assistance in arriving at some
definite notion on the subject ; thus, in contracts of sale of
goods the ordinary or natural loss sustained by the plaintiff
in consequence of the non-delivery of the article contracted
to 'be supplied would be the difference between the con-
tract price and the market price of the article at the con-
tract time for delivery. On the other hand, loss of profits
or other loss sustained by the plaintiff by reason of stop-
page of works or the inability to employ a ship or the like,
oaused by the non-arrival of the article, would be special
damage recoverable only under special circumstances. The
cases and text books mentioned in the note contain refer-
ences to most of the leading authorities on the question of
special damage in actions on contracts (c).
The maxim, In jure non remota causa sed yroxima
spectatur, does not, however, apply to any transaction
originally founded in fraud or covin ; for the law will look
to the corrupt beginning, and consider it as one entire act,
according to the principle, dolus circuitu non pur»
gatur (d) — fraud is not purged by circuity (e) ; but this
maxim must be taken with a qualification in cases where
the term dolus is used to signify deceit. In actions of
(c) Eibinger v. Armstrong, L. R.
9 Q. B. 473; L. J. Q. B. 211; 30
L. T. 871 ; Wilson v. The General
Iron Screw Colliery Co., 47 L. J.
Q. B. 239, a case hardly reconcilable
with previous decisions ; Mayne on
Damages ; Addison on Contracts, 8th
ed. 1104-1107; Chitty on Contracts,
11th ed. 814, 815.
(d) "Dolus here means any wrong-
ful act tending to the damage of
another:" Judgm., 6 E. & B. 948.
"There can be no dolus without a
breach of the law : '» Per Willcs, J.
(citing the above maxim), Jeffries
v. Alexander, 8 H. L. Cas. 637, and
in Thompson v. Hopper, E. B. & E.
104 ; et vide per Bramwell, B., Id.
1045 ; per Williams, J., Id. 1054 ;
Fitzjohn ▼. Machinder, 9 C. R N,
S. 505, 514.
(e) Bac. Max., reg. 1 ; Noy, Max.,
9th ed., p. 12 ; Tbmlin's Law Diet.,
tit. "Fraud."
FUNDAMENTAL LEGAL PRINCIPLES.
223
deceit, in order to make the defendant liable, some con-
nection must be shown between the party deceiving and
the party deceived, as that the deception was practised by
the defendant upon the plaintiff, or upon a third person
with the knowledge or intent that it would or should be
acted upon by the plaintiff (/)•
Neither does the above maxim, according to Lord Bacoii, Nw in
° criminal
ordinarily hold in. criminal cases, because in them the in- <***•
tention is matter of substance, and, therefore, the first
motive, as showing the intention, must be principally re-
garded (gr). As, if A., of malice prepense, discharge a
pistol at B., and miss him, whereupon he throws down his
pistol and flies, and B. pursues A. to kill him, on which he
turns and kills B. with a dagger ; in this case, if the law
considered the immediate cause of death, A. would be
justified as having acted in his own defence ; but looking
back, as the law does, to the remote cause, the offence will
amount to murdtr, because committed in pursuance and
execution of the first murderous intent (h).
Nevertheless an indictment will sometimes fail to be
sustainable on the ground of remoteness (?). For instance
— If the trustees of a road neglect to repair it in pursuance
of powers vested in them by statute, and one passing along
the road is accidentally killed by reason of the omission to
repair, the trustees are not indictable for manslaughter, for
" not only must the neglect, to make the party guilty of it
(/) See Peek v. Chtrney, L. R. 6
H. L. 377 ; 43 L. J. Ch. 19 ; Barry
r. CrotLcif, 2 J. k H. 117-18, 123.
{g) Bac. Max., vol. iv., p. 17.
(h) Bac. Max., reg. 1.
(t) See Reg. v. Bennett, Bell, 0.
C. 1, where fireworks kept by the
prisoner in contravention of stat. 9 &
10 WiU. 3, c. 7, s. 1, either acci-
dentally or through the negligence
of his servants exploded, and, setting
fire to a neighbouring house, caused
a person's death. Held, that the
illegal act of the prisoner in keeping
the fireworks was too remotely con-
nected with the death to support an
indictment for manslaughter.
224
FUNDAMENTAL LEGAL PRINCIPLES.
liable to the charge of felony, be personal, but the
death must be the immediate result of that personal
neglect (k).
It would seem, however, that it is no defence to an in-
dictment for manslaughter that the deceased was guilty of
negligence and so contributed to his own death, if the
death of the deceased is shown to have been caused in
part by the negligence of the prisoner {I).
Actus Dei Nemini Facit Injuriam. (2 Bla. Com.
2lst ed., 122.) — The act of Qod is so treated by the
law as to affect no one injuriously.
Definition The act of God signifies, in legal phraseology, any in-
5ften?,nnR evitable accident occurring without the intervention of
Actus Dti. ,
man, and may, indeed, be considered to mean something
in opposition to the act of man, as storms, tempests, and
lightning (m). The above maxim may therefore be ex-
plained as follows : that no person shall be held liable for
such a direct, violent, and sudden act of nature as could
not have been foreseen by a prudent and experienced
person, or resisted by those means to which a prudent and
experienced person under all the circumstances of the case
would ordinarily have recourse (n).
(k) Rrg. v. Pocock, 17 Q. B. 34,
30 ; Reg. v. Hughes, Dearal. & B.
248. See also Reg. v. Gardner,
Dearsl. & B. 40, with which compare
Reg. v. Martin, L. R. 1 C. C. 56.
(I) R. v. Swindall, 2 C. & K. 230 ;
R. v. Jones, 11 Cox, 544 ; R. v.
Rew, 12 Cox, 355.
(m) Per Lord MansBeld, C. J.,
Farward r. PUtard, 1 T. R. 33 ;
Bell, Diet. & Dig. of Scotch Law,
p. 11 ; Trent Navigation v. Wood,
3 £8p. 131 ; Oahhy v. Portsmouth
and Rijdc Steam Packet Co., 11 Exch.
618 j Blyth v. Birmingham Water'
works Co., 11 Exch. 781.
(n) Nugent v. Smith, 1 C. P. D.
428 ; 45 L. J. C. P. 697 ; 34 L. T.
827; Nitro Phosphate Co. v. St.
Katharine's Dock Co., 9 Ch. D, 516 ;
FUNDAMENTAL LEGAL PRINCIPLES. 225
Thus, if a sea-bank or wall, which the owners of Liability to
repair eea-
particular lands are bound to repair, be destroyed by waU*
tempest, without any default in such owners, the commis-
sioners of sewers may order a new wall to be erected at
the expense of the whole level (o) ; and the reason of this
is, that although, by the law, an individual be bound to
keep the wall in repair, yet that which comes by the act
of God shall not charge such party (p). But there must
be no default in the owner ; for, where the owner of marsh
lands was bound by the custom of the level to repair the
sea-walls abutting on his own land, and by an extraordi-
nary flood-tide the wall was damaged, the Court refused to
grant a mandamus to the commissioners of sewers to
reimburse him the expense of the repairs, it appearing, by
affidavit, that the wall had been previously presented for
being in bad repair, and was out of repair at the time the
accident happened (q). It would seem however that owners
of a dock who had negligently omitted to keep up the
dock wall to the height required by the statute under
which the dock had been constructed, were liable only for
so much of the damage caused by the overflow of an extra-
ordinary high tide as would have happened if the tide had
been an ordinary one provided the damage caused by the
extra height of the tide above the ordinary high water
mark is substantial and capable of being separately ascer-
tained (r).
In another case, it was held, that a landowner may Prescriptive
J liability.
39 L. T. 433 ; Dixon v. Metropolitan p. 610.
Board of Works, 7 Q. B. D. 418 ; 50 (p) Kcighley't case, 10 Rep. 139 ;
L. J. Q. B. 772 ; 45 L. T. 812 ; Reg. v. Bamber, 5 Q. B. 279.
Nichols v. Martland, 2 Ex. D. 1 ; (q) R. v. Essex (Commissioners of
46 L. J. Ex. 174. Sewers), 1 B. & C. 477.
(o) R, v. Somerset f Commissioners (r) Ni&ro Phosphate Co. ▼. St.
of Sewers) 8 T. Rf 312 ; Wing. Max., Katharine's Dock Co., supra.
9
226 FUNDAMENTAL LEGAL PRINCIPLES
be liable, by prescription, to repair sea-walls, although
destroyed by extraordinary tempest ; and, therefore,
no presentment against such owner for suffering the
walls to be out of repair, it ought not, in point of law, to
be left as the sole question for the jury, whether the walls
were in a condition to resist ardincwy weather and tides ;
but it is a question to be determined on the evidence*,
whether the proprietor was bound to provide against the
effects of ordinary tempests only, or of extraordinary ones
also («), and speaking generally it may be said that when
the law creates a duty and the party is disabled from per-
forming it without any default of his own by the act of
God or the King's enemies, the law will excuse him ; but
when a party by his own contract creates a duty, he is
bound to make it good notwithstanding any accident by
inevitable necessity (t).
In a case recently decided by the House of Lords the
facts were as under : — Damage was done to a pier through
the violence of the wind and waves by a vessel at a time
when .the master and crew had been compelled to escape
from her, and bad consequently no control over her —
regard being had to the words of a statute applicable, the
owners of the vessel were adjudged not to be liable. In
this case the common law liability was held not to have
been extended by the legislature, and the case had conse-
quently to be decided by reference to that liability. " If,*
said Lord Cairns, C, (n), " a duty is cast upon an indivi-
(5) Reg. v. Leigh, 10 A. & E. 898. (0 Judgment, Nickolt r. Mar*-
There is no liability at Common Law land, 2 Ex. D. 4 ; Paradine y. Jane
to maintain a sea wall for the benefit AUyn, R. 27.
of other adjacent land owners. (u) River Wear Commiuioners v.
Hudson r. Tabor, 2 Q. B. D. 298 ; Adamson, 2 App. Cas. 743, referring
46 L. J. Q. B. 463. to Dennis v. Tovdl, L. E. 8 Q. B. 10.
FUNDAMENTAL LEGAL PRINCIPLES. 227
dual by common law, the act of God will excuse liiin from
the performance of that duty. No man is compelled to do
that which is impossibly."
The same principle was also exemplified in an action
brought by a husband and his wife for injuries to the wife
caused by the restiveness of the defendant's horses when
driven by a servant of the defendant, the jury negatived
all negligence in any one concerned, and the plaintiffs
were held disentitled to recover compensation for the in-
juries thus sustained by the wife (x).
Where part of land demised to a tenant is lost to him by Apporti
* m u mentor
any casualty, as the overflowing of the sea, this appears to JJJJiJlt11
be a case of eviction in which the tenant may claim an ca8Ualt>-
apportionment of the rent provided that the loss be total ;
for, if there be merely a partial irruption of water, the ex-
clusive right of fishing, which the lessee would thereupon
have, would be such a perception of the profits of the land
as to annul his claim to an apportionment (y). Where,
also, land is surrounded suddenly by the rage or violence
of the sea, without any default of the tenant, or if the sur-
face of a meadow be destroyed by the irruption of a moss,
this is no waste (if the injury be repaired in a convenient
time), but the act of God, for which the tenant is not
responsible (0).
With respect to the liability of either landlord or tenant, Destruction
of premises
where premises under demise are destroyed by fire, the by flre» &c-
rule is, that, in the absence of any special contract between
the parties, the landlord is never liable to rebuild, even if
(a?) Holme* v. Mather, L. R. 10 (y) 1 Roll. Abr. 236, 1. 40 ; Bac.
Exch. 261 ; 44 L. J. Ex. 176 ; 33 L. Abr. "Rent" (M. 2). See Dyer, 56.
T. 361. See also, as exemplifying (z) Per Tindal, C.J., Simmon*' v.
inevitable accident, The Buckkurst, Norton, 7 Bing. 647, 648 ; Com.
6 P. D. 152 ; 30 W. R. 232. Dig., » Waste" (E. 5).
q 2
228
FUNDAMENTAL LEGAL PRINCIPLES.
be has received the value from an insurance office (a) ;
neither is the tenant, since the stat 6 Anne, c. 31, s. C ;
but the latter is liable to the payment of rent until the
tenancy is determined (6).
In Izon v. Qorton (c), the defendants were tenants from
year to year to the plaintiff, of the upper floors of a ware-
house, at a rent payable quarterly ; the premises were
destroyed by an accidental fire in the middle of a quarter,
and were wholly untenantable until rebuilt about seven
months after ; and it was held that the relation of landlord
and tenant was not determined by the destruction of the
premises, but that the defendants remained liable for the
rent until the tenancy should be in the usual way put an
end to, and that such rent was recoverable in assumpsit
for use and occupation.
Where there is a general covenant by the lessee to
repair and leave repaired at the end of the term, the
lessee is clearly liable to rebuild in case of the destruction
of the premises by accidental fire, or by any other un-
avoidable contingency, as lightning, or an extraordinary
flood; and it has been decided that a tenant .who has
covenanted to rebuild has no equity to compel his landlord
to expend money received from an insurance office, on the
demised premises being burnt down (d). An exception of
(a) Pindar v. Ainsley, cited per
Bailer, J., Bel/our v. Weston, 1 T.
R. 312 ; Bayne v. Walker, 3 Dow.
R. 233 ; Leeds y. Chatham, 1 Sim.
146 ; with which ace. Loft. v. Den-
nis, 1 E. & E. 474, 481.
(6) Paradine v. Jane, Aleyn, R.
27. As to the stat. 6 Anne, c 31,
see Lord Lyndhurst's judgment in
VUcount Canterbury v, 4.-0. } 1
Phill. 306.
(c) 5 Bing. N. C. 591 ; recognised
Surplice v. Farnsworth, 8 Scott, N.
R. 307. See Packer v. (Jibbing, 1
Q. B. 421 ; Upton r. Tovmend, 17
C. B. 30.
(d) Leeds v. Chettkam, 1 Sim. 146;
followed in Loft v. Dennis, 1 £. & E.
474 ; cited in Woodfall, L. & T. 12th
ed., 380,
FUNDAMENTAL LEGAL PRINCIPLES.
229
accidents by fire and tempest is now usually introduced
into leases, in order to protect the lessee (e).
In an action by a landlord against his tenant for rent it
was held a bad plea that through the neglect and default
of the landlord the house and premises which formed the
subject of the letting had become unfit for habitation in
consequence of defects which the tenant was not bound to
rectify, and that the landlord having refused to remedy
these defects when required to do so, the tenant quitted
and gave up to the landlord possession of the house
and premises before any of the rent claimed had become
due (/).
Where the lessee covenants to pay rent, he is, in accord-
ance with the above principles, bound to pay it whatever
injury may happen to the demised premises (g) ; and a
tenant from year to year, in order to free himself from
liability in such a case, should give a regular notice
to quit.
Where the performance of a contract depends on the performance
i • A r ,i« of contract
continued existence of a given person or thing, a con- when
. . . excused.
dition may be (It) implied that the impossibility arising
(e) Paradine v. Jane, Aleyn, R.
27 ; cited, per Lord Ellenborough, C.
J., 10 East, 533, and S]>enccv. Chod"
Kick, 10 Q. B. 617, 530 ; per Lord
Campbell, C. J., Hall ▼. Wright,
B. B. & E. 761 ; per Martin, B., Id.
789 ; Brown v. Royal Imur. Co., 1
E. A E. 853, 859 ; arg., Brecknock
Co. v. PrUchard, 6 T. R. 751 ;
recognised per Lord Kenyon, C.J.,
Id. 752 ; Finch, Law, 64.
"By the common law of England
a person who expressly contracts ab-
solutely to do a thing, not naturally
impossible, is not excused for non-
performance because of being pre-
vented by the act of God." Judgm.,
Lloyd v. Ouibert, L. R. 1 Q. B. 121 ;
citing Paradine v. Jane, $upra.
(/) Murray v. Mace, 8 Ir. R. C.
L. 396.
(</) In an action of debt for rent
due under a lease, held that the
destruction of the premises by fire
would not excuse the lessee from pay-
ment of the rent according to his
covenant ; Hallett v. Wylie, 3 John-
son (U. S.), R. 44.
(h) "The act of God is in sotno
cases said to excuse the breach of u
230
FUNDAMENTAL LEGAL PRINCIPLES.
from the perishing of the person or thing shall excuse the
performance (i).
u Where personal considerations/' it has been 4 said (k),
u are of the foundation of the contract, as in cases of prin-
cipal and agent, and master and servant* the death of
cither party puts an end to the relation ; and in respect
of service after the death, the contract is dissolved, unless
there be a stipulation, express or implied, to the contrary."
To an action for breach of a covenant to ^ene contained
in an apprenticeship deed, the defendant, the father of the
apprentice, pleaded that the apprentice was prevented " by
the act of God, to wit, by permanent illness happening and
arising after the making of the indenture, from remaining
with or serving" the plaintiff during the said term ; and
this plea was held good in excuse of performance, on the
ground that, from the nature of the contract, it was neces-
sarily to be implied that the continued existence of the
apprentice in a state to perform his part of it was contem-
plated by the contracting parties, and that, if prevented
by the act of God, the performance was to be excused (/).
contract. This is, in fact, an inac-
curate expression, because where it
is an answer to a complaint of an
alleged breach of contract, that the
thing done or left undone was so by
the act of God, what ia meant is,
that it was not within the contract."
Judgm., Daily v. De Crcspigny,
L. B. 4 Q. B. 185 ; citing per Manic,
J., Canham v. Barry, 15 C. B. 619 ;
and in Mayor of Berwick v. Oswald,
3 E. k B. 665 ; Shelley's case, 1
Rep. 98, a ; Brewster v. Kitchell, 1
Salk. 198.
(/) Judgm., Taylor v. Caldwell,
3 B. k 8. 826 ; cited with approval
in llohinson v. Darfrov, L. R. 6 Ex.
269; 40 L. J. Ex. 172; 24 L. T.
755 ; Howell v. CottjtianJ, L. R. 9
Q. B. 462 ; 1Q.B.D. 25S ; 46 L. J.
Q.B. 147 : 33 L. T. 832; Anglo-
fy/yplian Co. v. Bennie, L. R. IOC.
P. 271 ; 44 L. J. C. P. 130 ; 32 L. T.
467.
(J) Per Willcs, J., Farrow v.
Wilson, L. R. 4 C. P. 744, 746.
{I) Boast t. Firth, L. R.4 C. P. 1.
In Hall y. Wright, E. B. & B. 749,
Crompton, J., observe*, lC Where a
contract depends upen personal skill,
and the act of God renders it im-
possible, as, for instance, in the case
of a painter employed to paint a pic-
ture who is struck Mind, it may be
FUNDAMENTAL LEGAL PMSCIPLES.
231
Again, the plaintiffs contracted to erect certain ma-
chinery on the defendant's premises, at specific prices for
particular portions, and to keep it in repair for two years
— the price to be paid upon the completion of the whole.
After some portions of the work had been finished — other
portions being in course of completion — the premises, with
the machinery and materials thereon, were accidentally
destroyed by fire : Held, that both parties were excused
from further performance of the contract, but that the
plaintiffs were not entitled to sue in respect of those
portions of the work which had been completed, the ratio
decidendi being thus expressed : — " The plaintiffs having
contracted to do an entire work for a specific sum, can re-
cover nothing unless the work be dene, or it can be shown
that it was the defendant's fault that the work was incom-
plete, or that there is something to justify the conclusion
that the parties have entered into a fresh contract " (m).
So if the condition of a bond was possible at the time
of making it, and afterwards becomes impossible by the
act of God, the obligor shall be excused (n) ; and, it is
thai the performance might be ex-
cused, and his death might also have
the same effect.
And Pollock, C.B., remarks (Id.
793), " All contracts for personal
services which can be performed only
during the lifetime of the party con-
tracting, are subject to the implied
condition that he shall be alivo to
perform them, and should he die his
executor is not liable to an action for
the breach of contract occasioned by
his death." See Stubbt v. Holywell
R. C, L.K. 2 Ex. 311, 314.
Where incapacity to perform a
contract is occasioned by the act of
God, the contractor may be justified
in determining the contract. See
jndgm., Cuckson v. Stone, 1 E. & K.
257.
(m) Appleby v. Myers, L. R. 2 C.
T. 651, 661. If the defendant pre-
vents a certain condition being per-
formed, the performance of which is
a condition precedent to the payment
of the price, the plaintiff can recover
the price although tho condition is
never performed. Mackay v. Did;
6 App. Cas. 251 ; Bradley v. Bin-
jamin, 46 L. J. Q. B. 590.
(») Per Williams, J., 9 C. 15. N.
S. 747; Com. Dig. " Condition," L.
232
FUNDAMENTAL LEGAL PRINCIPLES.
said, that, if the condition be in the disjunctive, with
liberty to the obligor to do either of two things at his
election, and both are possible at the time of making the
bond, and afterwards one of them becomes impossible by
the act of God, the obligor shall not be bound to perform
the other (o). The foregoing statement of the law must,
however, be received with caution if not with some
qualification since the decision of Kindersley, V.-C, in
Barkworth v. Young (j)), in which case that learned judge,
after reviewing the previous authorities on the subject,
thus proceeds : " It appears to me that it is impossible to
lay down any universal proposition either way, but that
the principle to be applied in each case is, that it must
depend upon the intention of the parties to the bond,
covenant, or agreement .... If the Court is satis-
fied that the clear intention of the parties was that one of
them should do a certain thing, but he is allowed at his
option to do it in one of two modes, and one of these
modes becomes impossible by the act of God, he is bound
to perform it in the other mode " (</).
Again, if a lessee covenants to leave a wood in as good
a plight as the wood was in at the time of making the
lease, and afterwards the trees are blown down by tem-
pests, he is discharged from his covenant (r).
12 D. 1 ; 2 Bla. Com., 21stcd., 340 ;
Co. Lilt. 206, a ; Williams v. Hide,
Palm. R. 548. See Roll Abr. 450,
451.
(o) Com. Dig., "Condition," D.
1 ; Laughter's cast, 5 Rep. 22 ; fol-
lowed in Jones v. //bio, infra ; Wing.
Max., p. 610. See per Crompton, J. ,
EsposUo v. Botoden, 4 K. & B. 974,
975; S. C, 7 Id, 763; 1 B. & 8. 194.
(/>) 4 Drewry. 1.
(q) A man may for a good conside-
ration, contract to do that which he
cannot be sure that he will be able to
do (sec per Maule, J., Canham v.
Barry, 15 C. B. 619, and in Jones
v. How, 9 C. B. 10), and which may
by the actus Dei become impractic-
able, and yet be absolutely bound,
i.e., bound, on default, to compensate
t!ie contractee in damages.
(r) 1 Rep. 98.
FUNDAMENTAL LEGAL PRINCIPLES. 283
In a devise or conveyance of lands, on a condition condition in
a devise or
annexed to the estate conveyed, which is possible at the conveyance.
tune of making it, but afterwards becomes impossible by
the act of God, there, if the condition is precedent, no
estate vests at law or in equity, because the condition
cannot be performed ; but, if subsequent, the estate
becomes absolute in the grantee, for the condition is not
broken (a). Thus, where a man enfeoffed another, on
the condition subsequent of re-entry, if the feoffor should
within a year go to Paris about the feoffee's affairs, but
feoffor died before the year had elapsed, the estate was
held to be absolute in the feoffee (t). So, where a man
devised his estate to his eldest daughter, on condition
that she should marry his nephew on or before her
attaining twenty-one years ; but the nephew died young,
and the daughter was never required, and never refused
to marry him, but, after his death, and before attaining
twenty-one years, married ; it was held that the condition
was unbroken, having become impossible by the act of
God (u).
By the custom of the realm, common carriers are carrier not
bound to receive and carry the goods of the subject for a or God.
reasonable hire or reward, to take due care of them in
their passage, to deliver them safely and within a reason-
able time (x), or in default thereof to make compensation
to the owner for loss, damage, or delay, which happens
while the goods are in their custody. Where, however,
(*) Com. Dig. "Condition," D. 1 ; tion attached, Dawson v. Oliver
Co. lit*. 206, a ; and Mr. Butler's Money, 2 Ch. D. 758, C. A., re-
note (1) ; Id. 218 a, 219 a. versing Jessel, M.R., 45 L. J. Ch.
(0 Co. Litt. 200 a. 217 ; 34 L. T. 120.
(u) Thomas y. Howell, 1 Salk. {x) Taylor y. Great Northern i?.
170 ; Aislabiei. Rice, 8 Taunt. 459 ; Co., L. R. 1 C P. 386.
but see in case of legacy with condi-
234
FUNDAMENTAL LEGAL PRINCIPLES.
such loss, damage, or delay arises from the act of God,
as storms, tempests, and the like, the maxim under con-
sideration applies, and the loss must fall upon the owner,
and not upon the carrier (y). And so, if the thing is lost
partly by reason of its own inherent vice and partly in
consequence of the act of God, the carrier is relieved from
liability (z) ; in this case res peril suo domino (a).
For damage occasioned by accidental fire resulting
neither from the act of God nor of the king's enemies, a
common carrier, being an insurer, is responsible (b). But
where an injury is sustained by a passenger, from an inevit-
able accident(c), the coach-owner is not liable, provided there
were no negligence in the driver (d). And the breach of a
contract to convey a passenger from A. to B., if caused by
vis major, would seem to be excusable (e), the principle
being that a carrier of passengers does not warrant or
insure the safety of his passengers, but contracts merely
(y) Amies v. Stecens, Stra. 128 ;
Trent Navigation v. Woody 3 Ksp.
127 ; per Powell, J. ; Coggs v. Ber*
nard, 2 Lord B&ym. 910, 911 ; per
Tindal, C.J., Ron v. Hill, 2 C. B.
890 ; Walker v. British Guarantee
Society, 18 Q. B. 277, 287.
(z) Nugent v. Smith, 1 C. P. D.
423 ; 45 L. J. G. P. 697 ; 34 L.
T. 827.
{a) As to this maxim, see Bell,
Diet, and Dig. of Scotch Law, 857 ;
Appleby v. Myers, L. R. 2 C. P. 651,
659, 660 ; Baynt v. Walker, 3 Dow.
R. 233 ; Payne v. MeUer, 6 Ves.
349 ; Bryant v. Bush, 4 Russ. 1 ;
Logan v. Le Mesurier, 6 Moo. P. 0.
C. 116.
i (o) Story on Bailments, 5th cd.,
s. 528 ; Collins v. Bristol and Exeter
R. C., 1 fl. & N. 517 ; Liver. Alkali
Works y, Johnson, infra, n. (/).
(e) As to the meaning of this word,
see Fenvnck v. Schmah, L.R.3C.
P. 313 ; Beadhead v. Midland R.
Co., L. R. 4 Q. B. 879 ; Richardson
t. Great Eastern Railway Co., L. R.
10 C. P. 486, 493, in C. A. 1 C. P. D.
342 ; 35 L. T. 351.
(d) Aston v. Heaven, 2 Ksp. 533 ;
per Parke, J., Crofts ▼. Watcrhouse,
3 Bing. 821. See Sharp v. Grey, 9
Bing. 457 ; Perren v. Monmouth-
shire R. and Can. Co., 11 C. B.
855.
(e) Per lord Cimpbell, C. J.,
Denton v. Great Northern R. C. , 25
L. J. Q. B. 129 ; S. C, 5 K. & B.
860 ; Briddon y. Great Northern
R. Co., 28 L. J. Ex. 51 ; Great
FUNDAMENTAL LEGAL PRINCIPLES.
235
to take all due and reasonable care (including in that
term tbe use of skill and foresight) to carry his pas-
sengers safely (/).
The following cases may also be noticed as applicable
to the present subject, and as showing that death, which
is the act of God, shall not be allowed to prejudice an
innocent party if such a result can be avoided : — Lessor
and lessee, in the presence of lessor's attorney, signed an
agreement that a lease should be prepared by lessors
attorney, and paid for by lessee. The lease was prepared
accordingly, but the lessor, who had only a life estate in
the. property to be demised, died, and the lease conse-
quently was never executed. It was held, that the
lessor's attorney was entitled to recover from lessee the
charge for drawing the lease, for it was known to all the
parties that the proposed lessor had only a life estate ;
and the non-execution of the lease was owing to no fault
of the attorney, who ought not, therefore, to remain
unpaid (g).
The case of Reg. v. Tlie Justices of Leicestershire (h),
where a peremptory mandamus was issued to Quarter
Sessions to hear an appeal against a bastardy order of two
justices, offers another apt illustration of the maxim now
before us. There it appeared that the appellant, having
Western R. C. of Canada v. Braid,
1 Moo. P. C. C. 101, and cases there
cited. See Kearon v. Pearson, 7 H.
& N. 386.
(/) Bedhead v. Midland R. Co.,
L R. 4 Q. B. 379, 381, with which
compare Liver. Alkali Works v.
Johnston, L. R. 9 Ex. 338 ; 43 L. J.
Ex. 216 ; 31 L. T. 95, as to the
liability of a carrier of goods, and
Randall v. Newson, 2 Q. B. D. 102 ;
46 L. J. Q. B. 257 ; 36 L. T. 164,
as to the obligation of a vendor of a
chattel for a specific purpose.
(g) Webb v. Rhodes, 3 Bing. N. C.
732.
For another illustration of the
above maxim, see Morris v. Matthews,
2 Q. B 293. See also per Best, C. J.,
Tooth v. Bafficcll, 3 Bing. 375.
(/*) 15 Q. B. 88.
23G FUNDAMENTAL LEGAL PRINCIPLES.
entered into the proper recognizances, on the same day
sent by post a written notice of his having done so in
pursuance of the stat. 8 & 9 Vict, c 10, s. 3, addressed to
the mother of the child ; three days, however, before this
notice was posted, the woman had died, and upon this
state of facts the sessions refused to hear the appeal,
considering that the appellant had not complied with the
requirements of the statute. But the Court of Queen's
Bench held that as the duty of the appellant to give the
notice in question was cast upon him by the law, not by
his own voluntary contract, he was excused from perform-
ing that duty, inasmuch as it had become impossible by
the act of God (i).
r„ic__ The above general rule must, however, be applied with
appi^abic due caution (fc). Thus, where, after the indictment —
arraignment — the jury charged — and evidence given on
a trial for a capital offence, one of the jurymen became
incapable, through illness, of proceeding to verdict, the
court of oyer and terminer discharged the jury, charged a
fresh jury with the prisoner, and convicted him, although
it was argued that actus Dei nemini nocet, and that the
sudden illness was a Qodsend, of which the prisoner ought
to have the benefit (J).
Lastly, illness of a material witness is a sufficient
ground to excuse a plaintiff in not proceeding to try,
and so would be the death of one of two co-defendants,
no suggestion of it having been made on the record, the
trial being thus suspended by the act of God (m).
(t) See also, in further illustration (/) R. v. Edwards, 4 Taunt. 309,
of the maxim as to actu* Dei, Newton 812.
v. Boodle, 3 C. B. 705. (m) Pell v. Linnell, L. R. 3 C. P.
(*) Lord Raym. 433. 441.
FUNDAMENTAL LEGAL PRINCIPLES. 237
Lex non cogit ad Impossibilia. (Co. Litt. 231, b). —
The law does wot seek to compel a man to do that
which he cannot possibly perform.
This maxim, or, as it is also expressed, impotentia Mining or
excused legem (ri), is intimately connected with that last ewuin^a
considered, and must be understood in this qualified sense, application.
that impotentia excuses when there is a necessary or
invincibile disability to perform the mandatory part of the
law, or to forbear the prohibitory (o) ; and is akin to the
maxim of the Roman law, "nemo ienetur ad impossibilia"
which, derived from common sense and natural equity, has
been adopted and applied by the law of England under
various and dissimilar circumstances, e.g. to a contract by
charter party where performance has been rendered im-
possible (p).
The law itself and the administration of it, said Sir W.
Scott, with reference to an alleged infraction of the
revenue laws, must yield to that to which everything
must bend — to necessity ; the law, in its most positive
and peremptory injunctions, is understood to disclaim, as
it does in its general aphorisms, all intention of compel-
ling to impossibilities, and the administration of laws
must adopt that general exception in the consideration of
all particular cases. " In the performance of that duty, it
has three points to which its attention must be directed.
In the first place, it must see that the nature of the
necessity pleaded be such as the law itself would respect,
for there may be a necessity which it would not. A
(«) Co. Iitt. 29 a. E. 394, 416 ; L. R. 4 P. C. C. 171 ;
(o) Hobart, 96. 41 L. J. Adm. 57 ; 26 L. T. 48.
(j>) The TcuUmia, L. R, 3 Ail. &
238 FUNDAMENTAL LEGAL PRINCIPLES.
necessity created by a man's own act, with a fair previous
knowledge of the consequences that would follow, and
under circumstances which he had then a power of con-
trolling, is of that nature. Secondly, that the party who
was so placed, used all practicable endeavours to sur-
mount the difficulties which already formed that neces-
sity, and which, on fair trial, he found insurmountable.
I do not mean all the endeavours which the wit of man,
as it exists in the acutest understanding, might suggest,
but such as may reasonably be expected from a fair
degree of discretion and an ordinary knowledge of
business. Thirdly, that all this shall appear by distinct
and unsuspected testimony, for the positive injunctions of
the law, if proved to be violated, can give way to nothing
but the clearest proof of the necessity that compelled the
violation " (</).
It is, then, a general rule which admits of *ample prac-
tical illustration, that impotentia excusat legem; where
the law creates a duty or charge, apd the party is disabled
to perform it, without any default in him, and baa no
remedy over, there the law will in general excuse him (r) :
ex. gr., If performance of the condition of a bond be
rendered impracticable by an Act of Parliament the
obligor will be discharged (*).
The maxim under notice may, in the first place, be
exemplified by reference to the law of mandamus : —
Mantiaimw. A writ of mandamus issuing to a railway or other com-
pany, enjoining them to prosecute works in pursuance of
\q) The Generous, 2 Dods. 323, 670, and cases cited, Id. 681.
324. (*) Brown v. Mayor, <bc., of
(r) Paradine v. Jane, Aleyn, 27 ; London, 9 C. B. N. S. 726 ; S. C,
cited per Lawrence, J., 8 T. E. 267. 13 Id. 828.
See Evans v. ffutton, 5 Scott, N. R.
FUNDAMENTAL LEGAL PRINCIPLES.
239
statutory requirements, supposes the required act to be
possible, and to be obligatory when the writ issues ; and,
in general, the writ suggests facts showing the obligation,
and the possibility of fulfilling it (/) ; though, where an
obligation is shown to be incumbent on the company, the
onus lies upon those who contest the demand of fulfil-
ment of proving that it is impossible (u) ; if they succeed
in doing so, the doctrine applies that "on mandamus,
nemo tenetur ad impossibilia" (x) ; and upon the same
principle, where an order had been made by the Board of
Trade upon a railway company requiring the company to
carry a certain turnpike road across their railway, the
Court refused a mandamus to compel the company to
carry out the order upon proof that the company had no
funds and was practically defunct, and was not in a posi-
tion to comply with the mandamus, if granted (y).
Again we find it laid down, that " where H. covenants covenant
not to do an act or thins: which was lawful to do, and an i*»i"i by
Act of Parliament comes after and compels him to do it,
the statute repeals the covenant. So, if H. covenants to
do a thing which is lawful, and an Act of Parliament
comes in and binders him from doing it, the covenant is
statute.
(t) Reg. v. London and North
Western R. <7., 16 Q. B. 864, 884 ;
Reg. v. Ambergate, da., R. C, 1 R.
k B. 372, 881. See Reg. v. York
and North Midland R. C, 1 B. k B.
178 ; 8. C. (reversed in error), Id.
858 ; Reg. v. Great Western R. C,
1 E. & B. 253 ; S. C. (reversed in
error), Id. 874 ; Reg. v. South
Eastern R. C, 4 H. L. Cas. 371 ;
Reg. v. Lancashire and Yorkshire R.
C., 1 E. & B. 228 r S. 0. (reversed
in error), Id. 873 (a) ; Tapping on
Mandamus, 359.
(«) Reg. v. York, Newcastle, and
Berwick R. C.y 16 Q. B. 886, 904;
Reg. v. Great Western R. C.t 1 B. &
B. 774.
(x) Per Lord Campbell, C.J., Reg.
v. Ambergate, etc., R. (7., 1 E. & B.
880. See Reg. v. Cooks, 3 B. A B.
249.
(y) Re The Bristol and North
Somerset IL Co., 3 Q. B. D. 10 ; 47
L. J. Q. B. 48 ; 37 L. T. 527.
240
FUNDAMENTAL LEGAL PRINCIPLES.
Contracts
iuilM«4ble
of )ierforiu-
ance.
repealed. But, if a man covenants not to do a thing
which then was unlawful, and an Act comes and makes
it lawful to do it, such Act of Parliament does not repeal
the covenant " (z). If, before the expiration of the
running days allowed by a charter-party for loading, the
performance of his contract by the shipper becomes, by
virtue of an Order in Council, illegal, he is discharged (a).
If, however, as above stated, a person, by his own
contract, absolutely engages to do an act, it is deemed to
be his own fault and folly that he did not thereby
expressly provide against contingencies, and exempt
himself from responsibility in certain events : in such
case, therefore, that is, in the instance of an absolute
and general contract, the performance is not excused by
an inevitable accident or other contingency, although not
foreseen by nor within the control of the party (6) ;
thus, where the plaintiff agreed to build and complete
(z) Brewster v. Kitchell, 1 Salt
198 ; Newington Local Board v. Not-
tingham Local Board, 12 Ch. D. 725 ;
48 L. J. Ch. 226 ; 40 L. T. 58 ;
Davis v. Gary, 15 Q. B. 418 ; Wynn
v. Shropshire Union R. and Can,
Co., 5 Excb. 420, 440, 441 ; Doc d.
Lord Anglesey v. Churchwardens of
Rugeley, 6 Q. B. 107, 114. See also
Doe d. Lord Grantley v. Butcher,
Id. 115 (b).
(a) Reid v. Hoskins, 6 B. & B.
953 ; S. C., 5 Id. 729, 4 Id. 979 ;
Avery v. Bowden, 6 E. & B. 953,
962 ; S. C. 5 Id. 714. See EsposUo
v. Bowden, 4 E. k B. 963; S. C,
7 Id. 763 ; 1 B. A S. 194 ; Pole v.
CetcovUch, 9 C. B. N. S. 430.
Parties may by apt words bind them-
selves by a contract as to any future
state of the law; per Maule, J.,
Mayor of Berwick y. Oswald, 3 E. k
B. 665 ; S. C, 5 H. L. Cas. 856 ;
Mayor of Dartmouth v. Silly, 7 E. &
B. 97.
(b) Per Lawrence, J., Hadley v.
Clarke, 8 T. R. 267 ; per Lord Ellen-
borough, C.J., Atkinson y. Ritchie,
13 East, 533, 534 ; Marquis of Bute
v. Thompson, 13 M. & W. 487;
Hills v. Sughruc, 15 M. & W. 253,
262 ; Jervis v. Tomkinson, 1 H. &
N. 195, 208 ; Spcnce v. Chodwick,
10 Q. B. 517, 628 (recognising At-
kinson v. Ritchie, supra) ; SchUi^i
v. Derry, 4 E. & B. 873 ; Hale v.
Rawson, 4 C. B. N. S. 85 ; Adams
y. Royal Mail Steam Packet Co., 5
C. B. N. S. 492.
FUNDAMENTAL LEGAL PRINCIPLES.
241
by a day named certain specified works, subject to
alterations or additions to be ordered by the defendants,
as mentioned in the agreement, and the defendants
ordered certain alterations and additions to be made
which prevented the plaintiff from finishing the work by
the day named, it was held that the plaintiff was liable to
pay to the defendants the penalties provided in the agree-
ment if the works were not completed by the day
named (c). And, if the condition of a bond be impossible
at the time of making it, the condition alone is void and
the bond shall stand single and unconditional (d).
When performance of the condition of a bond becomes impossible
.'.... condition.
impossible by the act of the obligor, such impossibility
forms no answer to an action on the bond (e) : for, " in
case of a private contract, a man cannot use as a defence
an impossibility brought upon himself" (/). But the
performance of a condition shall be excused by the
default of the obligee, as by his absence, when his pre-
sence was necessary for the performance (g), or if he do
any act which renders it impossible for the obligor to per-
form his engagement (h). And, indeed, it may be laid
(e) Jones v. St. Johns College, L.
B. 6 Q. B. 115.
(d) Co. Litt. 206, a. ; Sanders v.
Coward, 15 M. & W. 48 ; Judgm.,
Duvergier v. Fellows, 5 Bing. 265.
See also Dodd, Eng. Lawy. 100.
Where a literal compliance with the
condition in a gift of a legacy is Im-
possible from unavoidable circum-
stances, see Dawson v. Oliver Massey,
2 Ch. D. 753, C. A., reversing
decision of Jessel, M.R., 45 L. J.
Ch. 217 ; 34 L. T. 120.
(c) Judgui, Bewick v, Smndells,
3 A. & E. 883.
(/) Per Lord Campbell, C.J., Reg.
v. Caledonian R. C, 16 Q. B. 28.
(g) Com. Dig., " Condition,1* L 4,
5 ; cited, per Tindall, C.J., Bryant
v. Beattie, 4 Bing. N. C. 263.
(A) Com. Dig., "Condition," L.
6 ; per Parke, B., Holme v. Ouppy,
3 M. & W. 389 ; Thornliill v. Neats,
8 C. B. N. S. 831, 846 ; Russell v.
Da Bandeira, 13 Id. 149, 203, 205.
See Roberts v. Bury Commissioners,
L. B. 4 C. P. 759.
H
2*2 FUNDAMENTAL LEGAL PRINCIPLES.
down generally, as clear law, that, if there is an obligation
defeasible on performance of a certain condition, and the
performance of the condition becomes impossible by the
act of the obligee, the obligor shall be excused from the
performance of it (i).
It seems, however, that the performance of a condition
precedent, on which a duty attaches, is not excused, where
the prevention arises from the act or conduct of a mere
stranger. If a man, for instance, covenant that his son
shall marry the covenantee's daughter, a refusal by her will
not discharge the covenantor from making pecuniary satis-
faction (&). So, if A. covenant with C. to enfeoff B., A. is
not released from his covenant by B.'s refusal to accept
livery of seisin (I).
impo.wn.ie Further, where the consideration for a promise is such
conniUera- *
Uon- that its performance is utterly and naturally impossible,
such consideration is insufficient, for no benefit can, by
any implication be conferred on the promissor (m), and the
law will not notice an act the completion of which is obvi-
ously ridiculous and impracticable. In this case, there-
fore, the maxim of the Roman law applies — Impossibilium
nulla obligatio est (n). Moreover, a promise is not bind-
ing, if the consideration for making it be of such a nature,
that it was not in fact or law in the power of the promisee,
from whom it moved, to complete such consideration, and
(i) Judgm., ffayward v. Bennett, " Conditions," Q. 4 ; cited Thornton
3 C. B. 417, 418 (citing Co. Litt. t. Jenyns, 1 Scott, N. R. 66.
206, a.) ; S. C, 5 C. B. 593. (m) Chanter v. Leete, 4 M. & W.
(&) Perkins, s. 756. 295 ; per Holt, C.J., Courttnay v.
(/) Co. Litt. 209, a. ; per Lord Strong, 2 Lord Raym. 1219.
Kenyon, C. J., Cook v. Jennings, 7 (n) D. 50. 17. 185 ; 1 Pothier,
T. R. 884, and in Blight t. Page, Oblig. pt. 1, c. 1, 8. 4, § 3 ; 2 Story,
3 B. & P. 296, n. See Lloyd t. Eq. Jurisp., 6th ed., 763.
Crispe, 5 Taunt. 249 j Bac. Abr.,
FUNDAMENTAL LEGAL PRINCIPLES. 243
to confer on the promissor the full benefit meant to be
derived therefrom (o): Thus, if a man contract to pay a
sum of money in consideration that another has con-
tracted to do certain things, and it should turn out before
anything is done under the contract, that the latter party
was incapable of doing what he engaged to do, the con-
tract is at an end : the party contracting to pay his money
is under no obligation to pay for a less consideration than
that for which he has stipulated (p). But if a party by
his contract lay a charge upon himself, he is bound to
perform the stipulated act, or to pay damages for the non-
completion (q), unless the subject-matter of the contract
were at the time manifestly and essentially impracticable ;
for the improbability of the performance does not render
the promise void, because the contracting party is pre-
sumed to know whether the completion of the duty he
undertakes be within his power; and, therefore, an
engagement upon a sufficient consideration for the per-
formance of an act, even by a third person, is binding,
although the performance of such act depends entirely on
the will of the latter (r). Neither will the promissor be
excused, if the performance of his promise be rendered
impossible by the act of a third party (a) ; though, if an
exercise of public authority render impossible the further
performance of a contract which has been in part per-
(o) Harvey v. Gibbons, 2 Lev. 161; Jones t. St. John's College, L. B.
Ktrot v. Wallace, 3 T. R. 17- 6 Q. B. 124 ; 40 L. J. Q. B. 80.
(/>) Per Lord Abinger, C.B., 4 M. (r) 1 Pothier, Oblig., pt. 1, c. 1,
k W. 311. s. 4, § 2 ; M'NeUl r. Aeid, 9 Bing.
(?) See Thornborow v. WhUacre, 68.
2 Lord Baym. 1164 ; Pope t. («) Thurnell y. Balbirnk, 2 M. &
£avidye, 10 Exch. 73 ; Hale v. W. 786 ; Brogden v. Marriott, 2
Jkvmn, 4 C. B. N. 8. 85, 95 ; Bing. N. C, 473,
ft?
244
FUNDAMENTAL LEGAL P&INCIPLES,
formed, the contract is, ipso facto, dissolved (t) ; but an
insurance company who had undertaken, having the
option to do so, to reinstate the insured premises which
had been damaged by fire, were held not to be excused from
their contract by reason of the public authorities having
subsequently taken down the premises as dangerous, on
account of defects not caused by the fire (u).
It is a principle of law that if by any act of one of the
parties the performance of a contract is rendered impos-
sible, the other side may if they choose rescind the con-
tract ; and it appears sufficient if the contract cannot be
performed in the manner stipulated, though it may be
performed in some other manner not very different (x).
And if a party, by his own act, disables himself from
fulfilling his contract, he thereby makes himself at once
liable for a breach of it, and dispenses with the necessity
of any request to perform it by the party with whom the
contract has been made (y) ; and this is in accordance with
an important rule of law, which we shall presently con-
sider ; viz., that " a man shall not take advantage of his
own wrong " (z).
If, however, after the position of two contracting parties
has been materially altered under the contract, one of the
(t) Melville v. De Wolf, 4 B. &
B. 844, 850; Esposito v. Bowden,
Id. 963, 976.
(u) Brown v. Royal Ins. Co., 1
B. & E. 853.
(x) Panama Telegraph Company
v. India Rubber Telegraph Works,
L. R. 10 Ch. 532 ; 45 L. J. Ch. 121 ;
32 L. T. 517.
(y) Lovelock v. Franklin, 8 Q. B.
871 ; Hochtter y. De La Tour, 2 E.
& B. 678 | cited and distinguished iq
Churchward t. Reg., LB.1Q.B.
208 ; per WilliamB, J., 8 C. B. N. S.
166 ; Danube, Ac., R. C. t. Xenos,
13 C. B. N. S. 825 ; Lewis v. Clif-
ton, 14 C. B. 245; arg. Reid v.
Hoskins, 6 B. & B. 960-1, and 5 Id.
737, 4 Id. 982 ; Avery t. Bowden,
6 E. k B. 722 ; S. C, 6 Id. 953.
See Jonassohn v. Young, 4 B. & S.
800.
(*) ?ost, p. 273,
FUNDAMENTAL LEGAL PRINCIPLES. 243
parties repudiates his obligation, and refuses further to
perform his part of the contract, that does not entitle the
other party to rescind it, but he must resort to his action
for damages, and, therefore, in a sense, a man can some-
times take advantage of his own wrong, because damages
may not compensate the complaining party (a).
The following additional illustrations of the maxim Additipnat
° examples.
before us may also be specified. The appellant having
applied to justices to state a case under the stat. 20 & 21
Vict. c. 43, received the case from them on Qood Friday,
and transmitted it to the proper Court on the following
Wednesday. He was held to have sufficiently complied
with the requirements of the second section of the Act,
which directs that the case shall be transmitted by the
appellant within three days after he has received it ; for
the offices of the Court having been closed from Friday
till Wednesday it would have been impossible to have
transmitted the case sooner (6). And where an appeal
against an order of an assessment committee had to be
made to the next Sessions, it was held that the next
Sessions must be construed to mean the next practicable
sessions, and not necessarily the next sessions immediately
following the date of the order, as such a construction
would not have afforded the aggrieved party time to
consider whether he would appeal or not (c).
To several maxims in some measure connected with
that above considered, it may, in conclusion, be proper
(a) Sh^field Nickel Company v. time may be circumscribed by the
ftiwift, 2Q.KD, 214 ; 46 L. J. Q. fact of its being impossible to comply
B. 299 ; 36 L. T. 246. with the statute on the last day of the
(6) Mayer r. Harding, L. R. 2 Q. period so fixed.
B. 410, where Mellor, J., says that (c) The Queen t. Justices of
where a statute requires a thing to be Surrey, 6 Q. B. D. 100 ; 50 L. J. M.
done within any particular time, such 0. 10 ; 43 L. T. 500.
246
FUNDAMENTAL LEGAL PRINCIPLES.
The law re-
gards the
course of
nature.
Jjtr nil
frustra facit.
briefly to advert. First, it is a rule, that lex spectat
Ttaturce ordinem (d), the law respects the order and course
of nature, and will not force a man to demand that which
he cannot recover (e). Thus, where the thing sued for by
tenants in common is in its nature entire, as in a quare
impedit, or in detinue for a chattel, they must of necessity
join in the action, contrary to the rule which in other
cases obtains, and according to which they must sue
separately (/). Secondly, it is a maxim of our legal
authors, as well as a dictate of common sense, that the
law will not itself attempt to do an act which would be
vain, lex nil frustra facit, nor to enforce one which would
be frivolous — lex nominem cogit ad vana sew inutilia,
— the law will not force any one to do a thing vain and
fruitless (g).
Ignorantia Facti excusat, — Ignorantia Juris non
excusat. (Or. arid Rud. of Law, 140, 141.)— Igno-
rance of fact excuses — ignorance of tlie law does not
excuse (h).
Ruicde- Ignorance may be either of law or of fact — for instance,
rived from ...
Roman law. if the heir is ignorant of the death of his ancestor, he is
(d) Co. Litt. 197, b.
(«) Litt. b. 129 ; Co. Litt. 197, b.
(/) Litt. s. 314 ; cited Marson v.
Short, 2 Bing. N. C. 120 ; Co. Litt.
197, b.
" One tenant in common cannot be
treated as a wrong-doer by another,
except for some act which amounts to
an ouster of his co-tenant, or to a
destruction of the common property."
Per Smith, J., Jacobs v. Seward,
L. 4. C. P. S?9, 330.
(<7; Per Kent. C.J., 3 Johnson
(U.S.), R. 598 ; 5 Rep. 21 ; Co. Litt
127, b., cited 2 Bing. N. C. 121 ;
Wing. Max., p. 600 : R. v. Bishop
of London, 13 East, 420 (a) ; per
Willes, J., BeU v. Midland JR. C,
10 C. B. N. 8. 306.
(k) "It is said vjnorantia juris
Jtaud excusat, but in that maxim the
word jus is used in the sense of
denoting general law, the ordinary
law of the country.** " When the
FUNDAMENTAL LEGAL PRINCIPLES. 247
ignorant of a fact ; but if, being aware of his death, and
of his own relationship, he is nevertheless ignorant that
certain rights have thereby become vested in himself, he
is ignorant of the law (i). Such is the example given to
illustrate the distinction between ign^antia, juris and
ignorwivtia facti in the Civil Law, where the general rule
upon the subject is thus laid down : Regvla est, juris
quidem igTwmntiam cuique nocere facti vero ignoran-
tia/m rum nocere (k) — ignorance of a material fact may
excuse a party from the legal consequences of his con-
duct ; but ignorance of the law, which every man is pre-
sumed to know, does not afford excuse — ignwantia juris,
quod quisque scire tenetur, Tieminem excusat (1). With Meaning of
rule.
respect to the "presumption of legal knowledge " here
spoken of, we may observe, that, although ignorance of
the law does not excuse persons, so as to exempt them
from the consequences of their acts, as, for example, from
punishment for a criminal offence (m), or damages for
breach of contract, the law nevertheless takes notice
that there may be a doubtful point of law, and that a
person may be ignorant of the law, and it is quite evident
that ignorance of the law does in reality exist (ri). It
word jut ifl used in the sense of per Lord Campbell, 9 CI. & F. 824 ;
denoting a private right, that maxim per Krle, C.J., PooUy v. Brown , 11
has no application." Per Lord West- C.8., N. S. 575; Kitchin v. Haw-
bury, Cooper v. Phibbs, L. R. 2 H. hint, L. R. 2 C. P. 22.
L. 170. (m) Pott, p. 261.
(t) D. 22. 6. 1. The doctrines of (n) " The maxim is ignorantia
the Roman law upon the subject legis neminem excutat, but there is
treated in the text are shortly stated no maxim which says that for all in-
in 1 Spence's Chan. Juris. 632-3. tents and purposes a person must be
(£) D. 22. 6. 9 pr. ; Cod. 1. 18. taken to know the legal conse-
10. The same rule is likewise laid quences of his acts." i\jr Lush, J.,
down in the Basilica, 2. 4. 9. See L. R. 3 Q. B. 639.
Irving's Civil Law, 4th ed., 74. In reference to the equitable doc*
(/) 2 Rep. 3, b ; 1 Plowd. 343 ; trine of election, Lord Westbury, C,
248
FUNDAMENTAL LEGAL PRINCIPLES.
would, for instance, be contrary to common sense to assert,
that every person is acquainted with the practice of the
Courts ; although, in such a case, there is a presumption
of knowledge to this extent, that ignorantia juris non
excusat, the rules of practice must be observed, and any
deviation from them will entail consequences detrimental
to the suitor (o). It is, therefore, in the above qualified
sense alone that the saying, that " all men are presumed
cognisant of the law " (p), must be understood.
The following case decided by the House of Lords, will
illustrate the above general rule, and will likewise show
that our Courts must necessarily recognise the existence of
doubtful points of law, since the adjustment of claims
involving them is allowed to be a good consideration for a
promise (g), and to sustain an agreement between tho
litigating parties : — The widow, brother, and sister, of an
American who died in Italy, leaving considerable personal
estate in the hands of trustees in Scotland, agreed, by
advice of their law agent, to compromise their respective
claims to the succession, by taking equal shares. The
widow, after receiving her share, brought an action in
Scotland to rescind the agreement, on the ground of
observes, that although "it is true
as a general proposition that know-
ledge of the law must be imputed to
every person," ' ( it would be too much
to impute knowledge of this rule of
equity." Spread t. Morgan, 11 H.
L. Cas. 602.
See also Noble v. Noble, L. R. 1
P. & D. 691, 693.
(o) See per Maule, J., Martindale
v. FaUcner, 2 C. B. 719, 720 ; cited
per Blackburn, J., Reg v. Mayor of
Tcickesbury, L. R. 3 Q. B. 635 ; per
Wilies, J., Poole v. Whitcomb, 12
C. B. N. S. 775 ; per Lord Mans-
field, C.J., Jones y. Randall, 1
Cowp. 40 ; per Coltman, J., Sargent
v. Gannon, 7 C. B. 752 ; Edwards v.
Ward, 4 C. B. 315. See also New-
ton v. Belcher, 12 Q. B. 921 ; New-
ton v. Lidlard, Id. 925.
(])) Grounds and Rudiments of the
Law, 141.
(q) Per Maule, J., 2 C. B. 720.
See Wade t. Simeon, 1 C. B. 610.
FUNDAMENTAL LEGAL PRINCIPLES. 249
having thereby sustained injury, through ignorance of her
legal rights and the erroneous advice of the law agent :
there was, however, no allegation of fraud against him or
against the parties to the agreement. It was held, that
although the fair inference from the evidence was, that
she was ignorant of her legal rights, and would not have
entered into the agreement had she known them, yet, as
the extent of her ignorance and of the injury sustained
was doubtful, and there was no proof of fraud or improper
conduct on the part of the agent, she was bound by his
acts, and affected by the knowledge which he was pre-
sumed to have of her rights, and was therefore not
entitled to disturb the arrangement which had been
effected (r).
" If," remarked Lord Cottenliam, G, in the above case,
" it were necessary to show knowledge in the principal,
and a distinct understanding of all the rights and interests
affected by the complicated arrangements which are con*
stantly taking place in families, very few, if any, could be
supported."
It is, then, a true rule, if understood in the sense above
assigned to it, that every man must be taken to be cogni-
sant of the law ; for otherwise, as observed by Lord Etten-
hovough, C.J., there is no saying to what extent the
excuse of ignorance might not be Carried ; it would be
urged in almost every case («) ; and, from this rule,
coupled with that as to ignorance of fact, are derived the
two following important propositions: — 1st, that money
paid with full knowledge of the facts, but through igno-
(r) Stewart v. Stewart, 6 CL & («) BObie v. \LumUy, 2 Bast, 469 ;
Pin. 911 ; Clifton t. Cockburn, 3 Preface to Co. Litt ; Oomery v.
My. & K. 99 ; vide Cod. 1. 18. 2 ; Bond, 3 M. & S. 378.
Teede v. Johnson, 11 Bxch. 840.
250
FUNDAMENTAL LEGAL PRINCIPLES.
Money paid
with know-
ledge of
fact*.
Jirithane v.
Lkbcres.
ranee of the law, is not generally recoverable, if there be
nothing unconscientious in the retaining of it ; and, 2ndly,
that money paid in ignorance of the facts is recoverable,
provided there have been no laches in the party paying it,
and there was no ground to claim it in conscience (£).
In a leading case on the first of the above rules, the
facts were these — the captain of a king's ship brought
home in her public treasure upon the public service, and
treasure of individuals for his own emolument He
received freight for both, and paid over one-third of it,
according to an established usage in the navy, to the
admiral under whose command be sailed. Discovering,
however, that the law did not compel captains to pay to
admirals one-third of the freight, the captain brought an
action for money had and received, to recover it back from
the admiral's executrix ; and it was held that be could not
recover back the private freight, because the whole of that
transaction was illegal ; nor the public freight, because he
had paid it with full knowledge of the facts, although in
ignorance of the law, and because it was not against
conscience for the executrix to retain it (u).
The following case may also here be noticed: — A.,
(t) See Note to Marriot v. Hamp-
ton, 2 Smith, L. C.t 8th ed. 421, et
seq. ; Wilkinson v. Johnston, 3 B. &
C. 429 ; per Lord Mansfield, C.J.,
Bizc v. Dickason, 1 T. R. 286, 287 ;
Piatt t. Bromage, 24 L. J. Ex. 63.
See Lee v. MerreU, 8 Q. B. 820,
observed upon in Gingcll v. Purkins,
4 Exch. 723, recognising Standish v.
Boss, 3 Exch. 527.
(u) Brisbane v. Dacres, 5 Taunt.
143 ; per Lord Ellenborougb, C.J.,
Bttbic v. Lumley, 2 East, 470; Gum-
ming v. Bedborough, 15 M. & W.
438 ; Bramston v. Robins, 4 Bing.
11 ; Stevens ▼. Lynch, 12 Bast, 38 ;
jter Lord Eldon, C, Bromley v.
Holland, 7 Ves. jun. 23 ; Lowry v.
Bourdieu, Dougl. 468 ; Oomery v.
Bond, 3 M. & S. 378 ; Lothian v.
Henderson, 3 B. & P. 420 ; Dew v.
Parsons, 2 B. & Aid. 562. See arg.
Gibson v. Bruce, 6 Scott, N. R. 309 ;
Smith v. Bromley, cited 2 Dougl.
696, and 6 Scott. N. R. 318 ; At-
kinson v. Denby, 6 H. & N. 778 ;
a C, 7 Id. 934.
FUNDAMENTAL LEGAL PRINCIPLES.
251
tenant to 8., received notice from C, a mortgagee of B.'s
term, that the interest was in arrear, and requiring pay-
ment to her (C.) of the rent then due. A., notwithstand-
ing this notice, paid the rent to B. and was afterwards
compelled, by distress, to pay the amount over again to C.
Held, that the money having been paid to B. with full
knowledge of the facts, could not be recovered back (x).
Secondly, money paid by the plaintiff to the defendant Mfotake of
under a bond fide forgetfulness or ignorance (y) of facts,
which disentitled the defendant to receive it, may be
recovered back as money had and received (z). The
principle, it has been said (a), upon which the action for
money had and received to recover money paid by mistake
is maintainable, is clear and simple — "no man. should by
law be deprived of his money which he has parted with
under a mistake, and where it is against justice and
conscience that the receiver should retain it. If A. pay
money to B. supposing him to be the agent of C, to
whom he owes the money, and B. be not the agent, it
may be recovered back again. If A. and B. are settling
an account, and make a mistake in summing up the
(x) Biggs v. Scott, 7 C. B. 63.
See WiUon t. Dunn, 17 Q. B. 294.
{y) D. 12. 6. 1.
(«) Kelly v. Solari, 9 M. & W. 54
(cited and distinguished per Erie,
CJ., Chambers v. MiUcr, 13 C. B.
N. 8. 133) ; Lucas ▼. Worswick, 1
Moo. & Bob. 293; Strickland v.
Turner, 7 Exch. 208 ; cited per
Pollock, C.B., 8 Kxch. 49 ; Mills v.
Alderbury Union, 3 Exch. 690 ;
Barber v. Brown, 1 C. B. N. S.
121.
"It seems from a long series of
cases from Kelly v. Solari (tupra),
down to Bails v. Lloyd, 12 Q. B.
531, that where a party pays money
under a mistake of fact he is entitled
to recover it back, although he may
at the time of the payment have had
means of knowledge of which he has
neglected to avail himself ; " per Erie,
C.J., Townsend v. Crowdy, 8 C. B.
N. S. 493-4 ; Stewart v. London and
Nortfi Western Jl. C, 3 H. k C.
135.
(a) Per Kelly, C.B., Freeman v.
Jeffries, L. R. 4 Ex. 197, 198.
252
FUNDAMENTAL LEGAL PRINCIPLES.
items — A. pays B. £100 too much — he may recover it
back again. But the law is different where money is paid
with full knowledge of the facts (b).
Where, however, money is paid to another under the
influence of a mistake existing between the person paying
and the person receiving the money (c), that is upon the
supposition that a specific fact is true, which, if true,
would have rendered the person paying liable to pay the
money (and not merely which, if true, would have rendered
it desirable that he should pay it) (<7) ; but which fact is
untrue, and the money would not have been paid if it had
been known to the payer that the fact was untrue, an
action will lie to recover it back, and it is against con-
science to retain it (e), though a demand may be necessary
in those cases in which the party receiving may have been
ignorant of the mistake. If, indeed, the money is inten-
tionally paid, without reference to the truth or falsehood
of the fact, the plaintiff, being a mere volunteer (/), or if
the plaintiff mean to waive all inquiry into the fact (g)t
and that the person receiving shall have the money at all
events whether it be true or false, the latter is certainly
(o) Ante, p. 250.
(c) Pollard v. Bank of England,
L. R. 6 Q. B. 623 ; 40 L. J. Q. B.
233 ; 25 L. T. 415.
{d) Aiken v. Short, 1 H. A N.
215.
(e) flee Milne* v. Duncan, 6 B.
&C. 671 ; Bute v. Dickason, 1 T. R.
285; cited per Mansfield, C.J.,
Brisbane v. Dacres, 5 Taunt. 162 ;
Harris v. Lloyd, 5 K. ft W. 432.
It is a good plea to an action on a
promissory note that the note was
obtained by a misrepresentation,
whether of law or of fact : SotUhal!
t. Rigg, and Forman v. Wright, 11
C. B. 481, 492-8.
(/) See Aiken v. Short, 1 H. k N.
210. It is obvious that " if a person
voluntarily pays money for another,
he cannot sue the latter for it ; in
order to render him liable, it must
be shown that there was a previous
authority or an adoption of the pay-
ment;'* per Martin, B., Wycombe
Union r. Eton Union, 1 H. ft N,
099.
(g) Per Willes, J., Townsend r.
Crowdy, 8 C. B. N. S. 490.
FUNDAMENTAL LEGAL PRINCIPLES. 253
entitled to retain it ; but if it is paid under the impression
of a fact which is untrue, it may, generally speaking, be
recovered back, however careless the party paying may
have been in omitting to use due diligence, or to inquire
into the fact (h)\ and, therefore, it does not seem to be a
true position in point of law, that a person so paying is
precluded from recovering by laches in the sense of a
mere omission to take advantage of knowledge in his
power (i), though, if there be evidence of means of know-
ledge, the jury will very readily infer actual knowledge (k)
In an action on a marine policy of insurance, the ques- preemp-
tion was, whether the captain of a vessel which sailed to knowledge,
a blockaded port knew of the blockade at a particular
period ; and it was observed by Lord Tenterden, C.J., that,
if the possibility or even probability of actual knowledge
should be considered as legal proof of the fact of actual
knowledge, as a premmptio juris etdejwe, the presump-
tion might, in some cases, be contrary to the fact, and
such a rule might work injustice ; and that the question,
as to the knowledge possessed by a person of a given fact,
was for the decision and judgment of the jury. It was
also remarked, in the same case, that the probability of
actual knowledge upon consideration of time, place, the
opportunities of testimony, and other circumstances, may
in some instances be so strong and cogent as to cast the
(h) Per Parke, B., Kelly v. So- B. & C. 671 ; Towntend r. Orowdy,
lari, 9 M. 4 W. 58, 59, recognised, 8 C. B. N. S. 477 ; Lucat t. Won-
BeU v. Gardiner, 4 Scott, N. B. wick, 1 Moo. & Bob. 298 ; BeU v.
62], 633, 634 ; per Aahhurst, J., Gardiner, 4 Scott, N. B. 621, 635.
Chatfidd v. Paxton, cited 2 East, See per Dallas, C.J., Martin v.
471, n. (a). See D. 22. 6. 9, § 2. Morgan, 1 B. & B. 291.
(*) Per Parke, B., 9 M. & W. 58, (*) Per Coltman, J., 4 Scott, N.
59, controrerting the dictum of B. 683.
Bayley, J., in MUnes v. Duncan, 6
254
FUNDAMENTAL LEGAL PRINCIPLES.
Payment*
under mis-
take of fact
when not
recoverable.
proof of ignorance on the other side in the opinion of the
jury, and, in the absence of such proof of ignorance, to
lead them to infer knowledge ; but that such inference
properly belongs to them (Q.
A policy of Insurance was granted by the defendants on
the life of A., at a certain premium, payable on the 13th
of October in each year, — with a condition that the policy
should be void, inter alia, " if the premiums were not
paid within thirty days after they should respectively
become due, but that the policy might be revived within
three calendar months on satisfactory proof of the health
of the party on whose life the insurance was made/' and
payment of a certain fine. On the 13th of October, 1855,
an annual premium became due, and on the 12th of
November following A. died, the premium remaining un-
paid, and the thirty days allowed by the condition having
then expired. On the 14th of November the plaintiff for
whose benefit the policy had been effected, sent the
defendants a cheque for the premium, for which on the
next day cash was obtained, and a receipt given as for
" the premium for the renewal of the policy to October
13th, 1856, inclusive,"— both parties being ignorant that
A. was then dead. The policy was held not to have been
revived by the payment — the whole transaction, including
such payment and receipt, having been " founded upon a
mistake v(m).
The law raises no implied promise to repay money paid
under a mistake of fact in cases where the rights of the
receiver have been altered by the payment of the money,
and his position would be prejudiced if he was compelled
(Q ffarraU t. Witt, 9 B. k C.
712, 717.
(m) Pritchard r. Merchant? Life
Auurance Co., S C, B. |f. S. 622.
FUNDAMENTAL LEGAL PRINCIPLES. 255
to repay it (n) ; and this rule, it has been said, proceeds
upon the ground of some mutual relation between the
parties creating a duty on the part of the payer towards
the receiver, the breach of which disentitles him from
recovering, and therefore where no such duty exists the rule
does not apply ; thus, where the plaintiff had paid tithes
according to notices served upon him by the defendants in
ignorance that the amount specified in the notice included
the tithes for lands not in his occupation, it was held he
was entitled to recover back the tithes paid in respect of
the land not occupied by him, although the defendants
by lapse of time were precluded from suing the real
occupier for the tithes in respect thereof (o).
Further, it has been stated (p) as a general rule, that
" in matters connected with the administration of justice,
where a mistake is discovered, before any further step is
taken, the Court interferes to cure the mistake, taking
care that the opposite party shall not be put to any
expense in consequence of the application to amend the
error." In some cases, also, where at the time of apply-
ing to the Court, the applicant is ignorant of circum-
stances material to the subject-matter of his motion, he
may be permitted to open the proceedings afresh ; for
instance, under very peculiar circumstances the Court
re-opened a rule for a criminal information, it appearing
that the affidavits on which the rule had been discharged
were false (g). And the Court will in furtherance of
(n) Cox t. MatUrman, 9 B. & C. (P) P* Pollock, C.B., Emery t.
902 ; Clark r. IHckson, E. B. & E. Webster, 9 Exch. 242, 246, which
148 ; Freeman v. Jeffrie*, L. R. 4 well illustrates the proposition in the
Ex. 189. text.
(o) Durrani v. EccUriastical Com* (q) J?, v. Eve, 5 A. & E. 780 ;
mistionert, 6 Q. B. D. 234 ; 60 L. Bodfidd t. Padmore, Id. 785, n.
J. Q. B. 30 ; 44 L. T. 318.
256
FUNDAMENTAL LEGAL PRINCIPLES.
Rule Is
true aUo in
equity.
justice set aside a judgment in an action at the instance
of a plaintiff on the ground of a mistake having been
made by the plaintiff in the amount claimed and received,
although the amount for which judgment was signed and
the costs of the action have been paid (r).
Formerly in Courts of equity, as well as of law, the two-
fold maxim under consideration was admitted to hold true ;
for on the one hand it is a general rule, in accordance with
the maxim of the civil law, lion videntur qui ermnt
conaentire (s), that equity will relieve where an act has
been done, or contract made, under a mistake, or igno-
rance of a material fact (t) ; and, on the other hand, it is
laid down as a general proposition, that in Courts of
equity ignorance of the law shall not affect agreements,
nor excuse from the legal consequences of particular
acts (it), subject to the qualification that the Courts would
grant relief where the law is uncertain as arising upon
the doubtful construction of a grant, but not in respect of
ignorance of a well known and well settled rule or prin-
ciple of law (x), and this rule, as observed by Mr. J. Story,
is fully borne out by the authorities (y). Although a
Court of equity would not, in general, relieve against a
(r) Carman v. Reynolds, 5 E. k B.
301.
(#) D. 60. 17. 116, § 2.
(t) 1 Story, Eq. Jurisp., 12th ed.,
138. Sec Scott ▼. LittledaU, 8 E. &
B. 816 ; Simmons v. Heseltine, 6 C.
B. N. S. 654, 565.
If parties contract under a mutual
mistake and misapprehension as to
their relative and respective rights,
the agreement thus made is liable to
be set aside in equity as having pro-
ceeded upon a common mistake ;
Cooper v. Phibbs, L. R. 2 H. L. 149,
170.
{u) 1 Fonbl. Bq., 5th ed., 119,
note.
(x) Beauchamp v. Winn, L. R. 6
H. L. 234 ; 22 W. R. 193.
(y) 1 Story, Eq. Jurisp,, 12thed.,
138. The case of The Directors of
the Midland Great Western R. C. v.
Johnson, 6 H. L. Cas. 798, illus-
trates the text.
FUNDAMENTAL LEGAL PRINCIPLES. 257
mistake in a contract which was a mistake in law and not
in fact (z), there are cases in which the Court did not bold
itself strictly bound by this rule, and considered it had
power to relieve against mistakes in law if there was any
equitable ground which made it, under the particular
facts of the case, inequitable that the party who had
benefited by the mistake should retain that benefit (a) ;
and the line between mistakes in law and mistakes in
fact was not so sharply drawn in the old Court of Chancery
as in the Courts of common law (b). The following are
instances where the Courts of equity refused to relieve
against a mistake in law ; where a deed of appointment
was executed absolutely, without introducing a power
of revocation, which was contained in the deed creating
the power, and this omission was made through a mistake
in law, and on the supposition that the deed of appoint-
ment, being a voluntary deed, was therefore revocable,
relief was refused by the Court (c). So, where two
are jointly bound by a bond, and the obligee releases
one, supposing, erroneously, that the other will remain
bound, the obligee will not be relieved in equity upon
the mere ground of his mistake of the law, for ignorantia
juris non excused (d). It is, however, well settled that
a Court of equity will relieve against a mistake or ignorance
of fact ; and in several cases, which are sometimes cited as
•
(2) The Director* of the Midland (b) Daniel v. Sinclair, 6 App
Railway Company of Ireland v. Gas. 181 ; 50 L. J. P. C. 50 ; 44 L.
Johnson, 6 H. L. 798. T. 257.
(a) Stone ▼. Godfrey, 5 D. M. & (c) WorraU v. Jacob, 8 Meriv.
G. 90 ; Ex parte James, re Condon, 256, 271.
L. B. 9 Ch. 609 ; 43 L. J. Bank. (d) Barman v. Cam, 4 Yin. Abr.
107 ; 80 L. T. 773 ; Rogers v. 387, pi. 3 ; 1 Fonbl. Eq., 5th ed.,
Ingham, 3 Oh. D. 351, 357 ; 46 L. 119, note.
J. Ch. 322 ; 35 L. T. 677.
8
258 FUNDAMENTAL LEGAL PRINCIPLES.
exceptions to the general rule as to ignorantia juris, it
will be found that there was a mistake or misrepresentation
of fact sufficient to justify a Court of equity in interfering
to give relief (c). In a leading case (/), illustrative of
this remark, the testator, being a freeman of the city of
London, left to his daughter a legacy of 10,0(MM., upon
condition that she should release her orphanage part
together with all her claim or right to his personal estate
by virtue of the custom (g) of the city of London or
otherwise. Upon her father's death, his daughter accepted
the legacy, and executed the release, and, before executing
it, her brother informed her that she had it in her election
either to have an account of her father's personal estate,
or to claim her orphanage part. Upon a bill afterwards
filed by the husband of the daughter in her right against
the brother, who was executor under the will, Lord
Talbot, C, expressed an opinion (h) that the release should
be set aside, and the daughter be restored to her orphanage
share, which amounted to upwards of 40,000Z. The
decision thus expressed seems, in part, to have rested on
the ground, that the daughter had not been informed of
the actual amount to which she would be entitled under
the custom, and did not appear to have known that she
was entitled to have an account taken of the personal
estate of her father, and that when she should be fully
apprised of this, and not till then, she was to make her
election ; and it is a rule that a party is always entitled
to a clear knowledge of the funds between which he is
(c) The reader is referred to 1 Wms. 815. See also M'Cartky v.
Story, Eq. Jurisp., 12th ed., Chap. fiecaix, 2 R. &. M. 614.
V., p. 138, where the cases are con- (<j) See Pulling, Laws and Customs
sidered. of London, 180 et «eq.
(/) Putcy v. Desbouvrie, 8 P. (h) The suit was compromised.
FUNDAMENTAL LEGAL PRINCIPLES. 259
to elect before he is put to his election (i). In like
manner, it has been held, in a recent case, which is
frequently cited with reference to this subject, that,
where a person agrees to give up his claim to property
in favour of another, such renunciation will not be
supported if, at the time of making it, he was ignorant
of his legal rights and of the value of the property re-
nounced, especially if the party with whom he dealt
possessed, and kept back from him, better information on
the subject (k).
Upon an examination, then, of the cases which have
been relied upon as exceptions to the general rule (I)
observed by Courts of equity, some, as in the instances
above mentioned, may be supported upon the ground
that the circumstances disclosed an ignorance of fact as
well as of law, and in others there will be found to have
existed either actual misrepresentation, undue influence,
mental imbecility, or that sort of surprise which equity
regards as a just foundation for relief. It is, indeed, laid
down broadly that, if a party, acting in ignorance of a
plain and settled principle of law, is induced to give up a
portion of his property to another, under the name of a
compromise, a Court of equity will grant relief; and this
proposition may be illustrated by the case of an heir-at-
law, who, knowing that he is the eldest son, nevertheless
agrees, through ignorance of the law, to divide undevised
(t) 3 P. Wms. 821 (x). J. Leach, Cockerill v. Ckolmeley, 1
{h) M'Carthy v. Decaix, 2 R. & Rust. & My. 418, 424, 425 ; 3. C,
M. 614 ; considered in Warrendcr v. affirmed 1 CI. & F. 60 ; and see S. C,
Warrcarder, 2 CI. & Fin. 488; Smith 3 Runs. 565, where the facts are set
t. Pincombe, 3 Mac & Gtor. 658. out at length ; Marq. of Brcadalbanc
(I) Bearing upon the subject v. Marq. of Chandot, 2 My. & Cr.
touched upon in the text-, see per Sir 711 ; S. C, 4 CI. & F. 43.
8 2
260
FUNDAMENTAL LEGAL PRINCIPLES.
fee-simple estates of his ancestor with a younger brother,
such an agreement being one which would be held invalid
by a Court of equity. Even in so simple a case, however,
there may be important ingredients, independent of the
mere ignorance of law, and this very ignorance may well
give rise to a presumption of imposition, weakness, or
abuse of confidence, which will give a title to relief; at
all events, in cases similar to the above, it seems clear
that the mistake of law is not, per «e, the foundation of
relief; but is only the medium of proof by which some
other ground of relief may be established, and on the
whole it may be safely affirmed that a mere naked
mistake of law, unattended by special circumstances,
will furnish no ground for the interposition of a Court of
equity, and that the present disposition of such a Court is
rather to narrow than to enlarge the operation of excep-
tions to the above rule (m).
Mistake of As bearing on the subject under consideration, it may
Je?u^Ild to ^ observed that in cases where a purchaser seeks to avoid
fin^e?61" specific performance of a contract of purchase, on the
ground of a mistake of fact, he can only do so provided
he shows that the mistake was mutual to both parties ; or
that he has entered into the bargain under a mistake of
fact which although not contributed to by the other party
would inflict a hardship amounting to injustice if the
Court held him to his bargain (n) ; or where the mistake
was one to which the other party contributed, in other
words if the party seeking relief was misled by any act of
the vendor into making the bargain (o).
(m) See 1 Story, Eq. Jurisp., 12th
ed., 131 ct seq. ; per Lord Cotten-
lram, C, Stewart v. Stevxtrt, 6 CI.
& Fin. 964-971. See also Spence,
Chanc. Juris., 633 et seq.
(n) Tamplin v. James, 15 Ch. I).
215, 221 ; 43 L. T. 520.
(o) Goddard t. Jeffries, 51 L. J,
Ch. 57.
FUNDAMENTAL LEGAL PBINCIPLEB.
261
cues.
In criminal cases the above maxim as to ignorcvntia criminal
facti applies when a man, intending to do a lawful act,
does that which is unlawful. In this case there is not
that conjunction between the deed and the will which is
necessary to form a criminal act ; but, in order that he
may stand excused, there must be an ignorance or
mistake of fact, and not an error in point of law ; as
if a man, intending to kill a .thief or housebreaker in his
own house, and under circumstances which would justify
him in so doing, by mistake kills one of his own family,
this is no criminal action; but if a man thinks he has
a right to kill a person excommunicated or outlawed
wherever he meets him, and does so, this is wilful murder.
For a mistake in point of law, which every person of
discretion not only may, but is bound and presumed
to know, is, in criminal cases, no sort of defence (p).
Ignorantia eorwni quw qui* scire tenetur non exmmt (q).
Lastly, every man is presumed to be cognisant of the
statute law of this realm, and to construe it aright ; and
if any individual should infringe it through ignorance, he
must, nevertheless, abide by the consequences of his error.
It will not be competent to him, to aver, in a court of
justice, that he has mistaken the law, this being a plea
which no court of justice is at liberty to receive (r).
Where, however, the passing of a statute could not have
(p) 4 Com. by Broom & Hadley,
26 ; Doct. and Stud., Dial. ii. c 46.
A plea of ignorance of the law was
rejected in Lord Vaux'$ com, 1
Baktr. 197. See also Re Barronet,
1 S. & B. 1, 8.
{q) Hale, PI. Cr. 42. "The law
is administered upon the principle
that every one must be taken conclu-
sively to know it without proof that
he does know it ; " per Tindal, C. J.,
10 CL & F. 210.
(r) Per Sir W. Scott, The Char*
lotto, 1 Dods. R. 892; per Lord
Hardwicke, Middleton v. Croft, Stra.
1056 ; per Pollock, G. B., Cooper v.
Simmon*, 7 H. & N. 717; The
Katkerina, 30 I*. J., P. M. & A. 21.
262
FUNDAMENTAL LEGAL PRINCIPLES.
been known to an accused at the time of doing an act
thereby rendered criminal, the Crown would probably
think fit, in case of conviction, to exercise its prerogative
of mercy («).
Volenti non fit Injuria. (Wvng. Max. 482.) — Tliat
to which a pei%son assents is not esteemed in law an
injwry.
Consent
on part of
It is a general rule of the English law that no one can
plaintiff win maintain an action for a wrong where he has consented
bar his right e
of action. iq ^e act which occasions his loss (t) ; and this principle
has often been applied under states of facts, showing that
though the defendant was in the wrong, the plaintiff's
negligence had contributed to produce the damage con-
sequential on the act complained of (u). Cases such as
now alluded to will hereafter be noticed in connection
with the maxims Sic utere tuo ut alienum non Imdas (x)
and Respondeat superior (y).
In accordance with the rule volenti non fit injuria, in
an action for criminal conversation, prior to the statute
20 & 21 Vict. c. 85, the law was clearly settled to be, that
(*) R. v. Bailey, Buss. & By. 1 ;
R. v. Esop, 7 C. & P. 456.
(0 Per Tindal, C. J., Gould v.
Oliver, 4 B. N. 0. 142; cited S. C.,
2 Scott, N. R., 257; per Lord Camp-
bell, G. J., Haddon v. Ayers, 1
Jfi. & E. 148; per Wood, V.C.,
A.~G, v. College of Physicians, SO
L. J., Chanc, 769. See Bird r.
HoWrook, 4 Bing. 628, 639, 640 ;
Wootton r. Vaukins, 2 C. B. N. S.
867 ; Plowd. 501 ; D. 50. 17. 203.
(u) Per Curtis, J., JByam v. Bui*
lard, 1 Curtis (U. S.), £. 101. Cas-
well v. Worth, 5 E. & B. 849, and
Senior v. Ward, 1 E. & B. 385, 393,
well illustrate the text. See also
Holmes v. Clarke, 6 H. & N. 349 ;
Adams v. Lancashire and Yorkshire
R. a,L. R. 4C. P. 789.
(x) Post, p. 347.
(y) Post, Law of Contracts.
FUNDAMENTAL LEGAL PRINCIPLE&
263
the husband's consent to his wife's adultery went in bar of
his action : if the husband were guilty of negligence, or
even of loose or improper conduct not amounting to a
consent, it only went in reduction of damages (?)• And it
is observable that the claim for "damages from any
person, on the ground of his having committed adultery "
with the wife of the petitioner, under s. 33 (a) of the Act
just cited, is to be " heard and tried on the same princ-
iples, in the same manner, and subject to the same or the
ike rules and regulations as actions for criminal conver-
sation " were tried and decided in Courts of common law
before the passing of that enactment (6).
The following cases, involving dissimilar states of facts, Example
of ruls
will be found further to illustrate the maxim under con-
sideration : — If a person says, generally, "There are
spring-guns in this wood," and if another then takes upon
himself to go into the wood, knowing that he is in hazard
of meeting with the injury which the guns are calculated
to produce, he does so at his own peril, and must take the
consequences of his own act (c). Moreover, although, as
will hereafter appear, the maxim Injuria mxm excu8dt
(z) Per Bailer, J., Dvberley v.
Gunning, 4 T. R. 657 ; per De Grey,
C.J., Howard v. Burtonwood, cited
1 Selw., N. P., 10th ed., 8, n. (8) ;
Id. 10, n. (6) ; per Alderson, J.,
Winter v. Henn, 4 C. & P. 498. As
to the application and meaning of the
maxim, Volenti turn fit injuria, in the
ecclesiastical courts, see per Sir J.
Nicholl, Rogers v. Rogers, 3 Hagg.
57 ; cited, Phillips v. Phillips, 1
Robertson, 158 ; per Sir W. Scott,
Porster v. Porster, 1 Consist. R. 146;
Stone v. Stone, 1 Robertson, 99 ;
Judgm., Cocksedge v. Cocksedge, Id.
92 ; 2 Curt. 213; Shelf, on Marriage
and Div., 445 et seq.
(a) See also ss. 28-80.
(b) See Comyn v. Comyn, 32 L. J.,
P. M. & A. 210 ; 8 Com. by Broom
& Hadley, 411.
(c) Per Bayley, J., Ilott ▼. Wilkes,
3 B. & Aid. 311. And see Lax v.
Corporation of Darlington, 5 Ex. D.
28, 35, 49 ; L. J. Ex. 105 ; 41 L. T.
489 ; Woodley v. Metropolitan IHs-
triet Railway, 2 Ex. D. 384 ; 46 L.
J. Ex. 521.
264
FUNDAMENTAL LEGAL PRINCIPLES.
injuriam is of frequent applicability, "a wrong-doer
cannot, any more than one who is not a wrong-doer'
maintain an action, unless he has a right to complain of
the act causing the injury, and complain thereof against
the person he has made defendant in the action " (d). No
man by his wrongful act can impose a duty on another (e),
nor can one who avails himself of a mere licence to enter
upon premises impose upon their owner a duty to have
them in a safe condition (/), but the owner would be
responsible for a concealed danger on the premises in the
nature of a trap which occasioned an injury to the
plaintiff (g). If a man, passing in the dark along a foot-
path, should happen to fall into a pit, dug by the owner
of the adjoining field, in such a case, the party digging
the pit would be responsible for the damage sustained if
the pit were dug across the road ; but if it were only in
an adjacent field, the case would be very different, for the
falling into it would then be the act of the injured party
himself (k). But if a person chooses to use a private way
without the leave of the owner, he uses it at his own risk,
(d) Degg v. Midland R. C, 1 H.
& N. 773, 780, followed in Potter v.
Faulkner, 1 B. & S. 800 ; Griffiths
v. Gidlow, 3 H. & N. 648 ; Ly<jo v.
Newbold, 9 Exch. 802 ; Skipp v.
Eastern Countiet R. C, 9 Exch.
223, 225 ; Great Northern R. C. r.
Harrison, 10 Exch. 876 ; Par-
din (/ton v. South Wales R, C, 1
H. & N. 892 ; Wisev. Great Western
R C, 1 H. & N. 63. And see
Cleveland v. Spier, 16 C. B. N. 8.
399.
(e) Judgm., 1 H. & N. 782.
(/) Gautret v. Egerton, L. R. 2
0. P. 371, with which compare In-
dtrmaur v. Dames, Id. 811.
(g) Burchett v. Hickiston, 50 L.
J. Q. B. 101; Ivay v. Hedges, 9 Q.
B. D. 80.
(A) Judgm., Jordin v. Crump, 8
M. & W. 787, .788 ; Hardcastle v.
South Yorkshire R. C, 4 H. & N.
67. See also Home v. Widlake,
Yelv. 141 ; cited and followed per
Buggies, O.J., Hamilton v. White, 1
Selden (U.S.), B. 12, 13. And see
the cases hereafter cited in connection
with Jordin v. Crump, supra, and
Barnes v. Ward, 9 0. B. 392 ; with
which ace. Hadley v. Taylor, L. B. 1
C. P. 53.
FUNDAMENTAL LEGAL PRINCIPLES. 265
and therefore a builder of certain houses adjoining a new
road which had not been dedicated to the public, and
who had dug a trench across the road for the purpose of
making drains, was held not liable to an action by one
whose servant, without the builder's leave, drove along
the road in the dark and, without negligence, drove into
the trench and damaged the horse and conveyance (i).
A further illustration of the maxim is to be observed in GoodB *nd
passengers
those cases where goods or passengers are carried at the SSroira
risk of the owner in the one instance, and at the risk of rfsk*
the passenger in the other. Without pausing to consider
the authorities on the question of reasonableness of con-
ditions under the Railway and Canal Traffic Act, 1854,
it may be stated as a general rule that, if the owner of
goods in consideration of paying a less rate of carriage,
or a passenger in consideration of being carried under a
free pass, agrees with a railway company that the risk
during the transit shall be his, the company is not liable
for any injury to the goods or passenger, caused during the
transit by the negligence, however gross, of the company's
servants, (k)
By a local Act, a right of appeal was given to any
person thinking himself aggrieved by the order of com-
missioners appointed under it ; one who had been present
at a meeting and concurred in a resolution upon which
the order appealed against was founded, was held dis-
entitled to appeal against the order (l).
(i) Morley v. Grove, 46 J. P. L. J. Q. B. 131 ; 37 L. T. 774 ; and
360. see Brown v. Manchester, Sheffield, <£*
(k) Macaidey v. TJte Furness R. Lincolnshire R. C., 8 App. Cas. 703 ;
a, L. E. 8 Q. B. 57 ; 42 L. J. Q. B. a C, 9 Q. B. D. 230.
4 ; 27 L. T. 485 ; Lewis v. Great (Q Ifarrvp ▼. Bayley, 6 E. & B.
Western R. C, 3 Q. B. D. 195 ; 47 224.
266 FUNDAMENTAL LEGAL PRINCIPLES.
In addition to the above and similar decisions, there is
as already intimated, an extensive class of cases illus-
trating the maxim Volenti twu fit injwia, in which
redress is sought for an injury which has resulted from
negligence of both plaintiff and defendant, and in many
of which it has been held, that the former is precluded
from recovering damages (m).
voluntary Another important application of the maxim in ques-
pajTnent. j. jtjt •.
tion, is to cases in which money which has been volunta-
rily paid is sought to be recovered, on the ground that it
was not, in fact, due.
The first rule which we shall notice in reference to
cases of this description, is that where a man has actually
paid what the law would not have compelled him to pay
but what in equity and conscience he ought to have paid,
he cannot recover it back again in an action for money
had and received. Thus, if a man pay a debt, which
could have been barred by pleading the statute of limita-
tions, or one contracted during infancy, which, in justice,
he ought to discharge, in these cases, though the law
would not have compelled payment, yet, the money being
paid, it will not oblige the payee to refund it (ri).
There is also a large class of cases in which it has been
held, that the money paid voluntarily cannot be recovered,
although the original payment was not required by any
equitable consideration ; and these cases are very nearly
allied in principle to those which have been considered in
treating of a payment made in ignorance of the law.
Thus, if a tenant pays property-tax assessed on the
(m) See remarks on the maxim (n) Per Lord Mansfield, G. J., Bize
Sic utere tuo ut alienum non Icedas, v. Dichwon, 1 T. R. 286, 287 ;
post* Farmer v. Arundtl, 2 W. Bla. 824.
FUNDAMENTAL LEGAL PRINCIPLES.
267
premises, and omits to deduct it in his next payment
of rent, he cannot afterwards recover the amount as money
paid to the use of the landlord (a).
There are cases in which money voluntarily paid to Money paid
. . . for ail illegal
another for a particular purpose which is either illegal, or inimorai
immoral, or against public policy, can be recovered back ^J^
as money had and received to the use of the payer. Thus,
money paid to a person to effect an illegal purpose or upon
an immoral consideration can be recovered back before,
but apparently not after, the purpose is effected or the
contract executed (p) ; and money deposited with a third
person to abide the event of a race between two horses
can before the race is decided be recovered back from the
stakeholder by the payer (q).
The maxim under consideration holds, however, in those compulsory
cases only where the party has a freedom of exercising his
will ; and therefore, where a debtor from mere necessity,
occasioned, for instance, by a wrongful detainer of goods,
pays more than the creditor can in justice demand, he
shall not be said to pay it willingly, and has a right to
recover the surplus so paid (r). So, likewise, may money
paid to recover possession of goods wrongfully detained («),
(o) Camming v. Bedborough, 15
M. ft W. 438 ; Franklin v. Carter,
1 C. B. 750. See Payne ▼. Burridge,
12 M. ft W. 727 ; Sweet v. Seagcr,
2 C. B. N. S. 119 (distinguished in
Tidswett ▼. Whitwortht L. R. 2 C. P.
326); Thompson v. Lapuwrth, L. R.
3 C. P. 149, 160 ; Denby v. Moore,
1 B. ft Aid. 12S ; cited, per Bayley,
J., Stubbs t. Parsons, SB. & Aid.
518.
(p) Wilson t. Strugndl, 7Q.B,
D. 548 ; 50 L. J. M. C. 145 ; 45 L.
T. 218.
{q) Trimble v. Bill, 5 App. Cas.
342.
(r) See per Lord Mansfield, C. J. ,
Smith v. Bromley, cited, Dougl. 696,
and followed in Atkinson v. Denby,
6 H. ft N. 778 ; S. C, 7 Id. 934 ;
per Patteson, J., and Coleridge, J.,
AsJimolc v. Waimoright, 2 Q. B. 845,
846, which case is commented on,
Parker v. Bristol and Exeter JR. C,
6 Exch. 704, 706.
(«) Oates v. Hudson, 6 Exch. 346.
See Kearns v. Durell^ 6 C. B.
596.
268 FUNDAMENTAL LEGAL PRINCIPLES.
or under pressure of an extortionate demand, colore
officii (t)9 be recovered.
All the cases, indeed, upon this subject, show, that
where a party is in, claiming under legal process, the
owner of the goods contending that the possession is
illegal, and paying money to avert the evil and incon-
venience of a sale, may recover it back in an action for
money had and received, if the claim turns out to have
been unfounded.
Where, on the contrary, money is voluntarily paid, with
full knowledge of all the facts (u), or where a party pays
the money, vntending to give up his right, he cannot
afterwards bring an action for money had and received,
though it is otherwise where, at the time of paying the
money, the party gives notice that he intends to resist the
claim, and that he yields to it merely for the purpose of
relieving himself from the inconvenience of having his
goods sold (x).
'/•a*v"' *n Close v. Phipp8(y) the attorney for a mortgagee,
who had advertised a sale of the mortgaged property,
under the power reserved to him, for non-payment of
interest, having extorted from the administratrix of the
mortgagor money exceeding the sum really due for prin-
cipal, interest, and costs, under a threat that he would
proceed with the sale unless his demands were complied
(0 Steele v. Williams, 8 Exch. 288; Barber v. Pott, 4 H. & N.
625 ; TraJterne v. Gardner, 5 E. & 759.
B. 913 ; Re Coombs, 4 Exch. 889, (x) Per Tindal, C.J., Valpy v.
841. Manley, 1 C. & 602, 603.
(«) Remfry v. Butler, E. B. & E. (y) 8 Scott, N. E., 881 ; recog-
887, 897, followed in Stray v. Rut- nising Parker v. Great Western R.
sell, 1E.&R 905, 911 ; S. C, Id. C., 7 M. & Gr. 253. See 1 C. B.
916 ; Chapman v. Shepherd, White- 788, 798.
head ▼. Izod, L. R. 2 C. P. 228,
FUNDAMENTAL LEGAL PRINCIPLES. 269
with, it was held, that the administratrix might recover
back the money so paid as money had and received to her
use. "The interest of the plaintiff," observed Tindal,
C.J., "to prevent the sale, by submitting to the demand
was so great, that it may well be said, the payment was
made under what the law calls a species of duress."
The plaintiff having, in the month of August, pawned **foy y-
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 tendering him
201. and 42. for interest, knowing the same to be more
than the legal interest amounted to, the defendant still
insisted on having 102. as interest ; whereupon the plain-
tiff, finding that he could not otherwise get his goods
back, paid defendant the sum which he demanded, and
brought an action for the surplus beyond the legal inter-
est as money had and received to his use. The Court
held, that the action would well lie, for it was a payment
by compulsion (z).
In connection with cases such as the foregoing, it may
be well to add that " the compulsion of law which entitles
a person paying the debt of another to recover against
that other as for money paid, is not such a compulsion of
law as would avoid a contract, like imprisonment." Re-
straint of goods, by reason of the non-payment of a debt
due by one to another, is sufficient compulsion of the law
to entitle a person who has paid the debt, in order to
relieve his goods from such restraint, to sustain a claim
(2) Astley r. Reynolds, Stra. 915 ; 37; Bosanquet t. Daehwood, Cas.
Parker v. Bristol and Exeter B. C.t tjmp. Talbot, 38.
6 Bxch. 702 ;BiUs ▼. Street, 5 Bing.
270
FUNDAMENTAL LEGAL PRINCIPLES,
for money paid (a). On payment of a sum of money
which another has promised to pay, as where a bill of
exchange is accepted for the accommodation of the drawer,
the acceptor, if sued on default of the drawer to pay, is
entitled to recover against the latter for money paid to his
use (6) ; but a drawer who voluntarily pays the holder of
a bill which he had drawn and indorsed for the accommo-
dation of the acceptor without any notice of dishonour or
request from the acceptor to pay it cannot sue the latter
for money paid (c). On the same principle, where a rail-
way company, by a general arrangement with carriers, in
consideration of such earners loading, unloading, and
weighing the goods forwarded by them, made a deduction
in their favour of 101. per cent from the charges made to
the public at large for the carriage of goods, it was decided
that the plaintiff, a carrier, who, although willing to
perform the above duties, was excluded from participation
in the said arrangement, was entitled to recover from the
company the above percentage, as well as other sums
improperly exacted from him by the company, such
payments not having been made voluntarily, but in order
to induce the company to do that which they were bound
to do without them, and for the refusal to do which an
(a) Judgm. , Johnson v. Royal Mail
Steam Packet Co., L. R. 3 C. P.
44-5, where the following state of
facts is put per Cur. *' A. lends B.
his horse for a limited period, which
would imply that he must pay the
expense of the hone's keep during the
time he retains it. B. goes to an inn
and runs up a bill which he does' not
pay, and the innkeeper detains the
horse. In the meantime A. has sold
the horse out-and-out for its full
price to C, and C. is informed that
the horse is. at the inn ; he proceeds
there to take him away, but is told
he cannot take him until he pays the
bill, and he pays the bill accord*
ingly and gets his horse. Can C, who
in order to get his horse is obliged to
pay the debt of another, sue that
other in an action for money paid?
We are clearly of opinion that he
could."
(b) Driver v. Benton, 17 Q. B.
989.
(e) Sleigh v. Sleigh, 8 Ex. 514.
FUNDAMENTAL LEGAL PRINCIPLES. 271
action on the case (d) might have been maintained against
them (e). And an action will lie against a railway com-
pany which, being bound by its special Act to charge
rates equally ^to all, detains or refuses to carry parcels
of a particular person until he pays an unreasonable
charge (/).
An action for money had and received lies to recover
back money which has been obtained through compulsion,
although it has been received by defendant acting for a
principal and has been paid over by him, unless the
money were paid to the agent expressly for the use of the
principal (g).
In another class of cases which necessarily fall under Payment
* under ftau-
present consideration, it has been decided, that money auientiegai
* ' * J process.
may be recovered back if paid under compulsion of law,
imposed upon defendant by the fraudulent practices of
the plaintiff in the original proceedings, or if the pay-
ment be made under the compulsion of colourable legal
process. For instance, plaintiff, being a foreigner, igno- nui-ede
rant of the English language, was arrested by the defen- u^w*.
dant for a fictitious debt of 10,000£. upon a writ, which
was afterwards set aside for irregularity. Plaintiff, in
order to obtain his release, agreed in writing to pay 500£.,
and to give bail for the remainder of the sum. The 500Z.
was to be as a payment in part of the writ, and both
parties were to abide the event of the action, the agree-
(d) Pidtford y. Grand Junction (/) Sutton v. Great Western 2?.
R. C 10 M. & W. 399. See Kent C, L. R. 4 H. L. 226 ; Gidlow v.
t. Great Western R. C.t 3 C. B. 714. Lancashire and Yorkshire R. C, L.
(e) Parker v. Great Western R. B.7H.L 517.
C.f 7 M. & Gr. 258 ; cited, per (g) Snowdon v. Davis, 1 Taunt.
Williams, J., Kearns v. Durell, 6 359; Parker v. Bristol and Exeter
C. B. 602, and per Cresswell, J., R. C> 6 Exch. 702, 707 ; Steel t.
Dtvaux v. ConoUt/y 8 G. B. 657, Williams, 8 Exch. 625.
272
FUNDAMENTAL LEGAL PRINCIPLES.
ment containing no provision for refunding the money if
the action should fail. The 5001. was accordingly paid,
and an action having been brought to recover it back,
the jury found for the plaintiff, and that the defendant
knew that he had no claim upon the plaintiff. The
Court of Queen's Bench discharged a rule for a new trial
or to enter a non-suit, on the ground that the arrest, accord-
ing to the finding of the jury, was fraudulent, and that
the money was parted with under the arrest to get rid of
the pressure (h) : it being a true position that, " if an
undue advantage be taken of a person's situation, and
money be obtained from him by compulsion, such money
may be recovered in an action for money had and re-
ceived " (i).
The authorities above cited will sufficiently establish
the position, that money paid under compulsion of fraudu-
lent legal process, or of wrongful pressure exercised upon
the party paying it, may, in general, be recovered back,
as money had and received to his use ; and it therefore
only remains to add, that, d fortiori, money will bo
recoverable which is paid, and that an instrument may
be avoided which is executed, under threats of personal
violence, duress, or illegal restraint of liberty (k) ; and
this is in strict accordance with the maxims laid down
(A) Duke de Cadaval v. Collins, 4
A. & E. 858. See Smith v. Mon*
teith, 13 M. & W. 427 ; Be Medina
t. Grave, 10 Q. B. 152, 172.
(») Per Coleridge, J., 4 A. & E.
867 ; Pitt t. Combes, 2 A. & E.
459 ; per Gibbs, J., Brisbane v.
Doors, 5 Taunt. 156 ; Jendwine
* Slade, 2 Esp. 573; Follett t.
Jfoppe, 5 C. B. 226 ; Green v. Laurie,
1 Exch. 385.
(*) See De MesnU v. Bakin, L. IL
8 Q. B. 18 ; Clark y. Woods, 2 Exch.
895 ; Skeate v. Beale, 11 A. & E.
983, 990 ; Wakefield v. Newbon, 0
Q. B. 276, 280. As to what may
constitute duress, see per Lord Gran-
worth, C, Boyse v. Rossborough, G
H. L. Cas. 45 : dimming v. Ince, J 1
Q. B. 112 ; Powell v. Boyland,
6 Exch. 67 ; Edward v. Trevcllick,
4 E. & B. 59.
FUNDAMENTAL LEGAL PRINCIPLES.
273
by Lord Bacon: Now, videtur consenstim retinuisse
si qui* ex prcescripto minantis aliquid immutavit (I),
and corporalis injuria Turn recipU cestimationem de
futwro (m).
Lastly, it is worthy of observation, that there are cases intentional
y * wrong-doer.
where an intentional wrong-doer will be, to a certain
extent, protected by the law through motives of public
policy. Thus, a horse with a rider on him cannot be
distrained damage feasant, on the ground of the danger
to the peace which might result if such a distress were
levied ; and, therefore, to a plea in trespass, justifying the
taking of a horse, cart, and other chattels, damage feasant,
it is a good replication that the horse, cart, and chattels
were, at the time of the distress, in the actual possession
and under the personal care of, and then being used by,
the plaintiff (n).
NULLUS COMMODUM CAPERE POTEST DE INJURIA SUA PRO-
PRIA. (Co. Ltit. 148 b.)—No man can take advan-
tage of his own wrong.
It is a maxim of law, recognised and established, that Rule iUted.
no man shall take advantage of his own wrong (o) ; and
(/) Bac. Max., reg. 22; post;
Nil eonsensui tarn con&rarhtm est
quam vis otque metus, D. 50. 17.
116.
(») Bac. Max., reg. 6.
(n) Field y. Adames, 12 A. ft B.
649, and case* there cited ; Storey r.
Robinson, 6 T. R. 188 ; Bunch r.
Kennmgton, 1 Q. B. 679, where
Lord Bemoan, C.J., obeerres, that
"perhaps the replication in Field
t. Adames was rather loose." See
Oaylard r. Morris, 3 Exch. 695 ;
Sunboffr. Alford, 3 M. & W. 248.
(o) Per Lord Ahinger, C.B., fin*
don ▼. Parker, 11 M. & W. 680 ;
Daly v. Thompson, 10 M. k W. 809 ;
Malins v. Freeman, 4 Bing., N. C,
895, 399; per Best, J., Doe d.
Bryan t. Bancks, 4 B. & Aid. 409 •
T
274
FUNDAMENTAL LEGAL PRINCIPLES.
tbis maxitb, which is based on elementary principles, is
fully recognised in courts of law and of equity, and,
indeed, admits of illustration from every branch of legal
procedure. The reasonableness and necessity of the rule
being manifest, we shall proceed at once to show its
practical application by reference to decided cases ; and,
in the first place, we may observe, that a man shall not
take advantage of his own wrong to gain the favourable
interpretation of the law(jp) — -fi%u8tra legis auxilium
Examples, qucervt qui in legem committit (q) ; — and, therefore, A.
shall not have an action of trespass against B., who law-
fully enters to abate a nuisance caused by A.'s wrongful
act (r), nor shall an executor, de son tort, obtain that
assistance which the law affords to a rightful executor (*).
So if A., on whose goods a distress has been levied, by his
own misconduct prevent the distress from being realised,
A. cannot complain of a second distress as unlawful (f).
So B., into whose field cattle have strayed through defect
of fences, which he was bound to repair, cannot distrain
such cattle damage feasant in another field, into which
they have got by breaking through a hedge which had
been kept by him in good repair, because B.'s negligence
Co. Lift. 148 b. ; Jenk. Cent. 209 ;
2 Inst 718 ; D. 50. 17. 134, § 1.
" No man is allowed to take ad-
Tantage of his own wrong ; far less
of his wrong intention which is not
expressed ; " per Willes, J., Ramsey
v. North Eastern R. C, 14 C. B. N.
S. 653.
It "is contrary to all legal prin-
ciple " that " the plaintiff can take
advantage of his own wrong. w Per
Willes, J., Ames v. Waterlow, L. B.
5 C. P. 55.
See also Dean, <&., of Christ-
church t. Jhthc of Buckingham, 17
C. B. N. S. 891.
(p) 1 Hale, P. C. 482.
(q) 2 Hale, P. C. 886.
(r) Dodd. 220, 221. See Perry v.
Piixhowe, 8 Q. B. 757.
.(«) 8ee Carmichael y. Carmichael,
2 PhilL 101 ; PauU v. Simpson, 9 Q.
B. 365.
(Q Lee t. Cooke, 8 H. & N. 203 ;
& C, 2 Id. 584.
FUNDAMENTAL LEGAL PRINCIPLES. 275
was causa sine qvA non of the mischief (u). So if a
man be bound to appear on a certain day, and before
that day the obligee put him in ; prison, the bond is
void (x).
Hyde v. Watts (y) is strikingly illustrative of the
maxim, that a man shall not be permitted to take advan-
tage of his own wrong. That was an action of debt for
work and labour, to which the defendant pleaded a release
under an indenture or trust deed for the benefit of such
of his creditors as should execute the same. The repli-
cation set out the indenture in hcec verba, by which it
appeared that the defendant covenanted, inter alia, to
insure his life for 15002., and to continue the same so
insured during a period of three years ; and, in case of
his neglect or refusal to effect or to keep on foot this
insurance, the indenture was to be utterly void to all
intents and purposes whatsoever : — breach, that the
defendant did not insure his life, whereby the said
indenture became utterly void. The material question
in the above case was, whether the deed, in case of a
neglect on the part of the defendant to effect or keep
alive the policy for 15002. , was absolutely void, and
incapable of being confirmed as to all parties, or only
void as against the plaintiff, who was a party to the deed,
if he should so elect; and the latter was held by the
Court of Exchequer to be the true construction, by reason
of the absurd consequences which would follow, if the
defendant, against the consent of all other parties in-
terested in the validity of the indenture, could avail
himself of his own wrong, and thus absolve himself
(u) Singleton v. WUlicmton, 7 H. Arg. William* t. Gray, 9 G. B. 737.
4t N. 410. . (y) 12 M. & W. 254, and cues
(x) Noy, Max.,, 9th ed., p. 45 ; cited, Id. 262, 263.
t 2
276 FUNDAMENTAL LEGAL PRINCIPLES.
and the trustees from liability on their respective co-
venants.
The cases of Weir v. Barnett (z), and Weir v. Bdl (a),
are illustrative of the subject before us. There the question
was whether directors, acting on behalf of the company
of which they were directors, were liable for the acts of
their sub-agents in issuing a fraudulent prospectus. The
Exchequer Division and the Court of Appeal held that
the directors were not liable, but on different grounds.
Cockbum, C. J., in delivering the judgment of himself and
Brett, L. J., in the Court of Appeal, considered that
although, as a general rule, an agent is not responsible
for the acts of a sub-agent employed by him, yet if the
latter in the course of his employment is guilty of fraud
or misrepresentation, and the agent, with knowledge of
the fraud, derives a material benefit from it, the case
becomes analogous to that of a principal who profits by
the fraud of his agent; because he who profits by the
fraud of one who is acting by his authority, though
committed without his authority, adopts the act of the
agent and becomes responsible to the party who has
been imposed upon, and has sustained damage by reason
of it (&). The learned judge then proceeds to state that
as it was shown that the- defendant had not derived any
benefit from the fraud, on that ground he was not liable
to the plaintiff. *
The following instances, may also serve further to illus-
trate the same general principle: — If tenant for life or
years fell timber-trees, they will belong to the lessor ; for
the tenant cannot, by his own wrongful act, acquire a greater
(z) 8 Ex. D. 32. (b) See also per Lord Coleridge,
(a) $ Ex. D. 288 ; 47 L. J. Ex. Swift t. Jewbury, L. B. 9 Q. B.
704 ; 38 L. T. 929. 301, at pp. 312-13.
Landlord
And tenant.
FUNDAMENTAL LEGAL PRINCIPLES.
277
property in them than he would otherwise have had (o).
Where the lessee is evicted from part of the lands
demised, by title paramount, he will have to pay a rate-
able proportion for the remainder (d); whereas if he be
evicted from part of the lands by his landlord, no appor-
tionment, but a suspension of the whole rent, takes place,
except in the case of the king ; and there is no suspension,
if the eviction has Mowed upon the lessee's own wrongful
act, as for a forfeiture, but an apportionment only (e)a
And it is a well-known rule, that a lessor or grantor
cannot dispute, with his lessee or grantee, his own
title to the land which he has assumed to demise or
convey (/). Nor can a grantor derogate from his own
grant (g).
It is moreover a sound principle, that he who prevents Default in
performance
a thing being done, shall not avail himself of the non- ofco&tmct.
performance he has occasioned. Hence, in an action for
breach of covenant in not insuring, the tenant may
defend himself by showing that the landlord prevented
him from insuring, by representing that he had himself
insured, and that, in fact, the covenant had not been
broken, if such representation were true (A). Where an
agreement for the purchase of a medical practice, and
(c) Wing. Max., p. 574.
{<£) Smithr. Moling*, Cro. Jac.160.
SezThe Mayor of Poole v. Whitt, 15
M. &W. 571 ; Belby t. Browne, 7 Q.
B. 632.
(f) Walker's cote, 3 Rep. 22;
Wing. Max., p. 569. See Boodle v.
Cowbell, 8 Scott, N. R. 104.
(/ ) Judgm. , Doe d. Levy ▼. Home,
3 Q, B. 766 ; cited per Alderson, B.,
15 M. &W. 576.
{g) 2 Shepp. Touchst by Preston,
286. As to the canons of con-
struction applicable to grants by the
Grown, see Att.-Gen. v. Ewdme
Hospital, 17 Bear. 866 ; 22 L. J.
Cb. 846; and between private indi-
viduals, Booth v. Alcock, L. R. 8 Ch.
App. 663 ; 42 L. J. Ch. 557 ; 29 L.
T. 231 ; Taylor v. Corporation of St.
Helen*, 6 Ch. D. 264 ; 46 L. J. Ch.
857 ; 37 L. T. 253.
(h) See Judgm., Doe d. Muster* t.
Gladwin, 6 Q. B. 963.
278 FUNDAMENTAL LEGAL PRINCIPLES.
the mode of making the stipulated payments for it
implied that the business was to be carried on by the
purchaser for a certain period, he was held liable for
breach of contract in haying, by his wilful default during
such period, incapacitated himself from carrying on the
business (i).
An insurance company covenanted with A. for valuable
consideration to appoint him their agent at G., together
with B., and that if B. should be displaced from the agency,
they would pay A. a certain sum ; the company, having
transferred their business to another company, and wound
up their affairs and dissolved themselves, were held to
have displaced A. within the meaning of the covenant (&).
But where two parties mutually agree for a fixed period,
the one to employ the other as his sole agent in a certain
business at a certain place, the other that he will act
in that business for no other principal at that place,
there is no implied condition that the business itself
shall continue to be carried on during the period
named (I).
Tender. Again, where a creditor refuses a tender sufficient in
amount, and duly made, he cannot afterwards, for purposes
of oppression or extortion, avail himself of such refusal ;
for, although the debtor still remains liable to pay when-
ever required so to do, yet the tender operates in bar of
any claim for damages and interest for not paying or for
detaining the debt, and also of the costs of an action
brought to recover the demand (m).
(t) M'Irdyrt t. Belcher, 14 C. B. [I) Modes v. Forwood, 1 App.
N. S. 654. Gas. 256 ; 47 L. J. Ex. 396 ; 34 L.
(*) Stirling r. Maitland, 5 B. k T. 890.
S. 840, 853; citing CharnUy t. (to) Vide per Williams, J., Smith
Wnutanley, 5 East, 266. r. Manners, 5 C. B. N. 8. 6S6.
FUNDAMENTAL LEGAL PRINCIPLES. 279
According to the same principle, if articles of unequal confusion
. * * x of goods.
value are mixed together, producing an article of a dif-
ferent value from that of either separately, and, through
the fault of the person mixing them, the other party cannot
tell what was the original value of his property, he must
have the whole (n). " At law," remarks Lord Redesdale,
in Bond v. Hopkins (o), " fraud destroys rights — if I mix
my corn with another's he takes all (p) ; but if I induce
another to mix his corn with mine, I cannot then insist
on having the whole, the law in that case does not give
me his com.1' So, where the plaintiff, pretending title to
hay standing in defendant's land, mixed some of his own
with it, it was held that the defendant thereby became
entitled to the hay (q). And where a malting agent, by
his conduct and representations, induced his principals
to believe that certain barley which he had upon his
premises was purchased by him for them, and thereby
induced his principals to make him payments from time
to time to cover the price of the barley, but, as a matter
of fact, a portion only of the barley had been purchased by
him for his principals, which he had mixed with his
own so that the two portions could not be separately
distinguished, the agent having become bankrupt, his
trustee claimed to hold the whole of the barley against
the principals on the ground that the part purchased for
the principals could not be identified out of the bulk, but
(n) Per Lord Eldon, C, Lupion v. observes, "Where the owner of such
White, 15 Yes. 442. See CclwUl v. articles as oil or wine mixes them
JUevcs, 2 Camp., N. P. C, 575; with similar articles belonging to
Warde v. Eyre, 2 Bulstr. 323. another, that is a wrongful act by
(o) 1 Scho. ft Lefr. 433. the owner for which he is punished
(jp) In Aldridge ▼. Johnwn, 7 by losing his property."
& ft B. 899, Lord Campbell, C. J., (q) Popham, 38, pi. 2.
280 FUNDAMENTAL LEGAL PRINCIPLES.
it was held that he was not so entitled, as no man can
take advantage of his own wrong (r).
By the mixture of bales of cotton on board ship, and
their becoming undistinguishable by reason of the action
of the sea, and without the fault of their respective owners,
these parties become tenants in common of the cotton in
proportion to their respective interests ; but such a result
would follow in those cases only where, after the adoption
of all reasonable means and exertions to identify or separate
the goods, it has been found impracticable to do so («).
Again, where a party is sued by a wrong name, and
rectify the mistake, he cannot afterwards, in an action
against the sheriff for false imprisonment, complain of an
execution issued against him by that name (t), and, if a
bond, or any other instrument, is executed under an
assumed name, the obligor, or party executing it, is bound
thereby in the same manner as if he had executed it in
his true name (u). " So, if a man, having an opportunity
of seeing what he is served with, wilfully abstains from
looking at it, that is virtually a personal service " (x) ;
and, where one of the litigating parties takes a step after
having had notice that a rale has been obtained to set
aside the proceedings, he does so in his own wrong,
and the step taken subsequently to notice will be set
aside (y).
(r) Harris ▼. Truman, 7 Q. B. D. L. R. 3 Q. B. 18 ; Kelly y. Lawrence,
340 ; 9 Q. B. D. 964 ; 51 L. J. Q. 3 H. & C. 1.
B. 388 ; 46 L. T. 844, C. A. (u) 13 Peters (U. S.), & 428.
($) Spence r. Union Marine Ins. See Judgm., Trueman v. Loder, 11
Co., L. R. 8 C. P. 427. See Webster A. & E. 694-5.
t. Gower, L. R. 2 P. C. 69. (as) Per Tindal, C.J., Emerson r.
(I) Fisher r. Magnay, 6 Scott, N. Brown, 8 Scott, N. R., 222.
R. 588 ; Morgan ▼. Bridges, 1 B. & (y) Per Pollock, C.B., Tiling v.
Aid. 647. See Be MesnU t. Dakin, Hodgson, 13 M. & W. 638.
FUNDAMENTAL LEGAL PRINCIPLES. 281
The foregoing examples have been selected, in order to a party
° ° r ' cannot take
show in what manner the rule, which they will serve to $™**^
illustrate, has been applied to promote the ends of justice, fraud*
in various and dissimilar circumstances. The maxim
under review applies also with peculiar force to that very
extensive class of cases in which fraud is alleged to have
been committed by one of the parties to a transaction,
and is relied upon as a defence by the other. We do
not, in this treatise, propose to consider in what manner
formerly a Court of equity dealt with fraud, nor how, if
fraud were proved, it interfered to give relief: but we
may state the principle which that Court invariably acted
upon, namely — that the author of wrong, who has put
a person in a position in which he had no right to put
him, shall not take advantage of his own illegal act, or,
in other words, shall not avail himself of his own wrong (z).
When an action is brought more than six years after statute of
the cause of action has arisen, and which therefore, under —concealed
fraud.
ordinary circumstances, would be barred by the Statute
of Limitations, it is a good answer to a plea setting up the
statute as a defence, that the plaintiff did not discover
and had not reasonable means of discovering the cause
of action within six years before action brought, and that
the existence of such cause of action was fraudulently
concealed by the defendant until within such six years (a).
And it is a good defence to an action brought on a foreign
judgment that the same was obtained by fraud, which
defence was good in the old Courts of law as well as in
equity (6).
(:) Per Lord Cottenham, C, Haw- C. A.
Inns t. Hall, 4 My. & Cr. 281. (6) Ochsenbein v. Papditr, L. R.
(a) OibU v. Guild, 9 Q. B. D. 59 ; 8 Ch. App. 695 ; 42 L. J. Ch. 861 ;
51 L. J. Q. B. 313 ; 46 L. T. 248, 28 L. T. 459.
282
FUNDAMENTAL LEGAL PRINCIPLES.
Tvyne'tuue. In a leading case on this subject (c), the facts were,
that A. was indebted to B. in 4002., and was indebted also
to C. in 2002.; C. brought an action of debt against A.,
and, pending the writ, A., being possessed of goods and
chattels of the value of 3002., in secret made a general
deed of gift of all his goods and chattels, real and personal/
whatsoever, to B., in satisfaction of his debt, but never-
theless remained in possession of the said goods, some of
which he sold ; he also shore the sheep, and marked them
with his own mark. Afterwards C. obtained judgment,
and issued a fi. fa. against A., and the question arose,
whether the above gift was, under the circumstances,
fraudulent and of no effect, by virtue of the statute 13
Eliz. c. 5 ; and it was determined, for the following reasons,
that the gift was fraudulent within the statute: — 1st,
this gift has the signs and marks of fraud, because it is
general, without excepting the wearing-apparel, or other
necessaries of the party making it ; and it is commonly
said, that dolosus versatur in generalibue (d) — a person
intending to deceive deals in general terms ; a maxim, we
may observe, which has been adopted from the civil law,
and is frequently cited and applied in our Courts (e) ;
2ndly, the donor continued in possession and used the
goods as his own, and by reason thereof he traded and
(c) Twynt%% case, 3 Sep. 80 (with
which compare Evans v. Jones, 3 H.
& C. 423) ; Graham y. Furber, 14
C. B. 410, 418; TarleUm v. Liddell,
17 Q. B. 390 ; Fermrts case (3 Rep.
77), is also a leading case to show
that the Courts will not sustain or
sanction a fraudulent transaction. In
that case it was held, that a fine
fraudulently levied by lessee for years
should not bar the lessor; and see
the law on this subject stated per
Tindal, C. J., in Davits v. Lowdnes,
5 Bing., N. C, 172. See also Wood
t. Dixit, 7 Q. B. 892.
(d) Wing. Max. 636 ; 2 Rep. 34 ;
2 Bulstr. 226 ; 1 Roll R. 167 ;
Moor, 321 ; Mace v. Cammd, Lofft,
782.
{e) Presbytery of Auckterarder v.
Earl of KinnouU, 6 CL ft Fin.
698, 699 ; Spicrts case, 5 Sep. 58.
FUNDAMENTAL LEGAL PRINCIPLES. 283
trafficked with others, and defrauded and deceived
them (/); 3rdly, the gift was made in secret, and dona
clandestina sunt semper suspiciosa (g)— clandestine gifts
are always open to suspicion ; 4thly, it was made pending
the writ ; othly, in this case, there was a trust between
the parties, for the donor possessed the goods and used
them as his own, and fraud is always apparelled and
clad with a trust, and a trust is the cover of fraud ; and
Othly, the deed states, that the gift was made honestly,
truly, and bond fide, and clausula iiuxmsuetce semper
inducunt suspicionem — unusual clauses always excite
suspicion.
In the foregoing case, it will be observed, that the
principal transaction was invalidated on the ground of
fraud, according to the principle, that a wrongful or
fraudulent act shall not be allowed to conduce to the
advantage of the party who committed it ; nul prendra
advantage de son tort demesne (h).
The doctrine of estoppel in pais, which has in many Estoppe
recent cases been applied, is obviously referable to the
principle set forth in the maxim before us, and has been
defined as follows :
If a man, by his words or conduct, wilfully endeavours
to cause another to believe in a certain state of things
which the first knows to be false, and if the second believes
in such state of things and acts upon his belief, he who
knowingly made the false statement is estopped from
(/) Cited per Lord Mansfield, C.J., (g) Noy, Max., 9th ed., p. 152;
Wondey v. Donatio*, 1 Burr. 482 ; Latimer v. Batson, 4 B. & C. 652 ;
MartindaUv. Booth, ZB. &Ad. 498. per Lord Ellenborough, C.J., Leo-
See this subject considered in the nard t. Baker, 1 M. & S. 253.
Note to Twyne'e cote, 1 Smith, L. C, (h) 2 Inst. 713 ; Branch, Max.,
8th ed., 1 ; arg. Wheeler r. Monte- 5th ed., p. 141.
fore, 2 Q. B. 138.
284 FUNDAMENTAL LEGAL PRINCIPLES.
averring afterwards that such a state of things did not exist
at the time : again, if a man, either in express terms or by
conduct, makes a representation to another of the existence
of a certain state of facts which he intends to be acted
upon in a certain way, and it be acted upon in that way,
in the belief of the existence of such a state of facts, to the
damage of him who so believes and acts, the first is estopped
from denying the existence of such a state of facts : and
thirdly, if a man, whatever his real meaning may be, so
conducts himself that a reasonable man would take his
conduct to mean a certain representation of facts, and that
it was a true representation, and that the latter was in-
tended to act upon it in a particular way, and he, with
such belief, does act in that way to his damage, the first
is estopped from denying that the facts were as repre-
sented (i).
Tt has, in accordance with this principle of estoppel in
pais, been laid down that if a stranger begins to build on
land supposing it to be his own, and the real owner, per-
ceiving his mistake, abstains from setting him right, and
leaves him to persevere in his error, the real owner will
not afterwards be allowed to assert his title to the land so
as to deprive the stranger of the buildings erected by
him (&).
The cases illustrative of the doctrine of estoppel in
pais are numerous, and reference here can only be made
to a few of the leading authorities on the subject. In
Pickard v. Sears (I), which was an action of trover, it
(i) Carr v. London and North Pickard v. Sean, 6 A. k B. 469.
Western Railway Co., L. R. 10 0. P. (k) Bamtden v. Dymm, L. B. 1 H.
307 ; 44 L. J. C. P. 109 ; 81 L. T. L. 129.
785 ; M'KenzicY. BrtiUh Linen Co., (1) 6 A. k E. 460.
6 App. Cas. 62; 44 L. T. 431;
FUNDAMENTAL LEGAL PRINCIPLES. 285
appeared that the goods in question were seized while
in the actual possession of a third party, under an exe-
cution against such third party, and sold to the defen-
dant ; it further appeared that no claim had been made
by the plaintiff after the seizure, and that the plaintiff
had consulted with the execution creditor as to the
disposal of the property without mentioning his own
claim after he knew of the seizure and of the intention
to sell the goods : it was held that a jury might properly
infer from the plaintiff's conduct that he had author*
ised the sale and had in point of fact ceased to be the
owner. In Gregg v. Wells (m), it was held that the owner
of goods, who stands by, and voluntarily allows another to
treat them as his own, whereby a third person is induced
to buy them bond fide, cannot recover them from the
vendee. " A party," says the Lord Chief Justice, " who
negligently or culpably stands by, and allows another to
contract on the faith and understanding of a fact which
he can contradict, cannot afterwards dispute that fact in
an action against the person whom he has himself assisted
in deceiving."
The principle on which the foregoing cases were decided
has been well explained in the case of Freeman v.
Cooke (n), and the expression, " where one by his words or
conduct wilfully causes another to believe the existence of
a certain state of things," in Pickard v. Sears is stated to
mean, " if not that the party represents that to be true
which he knows to be untrue, at least that he means his
representation to be acted upon, and that it is acted upon
(in) 10 A. k E. 90, 98. See Dot Miles r. Mcllwrakh, 8 App. Caa.
cL Groves v. Grove*, 10 Q. B. 486 ; 120, where the statement of the
Nickells v. Atherttonc, Id. 944, 949. law in the text is expressly approved
(*) 2 Exch. 654, 663-4, and see by Lord Blackburn.
286 FUNDAMENTAL LEGAL PRINCIPLES.
accordingly ; and if, whatever a man's real intention may
be, he so conducts himself that a reasonable man would
take the representation to be true, and believe that it
was meant that he should act upon it, and did act upon it
as true, the party making the representation would be
equally precluded from contesting its truth ; and conduct
by negligence or omission, where there is a duty cast upon
a person by usage of trade or otherwise to disclose the
truth, may often have the same effect As, for instance, a
retiring partner omitting to inform his customers of the
fact in the usual mode, that the continuing partners were
no longer authorised to act as his agents, is bound by all
contracts made by them with third persons, on the faith
of their being so authorised. * * * In truth, inmost cases
to which the doctrine in Pickard v. Sears is to be applied,
the representation is such as to amount to the contract or
licence of the party making it " (o).
An important limitation to the doctrine of estoppel in
pais was laid down by the House of Lords in Qwdon v.
Mony (p), namely, that there must be a misrepresentation
of existing facts, and not of a mere intention ; this dis-
tinction was recognised and approved of in the Citizen*?
Bank of Louisiana v. First National Bank of New
Orleans (q), and is illustrated in a recent case, where the
plaintiff had given a bill of sale over his goods to the
defendant as security for money advanced ; the loan was
(o) Vide per Lord Chelmsford, C, CatteOani y. Thompson, 13 C. B. N.
6 H. L. Cas. 656. See also in illus- S. 105, 121-2. As to the liability of
tration of the text, Martyn t. Gray, sleeping partners see Pooley v. Driver,
14 G. B. N. S. 824 ; Stephens v. 5 Ch. D. 458.
Reynolds, 5 H. ft N. 518 ; Gurney (p) 5 H. L. Gas. 185.
v. Evan*, 3 Id. 122 ; Summer* ▼. (q) L. R. 6 H. L 352 ; 43 L. J.
Solomon, 7 E. ft B. 879 ; Ramazotti Ch. 269 ;'. 22 W. B. 194.
t. Bowing, 7CB.N, S. 857 ;
FUNDAMENTAL LEGAL PKINCIPLES. 287
to be repaid by instalments, and the bill of sale authorised
the defendant at any time to seize and take possession of
the goods. The plaintiff having paid certain of the instal-
ments, asked for time to pay the rest, and the defendant
gave him a week, but on the third day, without any
default in the plaintiff, the defendant seized the goods ;
it was held he had a perfect right to do so, as the de-
fendant's promise was not a misstatement as to existing
facts, and was not founded on any consideration, and so
was not binding on him (r).
Furthermore, a person who has expressly made a verbal Aiiegan*
representation, on the faith of which another has JjJJJjJJJ^
acted, shall not afterwards be allowed to contradict his
former statement, in order to profit by that conduct which
it has induced (a). Whenever an attempt is made in
the course of legal proceedings to violate this principle,
the law replies in the words of a maxim which we have
already cited (t), allegans contraimia non est audiendus,
and, by applying the doctrine of estoppel therein contained,
prevents the unjust consequences which would otherwise
ensue (u). We may, therefore, lay it down as a general
rule, applicable alike in law and equity, that a party shall
not entitle himself to substantiate a claim, or to enforce a
defence, by reason of acts or misrepresentations which
(r) Williams v. Stern, 5Q.B.D. Q. B. 202 ; Morgan v. Couchman,
409. 14 0. B. 100 ; Dunston v. Paterson,
(«) TrideeU t. Tomlinson, 13 O. B. 2 C. B. N. S. 495.
N. 8. 663. (u) Price v. Carter, 7 Q. B. 838 ;
(t) Ante, p. 169. See also Cannam . Reg. v. Mayor of Sandwich, 10 Q.
▼. Farmer, 3 Exch. 698 ;Hallifaz y. B. 563, 571 ; Banks t. Newton, 11
LyU, Id. 446 ; Money v. Jordcn, Q. B. 340 ; Fetch v. Lyon, 9 Q. B.
21 L. J. Chanc. 531 ; Fairhurst v. 147, and cases there cited ; Braitk-
Liverpool Addphi Loan Association, waite ▼. Gardiner, 8 Q. B. 478. See
9 Exch. 422; Standish v. Ross, 3 Dresser v. Bosanquet, 4 B. k S. 460,
Exch. 527 ; Freeman v. SUggaU, 14 486.
288
FUNDAMENTAL LEGAL PRINCIPLES.
Further
remarks.
proceeded from himself, or were adopted or acquiesced in
by him after fall knowledge of their nature and quality (x) :
and further, that where misrepresentations have been
made by one of two litigating parties, in his dealings with
the other, a Court of law will either decline to interfere,
or will so adjust the equities between the plaintiff and
defendant, as to prevent an undue advantage from accruing
to that party who is unfairly endeavouring to take advan-
tage of his own wrong (y).
If, therefore, the acceptor of a bill of exchange at the
time of acceptance knew the payee to be a fictitious
person, he shall not take advantage of his own fraud;
but a bond fide holder may recover against him on the
bill, and declare on it as payable to bearer (z) : and,
generally, a person will not be allowed as plaintiff in a
Court of law to rescind his own act, on the ground that
such act was a fraud on another person, whether the party
seeking to do this has sued in his own name or jointly
with such other person (a).
Further, we may remark that the maxim which pre*
eludes a man from taking advantage of his own wrong is,
in principle, very closely allied to the maxim, Ex dolo malo
(z) Tigers t. Pike, 8 CL & Fin.
562.
(y) See Earrison y. Buscoe, 15 M.
k W. 231, where an unintentional
misrepresentation was made in giving
notice of the dishonour of a bill;
Rayner v. Grote, Id. 859, where an
agent represented himself as prin-
cipal (citing Bickerton r. BurreU,
5 M. k 8. 383) ; Humble v. Hunter,
12 Q. B. 810 ; Schmaltz t. Avery,
16 Q. B. 655 ; Cox v Hubbard, 4
C. B. 817, 319 ; Cooke v. Wilson, 1
C. B. N. 8. 153.
(z) Gibson t. Minet (in error), 1
H. Bla. 569.
(a) Per Lord Tenterden, C.J.,
Jones y. Yates, 9 B. k C. 538 ?
Sparrow v. Chisman, lb. 241 ;
Wallace v. KeUaU, 7 M. k W. 264;
which cases are recognised, Gordon v.
ElUs, 8 Scott, N. R. 305 ; Brando*
y. ScoU, 7 E. k B. 234 ; Husband r.
Dams, 10 C. B. 645. See Heilhtt
y. Ncvtil, L. B. 4 C. P. 854.
FUNDAMENTAL LEGAL PRINCIPLES. 289
non oritur actio, which is likewise of very general appli-
cation, and will be treated of more conveniently hereafter
in the Chapter upon Contracts. The latter maxim is,
indeed, included in that above noticed; for it is clear,
that since a man cannot be permitted to take advantage
of his own wrong, he will not be allowed to found any
claim upon his own iniquity — Nemo ex propi*io dolo con-
sequitur actionem; and, as before observed, frvstra legis
auxilvum quaerit qui in legem committit (6).
Nevertheless, the principal maxim under our notice, Principal
and likewise the kindred rule, Frau* et dolus nemini how \
qnaliaed.
patrocinari debent (c), are sometimes qualified in opera-
tion by the maxim cited at a former page (d), — Quodfiei^i
non debet factum valet (e). "Fraud," as observed (/),
" renders any transaction voidable at the election of the
party defrauded ; and if, when it is avoided, nothing has
occurred to alter the position of affairs, the rights and
remedies of the parties are the same as if it had been void
from the beginning ; but if any alteration has taken place,
their rights and remedies are subject to the effect of that
alteration." This may be illustrated by Reg. v. The Sad-
ctters9 Company (g), where the facts were as under : — By
the charter of the Saddlers' Company, the warden and assis-
tants were empowered to elect assistants from the freemen,
(6) The following cases also illus- G. B. 371, 877.
irate the maxim, that a man shall (c) 3 Rep. 78, b.
not be permitted to take advantage of (d) Ante, p. 175.
his own wrong or default ; respecting (e) Cited per Martin, B., and
the right to costs, Pope v. Fleming, Wilde, B., 6 H. & N. 787, 792.
5 Exch. 249 ; the enrolment of me- (/) Per Blackburn, -J., 10 H. L.
morial of an annuity, Motion ▼. Cam* Gas. 420-1 ; citing Clarke r. JHcIuon,
roux, 4 Exch. 17 ; S. C, 2 Bxch. B. B. & B. 148 ; and Feret ▼. Hill,
487 ; an action against the sheriff for 15 C. B. 207.
an escape, Arden v. Goodacre, 11 [g) 10 H. L. Gas. 404.
u
290 FUNDAMENTAL LEGAL PRINCIPLES.
and to remove any for ill-conduct, or other reasonable cause,
and to make such by-laws as should seem to them salutary
and necessary for the good government of the body in
general and its officers. A by-law was duly made in
these terms, " that no person who has been a bankrupt
or become otherwise insolvent, shall hereafter be admitted
a member of the court of assistants, unless it be proved
to the satisfaction of the Court that such person, after his
bankruptcy or insolvency, has paid his creditors in full,"
&c. D. being otherwise qualified, but being in insolvent
circumstances, and unable to pay his creditors twenty
shillings in the pound, was elected an assistant, and after
his election, of which he was not aware, but before his
admission, he made to the agents of the wardens and
assistants a statement, false to his own knowledge, that he
was solvent; he was then admitted, and exercised the
office of assistant The by-law, as above stated, being
adjudged good, it was further held, that the mere state-
ment of a falsehood by D. did not nullify his election, and
that D. could not be legally removed from his office by
the wardens and assistants of the company without being
heard in his defence (h).
In Hooper v. Lane (i), which strikingly illustrates the
rule that "no man shall take advantage of his own
wrong," various instances are put by a learned judge (k),
exemplifying that the rule in question "only applies
to the extent of undoing the advantage gained, where
that can be done, and not to the extent of taking
away a right previously possessed." The instances ad-
(A) See the maxim, Audi alteram 6 H. & N. 466, 472, 480, 481.
partem, ante, pp. 106-9. (£) Bnunwell, B., 6 H. L. Gas.
(t) 6 H. L. Caa. 443 ; Odtford r. 461.
FraUn, and Chapman v. Freston,
FUNDAMENTAL LEGAL PRINCIPLES. 291
duced are as under : — " If A. lends a horse to B., who
uses it, and puts it in his stable, and A. comes for it, and
B. is away and the stable locked, and A. breaks it open
and ] takes his horse, he is liable to an action for the
trespass to the stable ; and yet the horse could not be got
back, and so A. would take advantage of his own wrong.
So, though a man might be indicted at common law for a
forcible entry, he could not be turned out if his title were
good. So, if goods are bought on a promise of cash
payment, the buyer, on non-payment, is subject to an
action, but may avail himself of a set-off and the goods
cannot be gotten back. So, if I promise a man I will sell
him more goods on credit if he pays what he already
owes, and he does so, and I refuse to sell, I may retain
the money. So, if I force another from a fishing-ground
at sea, and catch fish, the fish are mine."
The maxim, moreover, acccording to the opinion of the
learned judge whose words have been above cited, "is
never applicable where the right of a third party is to be
affected. * * Can one man by his wrongful act to another
deprive a third of his right against that other? * * A.
obtains goods from B. under a contract of sale, procured
by A. from B. by fraud. A. sells to C. ; C. may retain the
goods (I). Surely A. might recover the price from C. at
which he sold to him ; yet he would in so doing take
advantage of his own' wrong. So, if my lessee covenants
at the end of his term to deliver possession to me, and in
order to do so forcibly evicts one to whom he had sub-let
for a longer term, and I take possession without notice
surely I can keep it ; at least, at the common law I could.
So, if a sub-lessee at an excessive rent purposely omits to
(0 White v. Garden, 10 C. B. 919.
u 2
292 FUNDAMENTAL LEGAL PRINCIPLES.
perform a covenant, the performance of which would be a
performance of the lessee's covenant to his lessor, and by
such non-performance the lessee's covenant is broken, and
the first lessor enters and avoids the lease and evicts the
sub-lessee, the sub-lessee may defend himself against a
claim for rent by his lessor (m) ; yet there he takes advan-
tage of his own wrong, because of the right of the third
person. So, if I sell goods, the property not to pass till
payment or tender, and the vendee has a week in which
to pay, and during that week I resell and deliver to a
third person, no action is maintainable against me as
for a detention or conversion, but only for non-delivery ;
yet there I take advantage of my own wrong, because the
right of a third party has accrued " (n).
And upon the same principle of protecting the rights of
third parties acquired bond fide under a fraudulent
transaction, a shareholder in a company who has been
induced to take shares by the fraud of the company
cannot avoid the contract and have his name removed
from the register after an order for the winding up of the
company has been made, nor after a petition for winding
up has been presented on which an order is subsequently
made (o), because of the intervening rights of the creditors
accruing under the order.
(m) Logan v. Hall, 4 C. B. 598. H. L. 325 ; 36 L. J. C. P. 949 ;
(n) Per Bramwell, B., 6 H. L. Leake on Contracts, 400 ; Holds-
Cas. 461-2. worth r. City of Olasgow Bank; 5
(o) Oakes v. Turquand, L. R. 2 App. Cas. 317.
FUNDAMENTAL LEGAL PRINCIPLES. 293
Acta exteriora indicant interiora Secreta. (8 Hep.
291.) — Acts indicate the intention (p).
The law, in some cases, judges of a man's previous The six
intentions by his subsequent acts ; and, on this principle, <**!*
it was decided in a well-known case, that, if a man abuse
an authority given him by the law, he becomes a tres-
passer ab initio (q), but that, where he abuses an authority
given him by the party, he shall not be a trespasser ab
initio. The reason assigned for this distinction being,
that, where a general authority or licence is given by the
law, the law judges by the subsequent act quo animo, or
to what intent the original act was done; but when the
party himself gives an authority or licence to do anything,
as to enter upon land, he cannot for any subsequent cause
convert that which was originally done under the sanction
of his own authority or licence into a trespass ab initio ;
and, in this latter case, therefore, the subsequent acts
only will amount to trespasses (r).
For instance, the law gives authority to enter into a
common inn or tavern ; in like manner to the owner of
the ground to distrain damage feasant (a); and to the
commoner to enter upon the land to see his cattle. But,
if he who enters into the inn or tavern commits a trespass,
(p) The remarks in illustration of <&., Jl. C. v. Midland R. C, 28
the maxim Actus nonfacit reum nisi L. J. Q. B. 17, 20. See Jacobsohn
mens sit rea (post, p. 300), should be v. Blake, 6 M. & Gr. 919 ; Peters v.
read in connection with those which darson, 7 M. & Gr. 548 ; Webster
immediately follow. v. Watts, 11 Q. B. 311 ; Wing. Max.,
{q) See North v. London and p. 108.
South Western It. C9 14 C. B. N. S. (*) See Layton t. Hurry, 8 Q. B.
132. 811 ; GuUiver v. Cosens, 1 C. B.
(r) TJie Six Carpenters* case, 8 788.
. Eep. 290 ; per Erie, J., Amberyate,
294
FUNDAMENTAL LEGAL PRINCIPLES.
11 Geo. 2,
c. 19, s. 19.
or if the owner who distrains a beast damage feasant
works or kills the distress, or if the commoner cuts down
a tree, in these and similar cases the law adjudges that
the party entered for the specific purpose of committing
the particular injury, and because the act which demon-
strates the intention is a trespass, he shall be adjudged
a trespasser ab initio (t) ; or, in other words, the subse-
quent illegality shows the party to have contemplated
an illegality all along, so that the whole becomes a
trespass (u). For the same reason a custom to seize a
heriot is an authority given by the law, and an abuse of
it renders the party making the seizure a trespasser ab
initio (x) ; and if a sheriff continues in possession after
the return day of the writ, this irregularity makes him
a trespasser ab initio (y).
One consequence of the above doctrine, as to the abuse
of an authority given by law, was, that, if a party enter- '
ing lawfully (z) to make a distress committed any subse-
quent abuse, he became a trespasser ab initio ; and, as
this was found to bear hard on landlords, it was enacted
by stat. 11 Geo. 2, c. 19, s. 19 (a), that, where any distress
shall be made for any rent justly due, and any irregularity
or unlawful act shall be afterwards done by the party dis-
(0 8 Rep. 291 ; Wing. Max., p.
109 ; OxUy y. Watt*, 1 T. B. 12 ;
Bagthaw v. Ooward, Cro. Jac 147 ;
Aitkenhead v. Bladet, 5 Taunt. 198.
(u) Per Littledale, J., Smith v.
Egginton, 7 A. & E. 176 ; distin-
guished in Moone v. Rote, L. R. 4
Q. B. 486, 492. See Taylor y. Cole,
3T.R. 292.
(x) Price y. Woodkouse, 1 Exch,
559.
(y) Aitkenhead t. Blades, 5 Taunt
198. See Ash y. Dawnay, 8 Exch.
287; Percival v. Stamp, 9 Exch.
167 ; cited post.
(z) Where the entry is effected in
an unlawful manner, trespass of
course lies. See Attack v Bran*
wcU, 3 B. & S. 520.
(a) See also stat 2 W. & M. c. 5 ;
Judgm., Thompson y. Wood, 4 Q. B.
498 ; Rodger* r. Parker, 18 C. B.
112.
t
FUNDAMENTAL LEGAL PRINCIPLES. 295
training, or his agent, the distress shall not be deemed
unlawful, nor the distrainer a trespasser ab initio, but the
party grieved may recover satisfaction for the damage in a
special action of trespass, or on the case (b) at the elec-
tion of the plaintiff, and if he recover he shall have full
costs. Where a landlord distrained for rent, amongst
other things, goods which were not distrainable in law,
he was held to be a trespasser ab initio as to those
particular goods only (c).
Also by stat 17 Geo. 2, c. 38, s. 8, where any distress 17 g«o. 2,
shall be made for money justly due for the relief of the
poor, the party distraining shall not be deemed a tres-
passer ab initio, on account of any act subsequently done
by him ; but the party grieved may recover satisfaction
for the special damage in an action of trespass, or on the
case, with full costs, unless tender of amends is made
before action brought.
With respect to the second proposition laid down in implied
the Six Carpenters' case, viz., that the abuse of authority
or licence given by the party will not make a person a
trespasser ab initio, it should be observed that such a
licence to do an act which per se would be a trespass, is in
some cases implied by law. Thus, all the old authorities
say that, where a party places upon his own close the
goods of another, he, by so doing, gives to the owner of
them an implied licence to enter for the purpose of recap-
tion (d). If a man takes my goods, and carries them into
(b) See Winterbourne v. Morgan, lord of the act of the bailiff, see
11 East, 395, 401 ; Etherton v. Pop- Lewis v. Read, 13 M. & W. 834, and
plewtll, 1 East, 139. cases cited, pott, Chap. IX.
(c) Harvey v. Pocock, 11 M. & {d) Per Parke, B., Patrick t. Cole-
W. 740, with which compare Price rick, 3 M. & W. 485 ; ace. Burridge
t. Woodhouse, 1 Exch. 559. As to v. Nicholette, 6 H. & N. 383, 388,
the effect of ratification by the land- 392 ; 2 Boll. B. 565, pi. 54.
296
FUNDAMENTAL LEGAL PRINCIPLES.
his own land, I may justify my entry into the said land to
take my goods again, for they came there by his own
act (e). So, a man may sometimes justify an entry on his
neighbour's land to retake his own property which has by
accident been removed thither ; as in the instance, of fruit
falling into the ground of another, or in that of a tree
which is blown down, or, through decay, falls into the
ground of a neighbour : in these cases, the owner of the
fruit or of the tree may, by his plea, show the nature of
the accident, and that he was not responsible for it, and
thus justify the entry (/). This distinction must, how-
ever, be remarked, that, if the fruit or tree had fallen in
the particular direction in consequence of the owner's act
or negligence, he could not justify the entry (g).
Another case also occurs, in which the law presumes
a licence. Thus, if A. wrongfully plaice goods in B/s
building, B. may lawfully go upon A.'s close adjoining
the building, for the purpose of removing and depositing
the goods there for A.'s use : that is to say, the law allows
a person to enter into a plaintiffs own close, for the purpose
of depositing there the plaintiffs own goods, which he
had wrongfully placed on the premises of the defendant (h).
So, also, if a man finds cattle trespassing on his land, he
may chase them out, and is not bound to distrain them
damage feasant (?'). And if a distrainor takes the dis-
t
(e) Yin. Ahr., " Trespass" (1), a ;
cited 3 M. & W. 485, and arg.
Williams v. Roberts, 7 Exch. 626.
See Earl of Bristol v. Wilsmore, 1
£. & C. 514, which also illustrates
the rule that "fraud vitiates a con-
tract:" post. Chap. IX.
(/) Per Tindall, C.J., Anthony y.
Haney, 8 Bing. 192.
{(j) MtUcn t. Havoery, Latch. 13 ;
Yin. Abr., " Trespass* H. a 2, L. a ;
per Tindall, C. J., 8 Bing. 192.
(A) Vin. Abr., «' Trespass," 516,
pL 17 (1. a.) ; Roll. Abr. L pL 17,
p. 566 ; cited Judgm., Rea r.
Skeward, 2H.&W. 426.
(0 Tyrtngham's case, 4 Rep. 38 ;
cited 2 M. & W. 426.
FUNDAMENTAL LEGAL PRINCIPLES.
297
tress out of the place where it was originally impounded,
and misuses it, the owner may re-take his property with-
out rendering himself liable for a rescue or pound-
breach (k).
Where, however, the goods are placed on the ground or
premises of a third party, the common law is different ;
for, if individuals were allowed to use private force as a
remedy for private injuries, the public peace would be
-endangered, and, therefore, the right of recaption shall
never be exerted where such exertion must occasion strife
and bodily contention (I). If, for instance, my horse is
taken away, and I find him on a common, in a fair, or at a
public inn, I may, it is said, lawfully seize him to my own
use, but I cannot justify breaking open a private stable,
or entering on the grounds of a third person to take him,
unless he be feloniously stolen (m). Nevertheless, if A.
take chattels out of the actual possession of £., and against
his will, B. might justify using force sufficient to defend
his right, and retake the chattels (ri).
Lastly, it was resolved in the principal case, that a N<m-
* . feasance.
mere non-feasance will not make a man a trespasser db
initio (p).
(k) Smith v. Wriyht, 6 H. & N.
621.
(I) " The law of England appears
to me, both in spirit and in principle,
to prevent persons from redressing
their grievances by their own act ;"
per Pollock, C.B., Hyde v. Graham,
1 H. & C. 598.
(m) 3 Com. by Broom & Hadley,
4-5 ; per Parke, B., 8M.4W. 485 ;
per Tindall, C.J., and Park, J., 8
Bing. 192, 198 : 2 Roll. R. 55, 56,
208 ; 6 M. & Gr. 1056 (a). As to
entering on the land of another to
search for goods stolen, see 2 Roll. R.
565, pi. 15 ; Webb v. Bcavan, 7
Scott, N. R. 936.
(n) Blades v. Hvjgs> 11 H. L.
Cas. 621.
Secus if the property in the chat-
tels had become vested in A,, Cham-
bers v. MUlcr, 13 C. B. N. S. 125.
(p) 8 Rep. 290 ; West v. Nibbs,
4 C. B. 172, 187. See Ourdner t.
298 FUNDAMENTAL LEGAL PRINCIPLES.
Res ipsa Loquitub {the thing speaks for itself).
In some cases where the liability of the defendant
depends upon proof of negligence, the question not unfre-
quently arises whether the mere fact of the happening
of an accident is, in itself, evidence of negligence to be
left to a jury. Bovill, C. J., in Simpson v. The London
General Omnibus Company (q)t is reported to have said
that the happening of an accident is not as a general
rule prima fade evidence of negligence, but if the cause
of the accident be shown, it may or may not, according to
the circumstances, be evidence.
Where the plaintiff was lawfully passing under a doorway
on the defendant's premises, some bags of sugar fell on
him from a crane which was fixed over the doorway, the
Court of Exchequer Chamber held that, in the absence
of any evidence on the part of the defendants explanatory
of the cause of the accident, there was evidence of
negligence on the part of the defendants' servants to go
to the jury, on the ground that where the thing is shown
to be under the management of the defendant or his
servants, and the accident is such as in the ordinary
course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, *
in the absence of explanation by the defendants, that the
accident arose from want of care (r) ; similarly, where the
plaintiff was passing along a highway under a railway
bridge of the defendant's, which was a girder bridge resting
Campbell, 15 Johnson (U. S.), R. L. J. C. P. 112; 28 L. T. 560.
401 ; Jacobsohn v. Blake, 6 M. & (r) Scott v. London Dock Com,"
(Jr. 919. pany, 3 H. & C. 596 ; 34 L. J. (Ex.)
(q) L. B. 8 C. P. 390, 392 ; 42 220.
FUNDAMENTAL LEGAL PRINCIPLES. 299
on a perpendicular brick wall with pilasters, a brick fell
from the top of one of the pilasters on which a girder
rested and injured the plaintiff, it was held that the fact
of the brick falling without any explanation offered by the
Company might reasonably lead the jury to the inference
that its looseness was due to some carelessness on the
part of the defendants, against whom consequently
damages might be assessed (s).
On the other hand it has been held that the mere fact
of a horse bolting without any explainable cause is no
evidence of negligence to go to a jury (t). In that case
a distinction was drawn between animate creatures
and inanimate things, the Court holding the decision
in Hammack v. White (u) to be good law with regard to
the former. An animal being the creature of impulse,
it is equally probable, in the absence of all evidence
one way or the other, that it bolted of its own will
as that the cause of its running away was due to
some act of negligence in the driver, but in the case of a
falling bale of goods, it is a fair presumption that it would
not have fallen had it been properly and carefully placed.
It would seem, therefore, in the case of inanimate things,
if the happening of the event is such as would not happen
in the ordinary course of -events, if those who have the
management of the thing use proper care, that affords
reasonable evidence in the absence of explanation by the
defendant that the accident arose from want of care ; but
(«) Kearney t. London, Brighton, 50 L. J. Q. B. 289 ; 29 W. R.
«fe\, R C, L. B. 5 Q. B. 411 ; 6 Q. 425.
B. 759 ; 40 L. J. Q. B. 285 ; 24 L. (*) Manzoni v. Douglas, 6 Q. B.
T. 913. See also Pearson v. Cox, 2 D. 149, et ubi supra.
C. P. D. 369 ; 36 L. T. 495, C. A. ; (u) 11 C. B. (N. S.) 588 ; 31 L. J.
Manzoni v. Douglas, 6 Q. B. D. 145 : (C. P.) 129.
300 FUNDAMENTAL LEGAL PRINCIPLES.
that in the case of animate creatures the presumption of
negligence is not raised by the happening of the event,
which may be due solely to the will of the creature, and
not to the act or omission of the person in whose .charge
it is.
Actus non facit reum nisi mens sit rea. (3 Inst.
107.) — The act itself does not make a man guilty
unless his intention were so.
Having seen that the law will, in some cases, imply
the nature of a previous intention from a subsequent act,
we purpose in the next place to consider the maxim, Actus
non facit reum nisi mens sit rea, with reference mainly
to penal statutes, to criminal law, and to civil proceedings
for slander and libel ; for, although the principle involved
in it applies in many other cases (x), we shall defer for
the present the consideration of its meaning when so
applied, and restrict our remarks almost wholly in this
place to an examination of the important doctrine of
criminal intention.
intention " It is," says Lord Kenyon, C. J. (y), " a principle of
material natural justice and of our law, that the intent and the act
implied. must both concur to constitute the crime;" "a man," as
remarked by Erie, C. J. (z), " cannot be said to be guilty
of a delict, unless to some extent his mind goes with the
act," and the first observation which suggests itself in
(?) See the maxim, Caveat emptor, Et vide, llearne v. Garten, 2 E. &
post, Chap. IX. E. 66, 74 ; Coward v. Baddeley, 4
(y) 7 T. R. 514. Bowman v. H. & N. 478, 481.
Blt/th, 7 E. & B. 26, offers a simple (z) Buckmaster, app., Reynolds,
illustration of the above proposition. resp., 13 G. B. N. S. 68.
FUNDAMENTAL LEGAL PRINCIPLES.
301
limitation of the principle thus enunciated is, that, when-
ever the law positively forbids a thing to be done, it
becomes thereupon ipso facto illegal to do it wilfully, or,
in some cases, even ignorantly (a), or, may be, to effect an
ulterior laudable object (6), and consequently the doing it
may form the subject-matter of an indictment, information,
or other penal proceeding, simpliciter and without the
addition of any corrupt motive (c). If there be an infrac-
tion of the law the intention to break the law must be
inferred, ex.gr., where a man publishes a work manifestly
obscene he must be taken to have had the intention which
is implied from that act (d).
So it has been held (e), that a dealer in tobacco, having
in his possession adulterated tobacco, although ignorant of
the adulteration, is liable under the stat 5 & 6 Vict. c. 93,
& 3, to the penalties therein mentioned, and this decision
merely affirms the principle established in previous
cases (/), and shows that penalties may be incurred under
(a) Ante, p. 261.
(6) Reg. t. HieUin, L. R. 3 Q. B.
360, 372, where Cockburn, G.J.,
says, "I think the old sound and
honest maxim, that you should not do
evil that good may come, is applicable
in lav as well as in morals."
(c) Per Ashhunt, J., R. v. Sains-
bury, 4 T. R. 457 ; cited 2 A. &
R. 612 ; R. t. Jones, Stra. 1146 ;
per Lord Mansfield, G.J., R. v.
Wood/all, 5 Burr. 2667; per Pol-
lock, C.B., Hipkins v. Birmingham
Oadight Co., 5 JEL & N. 84 ; per
Martin, B., Id. 86. See Re Hum-
phreys, 14 Q. B. 388; Reg. v.
Thomas, L. & C. 313 ; Mvrdcn,
app., Porter, resp., 7 C. B. N. S.
611.
(d) Reg. v. Hiddin, L. R. 3 Q.
B. 360, 870, 373 ; Haigh v. Town
Council of Sheffield, L. R. 10 Q. B.
107 ; 44 L. J. M. C. 17 ; 31 L. T.
536.
In A.-G. v. SUlem, 2 H. & C. 481,
535, where the question as to intent
was much considered, Bramwell, B.,
observes, " I think it cannot properly
be said that a man does an act with
intent, unless he intends the act to
bring about the thing intended, or
unless the act is particularly fitted to
do so."
(e) Reg. t. Woodrow, 15 M. & W.
404.
(/) A.-G. y. Lockicood, 9 M. &
W. 378, 401 ; R v. Marsh, 4 D. &
Ry. 261.
302 FUNDAMENTAL LEGAL PRINCIPLES*
a prohibitory statute, without any intention on the part of
the individual offending against the statute law, to infringe
its provisions (g).
The wilful act of a servant has been held sufficient to
make the master liable to a conviction under the licensing
laws: thus, where the servant of a licensed victualler
knowingly supplied liquor to a police constable on duty
without the authority of his superior officer, it was held
that the licensed victualler was liable to be convicted
under 35 & 36 Vict. c. 94, s. 16, ss. 2, although he was
ignorant of the act of his servant (h).
In an action against the defendant for penalties
under the stat. 3 & 4 WilL 4, c. 15, s. 2, " for representing
a pantomime of which the plaintiff was the author,
without his licence, at a place of dramatic entertainment,"
it was held unnecessary to prove that the defendant
knew that the plaintiff was the author ; inasmuch as he
had infringed property of the plaintiff protected by the
Act, he was, consequently, an offender within its terms (£).
So, " public policy has, for the protection of the Bank
of England against forgery, rendered it criminal to make
paper bearing the same water-mark as Bank of England
notes. The making of such paper is in itself an indifferent
act ; but, inasmuch as it may afford facilities for forgery,
the legislature has on that account prohibited the act " (k).
The necessity of showing an intention on the part of the
{g) It may be requisite to deter- B. 292 ; 43 L. J. M. C. 67 ; 29 L.
mine whether an act, ex. gr., shooting T. S38.
a pigeon, was done unlawfully, so as (I) Lee t. Simpson, 8 C. B. 871.
to be brought within the words of See Russell v. Briant, 8 C. B. 836 ;
a statute ; Taylor v. Newman, 4 Oambart y. Sumner, 5 E 4 N. 5.
B. & S. 89, with which compare (Is) Per Pollock, C.B., Atkyns r.
Hudson y. MacRae, Id. 585. Kinnier, 4 Exch. 782. See 24 k 25
(h) MuUirn y. Collins, LR.9Q. Vict c. 98, s. 14.
FUNDAMENTAL LEGAL PRINCIPLES. 303
prisoner to commit the offence charged, was raised in a
case under the statute 24 & 25 Vic. c. 100, sec. 55, by
which whosoever shall unlawfully take any unmarried girl
under the age of sixteen out of the possession, and against
the will of her father or mother, or guardian, is guilty of
a misdemeanor ; in the particular case the prisoner had
taken a girl in fact under the age of sixteen out of the
possession, and against the will of her father, but the jury
found that the prisoner bond fide and reasonably believed
the girl to be more than sixteen, the question whether,
under such circumstances, the prisoner could be convicted
under the provisions of the Act having been reserved for
the consideration of the judges, they held that the know-
ledge of the prisoner as to the age of the girl was not
material, as he intended to take the girl away, although
he did not know she was under the age of sixteen, and
that the prisoner was rightly convicted. The judgments,
particularly of Brett, L. J., and Bramivell, L. J., are well
worth perusal, dealing as they do with the question of
what constitutes a mens rea in a criminal case (I),
Although the decision in R. v. Prince may at first sight
seem to be an exception to the rule that a criminal
intention is necessary to constitute a crime, on a careful
perusal it would seem not to be so, since, as pointed out
by one of the learned judges, the prisoner committed an
act which he knew was wrong, namely, taking the girl
away against the parent's will, and he ran the risk that
she might be under the age of sixteen when he did so.
In general, however, the intention of the party at the
time of committing an act charged as an offence is as
(l) R. v. Prince, LR.2C. C. R. 700 ; R. v. Bithop, 5 Q. B. D. 259.
154 ; 44 L. J. M. C. 122 ; 32 L. T.
304
FUNDAMENTAL LEGAL PRINCIPLES.
necessary to be proved as any other fact laid in the in-
dictment, though it may happen that the proof of intention
consists in showing overt acts only, the reason in such
cases being, that every man is pt^imd facie supposed to
intend the necessary, or even probable or natural con-
sequences of his own acts (ra). Thus, a prisoner was
indicted for setting fire to a mill, with intent to injure and
defraud the occupiers; and it was held that, as such injury
was a necessary consequence of setting fire to the mill, the
intent to injure might be inferred (n). So, in order to
constitute the crime of murder, which is always stated in
the indictment to be committed with malice aforethought,
it is not necessary to show that the prisoner had any
enmity to the deceased ; nor would proof of absence of
ill-will furnish the accused with any defence, when it is
proved that the act of killing was intentional, and done
without any justification or excusable cause (o). And it
is, as a general proposition, true, that if an act manifestly
unlawful and dangerous be done deliberately, the mis-
chievous intent will be presumed, unless the contrary
be shown Q>). If a man knowingly utters a forged
instrument as a genuine one, the intent to defraud the
party to whom he utters it is a necessary inference (q).
Although drunkenness, as a general rule, is no excuse
(m) Per Lord Campbell, 9 CI. &
Fin. 321 ; j?er Littledale, J., R. v.
Moore, 3 B. & Ad. 188, and in
Reg. t. LoteU, 9 C. & P. 466 ; per
Lord Ellenborough, C.J., Newton v.
Chanter, 7 East, 143, and in R. v.
Dixon, 8 M. & S. 15 ; cited Reg. v.
HicHin, L. R. 3 Q. B. 375 ; R. v.
Harvey, 2 B. k C. 261, 267 ; Wilkin
r. Manning, 9 Kxch. 575, 582;
Penndl v. Reynolds, 11 C. B. N. S.
709, and cases there cited ; Bell v.
Simpton, 2 H. & N. 410. See
Dearden v. Towntend, [L. R. 1 Q.
B. 10.
(n) R. v. Farrington, Russ. & Ry,
207 ; per Bayley, J., R. v. Harvey,
2 B. & C. 264.
(o) Per Best, J., 2 B. & C. 268.
(p) 1 East, P. C. 231.
(2) R. v. HiU, 2 Mood. C. C. 30 ;
8 C. k P. 274.
FUNDAMENTAL LEGAL PRINCIPLES. 305
for crime, yet in cases where the intention with which the
act was done is the essence of the offence, it is a circum-
stance to be taken into consideration in determining
whether or not the act was done with the intention laid in
the indictment ; thus, where on an indictment for attempt-
ing to commit suicide it appeared that the prisoner had
thrown herself into a well, and the witness who proved
this stated that at the time she did so she was so drunk
as not to know what she was about ; Jervis, C.J., said,
rt If the prisoner was so drunk as not to know what she was
about, how can you say that she intended to destroy her-
self^)?" In cases of murder the degree of provocation which
will reduce the offence to that of manslaughter and nega-
tive malice aforethought, has been variously and elaborately
considered in the authorities given below («), and may be
briefly summed up in the following words : " if the act was
done while smarting under provocation, of such a cha-
racter and so recent that the prisoner might reasonably
be considered at the time not to be master of his reason,
then the crime is manslaughter; but if the act was done
with premeditation, in a spirit of revenge, or under such
circumstances that he ought to be considered master of his
reason at the time when the act was done, then the crime
is murder " (i).
It is a rule, laid down by Lord Mansfield, and which Bare
has been said to comprise all the principles of previous
decisions upon this subject, that so long as an act rests in
bare intention, it is not punishable by our law ; but when
an act is done, thfc law judges not only of the act itself,
(r) Reg. y. Moore, 3 C. & B. 319. man, 8 C. & P. 115.
(«) Stedmaris case, Fos. 292 ; 22. (t) See further on the subject,
▼. Fisher, 8 0. & P. 182 ; A\ v. Stephen's Digest of the Criin. Lav
Walters, 12 St. Tr. 113 ; R. v. (1877J, p. 147.
Thomas, 7 C. & P. 817 ; R. v. Kirk-
30G FUNDAMENTAL LEGAL PRINCIPLES.
but of the intent with which it was done ; and if the act
be coupled with an unlawful and malicious intent, though
in itself the act would otherwise have been innocent, yet,
the intent being criminal, the act likewise becomes
criminal and punishable (u).
Attempt. It is accordingly important to distinguish an attempt (x)
from a bare intention; for the former a man may — and
most justly, in many cases — be made answerable ; for the
latter he cannot be so. The " will is not to be taken for
the deed," unless there be some external act which shows
that progress has been made in the direction of it, or
towards maturing and effecting it. If there be an attempt,
if there be something tangible and ostensible of which
the law can take hold, which can be alleged and proved
— there is nothing offensive to our ideas of justice in
declaring it to be criminal and punishable. Hence, an
attempt to commit a felony is, in many cases, a misde-
meanor; and the general rule is, that "an attempt to
commit a misdemeanor is a misdemeanor, whether the
offence is created by statute, or was an offence at common
law " (y). Moreover, under various statutes, attempts to
commit particular offences are indictable and punishable
as therein specified, and the statute 14 & 15 Vict. c. 100,
s. 9, enables a jury to convict of the attempt upon an in-
dictment for commission of the substantive offence, wher-
ever the evidence suffices to establish the one though not
the other (z).
(u) R. v. Scojidd, cited 2 East, v. Collins, L. & C. 471 ; Reg. r.
P. C. 1028 ; Dugdale r. Reg.t 1 E. Cheeseman, Id. 140.
& B. 485, 489. (y) Russ. Cr., 5th ed., voL 1, p.
(?) Which Dr. Johnson defines to 189.
bean "essay "or " endeavour "to do (z) See Reg. v. ffapgood, L. R.
an act : Diet, ad verb. See Reg. v. 1 C. C. 221. '
M'Pheraon, Dcar&l. & B. 197 ; Reg.
FUNDAMENTAL LEGAL PEINCIPLES. 307
Our law, moreover, will sometimes, with a view to
determining the intention, couple together two acts which
have been separated the one from the other by an appre-
ciable interval of time, and ascribe to the later of these
acts that character and quality which undeniably attached
and was ascribable to the earlier; and the doctrine of
relation is also occasionally brought into play with a view
to determining the degree of guilt of an offender. Thus
A., whilst engaged in the prosecution of some felonious
act, undesignedly causes the death of B. ; in strictness A.
may be convicted of murder, the felonious purpose con-
joined with the homicide being held to fill out the legal
conception of that crime (a). So, in Reg. v. Riley (6), a
felonious intent was held to relate back, and couple itself
with a continuing act of trespass, so as, taken in connec-
tion with it, to constitute the crime of larceny.
The observations already made as to the meaning of ^ote*
the word "attempt," in connection with criminal law,
may here generally be referred to : it is worthy also of
remark, that in Reg. v. Eagleton (c), the Court, after
observing that, although " the mere intention to commit
a misdemeanor is not criminal, some act is required to
make it so/' add, " we do not think that all acts towards
committing a misdemeanor are indictable. Acts re-
motely leading towards the commission of the offence
are not to be considered as attempts to commit it, but
acts immediately connected with it are:" the doctrine
of " remoteness/' already commented on(d), has here,
consequently, an important application.
(a) Post Disc. Horn. 258, 259 ; Roberts, Id. 539 ; Reg. v. Gardner,
Crim. L. Com., 1st Rep., 40, 41. Dears!. & B. 40, with which compare
. (b) Dearel. 149. Reg. v. Martin, L. R. 1 C. C. 56.
(c) Dearsl. 515. See Reg. v. {d) Ante, pp. 199, ct scq.
x 2
308
FUNDAMENTAL LEGAL PRINCIPLES.
Persons
incajiable
of design.
Persons «>f
immature
years.
A point, moreover, analogous to that just noticed, and
by no means free from difficulty, sometimes arises where
a person is indicted for attempting to commit a par-
ticular offence ; in this case, with a view to satisfying
ourselves whether or not he can be convicted of the
attempt, we must consider whether, if he had succeeded
in carrying out his object, he could have been convicted
of the substantive offence (e) — whether there was such a
beginning as would, if uninterrupted, have ended in the
completion of the act (/).
Having thus briefly noticed that, with some few pecu-
liar exceptions, in order to constitute an offence punish-
able by law, a criminal intention must either be pre-
sumable, as where an unlawful act is done wilfully, or
must be proved to have existed from the surrounding
circumstances of the case, it remains to add, that, since
the guilt of offending against any law whatsoever neces-
sarily supposes wilful disobedience, such guilt can never
justly be imputed to those who are either incapable of
understanding the law, or of conforming themselves to
it ; and, consequently, that persons labouring under a
natural disability of distinguishing between good and
evil, by reason of their immature years, or of mental
imbecility, are not punishable by any criminal proceeding
for an act done during the season of incapacity (g).
With regard to persons of immature years, the rule is,
that no infant within the age of seven years can be guilty
of felony (h), or be punished for any capital offence ; for
(e) See Reg. v. Qarrett, Deai-sl.
232, in connection with which case
see now stat. 24 & 25 Vict. c. 96,
s. 89.
(/) Reg. v. CoUini, L. & C. 471.
ig) Hawk. P. C. by Curwood, Bk.
1, c. 1 ; 4 Com. by Broom & Hadley,
Chap. 2.
(h) Marsh y. Loader, 14 C. B. N,
S. 585.
.FUNDAMENTAL LEGAL PRINCIPLES.
309
Within that age, an infant is, by presumption of law, doli
incapax, and cannot be endowed with any discretion, and
Against this presumption no averment shall be received (i).
This legal incapacity, however, ceases when the infant
attains the age of fourteen years, after which period his
act becomes subject to the same rule of construction as
that of any other person (&).
Between the ages of seven and fourteen years an infant Maima
is deemed prrimd facie to be doli incapax ; but in this <**»*»•
case the maxim applies, itwlitia supplet cetatem(l) —
malice (which is here used in its legal sense, and means
the doing of a wrongful act intentionally, without just
cause or excuse (m) ), supplies the want of mature years.
Accordingly, at the age above mentioned, the ordinary
legal presumption may be rebutted by strong and preg-
nant evidence of a mischievous discretion ; for the capa-
city of doing ill or contracting guilt is not so much
measured by years and days, as by the strength of the
delinquent's understanding and judgment. In all such
cases, however, the evidence of malice ought to be strong
and clear beyond all doubt and contradiction (n). And
two questions ought, moreover, to be left for the considera-
tion of the jury ; first, whether the accused committed the
offence ; and, secondly, whether at the time he had a
guilty knowledge that he was doing wrong (o). In the
(i) 4 Com. by Broom & Hadley,
18.
(*) Id.
{!) Dyer, 104, b.
(m) Arg., Mitchell v. Jenkins, 5
B. & Ad. 500. "Malice, in the legal
acceptation of the word, is not con-
fined to personal spite against indi-
viduals, but consists in a conscious
violation of the law to the prejudice
of another ; per Lord Campbell, 9
CI. & Fin. 321. See also per Pol
lock, C.B., Skerwin v. Swindall, 12
M. & W. 787, 788 ; -per Littledale,
J., MlPherson v. Daniels, 10 B. &
<j. 272 ; per Best, J., H. v. Harvey,
2 B. & C. 267, 268.
(n) 4 Bl. Com. 28.
(o) J?, v. Owen, 4 C. & P. 236.
An infant, or one non compos, is
310
FUNDAMENTAL LEGAL PRINCIPLES,
Libel ami
slander.
case of rape, we may add, it is a presumption of law, not
admitting of proof to the contrary, that within the age of
fourteen years this particular offence cannot, by reason of
physical inability, be committed (p).
A libel is u anything written or printed (q), which, from
its terms, is calculated to injure the character of another,
by bringing him into hatred, contempt, or ridicule, and
which is published without lawful justification or ex-
cuse " (r) ; and, again, " everything printed or written,
which reflects on the character of another, and is published
without lawful justification or excuse, is a libel, whatever
the intention may have been " (s).
With respect to libel and slander, the rule, as deduced
from an extensive class of cases, is that, where an occa-
sion exists, which, if fairly acted upon, furnishes a legal
protection to the party who makes the communication
complained of, the actual intention of the party affords a
boundary of legal liability. If he had that legitimate
object in view which the occasion supplies, he is neither
liable civilly for a tortious act, as
a trespass; see Burnard, app.,
Haggis, resp., 14 C. B. N. S. 45 ;
per Lord Kenyon, C.J., Jennings v.
Randall, 8 T. R. 337 ; Johnson v.
Pye, 1 Lev. 169 ; Bartlett v. Wells,
1 B. & S. 836, with which ace. Be
Roo v. Foster, 12 C. B. N. S.
272 ; per curiam, Weaver v. Ward,
Hobart, 134; Bac. Max., reg. 7, ad
finem.
(p) Rtg. v. Philips, 8 C. & P.
736 ; Beg. v. Jordan, 9 C. & P.
118; Reg. v. Brimilow, Id. 366;
R. v. Groombridgc, 7 C. 4 P. 582.
Bat an infant under fourteen years of
age may be a principal in the second
degree. (R. v. Elder shaw, 3 0. &
P. 396. ) As to the liability of an infant
for misdemeanor, see 4 Bl. Com. 23.
(q) The fall definition of a libel,
however, includes defamation of an-
other by signs; see Jht Bost v,
Beresford, 2 Camp. N. P. C. 511.
(r) Per Parke, B., Oathercole v.
MiaU, 15 M. & W. 821 ; Bigby v.
Thompson, 4 B. & Ad. 821 ; Blood-
worth v. Gray, 8 Scott N. R. 9 ;
Pemberton v. Calls, 10 Q. B. 461.
(s) Per Parke, B., O'Brien v.
Clement, 15 M. k W. 437 ; O'Brien
v. Bryant, 15 M. & W. 168 ; Darby
v. Ouseley, 1 H. & N. 1 ; Fray v.
Fray, 17 0. B. N. S. 603 ; Cox v.
Zee, L. R. 4 Ex. 284 ; Walker v.
Brogden, 19 C. B. N. S. 65.
FUNDAMENTAL LEGAL PRINCIPLES.
311
civilly nor criminally amenable ; if, on the contrary, he
used the occasion as a cloak for maliciousness, it can
afford him no protection (t) ; but if the libel or slander be
true in substance and in fact, and be so pleaded, then
however malicious the defendant may have been in pub-
lishing or uttering the libel or slander, the defendant is
not liable in a civil action, although he is so if criminal
proceedings be taken against him. It must, moreover, be
observed, that, as the honesty and integrity with which
a communication of hurtful tendency is made cannot
exempt from civil liability, unless it be Coupled with an
occasion recognised by the law, so responsibility may
attach, if the mode or nature of the communication in any
respect exceeds that which the legal occasion warrants (u).
The rule applicable for determining whether a particular Privileged
* * or conimunica-
communication is privileged, has been thus stated : —
"A communication, made b<ynd fide upon any subject-
matter in which the party communicating has an interest,
or in reference to which he has a duty, is privileged, if
made to a person having a corresponding interest or duty,
although it contain criminatory matter, which, without this
privilege, would be slanderous and actionable " (x).
communica-
tion.
(t) See per Parke, B., Parmiter v.
Coupland, 6M.&W. 108.
An action for libel will lie against
a corporation aggregate, Whitfield
r. South Eastern R. C, K B. ft E.
115, Lawless v. Anglo-Egyptian Cot-
ton <L* Oil Co., Lintd. L. R. 4 Q. B.
262 ; 88 L. J. Q. B. 129.
(u) See Spill v. Mavde, L. R. 4
Ex. 232 ; Kelly v. Tinting, L. R. 1
Q. B. 699 ; Fryer v. Kinnertley, 15
C. K N. S. 422.
(x) Judgm., Harrison v. Bush, 5
E. & B. 848 ; Whiteley v. Adams,
15 C. B. N. S. 392, 419, 421 ; Force
v. Warren, Id. 806. The subject of
privileged communications was much
considered in Coxhead v. Richards,
2 C. B. 569 ; Blackham v. Pugh, Id.
611 ; Dawkint v. Lord Paulet, L. R.
5 Q. B. 94 ; Scott v. Stansfdd, L. R.
3 Ex. 220; Wason v. Walter, L. R.
4 Q. B. 73 ; Ex parte Wason, L. R.
4 Q. B. 573 ; Kelly y. Tinling, L. R.
1 Q. B. 699; Latclest v. Anglo-
Egyptian Cotton Co., L. R. 4 Q. B.
312
FUNDAMENTAL LEGAL PBINCIPLES.
If, for instance, a man received a letter informing him
that his neighbour's house would be plundered or burnt
on the night following by A. and B., which he himself
believed and had reason to believe, to be true, he would
be justified in showing that letter to the owner of the
house, though it should turn out to be a false accusation
of A. and B. (y). In like manner, a character of a servant
bond fide given is a privileged communication (z), and in
giving it, bonafide8 is to be presumed ; and, even though
the statement be untrue in fact, the master will be held
justified by the occasion in making that statement, unless
it can be shown to have proceeded from a malicious mind,
one proof of which may be, that it is false to the know-
ledge of the party making it (a). So, a comment upon a
literary production, exposing its follies and errors, and
holding up the author to ridicule, will not be deemed a
libel, provided such comment does not exceed the limits
of fair and candid criticism, by attacking the character of
the writer unconnected with his publication ; and a com-
ment of this description, subject to the above proviso,
every one has a right to publish, although the author may
suffer a loss from it. But, if a person, under the pretence
of criticising a literary work, defames the private cha-
racter of the author, and, instead of writing in the spirit
and for the purpose of fair and candid discussion, travels
262 ; Beatson v. Skene, 5 H. & N.
838. See Tighe v. Cooper, 7 B. &
B. 639 ; Davison v. Duncan, 7 E. &
H 229 ; Lewis v. Levy, E. B. & E.
537.
(y) Per TindaJ, C.J., 2 C. B. 596 ;
Amann v. Damm, 8 C. B. N. S.
597.
(z) See Affleck v. ChUd, 9B.&C.
403, 406, recognising the rule laid
down by Lord Mansfield, C.J., in
Edmondson v. Stevenson, cited Bull.
N. P. 8 ; Pattison v. Jones, 8 B. &
C. 578.
(a) Judgm., Fountain v. Boodle,
8 Q. B. 11, 12 ; SomerviUe v. Saw-
kins, 10 C. B. 5831 ; Taylor v. Haw-
kins, 16 Q. B. 308 ; Manby v.
Witt, and East mead v. Witt, 18 C.
B. 544.
FUNDAMENTAL LEGAL PRINCIPLES.
313
into collateral matter, and introduces facts not stated in
the work, accompanied with injurious comments upon
them, such person is a libeller, and liable to an action (6).
Reports of public meetings published in newspapers are Report* of
privileged if such meeting was lawfully convened for a stings.
lawful purpose and open to the public, and if such report
was fair and accurate, and published without malice, and
if the publication of the matter complained of was for the
public benefit (o). The fair and honest discussion of or
comments upon a matter of pubic interest in a newspaper
is in point of law privileged, and is not the subject of an
action unless the plaintiff can establish malice.
With respect to the evidence of intention in an action
for libel, the rule is, that a mere wicked and mischievous
intention cannot make matter libellous which does not
come within the definition of a libel already given ; but,
if libellous matter be published under circumstances
which do not constitute a legal justification, and injury
ensue, the malicious intention to injure will be presumed,
according to the principle stated at the commencement
of these remarks that, every man must be presumed to
intend the natural and ordinary consequences of his own
act (d). In such a case, however, the spirit and quo animo
of the party publishing the libel are fit to be considered
(b) Carr v. Hood, 1 Camp. 855,
n. (recognised Green v. Chapman, 4
"Bing. N. C. 92) ; Campbell v. Spot-
tiswoode, 8 B. k S. 769 ; Thompson
v. ShakeU, M. & M. 187 ; Soaner.
Knight, Id. 74. See Paris v. Levy,
9 C. B. N. S. 342.
(c) Stat. 44 k 45 Vict. c. 60, s. 2,
and see Lord Campbell's Act, 6 & 7
Vict, c 96 ; Uentcood v. Harrison,
L. R. 7 C. P. 606 ; 41 L. J. C. P.
206; 26 L. T. 938; Wason v.
Walter, L. R. 4 Q. B. 73.
(d) Fisher v. Clement, 10 B. & C.
472 ; Haire v. Wilson, 9 B. k C.
643 ; Parmiter v. Coupland, 6 M. k
W. 105, recognised Baylis v. Law-
rence, 3 P. & D. 526; per Best,
C.J., Levi r. Milne, 4 Bing. 199.
314 FUNDAMENTAL LEGAL PRINCIPLES.
by the jury in estimating the amount of injury inflicted on
the plaintiff (e).
So, in ordinary actions for slander, malice in law may
be inferred from the act of publishing the slanderous
matter, such act itself being wrong and intentional, and
without just cause or excuse.
The respective functions of judge and jury in the trial
of an action for libel or slander have been indicated in a
recent case in the House of Lords, where it was laid down
that it is for the Court to say whether the publication (or
the words used) are fairly capable of a construction which
would make it libellous or slanderous, and for the jury to
say whether in fact that construction ought under the
circumstances to be attributed to it(/); the judge also
is the proper tribunal to determine whether, on the facts
found by the jury, if they are in dispute, the occasion was
privileged or not (g).
Connected with the subject of criminal intention above
briefly discussed are two important rules relative thereto ;
the first is, in criminalibus suffwit generalis malitia
intentionis cum facto jparis gracMs — if the malefactor
conceive a malicious intent in the execution of which he
does harm to another person he is equally guilty, although
he had no intention of doing that particular person an
injury (h). The second is, excused, aut extenuat delictum
(c) See Pearson v. Lemaitre, 6 Scott. & B. 840, recognising Somerville v.
N. R. 607; Wilson v. Robinson, 7 Q. Hawkins, 10 C. B. 583 ; Taylor v.
B. 68 ; Barrett v. Long, 3 H.L. Cas. Hawkins, 16 Q. B. 308 ; and per
395. Maule, J., Gilpin y. Fowler, 9 Exch.
(/) Capital and Counties Bank v. 615. Sec also Homer v. Taunton,
Henty, 7 App. Cas. 741, 759 ; 31 5 H. & N. 661 ; Croft v. Stevent, 7
W. R. 157. H. & N. 570.
(g) Judgm., Cooke y. Wildes, o E. (/*) Reg, y. Smith, DcarsL 559. •
FUNDAMENTAL LEGAL PRINCIPLES^ 315
in capitatibvsquodnonoperctfur in civilibvs — in capital
cases the law is in favour of life, and will not punish with
death unless a malicious intention appear (i) ; but it is
otherwise in civil actions, where the intent may be im-
material if the act done were injurious to another (k) ; of
which rule a familiar instance occurs in the liability of a
sheriff, who, by mistake, seizes the goods of the wrong
party under a writ oifi.fa. So, an action for the infringe-
ment of a patent " is maintainable in respect of what the
defendant does, not of what he intends " (I) ; the patentee
is not the less prejudiced because the invasion of his right
was unintentional (m).
One case, in which the principle in favorem vitce, ad- Gray v. Reg
verted to by Lord Bacon, was considered, may here be
noticed, since it involves a point of considerable import-
ance, and has attracted much attention. It was decided
by the House of Lords, on writ of error from the Court of
Queen's Bench in Ireland, that the privilege of peremp-
tory challenge on the part of the prisoner extends to all
felonies, whether capital or not ; and it was observed by
Wightman, J. (delivering his opinion on a question pro-
posed for the consideration of the judges, and comment-
ing on the position, that the privilege referred to was
allowed only m favorem vita*, and did not extend to
cases in which the punishment is not capital), that it
would seem that the origin of the privilege in felony may
have been the capital punishment usually incident to
the quality of crime ; but that the privilege was, at all
(i) Bacon's Maxims, reg. 7. 871, cited judgm. JUade v. Conquest,
(*) Per Lord Keoyon, C.J., 2 East, 11 C. J3. N. S. 492.
103-104. . (w) Per Shadwell, V.-C. E., Heath
(I) Stead v. Anderson, 4 C. B. v. Unwin, 15 Sim. 552 ; S. C. (in
806, 834 ; Let v. Simpson, 3 C. B. error), 5 H. L. Cos. 505.
316 FUNDAMENTAL LEGAL PRINCIPLES,
events, annexed to the quality of crime called felony, and
continued so annexed in practice in England (at least
down to the time when the question was raised), in all
cases of felony, whether the punishment was capital or
not (?i).
In all criminal cases whenever upon the evidence given
at the trial a reasonable doubt as to the prisoner's guilt or
innocence is raised, the best rule is to incline to an
acquittal than conviction.
Tutius semper est errare in acquietando quam in
puniendo, ex parte niisericordice, quam ex parte jus-
titicu (o).
Nemo debet bis vexari pro una et eadem Causa.
(5 Rep. 61). — It is a rule of law tliat a man shall
not be twice vexed for one and the same cause (p).
EX(*ptjon, According to the Roman law, as administered by the
man law. praetors, an action might be defended by showing such
acts as might induce the praetor, on equitable grounds, to
declare certain defences admissible, the effect of which,
if established, would be not, indeed, to destroy the action
ipso jure, but to render it ineffectual by means of the
" exception " thus specially prescribed by the praetor for
the consideration of the judge, to whose final decision the
action might be referred. In the class of exceptions just
adverted to was included the exceptio rei judicata;, from
(n) Gray a. Meg., 11 CI. & Fin. considered in Mansdl v. Reg., 8 E.
427 ; Mulcahy v. Rtg., L. H 3 H. & B. 54.
L. 306. The right of peremptory (o) 2 Hale, P. C. 290.
challenge by the Crown was much (p) 5 Rep. 61.
FUNDAMENTAL LEGAL PRINCIPLES.
317
which the plea of judgment recovered in our own law may
be presumed to have derived its origin (q). The res
judicata was, in fact, a result of the definitive sentence, or
decree of the judge, and was binding upon, and in general
unimpeachable by the litigating parties (r) ; and this was
expressed by the well-known maxim, Res judicata pro
veritate accipitur (s), which must, however, be understood to
have applied only when the same question which had been
once judicially decided was again raised between the same
parties, the rule being exceptionem rei judicata* obstare
quoties eadem qucestio inter easdem personas revocatur (t).
In our own law, the plea of judgment recovered at Doctrine of
once suggests itself as analogous to the "exceptio rei n* judicata.
judicata " above mentioned, and as directly founded on
the general rule that "a man shall not be twice vexed
for the same cause." " If," as remarked by Lord Kenyon,
C.J., "an action be brought, and the merits of the ques-
tion be discussed between the parties, and a final judg-
ment (at) obtained by either, the parties are concluded,
(q) See 1 CL & Fin. 435 ; Philli-
more, Rom. L. 48.
(r) Brisson. ad verb. Fes. Pothier,
ad D. 42. 1. pr.
(*) D. 50. 17. 207.
(t) D. 44. 2. 3. Pothier, ad D.
44. 1. 1. pr.
(») A judgment or sentence " is a
judicial determination of a cause
agitated between real parties ; upon
which a real interest has been settled.
In order to make a sentence, there
must be a real interest, a real argu-
ment, a real prosecution, a real
defence, a real decision. Of all these
requisites, not one takes place in the
case of a fraudulent and collusive
suit. There is no judge : but a person
invested with the ensigns of a judi-
cial office is misemployed in listening
to a fictitious cause proposed to him ;
there is no party litigating, there is
no party defendant, no real interest
brought into question." Per Wed-
derburn, S.-G., arg. in the Duchess
of Kingston's case, 20 Howell, St.
Tr. 478, 479; adopted per Lord
Brougham, Earlof Bandon\. Becker,
3 Cla. & F. 510. See Doc d. Jhintze
v. Duntze, 6 C. B. 100; Finney y.
Finney, L, R. 1 P. & D. 483 ; Con-
radi v. Conradi, Id. 514 ; 31 & 32
Vict. c. 54.
318
FUNDAMENTAL LEGAL PRINCIPLES.
and cannot canvass the same question again in another
action (x), although, perhaps, some objection or argument
might have been urged upon the first trial, which would
have led to a different judgment." In such a case, the
matter in dispute having passed in rem judicatam, the
former decision is conclusive between the parties, if either
attempts, by commencing another action, to re-open the
question (y).
When there is res judicata the original cause of action
is gone, and the object of the rule is always put upon two
grounds ; the one, public policy that there should be an
end of litigation ; the other, the hardship on the individual
that he should be twice vexed for the same cause (z).
A plea of res judicata must show either an actual
merger or that the same point has already been decided
between the same parties — that the plaintiff had an
opportunity of recovering, and but for his own fault might
have recovered in the original suit that which he seeks to
recover in the second action (a). " I apprehend," said a
learned judge in a recent case, " that if the same matter
or cause of action has already been finally adjudicated on
between the parties by a court of competent jurisdiction,
the plaintiff has lost his right to put it in suit, either
(x) Also, "The law will never
compel a person to pay a sum of
money a second time which he had
paid once under the sanction of a
court having competent jurisdiction."
Judgm., Wood v. Dunn, L. R. 2 Q.
B. 80, citing Allen v. Dundas, 3 T.
£. 125.
(y) Per Lord Kenyon, C.J., Great-
head v. Bromley, 7 T. R. 456 ;
Huffer v. Allen, 4H.&C. 634 ; S.
C., L. R. 2 Ex. 15 ; Lord Bagot v.
Williams, 3 B. & C. 235 ; Place v.
Potts, 8 Exch. 705 ; S. C. (affirmed
in error), 10 Exch. 370, 5 H. L. Gas.
388; Tommey v. White, 1 H. L.
Cas. 160 ; S. C, 8 Id. 49 ; 4 Id.
313 ; Overton v. Harvey, 9 C. B.
324, 337.
(c) Lockyer v. Ferryman, 2 App.
Cas. 519.
(a) Nelson v. Couch, 15 C. B.
N. S. 99, 108, 109, and cases there
cited.
FUNDAMENTAL LEGAL PRINCIPLES. 319
before that or any other court. The conditions for the
exclusion of jurisdiction on the ground of res judicata, are,
that the same identical matter shall have come in question
already in a court of competent jurisdiction, that the
matter shall have been controverted, and that it shall have
been finally decided (b). An illustration of this doctrine
is given in a case where the conviction of the defendant,
a driver of a carriage, under the statute 5 & 6 Wm. IV. c.
50, sec. 78, for causing hurt or damage to a person law-
fully passing along the highway, was held a bar to a sub-
sequent conviction under another statute for an unlawful
assault on the same person (o).
It should be stated that a verdict against a man suing
in one capacity will not estop him when suing in another
capacity, and in fact is a different person in law ; and
conversely, it has been held that if a widow sues a railway
company under Lord Campbell's Act for the loss sustained
by herself and her children by reason of the death of her
husband caused by the negligence of the Company, in
which action the Company denied negligence, which issue
was found by the jury in the plaintiff's favour; in a sub-
sequent action by the widow suing as administratrix to
her husband, the Company are dot estopped from again
denying negligence, since the plaintiff sued in a different
right in each action (d). Further, to constitute a prior
judgment an estoppel, the same point (but not necessarily
the only one) (e), must have been in issue ; thus, to an
(b) Per Willea, J., Langmead v. Ex. D. 67 ; 45 L. J. M. C. 73 ; 84
Maple, 18 C. B. N. S. 270. L. T. 497.
• (c) Wemyss v. Hopkins, L. R. 10 (d) Legyottv. The Great Northern
q. K 378 ; 44 L. J. M. C. 101 ; 32 R. C, 1 Q. ?>. D. 599 ; 45 L. J. Q.
L. T. 9 ; see Cutler v. Turner, L. R. B. 557 ; 35 L. T. 334.
9 Q. B. 502 ; 43 L. J. M. C. 124 ; 30 (e) 11. v. St. Pancras, Peake
L. T. 706 : Eddliston v. Barnes, 1 219.
320 FUNDAMENTAL LEGAL PRINCIPLES.
action of debt on an indenture whereby the defend-
ant covenanted to pay to the plaintiff 6001. with interest
on a certain day, the defendant pleaded by way of estoppel
that the plaintiff had impleaded him in a former action of
debt on a bond conditioned in the penal sum of 1,200/. to
pay GOO?, and interest, being the same principal sum and
interest as were secured to the plaintiff by an indenture
of even date with the bond (being the same indenture as
that sued on in the second action), in which action (the
first) the defendant pleaded a usurious agreement, and
averred that the bond was given in pursuance of the agree-
ment, which averment was found in the defendant's favour,
it was held that the plea showed no estoppel because the
existence of a usurious agreement was not directly in issue
in the former action, but only the question whether the
bond was given in pursuance of the agreement (/).
Having thus premised that a court of law will not,
except under peculiar circumstances, re-open a question
which has once been judicially decided between the
parties (g), we may remark that the maxim of the civil
law already cited — res judicata pro veritate accipitur —
is generally recognised and applied by our own (A). " The
(/) Carter v. James, 18 M. & W. man, J., Mortimer t. South Wales
187. A C., 1 E. & E. 382-8 ; Noiman r.
(g) It most be taken as a positive Anchor. Ass. Co., 6 C. B. N. S. 586 ;
rule, tbat when parties consent to Kelly v. Morray, L. R. 1 C. P. 667 ;
withdraw a juror no future action can William* v. SidmoiUJi R. and Harb.
be brought for the same cause : per Co., L R. 2 Ex. 2&4.
Pollock, C. B., Gihb* v. Ralph, 14 " The Court is always at liberty to
M. k W. 805 ; per Lord Abinger, C. look at its own records and proceed-
B.f Harriet x. Thomas, 2 M. & W. ings" (per Kelly, C. B., Craven v.
37, 38 ; Straus* v. Francis, L. R. 1 Smith, L. R. 4 Ex. 149) ; and no-
Q. B. 379 ; 35 L. J. Q. B. 133. thing can be assigned for error, in fact,
(h) See per Knight Brace, V.-C, which is inconsistent with the record
1 Y. & Coll. 588, 589 ; Preston v. (Irwin v. Grey, 19 C. B. N. S. 585).
Peeke, B. B. & £. 336 ; per Wight- As to the efficacy of a judgment of
FUNDAMENTAL LEGAL PRINCIPLES.
321
authorities," as observed by Lord Tenterden, CJ.(i),
"are clear, that a party cannot be received to aver as
error in fact a matter contrary to the record," and " a
record imports such absolute verity that no person
against whom it is admissible shall be allowed to aver
against it " (k), and this principle is invariably acted upon
by our courts (I).
The judgment of a court of concurrent jurisdiction
directly upon the point is as a plea a bar, or as evidence
conclusive between the same parties upon the same
matter directly in question in another court (m) ; like-
wise the judgment of a court of exclusive jurisdiction
coming incidentally in another court for a different pur-
pose (n).
In connection with the subject now under consideration, n<»of
" judgment
we may observe, 1st, that although a judgment recovered, covered.
if for the same cause of action, and between parties
substantially the same, will be admissible in evidence,
yet, in order to render it conclusive as an estoppel, the
facts raising the issue of estoppel must be concisely
stated (o).
the House of Lords, see A.-O. v.
Dean, d:c.t of Windsor, 8 H. L. Gas.
869; Bcamiihv. Beamish, 9 Id. 274.
The resolution of a Committee for
Privileges in favour of a claimant of
a peerage agreed to by the House and
communicated to the Crown, followed
by a writ of summons to the claimant
by the title of the dignity claimed,
establishes the right to that dignity
(at all events fsom the date of the
writ of summons), which can never
afterwards be called in question.
But a resolution of a Committee for
Privileges is in no sense a judgment,
and though admitted to be prima
facie valid and conclusive, does not
establish a precedent which future
committees are bound to follow.
WiUea Peerage, L. B.4H.L 126,
147-8.
(») Judgm., R. v. CarWe, 2 B. ft
Ad. 367.
(*) lb. ; 1 Inst. 260.
(1) Reed v. Jactoon, 1 East, 855.
{m) 20 Howell, St. Tr. 538.
(n) Judgm., King v. Norman 4
C. B. 898 ; Needham v. Brem*
L. R. 1 C. P. 588.
(o) Formerly the judgment must, if
T
322
FUNDAMENTAL LEGAL PRINCIPLES.
Toddr.
Stewart.
Judgment
conclusive
betweeu
what
parties.
In Todd v. Stewart (p), the effect of a plea of judgment
recovered for a less sum than that sued for in the action
then before the Court was much considered. That was
an action of debt on simple contract for 400Z. ; the defen-
dants pleaded as to 43£. 68. 9d. payment, and as to the
residue that plaintiffs impleaded defendants for the same
in an action on promises, and recovered 314??. 8s., as well
for their damages in the said action as for their costs.
The replication alleged that the residue of the said
causes of action, in the declaration mentioned, were not
the causes of action in respect of which the judgment was
recovered ; and on the issue thus raised the jury found
for the defendants. It was held by the Court of Ex-
chequer Chamber that the above plea was good after
verdict, and that it amounted to an ordinary plea of
judgment recovered.
2odly. We may remark, that a judgment recovered
will be admissible as evidence, not only between the same
parties, if suing in the same right (q), but likewise
between their privies, whether in blood, law, or estate (r) ;
and that a judgment will, moreover, be evidence between
those whp,# although not nominally, are really and sub-
stantially the same parties (s).
In the well-known case of King v. Hoare (t), it was
the opportunity presented itself, have
been pleaded as an estoppel : Whit-
taker v. Jackson, 2 H. & C. 926 ;
Dot v. Euddart, 2 Cr. M. & B.
316.
(p) 9 Q. B. 759, 767.
(q) Outram v. Mortwood, 3 East,
346, 365 ; Com. Dig. Estoppel (C.) ;
5 Rep. 32, b)
(r) Trevivan v. Lawrence, Salk.
276.
(*) Kinncrsley r. Copt, 2 Doogl.
517, commented on, 3 East, 366, and
recognised Simpson v. Pickering, 1
Cr. M. & R. 529 ; Strut* v. Boving-
don, 5 Esp. 56 ; Hancock v. Wdsh,
1 Stark., N. P. C. 347.
(0 13 M. & W. 494 ; Buddand r.
FUNDAMENTAL LEGAL PRINCIPLES. 323
held, that a judgment tuithout satisfaction recovered
against one of two joint debtors may be pleaded in bar
of an action against the other contracting party. Hence
the legal maxim Transit in rem judiccUam — the cause of
action is changed into matter of record, which is of a
higher nature, and the inferior remedy is merged in the
higher. This appears to be equally true where there is
but one cause of action, whether it be against a single
person or many. The judgment of a court of record
changes the nature of that cause of action, and prevents
its being the subject of another suit, and the. cause of
action being single, cannot afterwards be divided into
two." This principle was recognised, and King v. Hoare
stated to be good law in a recent case in the House of
Lords, in which the two questions were, first, whether a
partnership debt was several as well as joint ; and secondly,
whether an unsatisfied judgment recovered against two of
the three partners of a firm was a bar to an action
against the third ; the House held that a partner-
ship debt was, at least to the extent of determining the
legal position of the parties, joint and not several, and
that a judgment recovered against the two was a bar
to an action against the third (u). The rule here laid
down does not apply where the parties are severally as
well as jointly bound, and the recovery of a judgment
against one is no bar to an action against the other,
until the judgment has been satisfied (x). On the other
hand, a judgment against one of two joint wrong-doers
Johnson, 15 C. B. 145. See Holme* L. T. 418.
t. Newlands, 5 Q. B. 634 ; Florence (x) VtAry of Bermonckey v.
v. Jenings, 2 C. B. N. S. 454. Bamtey, L. R. 6 C. P. 247 ; 40
(a) Kendall v. Hamilton, 4 App. L. J. C. P. 206 ; 24 L. T. 429.
Cas. 504 ; 48 L. J. C. P. 705 ; 41
Y 2
324
FUNDAMENTAL LKGAL PRINCIPLES.
Judgment
when
conclusive.
is, without satisfaction, a bar to an action against the
other, although both may be sued separately (y).
We may observe, that a judgment recovered will be
evidence whenever the cause of action is the same(^),
although the form of the second action be different
from that of the first (a) ; and the record, when produced,
must be such as to show on its face that the cause of action
in the second case may be the same as that for which
the judgment was recovered in the former action (6).
A recovery in trover will vest the property in the chattel
sued for in the defendant, and will be a bar to an action
of trespass for the same thing (c) ; and " If two jointly
convert goods, and one of them receive the proceeds, you
cannot, after a recovery against one in trover, have an
action against the other for the same conversion, or an
action for money had and received to recover the value
of the goods, for which a judgment has already passed
in the former action n (d).
If, however, it be doubtful whether the second action
(y) BucUand v. Johnson, 15 C. B.
145 ; 23 L. J. C. P. 204 ; Brinsmead
y. Harrison, L. R. 6 C. P. 584 ; 40
L. J. C. P. 281, affirmed L. R. 7 C.
P. 547 ; 41 L J. C. P. 19 ; 27 L. T.
99.
(z) Per cur. j Williams v. Thacher,
1 R. k B. 514 ; cited, Arg. Hopkins
v. Freeman, 13 M. k W. 872 ; Guest
v. Warreny 9 Exch. 379 ; per Beards-
ley, C.J., Dunckle ▼. Wilts, 5 Denio
(IT. 8.), R. 303 ; Petter v. Beal, 1
Lord Raym. 339, 692 ; cited, Sayer
on Damages, 89.
(a) See,, per Bailer, J., Poster y.
Allanson, 2 T. R. 483; Pease v.
Chaytor, 32 L. J. M. C. 121. Bona
fides non patitur ut bis idem exigatur;
D. 50. 17. 57.
(ft) Per Crompton, J., Wadsworth
▼. Bentiey, 28 L. J. Q. B. 8 ; Bi-
cardo v. Garcia*, 12 CI. k P. 368,
387.
(c) Per Lord Hardwicke, C. J.f
Smith v. Gibson, Gas. temp. Hardw.
319 ; Bucldand v. Johnson, 15 C. B.
145 ; Moor v. Watts, 1 Lord Raym.
614.
(rf) Per Jerris, C. J., 15 C. B.
161 ; citing, Cooper t. Shepherd, 3
C. B. 266 ; Adams v. Broughton,
Andr. 18; Jenk. Cent. 4th cent,
cas. 88.
FUNDAMENTAL LEGAL PRINCIPLES. 325
is brought pro eddem causd, it is a proper test to con-
sider whether the same evidence would sustain both
actions (e), and what was the particular point or matter
determined in the former action ; for a judgment in each
species of action is final only for its own purpose and
object, and quoad the subject-matter adjudicated upon,
and no further; for instance, a judgment for the plaintiff
in trespass affirms a right of possession to be, as between
the plaintiff and defendant, in the plaintiff at the time of
the trespass committed, but, in a subsequent ejectment
between the same parties, would not be conclusive with
respect to the general right of property in the locus in
quo (/). Where, in an action for the stipulated price of a
specific chattel, the defendant pleaded payment into
court of a sum, which the plaintiffs took out in satisfac-
tion of the cause of action : it was held, that the defen-
dants in that action was not thereby estopped from suing
the plaintiffs for negligence in the construction of the
chattel (g)
Not merely is it true, moreover, that the facts actually
decided by an issue in any suit cannot be again litigated
between the same parties, and are evidence between
them, and that conclusive, for the purpose of terminating
litigation ; but so likewise are the material facts alleged
by one party, which are directly admitted by the opposite
party, or indirectly admitted by taking a traverse on
some other facts, provided that the traverse thus taken be
(e) See Hadley y. Green, 2 Tyrw. Stewart, 31 L. J., Chanc, 346, 360.
390 ; Wiat v. EuingUm, 2 Lord (/) See Judgm., 3 East, 357.
Baym. 1410 ; Clegy v. Dearden, 12 ($r) Bigge v. Burbidge, 15 M. &
Q. 8. 576 ; (with which compare W. 598 ; recognising Mondel v. Steele,
Smith ▼. Kenrick, 7 C. B. 515) ; 8 M. & W. 858.
per Lord Westbnry, C, Hunter v.
326
FUNDAMENTAL LEGAL PRINCIPLES.
Award
effect of
as merging
original
cause of
action.
Ejectment.
found against the party making it (h). " The statements,"
however, " of a party in a declaration or plea, though for
the purposes of the cause he is bound by those that are
material, and the evidence must be confined to them upon
an issue, ought not, it should seem, to be treated as con-
fessions of the truth of the facts stated " (i).
An award does not in all cases operate as a merger of
the original claim referred ; if the claim is for a debt and
the reference is merely whether the debt iB well founded
and to what amount, the award of a certain amount due in
respect of the debt leaves that amount due in respect of
the original claim, and is no discharge without payment
or satisfaction (k) ; but the person in whose favour the
award is made is precluded from suing in respect of the
original claim for a larger' sum than that awarded (7) ; but
if the claim is for general damage caused by a breach of
contract or for not delivering goods, or if the award create
a new duty instead of that which was in controversy, as,
for example, if the demand be for a debt, and the award
direct payment in a collateral way, the original claim is
merged in the award, and bars the party in whose favour
it is made from suing on the original claim, provided
the award be enforceable by him (m).
With respect to the action of ejectment, we may
remark, that by the judgment therein the plaintiff
(/*) Boileau v. Jtutiin, 2 Exch.
665, 681 ; recognised, per Parke, B.,
Biwkmaster v. Metidejokn, 8 Exch.
687. See Carter v. Jama, 13 M. &
W. 137, and the remark upon that
case, per Pollock, C.B., HuU v. Mvr*
rett, 3 Exch. 241.
(»') Judgm., Boileau r, RuUin,
supra.
(*) Allen v. MUner, 2 C. & J. 47.
(I) Com/mint v. Heard, L, R.4
Q. B. 669 ; 20 L. T. 975 ; 18 W. R.
16.
(m) Crofts v. Harris, Carth. 187 ;
Gascoyne y. Edward*, 1 Y. Sc J. 19 ;
Bates v. Totcnley, 2 Ex. 157, per
Parke, B. ; Parkes v. Smith, 15 Q.
B. 297.
FUNDAMENTAL LEGAL PRINCIPLES.
327
obtains possession of the lands recovered by the verdict,
but does not acquire any title thereto, except such as he
previously had; if, therefore, he had previously a free-
hold interest in them, he is in as a freeholder ; if he had
a .chattel interest, he is in as a termor ; and if he had no
title at all, he is in as a trespasser, and will be liable to
account for the profits to the legal owner (n). Moreover,
although a judgment in ejectment is admissible in evi-
dence in another ejectment between the same parties (o),
yet it is not conclusive evidence, because a party may
have a title to possession of land at one time, and not
at another; nor could a judgment be pleaded in ejectment
by way of estoppel, for the issue was made up in this action
without pleadings ; and hence there is a remarkable differ-
ence between ejectment and other actions with regard to
the application of the maxim under consideration ( p). The
courts of common law have, however, sometimes interfered
to stay proceedings in ejectment, either in order to com-
pel payment of the costs in a former action (q), or where
such proceedings were manifestly vexatious and oppres-
sive (r).
The order of a County Court judge under the statute
(n) Per Lord Mansfield, G. J.,
Taylor d. Atkyns v. Horde, 1 Burr.
114.
(o) Doe d. Strode ▼. Seaton, 2 Cr.
M. k R. 728.
(p) For form of pleadings in ac-
tions for recovery of land, see Rules
S. C. 1883 (App.) C. sect. vii.
(q) Doe d. Brayne r. Bather, 12
Q. B. 941 ; Morgan v. NichoU, 3
H. & N. 215. See Promt v. Lox-
dale, 32 L. J., Q. B., 227 ; Eoare
v. Dickson, 7 C. B. 164 ; Stead v.
Williams, 5 C. B. 528 ; Stilwell ▼.
Clarice, 3 Excb. 264 ; Danvers v.
Morgan, 17 0. B. 530.
(r) SeeCobbettv. Warner, L. R.
2 Q. B. 108 ; Doe d. PuUney ▼.
Freeman, cited 2 Sellon, Pract., 144;
Doe d. Henry v. Oustard, 5 Scott,
N. R. 818 ; Thrustout d. Park v.
Troublesome, Audi. 297, recognised
Haigh v. Paris, 16 M. & W. 144.
328
FUNDAMENTAL LEGAL PRINCIPLES.
Judgment
may be
impeached
in certain
cases.
19 & 20 Vict. c. 101, sec. 60, is not conclusive evidence of
title in a subsequent action against such person for mesne
profits ; and such order would not seem conclusive against
him even as to the right to possession (s). But although
the judgment of a court of competent jurisdiction upon
the same matter will, in general, be conclusive between
the same parties, such a judgment may nevertheless be
set aside on the ground of mistake (t), or may be im-
peached on the ground of fraud (u). The rule nemo bis
veocari potest pro eddem causd has no application where
the first proceedings were collusive and practically for the
protection of the defendant ; thus, where the defendants
having incurred penalties for keeping open the Brighton
Aquarium procured a man of the name of Rolfe to sue
them for the penalties which it was agreed should not be
enforced, and subsequently they were sued by one
Girdlestone for the same penalties, the judgment in the
first action was held no bar to the later action, the former
having been obtained under circumstances which amounted
to covin and collusion (x).
We have in the preceding .remarks endeavoured to
point out the most direct application in civil proceedings
of the rule that a man shall not be bis vexatus, which rule
is in fact included in the general maxim — Interest rei-
publicce ut sit finis litium. To the same maxim may
Loader, 3 H. & C.
Waiter, L. R. 7
Ex. 51 ; 25 L. T.
{s) Campbell v.
520 ; Hodton v.
Ex. 55 ; 41 L. J.,
937.
(t) Cannon v. Reynold*, 5 E. &
B. 301.
(u) " It may be
judgment has been
or is contrary to
conceded that if a
obtained by fraud,
natural justice, it
may be impeached in a collateral pro-
ceeding;" per Byles, J., Wildes y.
Russell, L. R. 1 C. P. 745.
(x) Girdlestone t. The Brighton
Aquarium, 3 Ex. D. 137 ; 4 Ex. D.
107 ; 48 L. J., Ex. 373 ; 40 L. T.
473, C. A. But see the judgment of
Brett, L. J., in the Court of Appeal.
FUNDAMENTAL LEGAL PRINCIPLEa 329
likewise be referred the principle of the limitation of *
actions, which we shall treat of hereafter (y) ; the right of
set-off and counter-claim given by the Judicature Acts ;
and the rule which forbids circuity in legal proceedings —
circuitus est evitandus (z), in accordance with which a circuity to
v /f be avoided.
court of law will endeavour to prevent circuity and
multiplicity of suits, where the circumstances of the litigant
parties are such that, on changing their relative positions
of plaintiff and defendant, the recovery by each would be
equal in amount (a).
The principle of law that the right to bring a personal
action once existing, and by act of the party suspended for
ever so short a time, is extinguished and discharged, and
can never revive is very old and well established (b).
It is usually applied where persons have by their own
acts placed themselves in circumstances incompatible with
the application of the ordinary legal remedies (c) ; but this
principle applies only to the case where there has been
once a subsisting right of action, and not to a case where
the objection is that if it had accrued earlier it could not
have been enforced from the fact of the same person being
the party to sue and be sued (d).
Where many actions are oppressively and vexatiously
brought by the same plaintiff, for the purpose of trying
the same question, the Court or a judge will in general
interfere, either by staying the proceedings or giving
(y) See maxim, Vf^t&znl&tw et non C. 758; per Parke, B., Penny v.
dormicntibue jura subveniunt : post, lnnet, 1 Cr., M. & R. 442; Arg.
Chap. IX. Hall v. Bainbridge, 5 Q. B. 242 ;
(z) 5 Rep. 31 ; Co. Litt, 848, a ; Simpson v. Swan, 3 Camp. 291.
2 Saund. R. 150. See Wilders v. (6) Judgm., 11 Q. B. 870.
Stevens, 15 K. & W. 208 ; MUner v. (c) Jenk. Cent 256.
Field, 5 Rxch. 829. {d) Baddy r. Vigurs, 4 E. & B.
(a) See Carr y. Stephens, 9 B. & 71 j 23 L. J. Q. B. 377.
330
FUNDAMENTAL LEGAL PRINCIPLES.
Application
in criminal
law.
time to plead in all the actions but one upon
terms (e).
An important application of the general principle now
under notice occurs in criminal law, for there it is a well-
established rule, that when a man has once been indicted
for an offence, and acquitted, he cannot afterwards be
indicted for the same offence, provided the first indict-
ment were such that he could have been lawfully con-
victed upon it by proof of the facts contained in the
second indictment ; and if he be thus indicted a second
time he may plead autrefois acquit, and it will be a good
bar to the indictment (/) ; and this plea is clearly founded
on the principle, that no man shall be placed in peril
of legal penalties more than once upon the same accusa-
tion — nemo debet bis puniri pro uno delicto (g).
Which great fundamental maxim of our criminal law
means that " a man shall not twice be put in peril after
a verdict has been returned by the jury ; that verdict
(e) Chitty's Arch. Pr., 13th ed.,
1105. See Frith v. Gnppy, L. R. 2
C. P. 32 ; Sturges v. Lord Ourzon, 1
H. & N. ] 7 ; and Cannot v. Morgan,
1 Ch. Div. 1 ; 45 L. J. Ch. 50, C. A.
In the case of a bill of exchange
every party to the instrument may be
sued at the same time by the holder,
for, by the custom of merchants,
every such party is separately liable ;
per Pollock, C. B., 3 H. k C. 981.
See Woodward v. PeU, L. R. 4 Q. B.
55.
Where the master of a ship signs a
bill of lading in his own name and is
sued upon it, and judgment is ob-
tained against him, though not satis-
fied, the owner of the ship cannot be
sued upon the same bill of lading;
Priestly v. Fernie, 3 H. & C. 977.
(/) Beg. v. Bird, 2 Den. C. C. 94,
198-200, 214 ; Reg. v. Knight, L. k
0. 378 ; R v. Fandercomb, 2 East,
P. C. 519 ; cited, per Gurney, B.,
R. v. Mrehenoughj 1 Moo., Or. Cas.,
479. See Reg. v. Button, 11 Q. B.
929 ; Reg. v. Machen, 14 Q. B. 74 ;
Reg. v. Gaunt, L. R. 2 Q. B. 466 ;
Reg. x. Moah, Dearsl. 626. As to
the meaning of the words "convic-
tion " and "acquittal," see per Tin-
dal, C.J., Burgas v. Boetefeur, 8
Scott, N. R., 211, 212 ; Re Newton,
13 Q. B. 716.
{jg) 4 Rep. 40, 43 ; per Pollock,
C.B., Re Baker, 2 H. & N. 248.
FUNDAMENTAL LEGAL PRINCIPLES. 331
being given on a good indictment, and one on which the
prisoner could be legally convicted and sentenced. It
does not, however, follow, if from any particular circum-
stance a trial has proved abortive, that then the case shall
not be again submitted to the consideration of a jury, and
determined as right and justice may require " (h).
Thus an acquittal upon an indictment for murder may
be pleaded in bar of another indictment for manslaughter ;
and an acquittal upon an indictment for burglary and
larceny may be pleaded to an indictment for the larceny
of the same goods ; because in either of these cases the
prisoner might, on the former trial, have been convicted
of the offence charged against him in the second indict-
ment (i) ; the true test by which to decide whether a plea
of autrefois acquit is a sufficient bar in any particular
case being — whether the evidence necessary to support
the second indictment would have been sufficient to pro-
cure a legal conviction upon the first.
On the principle that " a man should not twice be put
in jeopardy for one and the same offence/' a plea of
autrefois convict will operate to bar a second indictment,
unless the judgment on the former has been reversed for
error (&). It may, however, be laid down generally, that
where, " by reason of some defect in the record, either in
the indictment, place of trial, process, or the like, the
prisoner was not lawfully liable to suffer judgment for
the offence charged on that proceeding," he cannot, after
reversal of the judgment, properly be said to have been
(A) Per Cockbura, C.J., Winm 111.
t. Reg.f LR.1Q, B. 311, S. C, (*) Reg. v. Drury, 18 L. J., M.
affirmed in error, Id. 390. C, 189. See Reg, v. Morrisy L. R.
(•) 2 Hale, P. 0.9 246. See also, 1 C. 0. 90.
Hdsham v. Blackwood, 11 C. B.
332
FUNDAMENTAL LEGAL PRINCIPLES.
Rule, how
qualified*
" in jeopardy " within the meaning of the maxim under
consideration (I). So where, on a trial for misdemeanor,
the jury are improperly, and against the will of the
defendant, discharged from giving a verdict after the trial
has begun, this is not equivalent to an acquittal (m).
The decision of Quarter Sessions quashing an order of
affiliation on the ground of the insufficiency of the corro-
borative evidence is final and a bar to any fresh summons
taken out by the mother (n).
The general rule, which obtains as well in purely civil
as in criminal cases, being that " a man shall not be twice
vexed in respect of the same matter," is subject to excep-
tions. For instance, — a man may at common law be
compelled to make reparation in damages to the injured
party, and be liable also to punishment for a breach of
the public peace in consequence of the same act (o), and
may thus be said in common parlance to be twice
punished for the same offence (p). So it has been held
that a conviction for an assault by justices at petty
sessions, at the instance of the person assaulted, and
(l) Per Coleridge, J., Reg. v.
Drury, 18 L. J. M. C. 189 ; Reg. v.
Green, Dearel. k B. 113. See also
Lord Denman'8 judgment, (XConnelZ
▼. Reg., by Mr. Leahy, pp. 19e£ seq.,
and p. 44 ; Reg. v. Gompertz, 9 Q.
B. , 824, 839.
(m) Reg. v. Charlesworth, 1 B. k
S. 460 ; et vide per Cockburo, C. J.,
Id. 507, as to the maxim, supra.
(n) R. v. Glynnc, L. R. 7 Q. B. 16 ;
41 L. J.,M. C. 58; 26 L. T. 61.
(o) See stat. 25 k 26 Vict c. 88,
ss. 11, 22.
(/>) Per Grier, J., 14 Howard (U.
S.), R. 20. See stat 24 k 25 Vict
c. 100, ss. 44, 45 (as to which see
Hartley v. Hindmarsh, L. R. 10.
P. 553 ; Reg. v. Elrington, 1 B. & 8.
688 ; Hancock v. Somes, 1 B. k B.
795 : Cottar v. ffetherington, Id.
802) ; Justice v. Gosling, 12 C. B.
39 ; R. y. MaJwn, 4 A. k E. 575 ;
Anon., Id. 576, n.
In Scott t. Lord Seymour, 1 H. k
C. 219, an action was held maintain-
able here by a British subject against
another British subject for an assault
committed at Naples, although pro-
ceedings for the same assault were
pending in a Neapolitan court See
Cox v. Mitchell, 7 C. B. N. S. 55 :
Phillips v. Eyre, L. R. 4 Q. B. 225.
FUNDAMENTAL LEGAL PRINCIPLES. 333
imprisonment consequent thereon, do not bar an indict-
ment for manslaughter against the defendant, should the
person assaulted afterwards die from the effects of the
assault, for " the form and the intention of the common
law pleas of autrefois convict and autrefois cucquit show
that they apply only where there has been a former
judicial decision on the same accusation in substance,
and where the question in dispute has been already
decided " (q). If there be a continuing breach by a
workman of a contract to serve his master, the servant
may, under the stat. 4 Geo. 4, c. 34, s. 8, be convicted
more than once of the offence thereby constituted (r).
{q) Reg. v. Morris, L R, 1 C. C. B. 417. See also Alien r. Worthy,
90, 94. L. R. 5 Q. B. 163 ; Ex parte Short,
(r) Unwin t. Clarice, L. R. 1 Q. Id. 174.
334
CHAPTER VI.
ACQUISITION, ENJOYMENT, AND TRANSFER OF PROPERTY.
In the present chapter are contained three sections,
which treat respectively of the acquisition, enjoyment,
and transfer of property. In connection with the first-
meDtioned of these subjects, one maxim only has been
considered, which sets forth the general principle, that
title is acquired by priority of occupation ; a principle so
extensively applicable, and embracing so wide a field of
inquiry, that the following pages will be found to present
to the reader little more than a mere outline of a course
of investigation, which, if pursued in detail, would prove
alike interesting and instructive. It is, indeed, only
proper to observe in limine, — since, from the titles which
have been selected with a view to showing clearly the
mode of treatment adopted, much more might reasonably
be expected in the. ensuing pages than has been at-
tempted,— that a succinct statement of the more impor-
tant only of the rights, liabilities, and incidents annexed
to property has here been offered ; so that a perusal of
the contents of this chapter may prove serviceable in
recalling the attention of the practitioner to the applica-
tion and illustration of principles with which he must
necessarily have been previously familiar ; and may, with-
out wearying his attention, direct the student to sources
of information whence may be derived more copious and
accurate supplies of knowledge.
THE MODE OF ACQUIRING PROPERTY. 335
§ I. — THE MODE OF ACQUIRING PROPERTY.
Qui prior est Tempore potior est Jure. (Co. Lift.
14 a.) — He has the better title who was first in point
of time.
The title of the finder to unappropriated land or ™J^of
chattels must evidently depend either upon the law of 0ccuP*tton-
nature, upon international law, or upon the laws of that
particular community to which he belongs. According
to the law of nature, there can be no doubt that priority
of occupancy alone constitutes a valid title, qtuxl nxdlius
est id raiione naturali occupanti coneeditur (a) ; but
this rule has been so much restricted by the advance of
civilization, by international laws, and by the civil arid
exclusive ordinances of each separate state, that it has
comparatively little practical application at the present
day. It is, indeed, true, that an unappropiated tract of
land, or a desert island, may legitimately be seized and
reduced into possession by the first occupant, and, con-
sequently, that the title to colonial possessions may, and
in some cases does, in fact, depend upon priority of occu-
pation. But within the limits of this country, and
between subjects, it is apprehended that the maxim which
we here propose to consider, has no longer any direct
application as regards the acquisition of title to realty by
entry and occupation. It is, moreover, a general rule, that
whenever the owner or person actually seised of land dies
(a) D. 41. 1. 3 ; I. 2. 1. 12.
33C
THE MODE OF ACQUIRING PROPERTY.
intestate and without heir, the law vests the ownership of
such land either in the Crown (b), or in the subordinate
lord of the fee by escheat (c) ; and this is in accordance
with the spirit of the ancient feudal doctrine expressed in
the maxim, Quod nvllius est, est domini regis (d).
On the maxim, Trior tempore, potior jure, may depend,
however, the right of property in treasure trove, in wreck,
derelicts (e), waifs, and estrays, which, being bona
vacantia, belong by the law of nature to the first occu-
pant or finder, but which have, in some cases, been
annexed to the supreme power by the positive laws of
the state (/). " There are," moreover, " some few things
which, notwithstanding the general introduction and
continuance of property, must still unavoidably remain
in common ; being such that nothing but an usufructuary
property is capable of being had in them ; and therefore
they still belong to the first occupant during the time he
holds possession of them, and no longer. Such (among
others) are the elements of light, air, and water, which a
man may occupy by means of his windows, his gardens,
his mills, and other conveniences. Such, also, are the
generality of those animals which are said to be ferw
naturce, or of a wild and untameable disposition (g) :
(6) So, " there is no doubt that, by
the law of the land the Crown is en-
titled to the undisposed-of perianal
estate of any person who happens to
die without next of kin : " 14 Sim.
18 ; Robson v. A.-G., 10 CI. & Pin.
497 ; Dyke v. Walford, 5 Moore,
P. C. C. 434.
(<?) 2 Com. by Broom & Hadley,
394.
(d) Plata, lib. 3 ; Bac. Abr., " Pre-
rogative " (B).
(e) Goods are "'derelict' which
have been voluntarily abandoned and
given up as worthless, the mind of
the owner being alive to the circum-
stances at the time ; " per Tindal, C.
J., J*ggt v. Boyd, 1 C. B. 112.
(/) The reader is referred for in*
formation on these subjects to 2
Com. by Broom & Hadley, Chap.
XXVI.
(g) See Rigg v. Earl of Lonxtale,
1 H. & N. 923 ; S. C, 11 Bzch. 654;
THE MODE OF ACQUIRING PROPERTY.
337
which any man may seize upon, and keep for his own
use or pleasure. All these things, so long as they remain
in possession, every man has a right to enjoy without dis-
turbance ; but, if once they escape from his custody or
he voluntarily abandons the use of them, they return to
the common stock, and any man else has an equal right
to seize and enjoy them afterwards " (h).
So, the finder of a chattel lying apparently without an
owner may, by virtue of the maxim under notice, acquire
a special property therein (i).
As against a wrong-doer, mere right to possession con- valid title
against a
stitutes a valid title, and the former cannot set up the wrons
* doer.
jus tertii against one whose claim to the goods in ques-
tion rests on possession and nothing more (£).
In accordance with the maxim Qui pi%ior est tempore,
potior est jure, the rule in descents is, that amongst males
of equal degree the eldest shall inherit land in preference
to the others, unless, indeed, there is a particular custom
to the contrary ; as in the case of gavelkind, by which
followed in Blades v. Higgs, 1 2 C. B.
N. S. 501 ; Morgan v. Earl of Aber-
gavenny, 8 C. B. 768 ; Ford v. Tynte,
31 L. J., Chanc, 177 ; Hannam v.
Mockett, 2 B. & C. 934 ; Ibottson v.
Peat, 3 H. & C. 644.
(h) 2 Com. by Broom & Hadley,
12; Wood, Civ. L., 3rd ed., 82;
Holden v. Smallbrooke, Vaugh. 187.
See Acton v. BlundtU, 12 M. k W.
324, 333 ; Judgm., Embrey v, Owen,
6 Exch. 369, 372 ; Chasemore v.
JRichards, 2 H. & N. 168 ; S. C. 7
H. L. Cas. 349.
(t) Armory v. Delamirie, 1 Stra.
504 (cited, White v. MuUett, 6 Exch.
7 ; and distinguished in Buckley v.
Gross, 3 B. k S. 564) ; Bridges v.
Bavfkesworih, 21 L. J., Q. B., 75.
See also Waller v. Drakeford, 1 E.
6 B. 749 ; Mortimer r. Cradoch
(C. P.), 7 Jut. 45; Merry v. Green,
7 M. k W. 628.
"There is no authority," however,
" nor sound reason for saying that
the goods of several persons which are
accidentally mixed together thereby
absolutely cease to be the property of
their several owners, and become
bona vacantia." Judgm., Spence v.
Union Marine Ins. Co., L. R. 3 0.
P. 438 ; ante, p. 279.
(k) Jeffries v. Great Western R.
Co., 5 Ell. k Bl. 806,
338
THE MODE OF ACQUIRING PROPERTY.
Real pro-
perty— con-
flicting
right*.
land descends to all the males of equal degree together;
or borough English, according to which the youngest son
and not the eldest, succeeds on the death of his father,
or burgage tenure, which prevails in certain towns, and is
characterised by specicial customs (I). Where A. had three
sons, B., C, and D., and D., the youngest, died, leaving a
daughter, E., and then A. purchased lands in borough
English, and died, it was held, in accordance with the
custom, that the lands should go to E. (m). The right of
primogeniture above-mentioned does not, however, exist
amongst females, and, therefore, if a person dies possessed
of land, leaving daughters only, they will take jointly as
co-parceners (n).
So, where there are conflicting rights as to real pro-
perty, courts of equity will inquire, not which party was
first in possession, but under what instrument he was in
possession, and when his right is dated in point of time ;
or, if there be no instrument, they will ask when did the right
arise^-who had the prior right (o) ? It forms, moreover,
the general rule between encumbrancers and purchasers,
that he whose assignment of an equitable interest in a
fund is first in order of time, has, by virtue of that circum-
stance alone, the better right to call for the possession of
the fund (p). This rule prevails amongst mortgagees, who
(l) 2 Com. by Broom & Hadley,
168, 170, 383. See Muggldon v.
Barnctt, 1 H. & N. 282 ; S. C, 2 Id.
653.
(w) Clements v. Scudamore, 2 Ld.
Raym. 1024.
(n) 2 Com. by Broom & Hadley,
856, 385. In Godfrey v. Bulloch, 1
Roll. 623, n. (3) ; cited 2 Ld. Raym.
1027 ; the custom was, that, in de-
fault of issue male the eldest daughter
should have the land.
(o) Argument of Sir E. Sugden in
Ckoknonddey v. Clinton, 2 Meriv.
239 ; Scott v. Scott, 4 H. L. Gas.
1065, 1082.
(p) "Grantees and incumbrancers
claiming in equity take and are ranked
according to the dates of their securi-
ties, and the maxim applies Qvi prior
est tempore, potior est in jure. The
first grantee is potior, that is poten-
THE MODE OF ACQUIRING PROPERTY.
839
are considered purchasers pro tanto ; and where, there-
fore, of three mortgages, the first is brought in by the
owner of the third, such third mortgagee thereby acquires
the legal title, and, having thus got the law on his side,
with equal equity will be permitted to tack the first and
third mortgages together to the exclusion of the second (q),
provided that at the time the third mortgagee took his
mortgage he hid no notice of the mesne incumbrance.
Thus the priority of equitable titles may be changed by
the diligence of one of the claimants in obtaining the legal
estate to himself, or to a trustee, for the protection of his
equitable interest (r).
It will, however, be borne in mind that the doctrine of
tacking only applies where the legal has been annexed
to the equitable estate in the manner above indicated;
where, therefore, the legal estate is outstanding, the
several incumbrancers will be paid off according to their
actual priority in point of time, and in strict accordance
with the maxim, Prior tempore, potior jure («). Indeed,
it may be laid down as a general rule that, as between
mere equitable claims, equity will give no preference, and
tior. He has a better and superior,
because a prior equity ; " per Lord
Westbury, C, Phillip* t. PhiUips,
31 L. J., Chanc., 325.
(q) An experimental statute was
passed by which protection and
priority by legal estates and tacking
were not to be allowed in the future,
see 37 & 38 Vict. c. 78, s. 7 ; but
this statute was repealed by 38 & 39
Vict. c. 87, s. 129. WiUougftby v.
WUloughby, 1 T. R. 773, 774;
Robinson v. Davison, 1 Bro. C. C,
5th ed., 61 ; Brace v. Duchess of
Marlborough, 2 P. Wms. 491; 1 My.
& E. 297 ; 2 Sim. 257. See Hop-
hinson v. Holt, 9 H. L. Cas. 514.
"The doctrine of tacking is founded
on an application of the equitable
maxims — that he who seeks equity
shall do equity to the person from
whom he requires it — and where equi-
ties are equal the law shaU prevail."
SeeCoote Mort., 4th ed., 828.
(r) 3 Prest. Abs., Tit. 274, 275.
(«) Brace v. Duchess of Marl-
borough, 2 P. Wms. 491, 495 ; cited,
per Lord Hardwicke, C. , Willoughby
v. Willoughby, 1 T. R. 773.
z 2
S40
THE MODE OF ACQUIRING PROPERTY.
Bottomry
bondtf.
Mortgagee
and tenant.
mortgages, judgments, statutes, and recognizances will be
alik^ payable, according to their respective priority of
date (f). We may add, also, that a prior lien gives a
prior claim, which is entitled to prior satisfaction out of
the fund upon which it attaches, unless such lien either
be intrinsically defective, or be displaced by some act of
the party holding it, which may operate in a court of law
or equity to postpone his right to that of a subsequent
claimant (u). This doctrine (of tacking) applies equally
to personal as to real property (x).
Bottomry bonds form an exception to the rule. If
bonds are given at different periods of the voyage, and the
value of the ship is insufficient to discharge them all, the
last in point of date is entitled to priority of payment
over the next of an earlier creation, because the last loan
has furnished the means of preserving the ship, and with-
out it the former lenders would have entirely lost their
security (y).
A mortgagee may, subject to the statute 44 & 45
Vic, c. 41. s. 18, recover in ejectment, without pre-
viously giving notice to quit, against a tenant who claims
under a lease from the mortgagor, granted after the
mortgage, and without the privity of the mortgagee ; for
the tenant stands exactly in the place of the mortgagor,
and the possession of the mortgagor cannot be considered
as holding out a false appearance, since it is of the very
nature of the transaction that the mortgagor should con-
tinue in possession ; and whenever one of two innocent
parties must be a loser, then the rule applies, Qui prior est
tempore, potior est jure. If, in the instance just given,
(t) Coote, Mortg., 4th ed., 822-3.
(u) See Judgm. , Rankin v. Scott,
12 Wheat. (U. S.)> R. 179.
(x) Coote on Mortgages, 4th ed.,
814.
(y) Abbott on Shipping, 12th ed.,
117.
THE MODE OF ACQUIRING PROPERTY. 341
6ne party must suffer, it is he who has not used due
diligence in looking into the title (z).
The maxim has also been recognised by statute in Maxim
4 & J applied to
determining the priorities of the holders of two or more ™{]fa°fd
bills of sale given in respect of the same goods. Thus, J5SJS7
under the provisions of the statutes relating to bills of
sale it has been held (a) that a registered bill of sale takes
precedence over an antecedent, but unregistered bill of
Sale given in respect of the same goods, and that too in cases
where the grantee of the unregistered bill of sale has seized
and is in possession ; registration of a bill of sale being a
necessary antecedent step to making a perfect title to the
goods contained in it. Delivery orders, not operating of
themselves to pas3 the property in the goods they
represent, and requiring, in order to perfect the holder's
title, to be lodged with the wharfinger at whose wharf or
warehouse the goods are deposited, who must by some act
recognise the title of the holder to them (known as an
attornment), likewise illustrate the maxim. The following
case bears upon the subject under consideration. D.
purchased goods of C. & Co. as agent for his undisclosed
principals B. & Co., and thereby became liable for their
price to C. & Co. A delivery order for the goods deliver-
able to the order of D. being signed by C. & Co., was
endorsed by D. to B. & Co., who subsequently endorsed
the same to the plaintiffs as security for an advance. The
plaintiffs sent this order to the defendants, the warehouse-
(z) Kcech v. Hall, Dougl. 21. See L. C, and Note thereto ; Hickman v.
Judgm., Dearie t. Sail, 3 Rubs. R. Machin, 4 H. &N. 716, 722, and Bee
20. As to the relation of mortgagor 44 k 45 Vic. c. 44, s. 18.
and mortgagee, see, further, Judgm. , (a) Conelly v. Steer, 50 L. J. Q.
Trent v. Hunt, 9 Exeh. 21, 22 ; fol* B. Dir. 326 ; Lyons v. Tucker, 7 Q.
lowed in SneU v. Finch, 13 C. B. N. B. Dir. 523 ; 50 L. J. Q. B. Dir.
S. 651 ; Moss v. GaUimore, 1 Smith, 661.
342 THE MODE OF ACQUIRING PROPERTY.
men of the goods, with a written memorandum that the
defendants were to hold the goods to the plaintiffs' order.
One hour before the plaintiffs' order was received at the
defendants proper office, D., who had paid C. & Co. for
the goods in consequence of B. & Co. having failed, and
who was therefore in the position of an unpaid vendor,
presented another delivery order signed by C. <fc Co. at
the proper office of the defendants, who made out a dock
warrant for the goods in the name of C. & Co., which was
endorsed to D. It was held, in an action by the plaintiffs
against the warehousemen for non-delivery of the goods
to them, that the title to the goods was in D.(6).
priority of We may further observe, that the respective rights of
execution. ...
execution creditors tnter se (c), must often bo determined
by applying the maxim as to priority under consideration.
For instance, where two writs of execution against the
same person are delivered to the sheriff, he is bound to
execute that writ first which was first delivered to
him (d) ; unless, indeed, the first writ or the possession
held under it were fraudulent, in which case the latter
shall have priority ; and where goods seized under &fi.fa.
founded on a judgment fraudulent against creditors remain
in the sheriff's hands, or are capable of being seized by
him, he ought to sell, or seize and sell, such goods under
a subsequent writ of fi. fa. founded on a bond fide
debt (e). Where, moreover, a party is in possession of
(6) Imperial Bank t. London and Jones v. AtherUm, 7 Taunt. 56 ; 29
St. Katherine's Docks Co., 5 Ch. Car. 2, c. 8, 8. 16. See Aldred v.
Dir. 195. Constable, 6 Q. B. 870.
(c) See Anderson v. Radcliffe, E. (f) Christopherson v. Burton, 8
B. & K. 806. Exch. 160 ; ShaUock v. Carden, 6
{d) Per Aahhurst, J., Hutchinson Exch. 725 ; Imray v. Magnay, 11
v. Johnston, 1 T. R. 181 ; Judgm., M. & W. 267 ; Drewe t. Lainstm,
Drtwe v. Lainson, 11 A. & E. 587 ; 11 A. & E. 529.
THE MODE OF ACQUIRING PROPERTY. 34$
goods apparently the property of a debtor, the sheriff who
has afifa. to execute is bound to inquire whether the
party in possession is so bond fide t and, if he find that the
possession is held under a fraudulent or an unregistered (/)
bill of sale, he is bound to treat it as null and void, and
levy under the writ (g).
By the stat. 19 & 20 Vict. c. 97, s. 1, " no writ of fieri
fnda8 or other writ of execution, and no writ of attach-
ment against the goods of a debtor, shall prejudice the
title to such goods acquired by any person band fide and
for a valuable consideration before the actual seizure or
attachment thereof by virtue of such writ ; " provided such
person had not, at the time when he acquired such title,
notice that such or any other writ of execution or attach-
ment had been delivered to and remained unexecuted in
the hands of the sheriff (h).
We may, in the next place, observe, that the law rela- Patents.
tive to patents and to copyright is altogether referable
to the above maxim as to priority. With respect to
patents, the general rule is, that the orignal inventor of
a machine, who has first brought his invention into
actual use, is entitled to priority as patentee, and that
consequently a subsequent original inventor will be unable
to avail himself of his invention ; and this is evidently in
accordance with the strict rule, qui prior est tempore,
potioi* est jure (i). If, therefore, several persons simul-
taneously discover the same thing, the party first commu-
nicating it to the public under the protection of the patent
(/) See Ridiardt v. Jamct, L. R. jrited, Arg. 12 M. & W. 664.
2 Q. B. 285. (h) See per Mellor, J., Hobton v.
ig) Lovick v. Crowder, 8 B. & C. ThtUuwn, L. R. 2 Q. B. 651.
1«5, 187 5 WarmaUr. Young, 5 B. (i) See 3 Wheaton (U. S.), R.
& 6. 660, 666. See, also, the cases App. 24.
344
THE MODE OF ACQUIRING PROPERTY.
becomes the legal inventor, and is entitled to the benefit
ofitO').
A person, however, to be entitled to a patent for an
invention must be the first and true inventor (]c)\ so
that, if there be any public user thereof by himself or
others prior to the granting of the patent (I), or if the
invention has been previously made public in this country
by a description contained in a work, whether written or
printed, which has been publicly circulated, one who after-
wards takes out a patent for it will not be considered
as the true and first inventor within the meaning of the
stat 21 Jac. 1, c. 3, even though, in the latter case, he
has not borrowed his invention from such publication (m).
But a communication from abroad of a manufacture
openly published there, which may be the subject of a
patent in this country, and an importer of an invention
from abroad is an inventor within 5 & 6 Wm. 4, c. 83 (n).
It has been recently decided that a communication
made in England by one British subject to another of an
invention never published in this country does not make
the person to whom the invention is communicated the
first and true inventor (o).
Although, moreover, it is generally true that a new prin-
ciple, or modus operandi, carried into practical and useful
(J) Per Abbott, C.J., Forsyttt, v.
Riviere, Webs. Pat Cas. 97, note ;
per Tindal, C.J., Cornish v. Keene,
Id. 508.
(I) See Norman Pat. Chap. 8.
(I) The Househill Coal and Iron
Co. v. Neilson, 9 01. & Fin. 788.
See Brown v. Annandale, Webs. Pat.
Gas. 433. And generally, in regard
to the question, what is such prior
user as will avoid a patent, see
Norman Pat Chap. 5.
(to) Stead v. Williams, 7 M. & Gr.
818 ; Stead v. Anderson, 4 C. B.,
806. See Booth v. Kennard, l H.
& N. 84. See Patent Act, 1883, 46
& 47 Vict, c 57, 8. 33, et sea.
(n) Claridge's Patent, In re, 7
Moo. P. C. C. 394.
(o) Marsden v. The Saville Street
Foundry and Engineering Co., Ld.9
3 Ex. Div. 203 ; S. C. 89 L. T. 97.
THE MODE OF ACQUIRING PROPERTY.
345
effect by the use of new instruments, or by a new combi-
nation of old ones, is an original invention, for which a
patent may be supported (p) ; yet, if a person merely
substitutes, for part of a patented invention, some well-
known equivalent, whether chemical or mechanical, this,
being in truth but a colourable variation, will amount to
an infringement of the patent (q) ; and where letters
patent were granted for improvements in apparatus for
the manufacture of certain chemical substances, and the
jury found that the apparatus was not new, but that the
patentee's mode of connecting the parts of that apparatus
was new, the Court, in an action for an alleged infringe-
ment of the patent, directed the verdict to be entered for
the defendant, upon an issue taken as to the novelty of
the invention (r) ; and " no sounder or more wholesome
doctrine " in reference to this subject was ever established
than that a patent cannot be had "for a well-known
mechanical contrivance merely when it is applied in a
manner or to a purpose which is not quite the same, but
is analogous to the manner or the purpose in or to which
it has been hitherto notoriously used " («).
"A copyright is the exclusive right of multiplying copyright.
(p) Boulton v. Bull, 2 H. Bla.
463 ; S. C.f 8 T. R. 95 ; HaWs case,
Webs. Pat. Cas. 98 ; cited, per Lord
'Abinger, C.B., Loth v. Hayne, Id.
207, 208 ; Holmes y. London «0
North Western R. C, 12 C. B. 831,
851. See Tetlcy v. Boston, 2 C. B.
N. S. 106 ; Patent Bottle Envelope
Co. v. Seymcr, 5 Id. 164.
(q) See Heath v. Unwin, 13 M. &
W. 583 ; S. C, 12 C. B. 522 ; 5 H.
L. Gas. 505. And see farther on this
subject, Newton y. Grand Junction
R. C. , 5 Exch. 331 ; Newton v.
Vaucher, 6 Exch. 859.
(r) Gamble v. Kurtz, 3 C. B. 425.
(*) Per Lord Westbury, C, Har-
wood v. Great Northern R. C, 11
H. L. Cas. 682.
As to an extension of the term of
letters patent see the Patent Act,
1883, 46 & 47 Vict. c. 57, s. 25, and
in re McDougaVs Patent, L. R. 2 P.
C. 1 ; In re Mclnnes Patent, Id,
54.
346
THE MODE OF ACQUIRING PROPERTY.
copies of an original work or composition, and conse-
quently preventing others from so doing " (t), the great
object of the law of copyright being " to stimulate, by
means of the protection secured to literaiy labour, the
composition and publication to the world of works of
•
learning and utility " (u) ; and the right of an author
accordingly depends on the same principle as that of a
patentee, viz., priority of invention or composition and
publication. It was, indeed, at one time thought that a
foreigner resident abroad would by first publishing his
work in Great Britain acquire a copyright therein (v) ;
but this interpretation of the repealed (x) stat. 8 Anne,
c. 19, was declared by the highest tribunal to be
erroneous in Jefferys v. Boo8ey(y); and it is clear
that a foreigner, whether resident here or not, cannot
have an English copyright, if he has first published
his work abroad, before any publication of it in this
country (z). And this rule equally applies to dramatic
representations abroad, the first representation abroad
being held a first publication (a). But an alien friend,
(t) Judgm., 14 M. k W. 316. See,
generally, as to copyright, Millar v.
Taylor, 4 Burr. 2303; Jefferys v.
Booaey, 4 H. L. Gas. 815 ; 8. C, 6
Exch. 580 ; Routledge v. Lowy L. R.
3 H. L. 100 ; Sweet v. Benniny, 16
C. B. 459.
The term of copyright in books is
now fixed by stat. 5 & 6 Vict. c. 45.
See 10 & 11 Vict. c. 95.
As to copyright in works of art,
see 25 & 26 Vict. c. 68 ; Gambart v.
Bali, 14 C. B. N. S. 306 ; approved
in Graves v. Ashford, L. E. 2 C. P.
410.
(u) Per Lord Cairns, C, L. R. 3
H. L. 108.
{v) See the cases cited, 4 H. L. Cas.
959, 960, 974.
(2) See 5 & 6 Vict. c. 45, s. 1.
(y) 4 H. L. Cas. 815, where the
cases bearing on the above subject are
collected.
(2) ChappeUv. Purday, 14 M. &
W. 303 ; Boucicavlt v. Delafield, 33
L. J., Chanc, 88. See Beard v.
Egerton, 3 C. B. 97 ; 7 Vict, c 12,
s. 19 ; 15 & 16 Vict. c. 12.
(a) Boucicaidt v. Delafield, 1 H.
& M. 597 ; Boucicault v. Chatter-
ton, 5 Ch. Div. 267 ; 46 L. J. Ch.
305.
PROPERTY — ITS RIGHTS AND LIABILITIES. 347
who, during his temporary residence in a British colony,
publishes in the United Kingdom a book of which he is
the author, is, under the stat. 5 & 6 Vict. c. 45, entitled to
the benefit of English copyright (b).
§ II. — PROPERTY — ITS RIGHTS AND LIABILITIES.
In this section are contained remarks upon the legiti-
mate mode of enjoying property, the limits and extent of
that enjoyment, and the rights and liabilities attaching to
it. The maxims commented upon, in connection with
this subject, are four in number : that a man shall so use
his own property as not to injure his neighbour(c) ; that the
owner of the soil is entitled likewise to that which is
above and underneath it ; that what is annexed* to the
freehold becomes, in many cases, subject to the same
rights of ownership; that "every man's house is his
castle."
Sic utere tuo ut alienum non lmdas. (9 Rep. 59.) —
Enjoy your own property in such a manner as not
to injure that of anotJter person (d),
A man must enjoy his own property in such a manner injuries
caused by
(6) Routlcdge 7. Low, L. R. 3 H. jure the rvjkt* of another." See
L. 100. Arg. Jeffrie* v. William*, 5 Exch.
(c) For a good example see Crow- 797.
hurtt 7. Amertham Burial Board, 4 The maxim is cited, commented on,
Ex. D. 5. or applied, in Bonomi v. Backhouse,
(d) Such is the literal translation E. B. & E. 637, 639, 643 ; S. C,
of the above maxim ; its true legal 9 H. L. Cas. 511 (in connection with
meaning would rather be, "So use which see Smith v. ThackeraJi, L. R.
your own property as not to in- 1 C. P. 564) ; Chaxmore r. Richard*,
348 PROPERTY — ITS RIGHTS AND LIABILITIES.
a wrongful as not to invade the legal rights of his neighbour — Expedit
i>roperty. reipubliccv ne sud re quis male utatur(e). "Every
man," observed Lord Truro (/), "is restricted against
using his property to the prejudice of others;" and, as
further remarked by the same learned Lord, " the principle
embodied in the maxim, Sic utere tuo ut alienum non
latdas, applies to the public in at least as full force as to
individuals. There are other maxims equally expressive
of the principle — Nihil quod est inconvenient eat lici-
tum (g), and Salus reipublicce suprema lex " (h) ; to so
large a class of cases, indeed, and under circumstances so
dissimilar, is the rule before us capable of being applied,
that we can here merely suggest some few leading illus-
trations of it, omitting references to many reported de-
cisions which might be found, perhaps, equally well to
exemplify its meaning.
In the first place, then, we must observe that the
invasion of an established right will in general, per se,
constitute an injury, for which damages are recoverable ;
for in all civil acts our law does not so much regard the
intent of the actor as the loss and damage of the party
suffering. In trespass qu. cl. fr., the defendant pleaded,
that he had land adjoining plaintiff's close, and upon it a
hedge of thorns ; that he cut the thorns, and that they,
ipso invito, fell upon the plaintiff's land, and the defen-
dant, took them off as soon as he could, which was the
same trespass, &c. On demurrer, judgment was given
for the plaintiff, on the ground that, though a man do a
7 H. L. Cas. 388 ;per Pollock, C.B., (c) I. 1. 8. 2.
Bagnall v. London <£• North- Western (/) Egtrton v. Earl Brownlow, 4
R. C, 7 H. & N. 440 ; In re Grou* H. L. Gas. 195.
coU v. Williams, 4 B. k S. 149, (g) Ante, p. 178.
155-6. (h) Ante, pp. 179, et «j.
PROPERTY — ITS RIGHTS AND LIABILITIES.
349
lawful thing, yet, if any damage thereby befalls another,
he shall be answerable, if be could have avoided it (i).
So, where the defendants, a burial board, planted on their
own land, and about four feet distant from their boundary
railings, a yew tree, which grew through and beyond the
railings, so as to project over an adjoining meadow hired
by the plaintiff for pasture. The plaintiff's horse, feeding
in the meadows, ate of that portion of the yew tree which
projected over the meadows, and died of the poison con-
tained in it. The tree was planted and grown with the
knowledge of the defendants. The plaintiff having brought
an action for the value of the horse, held that the defen-
dants were liable (k).
Accordingly, in considering whether a defendant is
liable to a plaintiff for damage which the latter may have
sustained, the question in general is, not whether the
defendant has acted with due care and caution, but
whether his acts have occasioned the damage : and this
doctrine is founded on good sense. For when one person
in managing his own affairs causes, however innocently,
damage to another, it is obviously only just that he should
be the party to suffer. He is bound aie uti suo ut non
Icedat alienum (t).
(?) See Lambert v. Bessey, T.
Rayni. 422 ; Weaver v. Ward, Hob.
134 ; per Blackstone, J., Scott v.
Shepherd, 3 WiIb, 403 ; per Lord
Kenyon, C.J., HaycraftY. Creasy, 2
East, 104 ;• Turberville t. Stampe,
1 Ld. Raym. 264 ; cited Jones v.
Festiniog R C, L. R. 3 Q. B. 735 ;
recognised Vaughan v. Merilove, 3
Bing. N. C. 468 ; Piggott v. Eastern
Counties R. C, 3 C B. 229;
Grocers' Co. v. Donne, 3 Bing. N. C.
34; Aldridge v. Great Western R.
C, 4 Scott, N. R. 156.
(k) Croiohurst v. Tlie Burial.
Board of the Parish of Amcrs/iam,
4 Ex. Div. 5 ; 48 L. J. Ex. 109 ;
ffwdman v. N. JS. R. Co., 3 C. P.
D. 168 ; 47 L. J. C. P. 368.
{I) Per Lord Cran worth, Rylands
y. Fletcher, L. R. 3 H. L. 34\ citing
Lambert v. Bessey, su]>ra, n. (i).
350
PROPERTY — ITS RIGHTS AND LIABILITIES.
In the next place, it may be laid down, as a true pro-
position, that, although bare negligence unproductive of
damage to another will not give a right of action, negli-
gence causing damage will do so (m) ; negligence being
defined to be "the omission to do something which a
reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable
man would not do " (n) ; negligence, moreover, not being
"absolute or intrinsic," but "always relative to some
circumstances of time, place, or person " (o).
Having thus premised, the following instances will
serve to show in what manner the maxim which we have
placed at the head of these remarks is applied, to impose
restrictions, first, upon the enjoyment of property (p),
(m) See Broom's Com., 4th eel.,
656 ; Whitehouse v. Birmingham.
Can. Co., 27 L. J. Ex. 25 ; Baylcy
v. Wolverhampton Waterworks Co.,
6 H. & N. 241 ; Duelivorth v.
Johnson, 4 H. & N. 653.
(n) Per Alderson, B., Blyth v.
Birmingham Waterworks Co., 11
Exch. 784. See also Heaven v.
Pinder, 11 Q. B. D. 503.
Laches has been defined to be "a
neglect to do something which by
law a man is obliged to do ; " per
Lord Ellenborough, C.J., Sebag v.
AbUbol, 4 M. & S. 462 ; adopted per
Abbott, C.J., Turner v. Hayden, 4
B. & C. 2.
(o) Judg., Degg v. Midland R.
C, 1 H. & N. 781 ; approved in
Potter v. Faulkner, 1 B. & S. 800.
As to proof of negligence, ante, p.
298; Assop v. Yates, 2 H. &
N. 768 ; Perren v. MonmmUhsfnre
R. C, 11 C. B. 855 ; Yose v. Lan-
cashire and Yorkshire R. C, 2 H.
& N. 728 ; Harris v. Anderson, 14
C. B. N. S. 499 ; Reeve v. Palmer,
6 C. B. N. S. 84 ; Manchester, 4c,
R. C, app., Fullarton, reep., 14 C.
B. N. S. 54 ; Roberts v. Great
Western R. C, 4 C. B. N. S. 506 ;
North v. Smith, 10 C. B. N. 8.
572 ; Manley v. St. Helens Canal
and R. C, 2 H. & N. 840 ; WiU
loughby v. Horridge, 12 C. B. 742 ;
Templeman v. Haydon, Id. 507 ;
Melville v. Doidge, 6 C. E 450 ;
Grote t. Chester and Holyhead R C,
2 Exch. 251 ; Dansey v. RicJtardson,
3 E. & B. 144 ; Roberts v. Smith, 2
H. & N. 218 ; Cashill v. Wright, 0
E. & B. 891 ; Holder v. Soulby, 8
C. B. N. S. 254.
{p) See per Holt, C.J., Tenant v.
PROPERTY — ITS RIGHTS AND LIABILITIES.
351
and secondly, upon the acts and conduct of each indivi-
dual member of the community. In illustration of the
first branch of the subject, we may observe, that, if a
man builds a house so close to mine that his roof over- injury to
neighbour'*
hangs mine, and throws the water off upon it, this is a house.
nuisance, for which an action will lie (q). So, an action
will lie, if, by an erection on his own land, he obstructs
my ancient lights and windows ; for a man has no right
to erect a new edifice on his ground so as to prejudice
what has long been enjoyed by another (r) — cedificare in
tuo propi*io solo non licet qiwcl alteri noceat (a). In like
manner, if a man, in pulling down his house, occasion
damage to, or accelerate the fall of, his neighbours, he will
be liable, provided there was negligence on the part of
those engaged in pulling down the house ; and he will not
be exonerated from liability by employing a competent
contractor to do the work in question ; therefore, where
the defendant and the plaintiff occupied adjoining houses,
and the defendant rebuilt his house, and employed a com-
petent builder and architect for that purpose, and in the
course of the work the workmen employed by the builder
began to fix a staircase, and in so doing negligently, and
without the knowledge of the defendant or his architect,
cut into a party wall dividing the defendant's house from
the house of the plaintiff, and thereby injured the plain-
Goldmn, 2 Ld. Baym. 1092-3, fol-
lowed in Hodgkinton v. Ennor, 4 B.
k S. 241.
(q) Penruddocke's case, 5 Rep.
100 ; Fay v. Prentice, 1 C. B. 828.
(r) Vide per Pollock, C.B., Bag-
nail v. London and North Western,
R. C, 7 H. AN. 440 ; S. C, 1 H.
& C. 544, which well illustrates the
maxim commented on, supra. See
Dodd v. Holme, 1 A. & E. 493 ; re-
cognised Bradbee v. Mayor, d-c, of
London, 5 Scott, N. R. 120 ; part-
ridge v. Scott, 3 M. & W. 220 ; re-
cognising Wyatt v. Harrison, 3 B.
& Ad. 871 ; Brown v. Windsor % 1
Cr. & J. 20.
(<) 3 Inst. 201.
352
PROPERTY — ITS RIGHTS AND LIABILITIES.
tiff's house ; it was held that the defendant was liable (t).
The operation being a hazardous one, the defendant was
bound to see that it was carried out with reasonable care
and skill, and he could not avoid responsibility by delegating
the control of that operation to a third person, however
competent that third person might be. It would seem
that the defendant's duty in such a case does not go
beyond the exercise of reasonable care and skill, and that
although the law has been varying somewhat in the
direction of treating parties engaged in such a work, as
insurers of their neighbours, or warranting them against
injury, it has not quite reached that point (u).
The mere circumstance of juxtaposition does not, in the
absence of any right of easement, render it necessary for
a person who pulls down his wall to give notice of his
intention to the owner of an adjoining wall, nor is such
person, if he be ignorant of the existence of the adjoining
wall, bound to use extraordinary caution in pulling down
his own (x).
Neither is any " obligation towards a neighbour cast by
law on the owner of a house, merely as such, to keep it
repaired in a lasting and substantial manner : the only
duty is to keep it in such a state that his neighbour may
not be injured by its fall ; the house may, therefore, be
(t) Percival v. Hughes, 9 Q. B. D.
441 ; 51 L. J. Q. B. 388 ; 8 App.
Cas. 443. See also Bradbcc, v.
Mayor, &c, of London, 5 Scott, N.
R. 120 ; per Lord Denman, G.J.,
Dodd v. Holme, 1 A. & E. 505. See
Peyton v. Mayor, <fre., of London, 9
B. & C. 725.
(u) Per Lord Fitzgerald in Hughes
v. Percival., 8 App. Cas., p. 455.
(x) Chadtcick v. Troicer, 6 Bing.
N. C. 1 ; reversing 8. C, 8 Bing. N.
C. 334 ; cited 5 Scott, N. R. 119 ;
Grocers' Co. v. Donne, 3 Bing. N. C;
34 ; Davis v. London and Blackmail
H. C, 2 Scott, N. R. 74.
See farther, as to the right to sup-
port by an adjacent house, Solomon
v. Vintners* Co., 4 H. & N. 585,
where the cases are collected.
PROPERTY — ITS RIGHTS AND LIABILITIES.
353
in a ruinous state, provided it be shored sufficiently, or
the house may be demolished altogether " (y). Where,
however, several houses belonging to the same owner are
built together, so that each requires the support of the
adjoining house, and the owner parts with one of these
houses, the right to such support is not thereby lost (z).
As between the owner of the surface of the land and
the owner of the subjacent mineral strata, and as between
the owners of adjoining mines, questions frequently arise
involving a consideration of the maxim, Sic utcre tuo ut
cdienum non Icedas (a), and needing an interpretation of
it not too much infringing on the rights of ownership.
In Humphries v. Brogden(b), the plaintiff, being the
occupier of the surface of land, sued the defendant in case,
for negligently and improperly, and without leaving any
sufficient pillars and supports, and contrary to the custom
of mining in that district, working the subjacent minerals,
per quod the surface gave way. Issue being joined on a
plea of not guilty to this declaration, it was proved at the
trial that plaintiff was in occupation of the surface, which
was not built upon, and defendant of the subjacent
minerals, but there was no evidence showing how the
occupation of the superior and inferior strata came into
different hands. The jury found that the defendant had
(y) Judgm., Chauntler v. Robin-
son, 4 fixch. 170. As to the right
of support for a sewer, see Metro-
politan Board of Works v. Metro-
politan JL C, L. R. 4 C. P- 192 ;
38 L. J. C. P. 172.
(z) "Richards v. Rose, 9 Exch.
218.
{a) See In re Groucott y. Williams,
4 B. & S. 149.
(6) 12 Q. 8. 739 (with which com-
pare Hilton v. Whitehead, Id. 734) ;
Haines v. Roberts, 7 E. & B. 625 ;
S. C, 6 R k B. 643 ; Rowbotham v.
Wilson, 8 H. L. Cas. 348 ; S. 0., 8
E. & B. 123, 6 Id. 593 ; Smart v.
Morton, 5 E. & B. 30 ; Backhouse v.
Bonomi, 9 H. L. Cas. 503 ; S. C,
E. B. k E. 503 ; Smith v. Thacktrah,
L. R. 1 C. P. 564; BlackeU v.
Bradley, 1 B. & S. 940.
A A
354 PROPERTY — ITS RIGHTS AND LIABILITIES,
worked the mines carefully and according to the custom,
but without leaving sufficient support for the surface.
And the Court of Q .B. held, that upon this finding the
verdict should be entered for the plaintiff, because of
common right the owner of the surface is entitled to
support from the subjacent strata.
The primd facie rights and obligations of parties so
situated relatively to each other, as above supposed, may,
however, be varied by the production of title deeds or
other evidence (c).
In Smith v. Kenrick (d), the mutual obligations of the
owners of adjoining mines were much considered by the
Court of C. P., who conclude as follows — that " it would
seem to be the natural right of each of the owners of two
adjoining coal mines — neither being subject to any servi-
tude to the other — to work his own in the manner most
convenient and beneficial to himself, although the natural
consequence may be that some prejudice will accrue to
the owner of the adjoining mine, so long as that does not
arise from the negligent or malicious conduct of the
party." It has accordingly been held that if in conse-
quence of a mine owner on the rise working out his
minerals, water comes by natural gravitation into the
mines of the owner on the dip, the latter cannot maintain
an action if the working is carried on with skill, and in
(c) Per Lord Campbell, C.J., in Popplewcll v. Hodkinson, L. R. 4
Humphries v. Brogdcn, and Smart v. Ex. 248 ; 38 L J. Ex. 126.
Morton, supra ; Rowbothamy. Wilson, (d) 7 0. B. 15, 564, with which
supra. compare Baird v. Williamson, 15 0.
See Solomon v. Vintners* Co., 4 B. N. S. 376, which is distinguished,
H. & N. 599, 601. from Smith v. Kenrick, supra, by
There Is no right such as above Lord Cran worth, Rylands v. Fletcher^
considered, to the support of water ; L. R. 3 H. L. 341-2 ; 37 L. J. £x. 161.
PROPERTY— ITS RIGHTS AND LIABILITIES,
355
the usual manner (e). But if one mine owner in work-
ing his own mine diverts a natural watercourse, or causes
by artificial means more water to come into his mine than
otherwise would come, whereby an adjoining mine is
flooded, the mine owner is liable for the 'damage so
caused (/).
From the above and similar cases we may infer that
much caution is needed in applying the maxim now under
our notice — in determining how far it may, on a given
state of facts, restrict the mode in which property may be
enjoyed or used : a principle here applicable under very
dissimilar circumstances being, that " If a man brings or
uses a thing of a dangerous nature on his own land, he
must keep it in at his own peril, and is liable for the
consequences if it escapes and does injury to his neigh-
bour " (g). " The person," therefore, " whose grass or
corn is eaten down by the escaping cattle of his neigh-
bour, or whose mine is flooded by the water from his
neighbour's reservoir (h), or whose cellar is invaded by the
filth of his neighbour's privy, or whose habitation is made
unhealthy by the fumes and noisome vapours of his
neighbour's alkali works (£), is damnified without any
(e) Hurdman v. North Eastern
Railway Co., 3 C. P. D. 168 ; 47 L.
J. C. P. 868 ; Wilson ▼. WaddeU,
2 App. Gas. 95.
(/) Baird v. Williamson, 15 0.
B. N. S. 876 ; 33 L. J. C. P. 101 ;
Fletcher v. Smith, 2 App. Cas. 781 ;
47 L. J. Ex. 4 ; Crompton v. Lea,
L. R. 19 Eq. 115 ; 44 L. J. Cb. 69.
(g) Jones v. Festiniog R, C, L. R.
3 Q. B. 736 ; 37 L. J. Q. B. 214 ;
Rylands v. Fletcher, L. R. 3 H. L.
330, 339, 340 ; 37 L. J. Ex. 161,
where many cases illustrating the
text are collected.
(A) " Suppose A. has a drain
through the lands of B. and C, and
0. stops up the inlet into his land
from B.'s, and A. nevertheless, know-
ing this, pours water in the drain
and damages B., A. is liable to B."
Judgm., Harrison ▼. Great Northern
R. C, 3 H. & C. 238 ; Collins v.
Middle Level Commissioners, L. R,
4 C. P. 279 ; 38 L. J. C. P. 236.
(i) St. Helen's Smelting Co. ▼.
Tipping, 11 H. L. Cas. 642.
A A 2
356
PROPERTY — ITS RIGHTS AND LIABILITIES.
U«e of flow*
ing water.
fault of his own ; and it seems but reasonable and just
that the neighbour who has brought something on his
own property, which was not naturally there, harmless to
others so long as it is confined to bis own property, but
which he knows will be mischievous if it gets on his
neighbour's, should be obliged to make good the damage
which ensues if he does not succeed in confining it to his
own property " (k).
Again, the rule of law which governs the enjoyment of
a stream flowing in its natural course over the surface of
land belonging to different proprietors is well established,
and is illustrative of the maxim under notice. According
to this rule, each proprietor of the land has a right to the
advantage of the stream flowing in its natural course over
his land, and to use the same as he pleases for any pur-
poses of his own, provided that they be not inconsistent
with a similar right in the proprietor of the land above
or below: so that neither can any proprietor above
diminish the quantity or injure the quality of the water,
which would otherwise naturally descend ; nor can any
proprietor below throw back the water without the
licence or the grant of the proprietor above (I). Where,
therefore, the owner of land applies the stream run-
ning through it to the use of a mill newly erected, or
to any other purpose, he may, if the stream is diverted
(k) Judgm., Fletcher v. Ryland*,
L. R. 1 Ex. 280, adopted per Lord
Cairna, C., in S. C, L. R. 3 H. L.
340 ; 87 L. J. Ex. 161.
(I) Mason v. Hill, 5 B. & Ad. 1 ;
Ormerod v. Todmorden Joint Stack
Mill Co., 52 L. J. Q. B., 445 ;
Wright ▼. Howard, 1 Sim. k Stn.
190 ; cited Judgm., 12 M. & W.
849 ; Judgm., Embrey v. Owen, 6
Exch. 368-873 ; Chatemort v. Rich-
ardt, 7 H. L. Cm. 349 ; JRawdron
v. Taylor, 11 Exch. 369 ; Broad-
bent v. Ramsbotham, Id. 602. See
also WhaUey v. Laing, 3 H. & N.
675, 901 ; Hipkins v. Birmingham
and StaffordtJrire Gas Light Co., 6
H. &N. 250; S. C, 5 la\ 74.
PROPERTY — ITS RIGHTS AND LIABILITIES. 357
or obstructed by the proprietor of land above, recover
against such proprietor for the consequential injury to
the mill ; and the same principle seems to apply where
the obstruction or diversion has taken place prior to the
erection of the mill, unless, indeed, the owner of land
higher up the stream has acquired a right to any par-
ticular mode of using the water by prescription, that is,
by user continued until the presumption of a grant has
arisen (m).
What has been just said applies generally to surface
water, flowing naturally over land — between which and
water so artificially flowing the distinction is important
as regards the mode of applying our principal maxim,
and was thus recently explained : —
" The flow of a natural stream creates natural rights
and liabilities between all the riparian proprietors along
the whole of its course. Subject to reasonable use by
himself, each proprietor is bound to allow the water to
flow on without altering the quantity or quality. These
natural rights and liabilities may be altered by grant or
by user of an easement to alter the stream, as by divert-
ing, or fouling, or penning back, or the like. If the
stream flows at its source by the operation of nature, that
is, if it is a natural stream, the rights and liabilities of the
party owning the land at its source are the same as those
of the proprietors in the course below. If the stream
flows at its source by the operation of man, that is, if it
is an artificial stream, the owner of the land at its source
or the commencement of the flow is not subject to any
rights or liabilities towards any other person, in respect of
(m) Jndgm., Mcuonv. Hill, 5 B. upon the subject is briefly consi-
& Ad. 25, where the Roman law dered.
358 PROPERTY — ITS RIGHTS AND LIABILITIES.
the water of that stream. The owner of such land may
make himself liable to duties in respect of such water by
grant or contract; but the party claiming a right to
compel performance of those duties must give evidence
of such right beyond the mere suffering by him of the
servitude of receiving such water " (n).
Rights and liabilities in respect of artificial streams
when first flowing on the surface are entirely distinct
from rights and liabilities in respect of natural streams
so flowing. The water in an artificial stream flowing in
the land of the party by whom it is caused to flow is
the property of that party, and is not subject to any
.rights or liabilities in respect of other persons. If the
stream so brought to the surface is made to flow upon the
land of a neighbour without his consent, it is a wrong,
for which the party causing it so to flow is liable. If
there is a grant by the neighbour, the terms of the grant
regulate the rights and liabilities of the parties thereto.
If there is uninterrupted user of the land of the neighbour
for receiving the flow as of right for twenty years, such
user is evidence that the land from which the water is
sent into the neighbour's land has become the dominant
tenement having a right to the easement of so sending
the water, and that the neighbour's land has become
subject to the easement of receiving that water. But
such user of the easement of sending on the water of an
artificial stream is of itself alone no evidence that the
land from which the water is sent has become subject to
the servitude of being bound to send on the water to the
land of the neighbour below. The enjoyment of the
(n) Judgm., Oaved v. Marty n, 19 cited. See Nuttall r. Bvaccwdl, L.
C. B. N. S. 759, 760, and cases there R. 2 Ex. 1 ; 36 L. J. 1.
PROPERTY— ITS RIGHTS AND LIABILITIES, 359
easement is of itself no evidence that the party enjoying
it has become subject to the servitude of being bound
to exercise the easement for the benefit of the neigh*
bour. * * * A party by the mere exercise of a right to
make an artificial drain into his neighbour's land, either
from mine or surface, does not raise any presumption that
he is subject to any duty to continue his artificial drain
by twenty years1 user, although there may be additional
circumstances by which that presumption could be raised,
or the right proved. Also, if it be proved that the stream
was originally intended to have a permanent flow, or if
the party by whom or on whose behalf the artificial
stream was caused to [flow is shown to have abandoned
permanently, without intention to resume, the works by
which the flow was caused, and given up all right to and
control over the stream, such stream may become subject
to the laws relating to natural streams " (o).
But if an artificial water course has existed for a con-
siderable number of years, and is of a permanent nature, it
cannot be diverted or unduly lessened in quantity by the
owner of the land at its source, or by owners of the land
through which it passes to the injury of the owners lower
down the stream (p) ; otherwise, if the stream was tem-
porary in its character, as, for instance, created by a
pumping-engine used to drain land and was allowed to
flow on to the adjoining land under circumstances which
negatived an intention to give the use of the artificial
stream as a matter of right (q).
(o) Judgm., Gavedv. Martyn, 19 oh. App. 896; Bameshur Pentad
C. B. N. S. 758-9, 760, and cases Narain Singh v. Koorj Behari Pat-
there cited. tuk, 4 App. Cas. 121.
(jp) Sutcliffv. Booth, 9 Jnr. N. S. {q) Arkwright v. Gell, 5M.&W.
1087; Ivimey v. Stacker, L. R. 1 232; Staffordshire v. Worcester-
360
PROPERTY — ITS RIGHTS AND LIABILITIES.
Subterrane-
ous water.
Conflicting
rights.
With respect to water flowing in a subterraneous
course, it has been held, that, in this, the owner of land
through which it flows has no right or interest (at all
events, in the absence of an uninterrupted user of the
right for more than twenty years), which will enable him
to maintain an action against a landowner, who, in carry-
ing on mining operations in his own land in the usual
manner, drains away the water from the land of the first-
mentioned owner, and lays his well dry (?•) ; for, according
to the principle already stated, if a man digs a well in
his own land so close to the soil of his neighbour as to
require the support of a rib of clay or of stone in his
neighbour's land to retain the water in the wfell, no
action would lie against the owner of the adjacent land
for digging away such clay or stone, which is his own
property, and thereby letting out the water ; and it would
seem to make no difference as to the legal rights of the
parties if the well stands some distance within the plain-
tiffs boundary, and the digging by the defendant, which
occasions the water to flow from the well, is some distance
within the defendant's boundary, which is, in substance,
the very case above stated (s).
The principle which the above instances have been
selected to illustrate, likewise applies where various
rights, which are at particular times unavoidably incon-
sistent with each other, are exercised concurrently by
different individuals ; as, in the case of a highway, where
shire Canal Co. r. Birmingham
Canal Navigation, L. B. 1 H. L
254 ; 35 L. J. Ch. 757.
(r) Acton v. BlundcU, 12 M. ft
W. 824 ; Chnsmvre ▼. Richards, 2
H. & N. 168 (where aee particularly
in reference to the maxim supra, per
Coleridge, J., diss.) ; S. C, 7 H. L.
Gas. 349 ; South Shields Waterworks
Co. v. CooJcson, 15 L. Ex. 315.
(s) Judgm., 12 M. ft W. 352,
353.
PKOPERTY — ITS RIGHTS AND LIABILITIES.
361
right of common of pasture and right of common of
turbary may exist at the same time; or of the ocean
which, in time of peace, is the common highway of all (t) ;
in that of a right of free passage along the street, which
right may be sometimes interrupted by the exercise of
other rights (u); or in that of a port or navigable
river (x), which may be likewise subject at times to tem-
porary obstruction. In these and similar cases, where
such different co-existing rights happen to clash, the
maxim, Sic utere tuo ut alienum tion Icedas, will, it has
been observed, generally serve as a clue to the laby-
rinth (y). And further, the possible jarring of pre-exist-
ing rights can furnish no warrant for an innovation
which seeks to create a new right to the prejudice of an
old one ; for there is no legal principle to justify such a
proceeding (z).
Not only, moreover, does the law give redress where a Nuisance.
substantive injury to property is committed, but, on the
same principle, the erection of anything offensive so near
(t) Per Story, J., The Marianna
Flora, 11 Wheaton (U.S.), R. 42.
(«) See maxim ubi jus, ibi remc-
dium, ante.
(x) See Mayor of Colchester v.
Brooke, 7 Q. B. 339 ; Morant v.
CKamberlin, 6 H. & N. 541 ; Dobson
v. Blackmore, 9 Q. B. 991 ; Dimes
v. Petley, 15 Q. B. 276 ; Reg. v.
BeUs, 15 Q. B. 1022. Aa to the
liability of the owner of a vessel,
anchor, or other thing, which having
been sunk in a river obstructs the
navigation, see Brown v. MaUett, 5
C. B. 599, recognised 2 H. & N.
854; Hancock v. York, <fcc., R. C,
10 C. B. 348 ; White v. Crisp, 10
Exch. 312 ; per BovilJ, C. J., Vivian
v. Mersey Docks Board, L. R. 5 C.
P. 29 ; 39 L. J. C. P. 3 j Bartlett v.
Baker, 3H. & C. 153.
As to the liability of a shipowner
for negligently damaging a tele-
graphic cable, see Sub-Marine Tele-
graph Co. v. Dickson, 15 C. B. N.
S. 757.
See also Mersey Docks Trustees v.
Gibbs, Same v. PenJialloic, L. R. 1
H. L. 93 ; White v. Phillips, 15 C.
B. N. S. 245.
(y) Judgm., R. ▼. Ward, 4 A. & E.
384; Judgm., 15 Johns. (U.S.), R.
218 ; Panton v. Holland, 17 Id. 100.
(z) Judgm., R. v Ward, supra.
362
PROPERTY — ITS RIGHTS AND LIABILITIES*
the house of another as to render it useless and unfit for
habitation is actionable (a) ; the action in such case being
founded on the infringement or violation of the rights
and duties arising by reason of vicinage (6). The doctrine
upon this subject, as laid down by the Court of Exchequer
Chamber (c), and substantially adopted by the House of
Lords (d), being, " that whenever, taking all the circum-
stances into consideration, including the nature and
extent of the plaintiff's enjoyment before the acts com-
plained of, the annoyance is sufficiently great to amount
to a nuisance according to the ordinary rule of law, an
action will lie, whatever the locality may be ; " but trifling
inconveniences merely are not to be regarded (e), for lex
nonfavet votis ddicatoruin (/). An action, however, does
not lie if a man build a house whereby my prospect is
interrupted (g), or open a window whereby my privacy
is disturbed ; in which latter case, the only remedy is
to build on the adjoining land opposite to the offensive
window (h). In these instances the general principle
applies — qui jure suo utitur Tieminem lcedU(i).
(a) Per Burrough, J., Deant v.
Clayton, 7 TaunL 497 ; Doe d. Bisk
v. Keeling, 1 M. & S. 95. See
Simpson v. Savage, 1 C. B. N. S.
347 ; Mumford y. Oxford, Worces-
ter, and Wolverhampton R. C. 1 H.
k N. 34.
(b) Alston v. Grant, 3 E. & B.
528 ; Judgm., 4 Exch. 256, 257.
(c) Bamford v. Turnley, 3 B. k
S. 62, 77.
{d) St. Helen's Smelting Co. v.
Tipping, 11 EL L. Cas. 642.
(e) St. Helen's Smelting Co. v.
Tipping, 11 H. L. Cas. 644, 655 ;
Gaunt v. Fymney, L. R. 8 Ch. App.
8 ; 42 L. J. Ch. 122.
(/) 9 Rep. 58 a.
See further as to what may consti-
tute a nuisance. Reg. t. Bradford,
Nav. Co., 6 B. k S. 631 ; Cleveland
v. Spier, 16 C. B. N. S. 399.
ig) Com. Dig., if Action upon the
Case for a Nuisance" (C.) ; Aid red's
ease, 9 Rep. 58. According to the
Roman law it was forbidden to ob-
struct the prospect from a neighbours
house : see D. 8. 2. 3. & 15 ; Wood,
Civ. Law, 3rd ed., 92, 93.
(h) Per Eyre, C. J., cited 3 Camp.
82. Jones v. Tapling, 11 H. L. Cas.
290 ; 34 L. J. C. P. 342.
(0 Vide D. 50. 17. 151. k 155,
SI.
PROPERTY — ITS RIGHTS AND LIABILITIES. 363
In connection with the law concerning nuisances, the
practitioner may have to decide between asserted rights
which are in conflict with each other — the right to erect
or maintain, and the right to abate a nuisance — in doing
so the following propositions, recently stated (k), may
guide him. 1. That a person may justify an interference
with the property of another for the purpose of abating
a nuisance, if that person is the wrongdoer, but only so
far as his interference is necessary to abate the nuisance.
2. That it is the duty of a person who enters upon the
land of another in abating a nuisance, to do it in the way
least injurious to the owner of the land. 3. That where
there is an alternative way of abating a nuisance, if one
way would cause injury to the property of an innocent
third party or to the public, that cannot be justified
although the nuisance may be abated by interference with
the property of the wrongdoer. Therefore, where the
alternative way involves an interference with the property
either of an innocent person or of the wrongdoer, the
interference must be with the property of the wrongdoer.
The right to the reception of light in a lateral direction Easement
(without obstruction) is an easement. The strict right of
property entitles the owner only to so much light (and air)
as fall perpendicularly on his land (I). The law on this
subject formerly was, that no action would lie, unless a
right had been gained in the lights by prescription (m) ;
but it was subsequently held, that, upon evidence of an
(k) Roberts ▼. Rose, L. R. 1 Ex. 319 ; and in regard to the enjoy-
32 ; 4 H. & C. 103, 105-6 (in error ment of light and air, see White v.
affirming a C, 3 H. k N. 162). See Bass, 7 H. & N. 722; Frewen v.
further as to abating a nuisance, Philipps, 11 C. B. N. S. 449.
J)i-ake v. Pywdl, 4 H. & C. 78. (m) See D. 8. 2. 9.
(Q Gale on Easements, 5th ed.,
364 PROPERTY — ITS RIGHTS AND LIABILITIES.
adverse enjoyment of lights for twenty years or upwards
unexplained, a jury might be directed to presume a right
by grant or otherwise, even though no lights had existed
there before the commencement of the twenty years (n) :
and although, formerly, if the period of enjoyment fell
short of twenty years, a presumption in favour of the
plaintiff's right might have been raised from other cir-
cumstances, it is now enacted by 2 & 3 Will. 4, c. 71, s. 6,
that no presumption shall be allowed or made in support of
any claim upon proof of the exercise of the enjoyment of
the right or matter claimed for less than twenty years ;
and by sect. 8 of the same statute, that, " when the access
and use of light to and for any dwelling-house, workshop,
or other building, shall have been actually enjoyed (o)
therewith for the full period of twenty years, without in-
terruption (p), the right thereto shall be deemed absolute
and indefeasible, any local usage or custom to the con-
trary notwithstanding, unless it shall appear that the
same was enjoyed by some consent or agreement ex-
pressly made or given for that purpose by deed or writing."
And by sect. 4, it is further enacted, that " the period of
twenty years shall be taken to be the period next before
some suit or action wherein the claim shall have been
brought into question; and no act or matter shall be
deemed to be an interruption within the meaning of the
statute, unless the same shall have been submitted, to or
acquiesced in, for one year after the party interrupted
shall have had notice thereof, and of the person making
or authorising the same to be made." The last section of
(n) 2 Selw., N. P., 12th ed., (p) SeeBennison v. Cartwright, 5
1134. B. & S. 1 ; Plasterers' Co. v. Parish
(o) See Gourtauld v. Lcy7i> L. R. Clerks' Co., 6 Exch. 630.
4 Ex. 126.
PROPERTY — ITS RIGHTS AND LIABILITIES. 36.5
this Act is applicable not only to obstructions preceded
and followed by portions of the twenty years, but also to
an obstruction ending with that period ; and, therefore, a
prescriptive title to the access and use of light may be
gained by an enjoyment for nineteen years and 330 days,
followed by an obstruction for thirty-five days (q).
It may be well to add that " every man may open any
number of windows looking over his neighbours land;
and, on the other hand, the neighbour may, by building
on his own land within twenty years after the opening of
tha window obstruct the light which would otherwise
reach it " (r).
The right to air as distinguished from light appears in Air.
some respects to be governed at common law by the same
principles as apply to light ; but the right to the unin-
terrupted passage of air across one's neighbour's ground
cannot be acquired under the Prescription Act, 2 & 3
Wm. 4, c. 76, s. 2, and it would further seem that no
presumption of a grant of such a right will arise from a
long and continuous user of the right claimed (s). A total
deprivation of air would, however, under certain circum-
stances amount to a nuisance, and as such would be
restrained, and in the cases cited below injunctions were
granted to prevent and remove obstructions which im-
peded the ventilation of the plaintiff's premises (t).
To the instances already given, showing that, according Liability for
neglige uce.
to the maxim, Sio utere tuo ut alienum non Icedas, a
(q) Flight v. Thomas (in error), 362, note (h).
11 A & E. 688, affirmed 8 CI. & Fin. (e) Webb v. Bird, 10 C. B. N. S.
231. See Eaton v. Swansea Water- 268 ; 13 C. B. N. S. 841.
works Co., 17 Q. B. 267. {t) Gale v. Abbot, 8 Jur. (N. P.)
(r) Per Lord Cranworth, Tapling 987; Dent v. Auction Mart Co.,
v. Jones, 11 H. L. Cas. 311 ; ante, p. L. R. 2 Eq. 238.
36G
PROPERTY — ITS RIGHTS AND LIABILITIES.
Dangerous
instru*
incuts.
person is held liable at law for the consequences of his
negligence, may be added the following: — It has been
held, that an action lies against a party for so negligently
constructing a hay-rick on the extremity of his land, that,
in consequence of its spontaneous ignition, his neighbour's
house was burnt down (it). So, the owners of a canal,
taking tolls for the navigation, are, by the common law,
bound to use reasonable care in making the navigation
secure, and will be responsible for the breach of such
duty, upon a similar principle to that which makes a
shopkeeper, who invites (x) the public to his shop, liable
for neglect in leaving a trap-door open without any pro-
tection, by which his customers suffer injury (y). The
trustees of docks will likewise be answerable for their
negligence and breach of duty causing damage (z).
The law also, through regard to the safety of the com*
m unity, requires that persons having in their custody
instruments of danger, should keep them with the utmost
care (a). Where, therefore, defendant being possessed
(u) Vaughan v. Menlove, 3 Bing.
N. C. 463 ; TurbervilU y. Stampe,
Lcl. Raym. 264 ; S. C, 1 Salk. 13 ;
Jones v. Festiniog R. C, 87 L. J. Q.
B. 214 ; L. R. 3 Q. B. 733. As to
liability for fire, caused by negligence,
see farther, FUliter v. Phippard, 11
Q. B. 347; per Tindal, C. J., Ross v.
HUl, 2 C. B. 889, and 3 C. B. 241 ;
Smith t. Frampton, 1 Ld. Raym. 62 ;
Vise. Canterbury v. A.-G., 1 Phill.
306 ; Smith v. London and South
Western R* C, L. R. 5 C. P.
98.
(x) See Nicliolson y. Lancashire
and Yorkshire R C, 3 H. & C. 534 ;
Holmes t. North Eastern R. C, L. R.
4 Ex. 254 ; Lunt v. London and
North Western R. C, L R. 1 Q. B,
277, 286.
(y) Parnaby y. Lancaster Canal
Co., 11 A. k E. 223, 243 ; BirktU v.
Whitehaven Junction R. C, 4 H.
k N. 730 ; Chapman v. Rothwell, E,
B. & E. 168 ; JBayley y. Wolver-
hampton Waterworks Co.. 6 H. fc N.
241 ; and cases cited, post.
(z) Mersey Docks Trustees v,
Gibbs, Same v. PenhaUaw, L. R. 1
H. L. 93.
(a) "The law of England, in ita
care for human life, requires consum-
mate caution in the person who deals
with dangerous weapons ; " per Erie,
C.J., Potter v. Faulkner, 1 B. & S.
805 ; Rylands v. Fletcher, L. B. $
PROPERTY— ITS RIGHTS AND LIABILITIES. 367
of a loaded gun, sent a young girl to fetch it, with
directions to take the priming out, which was accordingly
done, and a damage accrued to the plaintiff's son in con-
sequence of the girl's presenting the gun at him and
drawing the trigger, when the gun went off ; it was held,
that the defendant was liable to damages in an action on
the case (6). "If," observed Lord Denman, delivering
the judgment of the Court of Queen's Bench in another
and more recent case, " I am guilty of negligence in
leaving anything dangerous in a place where I know it
to be extremely probable that some other person will
unjustifiably set it in motion, to the injury of a third,
and if that injury should be brought about, I presume
that the sufferer might have redress by action against
both or either of the two, but unquestionably against the
first " (c). In the case referred to, the evidence showed
that the defendant had negligently left his horse and cart
unattended in the street ; and that plaintiff, a child seven
years old, having got upon the cart in play, another
child incautiously led the horse on, whereby plaintiff was
thrown down and hurt ; and, in answer to the argument,
that plaintiff could not recover, having, by his own act,
contributed to the accident, it was observed that the
plaintiff, although acting without prudence or thought,
had shown these qualities in as great a degree as he
could be expected to possess them, and that his miscon-
H. L. 330, cited ante, p. 355, note (#), Atterton, L. R. 1 Ex. 239 ; Lygo v.
also exemplifies the text. Newbofd, 9 Exch. 302 ; Great North-
(ft) DiVrot y. Bell, 5 M. & S. 198. ernR. C. v. Harrison, 10 Exch. 376 ;
See also Clark v. Chambers, 3 Q. B. Austin v. Great Western B. O., L. R.
D. 327. 2 Q. B. 442 ; Cornell r. Worth, 5 E.
(c) Lynch t. Nurdin, 1 Q. B. 29, & B. 849.
35, with which compare, Mangan v.
368
PROPERTY — ITS RIGHTS AND LIABILITIES*
Miwhfrvotts
a ui mm is.
duct, at all events, bore no proportion to that of the
defendant ((I).
Although a man has a right to keep an animal which
is ferce naturtt, and no one can interfere with him in
doing so until some mischief happens, yet, as soon as
the animal has caused bodily hurt to any person, then
the act of keeping it becomes, as regards that person,
an act for which the owner is responsible ; and there
is, in truth, as judicially observed, no distinction be-
tween the case of an animal which breaks through the
tameness of its nature and is fierce, and known by
the owner to be so, and one which is ferce naturce (c).
" Whoever/' says Lord Denman, C. J. (/) " keeps an
animal accustomed to attack and bite mankind, with
knowledge that it is so accustomed, is prima fade
liable in an action on the case at the suit of any
person attacked and injured by the animal, without any
averment of negligence or default in the securing or
taking care of it. The gist of the action is the keeping
the animal after knowledge of its mischievous propen-
sities " (g). No proof of the scienter, however, need now
be given where the complainant sues for hurt done to his
cattle (h) or sheep by the defendant's dog (i).
(d) Lynch v. Nurdin, 1 Q. B. 29,
35. See Wait* y. North Eastern R.
C, E. B. & E. 719 ; Illidge y. Good-
win, 5 C. k P. 190.
. (e) Jackson v. Smithson, 15 M. &
W. 563, 565 ; May v. BurdcU, 9 Q.
B. 101. See also Mason y. Keeling,
1 Lord Raym. 606 ; Jenkins v. Tur-
ncr, Id. 109, and cases infra.
(/) Judgm., 9 Q. B. 110, 111;
Card?. Case, 5C. B, 622, 633, 634 ;
Hudson y. Roberto, 6 Exch. 697.
(g) See Judgm., 5H.&N. 685 ;
Worth y. GiUing, L K 2 C. P. 1 ;
Cox v. Burbidge, 13 C. B. N. S. 430,
437. See Cooke v. Waring, 2 EL *
C. 332.
(h) See Wright y. Pearson, L. R.
4 Q. B. 582 ; 38 L. J. Q. B. 312.
(0 Stat. 28 & 29 Vict. c. 60.
As to damage done by a dog to
plaintiff's game, see Read v. Edwards,
17 C B. N. S. 245.
.PROPERTY — ITS RIGHTS AND LIABILITIES. 369
The owner of animals mansuetce fiatwrce, such as oxen,
horses, sheep, pigs, and the like, is liable for trespasses
committed by them on the land of another without
any negligence on his part, for the reaspn stated by
Brett, J., in the case of ElUa v. Loftus Iron Co. (k),
that the act of the animal is deemed to be the act
of its owner so as to constitute a trespass, if the same
act if done by the owner would have been a trespass (Z).
A somewhat curious exception to this general rule is
where an animal being lawfully driven along a highway
strays on to the land or into houses adjoining it In a
recent case an ox belonging to the defendant while being
driven through the streets of a country town entered the
plaintiff's shop, which adjoined the street, through the open
doorway, and damaged his goods. No negligence on the
part of the person in charge of the ox was proved. It
was held that the defendant was not liable, on the ground
apparently that persons who have property adjacent to a
highway must be taken to hold it subject to the risk of
injury from accidents not caused by negligence, and that
this exception to the general rule is one which is abso-
lutely necessary for the conduct of the common affairs of
life (m).
The above instances (which might easily be extended
through a much greater space than it has been thought
desirable to occupy), will, it is hoped, suffice to give a
general view of the manner in which the maxim, Sic utere
tuo ut aZienvm Turn Icedas, is applied in our law to
restrict the enjoyment of property, and to regulate in
some measure the conduct of individuals, by enforcing
(*) L. B. 10 C. P. 10. (m) TiUeU v. Ward, 10 Q. B. D.
(J) See also Let v. Riley, 18 C. B. 17 ; 52 L. J. Q. B. 61.
5. a 722; 84 L J. C. P. 212.
B B
370 PBOPERTT — ITS RIGHTS AND LIABILITIES.
compensation for injuries wrongfully occasioned by a
violation of the principle which it involves, a principle
which is obviously based in justice, and essential to the
peace, order, and well-being of the community. As
deducible from the cases cited in the preceding pages,
and from others to be found in our Reports, the following
propositions may, it is conceived, be stated : —
1. It is, pi^imd facie, competent to any man to enjoy
and deal with his own property as he chooses.
2. He must, however, so enjoy and use it as not to affect
injuriously the rights of his fellow-subjects.
3. Where rights are such as, if exercised, to conflict
with each other, we must consider whether the exercise of
the right claimed by either party be not restrained by the
existence of some duty imposed on him towards the other.
Whether such duty be or be not imposed must be deter-
mined by reference to abstract rules and principles of law.
4. A man cannot by his tortious act impose a duty on
another.
5. But, lastly, a wrongdoer is not necessarily, by reason
of his being such, disentitled to redress by action, as
against the party who causes him damage, for some-
times the maxim holds that Injuria non excusat
injurUtm (n).
(n) This maxim is also sometimes ton v. Eckerdey, 6 E. & B. 76 ; with
applicable where the action is founded which ace. Hornby v. Close, L. R. 2
upon contract. See («c or.) Alston Q. B. 158 ; Farrtr y. Clotty L. R. 4
v. Herring, 11 Exch. 822, 830 ; HU- Q. B. 602.
PROPERTY — ITS RIGHTS AND LIABILITIES. 371
Cujus est Solum ejus est usque ad Ccelum. (Co.
Litt. 4s. a.) — He who possesses land possesses also
tlvat which is above it (o).
Land, in its legal signification, has an indefinite extent significa-
tion of term
upwards, so that, by a conveyance of land, all buildings, "land."
growing timber, and water, erected and being thereupon,
shall likewise pass (p). So, if a man eject another from
land, and afterwards build upon it, the building belongs
to the owner of the ground on which it is built, according
to the principle cedifica&wni solo solo cedit (q), which we
shall presently consider.
From the maxim Cuius est solum ejus est usque ad InJur? ,_
" " i caused by
ccelum, it follows, that a person has no right to erect a ^J^l?
building on his own land which interferes with the due
enjoyment of adjoining premises, and occasions damage
thereto, either by overhanging them, or by the flow of
water from the roof and eaves upon them, unless, indeed,
a legal right so to build has been conceded by grant, or
may be presumed by user, and by operation of the stat.
2 & 3 Will. 4, c. 71. "
Where the declaration alleged that the defendant had
erected a house upon his freehold, so as to project over
the house of the plaintiffs ad nocumentum liberi tene-
menti ipsorum, but did not assign any special nuisance,
the Court, on demurrer, held the declaration good, inas-
(o) A maxim of general application, K, Electric Telegraph Co. v. Over-
per Grove, J., Reg. y. Keyn> 2 Ex. neere of Salford, 11 Exch. 180 ;
D. 116. Judgm., Vauxhall Bridge Co. v.
{p) Co. Iitt. 4, a ; 9 Rep. 54 ; Sawyer, 6 Exch. 508 ; Fredericks,
Allaway v. Wagstaff, 4 H. & N. 307. app., Howie, reap., 1 H. & C. 381.
As to the distinction between '< land " (?) Po$tt p. 376.
and " tenements," see per Martin,
B B 2
372
PROPERTY — ITS RIGHTS AND LIABILITIES.
Injury to
reversion.
Where
building
overhaugH
plaintiff h
land.
much as the erection must evidently have been a nuisance
productive of legal damage (r) ; and, in a modern case, it
was held, that the erection of a cornice projecting over
the plaintiff's garden was a nuisance, from which the law
would infer injury to the plaintiff, and for which, there-
fore, an action on the case would lie (#).
With respect to the nature of the remedy for an injury
of the kind to which we are now alluding, not only will an
action lie at suit of the occupier, but the reversioner may
also sue where injury has been done to the reversion ;
provided such injury be of a permanent character (t)
or prejudicially affect the plaintiff's reversionary in-
terest (u). It is now well settled, that a man may be
guilty of a nuisance as well in continuing as in erecting
a building on the land of another (x).
Not only will a man be liable who erects a building
either upon or so as to overhang his neighbour's land (y)T
(r) Batcn't case, 9 Rep. 53. See
also PenruddocVs case, 5 Rep.
100.
(*) Fay v. Prentice, 1 C. a 828 ;
per Pollock, C.B., Solomon v. Vint*
net's Co., 4H.&N. 600.
(<) Simjison v. Savage, 1 C. B. N.
S. 347, where the cases are collected.
See particularly Mumford v. Oxford,
Worcester, and Wolverhampton R.
ft, 1 H. ft N. 34; BattishiU y.
Reed, 18 C. B. 696 ; Cox v. Glue, 5 C.
B. 583; Tucker v. Newman, 11 A. ft
K. 40 ; Jackson v. Peeked, 1 M. ft S.
234 ; KidgUl v. Moor, 9 C. B. 364 ;
BeU ▼. Midland R. C, 10 C. R N.
S. 287.
As to the distinction between in-
juries to realty of a permanent and
of a merely temporary kind, see also
Hammersmith and City R. C. v.
Brand, L. R. 4 H. L. 171 ; Ricket
y. Metropolitan R. C, LR.2H.U
175.
Case will lie by the reversioner
for a permanent injury to a chattel
let out on hire, Mean v. London
and South Western R. C, 11 C. B.
N. S. 850.
(«) Metropolitan Association y,
Petch, 5 C. B. N. S. 504 ; Kott v.
SKooUtred, L. R. 20 Eq. 22 ; Cooper
y. Crabtree, 20 Ch. Dir. 589 ; 51 L.
J. Ch. 544.
(x) BaUishiU y. Reed, 18 C. B.
713 ; citing Holmes v. Wilson, 10
A. ft B. 503 ; Thompson v. Gibson,
7 M. ft W. 456 ; Bowycr v. Cook,
4 C. B., 236.
(y) 3 Inst 201 ; Vin. Abr., " Nut*
PBOPERTY — ITS RIGHTS AND LIABILITIES* 373
but an action will lie against him if the boughs of his
tree are allowed to grow so as to overhang the adjoining
land, which they had not been accustomed to do (z). In
a case before Lord Elhriborough, at Nisi Prius (a), which
was an action of trespass for nailing a board on the
defendant's own wall, so as to overhang the plaintiff's
garden, and where the maxim Cujus est solv/m ejus est
usque ad codum, was cited in support of the form of
action, his Lordship observed, that he did not think it
was a trespass to interfere with the column of air super-
incumbent on the close ; that, if it was, it would follow,
that an aeronaut was liable to an action of trespass qu. cl.
fr. at the suit of the occupier of every, field over which
his balloon might happen to pass; since the question,
whether or not the action was maintainable, could not
depend upon the length of time for which the superin-
cumbent air was invaded : and the Lord Chief Justice
further remarked, that, if any damage arose from the
object which overhung the close, the remedy was by
action on the case, and not by action of trespass (6).
It must be observed, moreover, that the maxim under
consideration is not a presumption of law applicable in
all cases and under all circumstances ; for example, it
does not apply to chambers in the inns of court (c) ; for
" a man may have an inheritance in an upper chamber,
though the lower buildings and soil be in another " (d).
sance" (G.) ;i*r Pollock, C.B., 4 H. Kenyon v. Hart, 6 B. & 8. 249,
& N. 600. 252.
(2) NorrU v. Baker, 1 Roll. Rep. (b) See Reynold* v. Clarice, 2 Ld.
393, ad fin. See Brook v. Jenney, Raym. 1399 ; Fay v. Prentice, 1 0.
2Q.B. 265. B. 828 ; Corbett v. HWf L. R. 9 Eq.
(a) Pickering v. Budd, 4 Camp. 671.
219 ; per Shadwell, V.-C. B., Saun- (c) Per Maule, J., 1 C. C. 840.
der$ v. Smith, ed. by Crawford, 20 ; (d) Co. Litt. 48, b.
374
PROPERTY — ITS RIGHTS AND LIABILITIES.
Land ex-
tendi* down-
ward* as
well as up-
ward*.
Not only has land in its legal signification an indefinite
extent upwards, but in contemplation of law it extends
also downwards, so that whatever is in a direct line
between the surface of any land and the centre of the
earth belongs to the owner of the surface ; and hence the
word " land/' which is nomen generalissimum, includes,
not only the face of the earth, but everything under it or
over it ; and, therefore, if a man grants all his lands, he
grants thereby all his mines, his woods, his waters, and
houses, as well as his fields and meadows (e). Where,
however, a demise was made of premises late in the
occupation of A. (particularly described), part of which
was a yard, it was held, that a cellar, situate under the
yard, and late in the occupation of B., did not pass
by the demise; for though primd facie it would do
so, yet that might be regulated and explained by circum-
stances (/).
The maxim, then, above cited, gives to the owner of
the soil all that lies beneath its surface, and accordingly
the land immediately below is his property. Whether,
therefore, it be solid rock, or porous ground, or venous
earth, or part soil and part water, the person who owns
the surface may dig therein, and apply all that is there
found to his own purposes, at his free will and plea-
sure Q/); although, as already stated, he may in some
cases incur liability by so digging and excavating at
the extremity and under the surface of his own land as
(e) 2 Com. by Broom k Hadley, 15,
17.
(/) Ike d. Freeland ▼. Burt, 1
T. R. 701. See Deniton r. HolUday,
1 H. & N. 631 ; and the maxim
Ouieunque aliquis quid concedit con*
cedere videtur et id tine quo ret iptot
ette turn potuit, pott,
(g) Judgm., 12 M. & W. 324, 354.
PBOPERTT — ITS BIGHTS AND LIABILITIES. 375
to occasion damage to the house or other building of his
neighbour (h).
But, although the general rule, which obtains in the separate
absence of any express covenant or agreement between «»£» and
. . . mineral*.
the parties interested in land, is as above stated, and
although it is a presumption of law that the owner of the
freehold has a right to the mines and minerals under-
neath, yet this presumption may be rebutted by showing
a distinct title to the surface, and to that which is be-
neath ; for mines may form a distinct possession and
different inheritance : and, indeed, it frequently happens
that a person, being entitled both to the mines and to
the land above, grants away the land, excepting out of
the grant the mines, which would otherwise have passed
under the conveyance of the land, and also reserving to
himself the power of entering upon the surface of the
land which he has granted away, in order to do such acts
as may be necessary for the purpose of getting the
minerals excepted out of the grant, a fair compensation
being made to the grantee for so entering and working
the mines. Id this case one person has the land above,
the other has the mines below, with the power of getting
the minerals ; and the rule is, according to the maxim
Sic utere tuo ut alienv/m, non Icedas, already considered,
that each shall so use his own right of property as not to
injure his neighbour ; and, therefore, the grantor will be
entitled to such mines only as he can work, leaving a
reasonable support to the surface. And here we may
observe, that if a man excepts out of a grant all mines
and minerals, he excepts also the right of doing all such
things as are necessary for the purpose of obtaining the
(A) 1 Crabb, Real Prop., p. 93.
37C PBOPERTY — ITS SIGHTS AND LIABILITIES.
mines and minerals so excepted (i), as, for example, the
right of going upon the land and making shafts and
erecting engines (£).
If there be a grant of an upper room in a house with a
reservation by the grantor of a lower room, he undertaking
not to do anything which will derogate from the right to
occupy the upper room ; in this case, if the grantor were
to remove the supports of the upper room, he would be
liable in an action of covenant (I).
QUICQUID PLANTATUR SOLO SOLO CKDIT. {WentW. Off.
Ex., 14tth ed. 145.) — Whatever is affixed to the soil
belongs (hereto.
It may be stated, as a general rule of great antiquity,
that, whatever is affixed (m) to the soil becomes, in con-
templation of law, a part of it, and is consequently sub-
jected to the same rights of property as the soil itself. In
the Institutes of the Civil Law it is laid down, that if a
man builds on his own land with the materials of another,
the owner of the soil becomes, in law, the owner of the
building4also— quia onvne quod solo incedificatur solo
cedit (n). In this case, indeed, the property in the
materials used still continued in the original owner ; and
although, by a law of the XII. Tables, the object of
which was to prevent the destruction of buildings, he
(t) Earl of Cardigan v. Armitage, the word fixator is used as syno-
2 Bam. & Or. 197 ; Clark ▼. Cogge, nymous with plamtatur " in the
Cro. Jac. 170. maxim supra, Judgm., L. £. 3 Ex.
(*) 2 Broom k Hadley's Com. 35. 260.
(I) 5 M. & W. 71, 76. (n) I. 2. 1. 29 ; D. 47. 3. 1.
(m) " In several of the old books
PBOPERTY — ITS RIGHTS AND LIABILITIES. 377
was unable, unless the building were taken down, to
reclaim the materials in specie, he was, nevertheless,
entitled to recover double their value as compensation
by the action de ti{jnoj\incto{o). On the other hand, if
a person built, with his own materials, on the land of
another, the house likewise belonged to the owner of the
soil ; for in this case, the builder was presumed inten-
tionally to have transferred his property in the materials
to such owner (p). In like manner, if trees were planted
or seed sown in the land of another, the proprietor of
the soil became proprietor also of the tree, the plant, or
the seed, as soon as it had taken root (q). And this
latter proposition is fully adopted, almost in the words of
the civil law, by our own law writers — Britton, Bracton,
and Fleta(r). According to the Roman law, indeed,
where buildings were erected upon, or improvements
made to property, by the party in possession, bond fide
and without notice of any adverse title, compensation
was, it seems, allowed for such buildings and improve-
ments to the party making them, as against the rightful
bwner (#) ; and although this principle is not recognised
by our own common law, nor to its full extent by courts
of equity, yet, where a man, supposing that he has an
absolute title to an estate, builds upon the land with the
knowledge of the rightful owner, who stands by, and
suffers the erection to proceed, without giving any notice
(o) I. 2. 1. 29 ; D. 47. 3. 1. cedat, fundi tamen dominus condem-
(p) I. 2. 1. 30. nari sold ut cum duntaxat recipuU,
(g) I. 2. 1. 31 & 82 ; D. 41. 1. 7. reddito sumptu quo pretiosior f actus
18. est, aut super fundo atque cedijicio
(r) Britton (by Wingate), c. 38, pensio imponaiur ex meliorations
180 ; Bracton, c. 3, as. 4, 6 ; Fleta, cestimatione si maluerit : Gothofred.
lib. 3, c. 2, a. 12. ad I. 2. 1. 30.
(«) Sed quamvis cedificlum fundo
378 PROPERTY — ITS RIGHTS AND LIABILITIES.
of his own claim, he will be compelled, by a court of
equity, in a suit brought for recovery of the land, to
make due allowance and compensation for such improve-
ments (£). " As to the equity arising from valuable and
lasting improvements, I do not consider," remarked Lord
Chancellor Clare (u), " that a man who is conscious of a
defect in his title, and with that conviction on his mind
expends a sum of money in improvements, is entitled to
avail himself of it. If the person really entitled to the
estate will encourage the possessor of it to expend his
money in improvements, or if he will look on and suffer
such expenditure without apprising the party of his
intention to dispute his title, and will afterwards endea-
vour to avail himself of such fraud — upon the ground
of fraud the jurisdiction of a court of equity will clearly
attach upon the case."
Having thus touched upon the general doctrine, that
what has been affixed to the freehold becomes a portion
of it, we shall proceed to consider in what manner, and
with what qualifications, the maxim, Quicquid plantatur
solo solo cedit, applies with reference to : 1st, trees ;
2ndly, emblements ; 3rdly, away-going crops ; and, 4thly,
fixtures ; — treating these important subjects with brevity,
and merely endeavouring to give a concise outline of the
law respecting each,
property in 1. The general property in trees, being timber, is in
trees, &c.
the owner of the inheritance of the land upon which
(0 1 Story, Sq. Juriap., 12th provemente: Sugd., V. & P., 14th
ed., a. 388; 2 Id., s. 1237; ed., 287.
Mamiden v. Dy&on, L. R. 1 H. L. (u) Kenncy v. Browne, 3 Ridgw.v
129. Where a sale is set aside on Par. Cas., 462, 519; cited, Arg.
account of the inadequacy of the con- Austin v. Chambers, 6 01. JtFin. 31.
sideration, the purchaser will be See, per Lord Brougham, 0., PerroU
allowed for lasting and valuable im- v. Palmer, 3 My. k K. 640.
PROPERTY— ITS RIGHTS AND LIABILITIES. 379
they grow ; that in bushes and underwood, on the other
hand, is in the tenant. The tenant cannot, indeed, with-
out rendering himself liable to an action on the case for
waste, do anything which will change the nature of the
thing demised ; he cannot, for instance stub up a wood,
or destroy a park paling ; neither can he destroy young
plants destined to become trees, nor grub up or cut down
and destroy fences ; nor, in short, do any act prejudicial
to the inheritance. He may, however, cut down trees
which are not timber, either by general law, or by parti-
cular local custom ; and he may likewise cut down such
trees as are of seasonable wood, i.e., such as are usually
cut as underwood, and in due course grow up again from
the stumps, and produce again their ordinary and usual
profit by such growth (x).
The property in timber wrongfully cut down or blown
down by a storm, if it is timber properly so called, belongs to
the owner of the first vested estate of inheritance (y), un-
less he has colluded with the tenant for life to induce him
to cut it down, in which case the court will interfere, and
not allow him to get the benefit of his own wrong (z).
By the general law of England oak, ash, and elm are
timber, provided they are of the age of twenty years or
upwards, provided also they are not so old as not to have
a reasonable quantity of usable wood in them, sufficient,
according to a text writer, to make a good post (a).
Where trees not fit for timber are cut down by the severance of
trees not fit
for timber.
(z) ZardJyArcyy. Atkwiih, Hob. Wma. 268 ; Honywood v. Honywood,
234 ; Judgm., Phillipps v. Smith, 14 L. R. 18 Eq. 306.
M. & W. 589 ; per Tindal, C.J., (z) PmoleU v. Bolton, 8 Ves. 877.
Berriman ▼. Peacock, 9 Bing. 386, (a) Hunyioood v. Honywood, L.
887 ; Com. Dig., " Bieri*" (H.). R. 18 Eq. 306 ; per Jessel, M. R.
(?) Bewick v. Whitfield, 3 P. 819.
380
PROPERTY — ITS RIGHTS AND LIABILITIES.
Repairs.
Tenant
without im
IK'Achment
of waste.
lessor, the property in such trees vests in the tenant ;
for the lessor would have no right to them if severed by
the act of God, and, therefore, can have no right to them
where they have been severed by a stranger (6).
A tenant, who is answerable for waste only, may cut
down trees for the purpose of reparation, without com-
mitting waste, either where the damage has accrued,
during the time of his being in possession, in the ordinary
course of decay, or where the premises were ruinous at
the time he entered ; if, however, the decay happened by
his default, in this case to cut down trees, in order to do
the repair, would be waste (c) ; and, at all events, the
tenant can only justify felling such trees as are fit for
the purpose of repair (<l). It is, moreover, a general
rule, that waste can only be committed of the thing
demised : and, therefore, if trees are excepted out of the
demise, no waste can be committed of them (e).
A tenant " without impeachment of waste " is entitled
to cut down timber, which he could not otherwise do ;
but this clause does not extend to allow destructive or
malicious waste, such as cutting down timber which serves
for the shelter or ornament of the estate (/). A tenant
for Jife without impeachment of waste has as full power
to cut down trees for his own use as if he had an estate of
inheritance, and is equally entitled to the timber if severed
by others, so that an action of trover for such timber will
not lie against him at suit of a tenant in tail expectant
on the termination of a life estate (g). But, if the tenant
(6) Channon t. Patchy 5R&C.
897, 902; Ward v. Andrew, 2
Chit. R. 686.
(c) Woodf., L AT., 12th ed., 592.
{d) Simmons v. Norton, 7 Bing.
640.
(e) Ooodright v. Vivian, 8 East,
190 ; Rolls t. Rock, cited, 2 Selw.,
N. P., 13th ed., 1244.
(/) Partington'* cast, SAik. 215.
(g) Pynt v. Dor, 1 T. R. 55.
PROPERTY— ITS RIGHTS AND LIABILITIES. 381
for life cut timber so as not to leave enough for repairs, or,
if he cut down trees planted for ornament or shelter to the
mansion-house, or saplings not fit to be felled for timber,
he may be restrained by injunction (h). And where a
tenant for life without impeachment of waste pulled down
a mansion-house and rebuilt it in a more eligible situa-
tion, an act which was not complained of by the remain-
derman, an injunction was granted to restrain the tenant
for life from destroying timber which had formed an
ornament and shelter to the original mansion (i).
Lastly, it is an inseparable incident to an estate tail, Tenant in
that the tenant shall not be punished for committing
waste by felling timber ; but this power must be exercised,
if at all, during the life of the tenant in tail ; for, at the
instant of his death, it ceases. If, therefore, tenant in tail
sells trees growing on the land, the vendee must cut them
down during the life of the tenant in tail ; for otherwise
they will descend to the heir as part of the inheritance (A;).
Tenant in tail, after a possibility of issue extinct, is not
liable for waste (I), though equity would, in this case,
interfere to restrain extravagant and malicious devasta-
tion (ra).
2. The next exception to the general rule, that what- Emue-
m ments.
ever is planted or annexed to the soil or freehold passes
with it, occurs in the case of emblements, which term
comprises not only corn sown, but roots planted, and other
(A) Drewry on Injunct., 144. 592.
(*) Morns v. Morris, 16 L. J., (I) Williams v. Williams, 15 Ves.
Chanc, 201. See Duke of Leeds v. jun. 427; 2 Com. by Broom & Hadley,
Earl Amherst, Id. 5; S. C, 2 Phill. 244.
117« (m) 2 Bla. Com., 16th e<L, 283, n.
(*) Woodf., L. & T., 12th ed., (10).
382 PROPERTY — ITS RIGHTS AND LIABILITIES.
annual artificial profits of the land (n) ; and these, in certain
cases, are distinct from the realty, and subject to many of
the incidents attending personal property.
General ^fa nx\e Upon this subject at common law, and irre-
spectively of a recent statute hereinafter noticed (o),
as already stated is, that those only are entitled to
emblements who have an uncertain estate or interest in
land, which is determined by the act of God, or of the
law, between the period of sowing and the severance of
the crop (p). Where, however, the tenancy is determined
by the tenant's own act, as by forfeiture for waste com-
mitted, or by the marriage of a feme copyholder or a
tenant durante viduitate, or in other similar cases, the
tenant is not entitled to emblements ; for the principle on
which the law gives emblements is, that the tenant may
be encouraged to cultivate by being sure of receiving the
fruit of his labour, notwithstanding the determination of
his estate by some unforeseen and unavoidable event (q).
By this rule, however, the tenant is not entitled to all the
fruits of his labour, or such right might be extended to
things of a more permanent nature, such as trees, or to
more crops than one, since the cultivator very often looks
for a compensation for his capital and labour in the pro-
duce of successive years ; but the principle is limited to
this extent, that he is entitled to one crop of that species
only which ordinarily repays the labour by which it is
produced within the year in which that labour is bestowed,
though the crop may, in extraordinary seasons, be delayed
beyond that period (r).
(n) Com. Dig., "Bier*" (G. 1). (r) Jndgm., Grave* y. Wdd, 5 B.
(o) Post, p. 385. k Ad. 117, 118 ; citing Kingsbury v.
(p) Co. Litt. 55, a. Collins, 4 Bing. 202. In Latham v.
(q) Com. Dig., " Buns " (G. 2). Atwood, Cro. Car. 515, hops growing
PROPERTY — ITS RIGHTS AND LIABILITIES. 383
If, then, a tenant for life, or pur autre vie, sows the Tenant for
land, and dies before harvest, his personal representatives
shall have the emblements or profits of the crop ; and if
the tenant for life sows the land, and afterwards grants
over his estate, and the grantee dies before the corn is
severed, it shall go to the tenant for life, and not to the
grantee's executor ; and, if a man sows land, and lets it
for life, and the lessee for life dies before the corn is
severed, the reversioner, and not the lessee's executor,
shall have the emblements, although, if the lessee had
sown the land himself, it would have been otherwise («).
Further, the under-tenants or lessees of tenant for life
will be entitled to emblements, in cases where tenant for
life shall not have them, viz., where the life estate deter-
mines by the act of the last-mentioned party ; as, in the
case of a woman who holds durante viduitate, her taking
a husband is her own act, and therefore deprives her of
the emblements : but if she leases her estate to an under-
tenant, who sows the land, and she then marries, this act
shall not deprive the tenant of his emblements ; for he
is a stranger and could not prevent her(Q. All these
cases evidently involve the application of the general
principle above stated.
So, the parochial clergy are tenants for their own lives, parson.
and the advantages of emblements are expressly given to
them by stat 28 Hen. 8, c. 11, s. 6, together with a power
to enable the parson to dispose of the corn by will ; but,
if the estate is determined by the act of the party him-
self, as by resigning his living, according to the principle
from ancient roots were held to be («) Arg. Knevett r. Pool, Cro. Bliz.
like emblements, because they are 464; cited Woodf., L. &T., 12th ecL,
" such things as grow by the manur- 723.
ance and industry of the owner." (t) Co. Litt 55, b.
384 PROPERTY — ITS RIGHTS AND LIABILITIES.
above stated, he will not be entitled to emblements. The
lessee of the glebe of a parson who resigns is, however, in
a different situation; for, his tenancy being determined
by the act of another, he shall have the emblements (u).
T«wnt for X tenant for years, where the end of the term is certain,
yean and J '
jwu/l^Z k not» ** would seem, entitled to emblements (x), but a
tenant from year to year, if the lessor determines the
tenancy, seems to be entitled to emblements because he
does not know in what year his lessor may determine the
tenancy by half a year's notice to quit, and in that respect
at least he has an uncertain estate (y). Where the tenancy
for years depends upon an uncertainty, as upon the death
of the lessor, who is tenant for life, or a husband seised
in right of his wife ; or if the term of years be determinable
upon a life or lives in these and similar cases, the estate
not being certainly to expire for a time foreknown, but
merely by the act of God, the tenant, or his representativesy
shall have the emblements in the same manner as a
tenant for life would be entitled to them (z), and if the
lessee of tenant for life be disseised, and the lessee of
the disseisor sow, and then the tenant for life dies, and
the remainderman enters, the latter shall not have the
corn, but the lessee of the tenant for life (a).
Where, however, a tenant for years, or from year to
year, himself puts an end to the tenancy, as if he does
anything amounting to a forfeiture, the landlord shall
have the emblements (b) ; and it is a general rule that
he shall take them when he enters for a condition broken,
(u) Bulwer y. Bulwer, 2B. &Ald. (2) Woodf., L. & T., 12th ed.,
470, 472 ; Woodf., L. 4 T. , 12th ed. , 728-24.
724. (a) KneveU t. Poet, Cro. Eliiv
(x) Co. Lit. 56, a. 468.
(y) Kingsbury t. Collins, 4 Bingh. (0) Co. Litt 55, b.
207 ; at p. 20.
PROPERTY— ITS RIGHTS AND LIABILITIES. 385
because he enters by title paramount, and is in as of his
first estate (c). Where a lease was granted on condition,
that, if the lessee contracted a debt on which he should
be sued to judgment, followed by execution, the lessor
should re-enter as of his former estate ; it was held that
the lessor, having accordingly re-entered after a judgment
and execution, was entitled to the emblements (d).
Where a tenant of any farm or lands, holds the same Tenant at
rack-rent.
at a rack-rent, it is now provided by stat. 14 & 15 Vict.
c. 25, 8. 1, that instead of claiming emblements he " shall
continue to hold and occupy such farm or lands until the
expiration of the then current year of his tenancy, and
shall then quit, upon the terms of his lease or holding,
in the same manner as if such lease or tenancy were thop
determined by effluxion of time or other lawful means
during the continuance of his landlord's estate ; " and
the section farther provides for an apportionment of the
rent as between the tenant and the succeeding landlord
or owner. The above Act applies to any tenancy in
respect of which there is a substantial claim to emble-
ments (e).
It has been mentioned that emblements are subject Heir.devi
to many of the incidents attending personal property.
Thus, by stat. 11 Geo. 2, c. 19, they may be distrained
for rent (/), they are forfeitable by outlawry in a personal
action, they were devisable by testament before the
statute of wills, and at the death of the owner they vest
(c) Per Bosanquet, J., 7 Bing. See, also, as to the operation of the
160; Com. Dig., " Bietu" (G. 2); above statute, Lord Stradbroke r.
Co. Litt. 55, b. Midcahy, 2 Ir. C. L. Rep. N. S., 406.
(d) Davis t. Byton, 7 Bing. 154. (/) See also stat. 56 Geo. 8, c. 50;
(«) Hamu v. Welch, L. B. 4 C. Butt v. MorreU, 11 Q. B. 425.
P. 91.
c c
386 PROPERTY — ITS RIGHTS AND LIABILITIES.
in his executors and not in his heir (g). So, where
tenant in fee or in tail dies after the corn has been sown,
but before severance, it shall go to his personal represen-
tatives and not to the heir (A). If, however, tenant in
fee sows land, and then devises the land by will and dies
before severance, the devisee shall have the corn, and not
the devisor's executors (?') ; and although it is not easy 10
account for this distinction, which gives corn growing to
the devisee, but denies it to the heir (k), it is clear law
that the growing crops pass to the devisee of the land
unless they be expressly bequeathed by the will to some
one else (7). The remainderman for life shall also have
the emblements sown by the devisor in fee, in preference
to the executor of the tenant for life (m) ; and the legatee
of goods, stock, and movables, is entitled to growing corn
in preference both to the devisee of the land and the
executor (n).
Tenant at ln the case of strict tenancy at will, if the tenant sows
his land, and the landlord, before the com is ripe, or
before it is reaped, puts him out, yet the tenant shall
have the emblements, since he could not possibly know
when his landlord would determine his will, and there-
fore could make no provision against it ; but it is
otherwise when the tenant himself determines the will,
(g) 2 Com. by Broom & Hadley, Gilb. Et. 250.
282. (0 Cooper v. WoolfiU, 2 H. & K.
(A) Com. Dig., "BUm," (G. 2) ; 122, 127 ; citing Shepp. Touch, (ed.
Co. Litt. 55, b., note (2), by Mr. by Preston), 472.
Hargrave. (»») Toll. Exors. 157.
(t) Anon., Cro/Eliz., 61; Co. (n) Cox v. Godsahe, 6 East,
Litt. 55, b., n. (2) ; Spencer's case, 604, note ; West v. Moore, 8 East,
Winch. 51. 339.
(&) See Co. Litt. 55, b., n. (2) ;
PROPERTY — ITS RIGHTS AND LIABILITIES. 387
for in this case the landlord shall have the profits of the
land (o).
Tenants under execution are entitled to emblements, Tenant
under exe*
when, by some sudden and casual profit, arising between cuUon-
seed-time and harvest, the tenancy is put an end to by
the judgment being satisfied (p). Again, if A. acknow-
ledge a statute or recognizance, and afterwards sow the
land, and the conusee extend the land, the latter shall
have the emblements (q) ; and where judgment was
given against a person, and he then sowed the land and
brought a writ of error to reverse the judgment, but it
was affirmed, it was held, that the recoveror should have
the corn (r).
' 3. An away-going crop may be defined to be the crop Away-going
sown during the last year of tenancy, but not ripe until
after its expiration. The right to this is usually vested
in the out-going tenant, either by the express terms of
the lease or contract, or by the usage or custom of the
country ; but, in the absence of any contract or custom,
and provided the law of emblements does not apply, the
landlord is entitled to crops unsevered at the determina-
tion of the tenancy, as being a portion of the realty, and
by virtue of that general maxim the exceptions to which
we are now considering.
The common law, it has been observed, does so little
to prescribe the relative duties of landlord and tenant,
that it is by no means surprising the Courts should have
been favourably inclined to the introduction of those
(o) Litt. g. 68, with the common- (q) 2 Leon. R. 54.
tary thereon ; Co. Litt 55. (r) Wicks v. Jordan, 2 Bulstr.
(p) Woodf., L. & T., 12th ed., 213.
724
c c 2
388 PROPERTY — ITS RIGHTS AND LIABILITIES.
regulations in the mode of cultivation which custom and
. usage have established in each district to be the most
beneficial to all parties (*). The rule, therefore, is, that
evidence of custom is receivable, although there be a
written instrument of demise, provided the incident
which it is sought to import by such evidence into the
contract is consistent with the terms of sucb contract ;
but evidence of custom is inadmissible, if inconsistent
with the express or implied terms of the instrument ; and
this rule applies to tenancies as well by parol agreement
as by deed or written contract or demise (t).
WW*+ In Wigglesworth v. Dallison (u)9 which is a leading
mumn. cage on this subject, the tenant was allowed an away-
going crop, although there was a formal lease under seal.
There the lease was entirely silent on the subject of such
a right ; and Lord Mansfield said, that " the custom did
not alter or contradict the lease, but only added some-
thing to it."
Humnv. ln the case of Hutton v. Warren lx\ it was held, that
Warren, . .
a custom, by which the tenant, cultivating according to
the course of good husbandry, was entitled on quitting to
receive from the landlord or incoming tenant a reasonable
allowance for seeds and labour bestowed on the arable
land in the last year of the tenancy, and was bound to
leave the manure for the landlord, if he would purchase it,
(*) Judgm., Button y. Warren, 1 lahay, lH.Bla, 5; reoogniaodGrtfiths
M. & W. 466. v. Puletton, 13 M. & W. S58, 360 ;
(0 WiggUsworth v. Dalliton, 1 Knight v. Bennett, 3 Bing. 361 >
DoagL 201 ; Favidl v. Gatkoin, 7 White v. Sayer, Palm. R. 211.
Exch. 273 ; Muncey v. Denni»,l H. (x) 1 M. k W. 466. Proof of the
& N. 216 ; Clarke v. Roy stone, 13 custom lies on the out-going tenant :
M. & W. 752. Caidecott v. Smytfiies, 7 C, & P.
(u) 1 Dougl. 201 ; affirmed in error, 808.
Id. 207, n. (8). See Bearan v. Dc-
PROPEBTY — ITS BIGHTS AND LIABILITIES.
389
was not excluded by a stipulation in the lease to consume
three-fourths of the hay and straw on the farm, and spread
the manure arising therefrom, and leave such of it as
should not be so spread on the land for the use of the
landlord on receiving a reasonable price for it.
Where a tenant continues to hold over after the ex- Tenant
holding
piration of his lease, without coming to any fresh agree- over-
ment with his landlord, he must be taken to hold
generally under the terms of the lease (y), on which,
therefore, the admissibility of evidence of custom will
depend (z).
The principle with respect to the right to take an away- ^^h,0?
going crop applies equally to the case of a tenancy from depends.
year to year as to a lease for a longer term (a) ; such cus-
tom, it has been observed, is just, for he who sows ought
to reap, and it is for the benefit and encouragement of
agriculture. It is, indeed, against the general rule of law
concerning emblements, which are not allowed to tenants
who know when their term is to cease, because it is held
to be their fault or folly to have sown when they knew
their interest would expire before they could reap. But
the custom of a particular place may rectify what other-
wise would be imprudence or folly (6). It may be ob-
served, too, that the question as to away-going crops
(y) See farther as to this, Hyatt v.
Griffiths, IT Q. B. 505 ; Thomas v.
Packer, 1 H. & N. 669.
(z) Boraston v. Green, 16 East,
71 ; Robert* v. Barker, 1 Cr. & M.
808 ; Griffiths v. Puleston, 13 M. &
W. 358. See Kimpton v. Eve, 3 Yes.
ft B. 349.
(a) Onslow t. , 16 Ves. jun.,
173. See Thorpe v. Eyre, 1 A. &
E. 926, where the custom was held
not to be available in the case of a
tenancy which was determined by an
award. Ex parte Mandrell, 2 Mad.
315.
(6) Judgm., Wigghsworth v. DaU
lison, 1 Dougl. 201 ; Dolby v. Hirst*
1 B. & B. 224.
890 PROPERTY — ITS RIGHTS AND LIABILITIES.
under custom is quite a different matter from emble-
ments, which are by the common law (c).
Fixtures:— 4. The doctrine as to fixtures is peculiarly illustrative
Preliminary * w
Tvmxks. 0f the legal maxim under consideration £for the general
rule, as laid down in the old books, is, that " whenever
a tenant has affixed anything to the demised premises
during his term, he can never again sever it without the
consent of his landlord " (d). " The old rule " upon this
subject, observes Martin, B. (e), " laid down in the old
books is, that if the tenant or the occupier of a house or
land annex anything to the freehold, neither he nor his
representatives can afterwards take it away, the maxim
being, Quicquid plantatur solo, solo cedit. But as society
progressed, and tenants for lives or for terms of years of
houses, for the more convenient or luxurious occupation
of them, or for the purposes of trade, affixed valuable
and expensive articles to the freehold, the injustice of
denying the tenant the right to remove them at his
pleasure, and deeming such things practically forfeited
to the owner of the fee simple by the mere act of annexa-
tion, became apparent to all ; and there long ago sprung
up a right, sanctioned and supported both by the Courts
of law and equity, in the temporary owner or occupier
of real property, or his representative, to disannex and
remove certain articles, though annexed by him to the
freehold, and these articles have beendenominated./forture*."
Questions respecting the right to what are ordinarily
(c) Per Taunton, J., 1 A. & B. (e) 10 Exch. 507, 508, citing
133; citing Com. Dig. " £icns" Minshallv. Lloyd, 2M.&W. 450.
(Gk 2). See also, per Wood, V.-C, Mather v.
(d) Amos & Per. on Fixtures, 2nd Fraser, 2 K. 4 J. 536.
eel, 19.
PROPERTY — ITS RIGHTS AND LIABILITIES.
391
called fixtures principally arise between three classes
of persons ; 1st, between heir and executor or adminis-
trator of tenant in fee; 2ndly, between the personal
representatives of tenant for life or in tail and the
remainderman or reversioner; 3rdly, between landlord
and tenant. In the first of these cases, the general rule
obtains with the most rigour in favour of the inheritance,
and against the right to disannex therefrom, and to
consider as a personal chattel anything which has been
affixed thereto (/), in the second case, the right to
fixtures is considered more favourably for the personal
representatives than in the preceding ; and, in the last
case, the greatest latitude and indulgence have always
been allowed in favour of the tenant (g) ; — so that deci-
sions, establishing the right of the personal representatives
to fixtures in the first and second of the above cases, will
apply, d fortiori, to the third.
It is here necessary to remark, that the term " fixtures " Meaning of
is often used indiscriminately in reference to those articles
which are not by law removable when once attached to
the freehold, as well as to those which are severable
therefrom (h). But, in its correct sense, to constitute an
(/) Per Lord Ellenborongh, C. J.,
Elwe$ v. Maze, 3 East, 51 ; per Ab-
bott, C. J., CoUgrave v. Bias Santos,
2 B. k C. 78.
iff) Per Lord Ellenborongh, C.J.,
Elwesv. Maw, supra; per Abbott,
€. J., CoUgrave v. Di&s Santos,
supra.
(A) Per Parke, B., MinshaU v.
Lloyd, 2 M. & W. 459; Judgm.,
L. B. 3 Ex. 260.
"There is no doubt that sometimes
things annexed to land remain chattels
as much after they hare been annexed
as they were before. The case of
pictures hung on a wall for the pur-
pose of being more conveniently seen,
may be mentioned by way of illustra-
tion. On the other hand things may
be made so completely a part of the
land as being essential to its conve-
nient use, that even a tenant could
not remove them. An example of
this class of chattel may be found in
doors or windows. Lastly, things
may be annexed to land for the pur-
392 PROPERTY — ITS RIGHTS AND LIABILITIES.
article a fixture, Le., part of the realty, it must be
actually annexed thereto, and £ corwerso whatever is so
annexed becomes part of the realty, and the person who
was the owner of it when a chattel, loses his property
in it, which immediately vests in the owner of the soil.
This is the general rule, but there are cases in which
things annexed to the freehold may be disannexed and
carried away by some person claiming a property in them,
as against the owner of the freehold (i).
With the above preliminary remarks we shall proceed
very briefly to consider the three classes of cases specified
at p. 391 — viz., between heir and the personal representa-
tives of tenant in fee ; — between the personal representatives
of tenant for life or in tail and the remainderman or
reversioner ; — between landlord and tenant ; noticing also
under these heads the right to fixtures as between some
other parties.
Between In the class of cases arising between heir and executor,
heir and °
executor. the rule has been thus stated : that whatever is strongly
affixed to the freehold or inheritance, and cannot be
severed thence without violence or damage, quod ex
cedibvs non facile vevellitwr, is become a member of the
inheritance, and shall, therefore, pass to the heir (j) ;
and, in the first place, it must be observed, that a chattel
does not lose its personal nature unless fixed in or to the
ground, or in or to some foundation which in itself forms
poses of trade, or of domestic con- 829 ; Longbotlom v. Berry, L. R. 5
venience or ornament, in so permanent Q. B. 123, 139 ; per Blackburn, J.
a manner as really to form a part Reg. v. Zee, L. R. 1 Q. B. 253.
of the land, and yet the tenant who (i) 2 Smith's Leading Cases, 8th
has erected them is entitled to remove ed., 192.
them during his term, or it may be (j) See Shep. Touch. 469, 470 ;
within a reasonable time after its Com. Dig., "Biens" (B.).
expiration.'' Judgm., L. R. 4 Ex.
PROPERTY — ITS RIGHTS AND LIABILITIES.
393
part of the freehold. It is not sufficient that the article
in question merely rests upon the soil, or upon such
foundation (k) ; unless there be annexation, no difficulty
can under any circumstances occur. It is frequently, '
however, a matter of doubt, whether the annexation can
be considered as sufficient; and in such cases the best
test appears to be whether the removal can be effected
without substantial injury to the freehold (I).
The strictness of the rule under consideration was, it Trade fix-
may be remarked, very early relaxed, as between landlord Remarks in
. . Khrt* V.
and tenant, in favour of such fixtures as are partly or *'<"<•
wholly essential to trade or manufacture (m); and the
same relaxation has, in several modern cases, been ex-
tended to decisions of that class which we are now con-
sidering, viz., those between heir and executor. In the
case of Elw€8 v. Maw, which is justly regarded as a
leading authority on the subject of fixtures, Lord Ellens-
borough observed (n), that, in determining whether a
particular fixed instrument, machine, or even building,
should be considered as removable by the executor as
between him and the heir, the Court in the three prin-
cipal case8(o) on the subject may be considered as
{k) WUlshear v. CottrtU, 1 E. &
B. 674 ; Huntley v. Russell, 13 Q.
B. 572 ; Hutchinson v. Kay, 23
Bear. 418 ; Mather v. Fraser, 2 K.
k J. 536 ; R. v. Inhabs. of OOey,
1 B. k Ad. 161, 165. See also Wood
v. Hewett, 8 Q. B. 913 ; Lancaster
t. Eve, 5 C. B. N. S. 717.
(I) Avery v. Chedyn, 3 A. & B.
75 ; Judgm., Martin v. Roe, 7 E. k
B. 44, where the right to remove
ornamental fixtures as between the
executors of an incumbent and his
successor is considered.
(m) Judgm., 3 Bast, 51, 52; per
Story, J., delivering the judgment in
Fan Ness v. Pacard, 2 Peters (U.
S.), B. 143, 146.
(n) 3 East, 38.
(o) Viz., Lowton v. Lowton, 3
Atk. 13, which was the case of a fire
engine to work a colliery erected by
tenant for life ; Lord Dudley v.
Lord Ward, Amb. 113, which was
also the case of a fire-engine ; and
Lawton v. Salmon, 1 H. Bla. 259, n.,
394
PROPERTY — ITS RIGHTS AND LIABILITIES.
having decided mainly on this ground, that where the
fixed instrument, engine, or utensil (and the building
covering the same falls within the same principle), was
an accessory to a matter of a personal nature, it should
be itself considered as personalty. In two of these
cases (p), a fire-engine was considered as an accessory to
the carrying on the trade of getting and vending coals —
a matter of a personal nature. In Lord Dudley v. Lord
Ward, Lord Hardwicke says, " A colliery is not only an
enjoyment of the estate, but in part carrying on a trade ; "
and in Lawton v. Lawton he says, "One reason that
weighs with me is its being a mixed case, between
enjoying the profits of the lands and carrying on a species
of trade ; and, considering it in this light, it comes very
near the instances in brewhouses, &c, of furnaces and
coppers." Upon the same principle Lord C. B. Comyns
may be considered as having decided the case of the
cyder-mill (q), i.e., as a mixed case, between enjoying the
profits of the land and carrying on a species. of trade, and
as considering the cyder-mill as properly an accessory to
the trade of making cyder. In the case of the salt-
pans (r), Lord Mansfield does not seem to have con-
sidered them as accessory to the carrying on a trade, but
which was trover for salt-pans brought
by the executor against the tenant of
the heir-at-law.
( p) Lawton t. Lawton, 3 Atk. 13;
Lord Dudley v. Lord Ward, Amb.
113.
(?) Cited in Lawton v. Lawton, 3
Atk. 13 ; but see the observations
respecting this case by Lord Hard-
wicke in Lawton t. Salmon, 1 H.
Bla. 259, n. ; Lord Dudley v. Lord
Ward, Amb. 118 ; and in Ex parte
Quincey, 3 Atk. 477, and Ball., N.
P., 34. It seems that do rale of law
can be extracted from a case of the
particulars of which so little is known:
see, per Lord Cottenham, Fuherr.
Dixon, 12 CI. & Fin. 829; and see
as to the cyder-mill case, per Wood,
V. -C., Mather v. Prater, 2K.&J.
536, reviewing the prior authorities,
(r) Lawton ▼. Salmon, 1 H. Bla.
259, n.
PROPERTY — ITS RIGHTS AND LIABILITIES.
395
as merely 'the means of enjoying the benefit of the in-
heritance. Upon this principle he considered them as
belonging to the heir as parcel of the inheritance, for the
enjoyment of which they were made, and not as belong-
ing to the executor as the means or instrument of carrying
on a trade (a).
In a modern case before the House of Lords, it ap«
peared that the absolute owner of land, for the purpose
of better using and enjoying that land, had erected upon
and affixed to the freehold certain machinery. It was
held that, in the absence of any disposition by him 6f
this machinery it would go to the heir as part of the real
estate ; and, further, that if the corpus of the machinery
passed to the heir, all that belonged to such machinery,
although more or less capable of being detached from it,
and of being used in such detached state, must also be
considered as belonging to the heir (t).
As between devisee and executor the rule seems, in Devisee and
. • , ... executor.
principle, to be the same as that already considered, the
devisee standing in place of the heir as regards his right
to fixtures; for, if a freehold house be devised, fixtures
pass (u) ; but if tenant for life or in tail devise fixtures,
his devise is void, he having no power to devise the realty
(«) Per Lord Ellenborough, O.J.,
3 East, 54. See Winn v. Ing&by, 5
B. & Aid. 625 ; R. v. St. Dunttan, 4
B. & C. 686, 691 ; Harvey v. Harvey,
Stra. 1141.
(0 Fisher v. Dixon, 12 d & Fin.
312. In this case the exception in
favour of trade was held not appli-
cable ; the judgments delivered con-
tain, however, some remarks as to the
limits of this exception, which are
well worthy of consideration. See
also Mather v. Fraser, 2 K, & J.
536, 545 ; Judgm. , Climie v. Wood,
L. R. 4 Ex. 330 ; Judgm., Long-
bottom v. Berry, L. R. 5 Q. B. 136,
which latter cases also show that the
decisions establishing a tenant's right
to remove trade fixtures "do not apply
as between mortgagor and mortgagee
any more than between heir-at-law
and executor. "
(u) Per Best, J., Colegrave v.Dias
Santos, 2 B. & C. 80.
896
PROPERTY — ITS RIGHTS AND LIABILITIES.
Devisee and
heir.
Vendor and
vendee.
( 'olegrave v.
Dias Santos.
Mortgagor
und mort-
gagee.
to which they are incident He may, however, devise
such fixtures as would pass to his executor (^).
As between the heir and devisee, it may be considered
as a rule, that the latter will be entitled to all articles
which are affixed to the land, whether the annexation in
fact took place prior or subsequent to the date of the
devise, according to the maxim, Quod wdijicatur in ared
legatd cedit legato ; and, therefore, by a devise of a house,
all personal chattels which are annexed to the house, and
which are essential to its enjoyment, will pass to the
devisee (y).
As between vendor and vendee, everything which forms
part of the freehold passes by a sale and conveyance of
the freehold itself, if there be nothing to indicate a con-
trary intention (s).
Thus, in Colegrave v. Dias Santos (a), the owner of a
freehold house, in which there were various fixtures, sold
it by auction. Nothing was said about the fixtures. A
conveyance of the house was executed, and possession
given to the purchaser, the fixtures still remaining in the
house. It was held, that they passed by the conveyance
of the freehold ; and that, even if they did not, the
vendor, after giving up possession, could not maintain
trover for them.
The result of various recent decisions (b) is that the
(x) Shep. Touch. 469, 470 ; 4
Rep. 62.
(y) Amos & Fer., Fixtures, 2nd
ed., 246.
(z) Colegrave v. Dias Santos, 2 B.
& C. 76 ; cited, Arg. Id. 610 ; per
Parke, B., Hitckman v. Walton, 4
M. & W. 416 ; per Patteson, J.,
Bare v. Uorton, 5 B. & Ad. 730.
See Steward v. Lombe, IB. & B.
506, 513 ; Rijall v. Bolle, 1 Atk.
175 ; Thompson, v. PcttUl, 10 Q. B.
101 ; Wiltskear v. Cottrell, 1 E. &
B. 674.
(a) 2 B. & C. 76. See Manning v.
Bailey, 2 Exch. 45.
(b) Collected in Climie t. Wood,
L. R. 3 Ex. 257, affirmed L. B. 4
PROPERTY— ITS RIGHTS AND LIABILITIES,
397
old maxim quicquid plantatur solo, solo cedit applies in
all its integrity to the relation of mortgagor and mort-
gagee, for a mortgage being a security or pledge for a
debt, it is not unreasonable if a fixture be annexed to
land at the* time of a mortgage, or if the mortgagor in
possession afterward annexes a fixture to it, that the
fixture shall be deemed an additional security for the
debt — whether it be a trade fixture or a fixture of any
other kind ; though upon the true construction of a mort-
gage deed trade fixtures may be removable by the mort-
gagor (c). It has accordingly been established that trade
fixtures which have been annexed to the freehold for the
more convenient using of them, and not to improve the
inheritance, and which are capable of being removed
without appreciable damage to the freehold, pass under a
mortgage of the freehold to the mortgagee (d).
The effect of a mortgage then with regard to fixtures,
is, in brief, similar to that of a conveyance (e) ; and trover
will not lie against either vendee or mortgagee (/) in
possession for chattels affixed to the freehold ; but which
Ex. 328 ; 38 L. J. Ex. 223, with which
ace. Longbottotn v. Berry, L. R 5
Q. B. 123 ; 39 L. J. Q. B. 37. See
Tebb t. Hodge, L. R. 5 C. P. 73; 39
L. J. C. P. 56.
(e) Judgm., L. R 3 Ex. 260.
(d) Clitnie t. Wood, supra; Long-
bottom v. Berry, tupra; Tebb t.
Hodge, tupra; in which cases the
prior decisions are collected. Meux
v. Jacob*, L. R 7 H. L. 481 ; 44 L.
J. Ch. 481; Holland v. Hodgson,
L. R 7 C P. 828 ; 41 L. J. C. P. 146.
(e) Per Parke, B., 4 M. & W. 416;
Longstaffv. Meagoe, 2 A. k E. 167.
See Trappes v. Harter, 2 Cr. & M,
153 ; cited HellaweU v. Eastwood, 6
Exch. 318 ; and in Ex parte Barclay,
5 De O. M. & Gh 412 ; but said, per
Cresswell, J., to hare been overruled
{Wilde v. Water*, 16 C. B. 647).
Trappes t. Harter, has, however,
frequently been recognised as an au-
thority; Mather v. Fraser, 2 K. &
J. 536. It was cited and distin-
guished in Walmdey v. Milne, 7 0.
B. N. S. 133-4. See Haley v.
Hammerdey, 80 L. J., Chanc, 771 ;
Watson v. Lane, 11 Exch. 769.
(/) 2 B. & C. 76 ; longstaff v.
Meagoe, 2 A. & E. 167. See Boy-
dell r. M'Michacl, 1 Cr. M. & R.
177 ; Ex parte Bentley, 2 M. D. &
De Gk 591.
398 PROPERTY — ITS RIGHTS AND LIABILITIES.
might have been removed before possession was given
under the deed. Where, however, there was a mortgage
of dwelling-houses, foundries, and other premises, " to-
gether with all grates, &c, in and about the said two
dwelling-house3, and the brewhouses thereto 'belonging/'
it was held that, although without these words the fix-
tures in the foundries would have passed, yet by them the
fixtures intended to pass were confined to those in the
dwelling-houses and brewhouses (g).
valuation of In case of an absolute sale of premises, where the con-
veyance is not general, but contains a stipulation that
" the fixtures are to be taken at a valuation/' those things
only should in strictness be valued which would be deemed
personal assets as between heir and executor, and would
not pass with the inheritance (h).
ornamental It has been thought that ornamental fixtures form an
fixture*. m °
exception to the general rule, and that fixtures which
otherwise would pass to the heir or remainderman, do not,
if they can be shown to be used for purposes of ornament
merely, but as has been observed by the learned authors
of Smith's Leading Cases, the authorities cited in
support of this exception do not go far, for the articles
given up to the executor in them seem to have been very
slightly annexed to the freehold, and rather chattels than
fixtures properly so-called. The case of Beck v. Rebow (i),
which is the principal authority in favour of the exception,
seems not to have been followed in the later decisions.
(g) Hare v. Horton, 5 B. k Ad. Bear. 454.
726 (distinguished in Matittr v. (h) Amos & Per., Fixtures, 2nd
Fraur, cited supra, n. (<)) ; Haley ed., 221.
t. Hammersley, and Walmsley v. (t) 1 P. Wins. 94, and see Avery
Milne, supra ; Metropolitan Conn- v. Chedyn, 3 Ad. & E. 75.
tits Assurance Co, r. Brown, 26
PBOPEKTY — ITS RIGHTS AND LIABILITIES.
399
Secondly, as the heir is more favoured in law than the Executor
and reniain<
remainderman or reversioner, all cases in which an exe- d«nnan or
' reversioner
cutor or administrator of the tenant in fee would be ^t^.
entitled to fixtures, as against the heir, will apply, a
fortiori, to support the claim of the representatives of
tenant for life, or in tail, against the remainderman or
reversioner. The personal representatives, therefore, in
the latter case, seem clearly entitled to fixtures erected
for purposes of trade, as against the party in remainder or
reversion (k).
In the third class of cases above mentioned, that, viz., Landlord
and tenant
between landlord and tenant, the general rule, that what-
ever has once been annexed to the freehold becomes a
part of it, and cannot afterwards be removed, except by
or with the consent of him who is entitled to the inherit*
ance (I), must be qualified more largely than in the pre-
ceding classes : thus, the tenant may take away during
the continuance of his term, or at the end of it, although
not after he has quitted possession, such fixtures as he has
himself put upon the demised premises, either for the
purposes of trade, or for the ornament or furniture of his
(Jfc) Lawton v. Lavton, 8 Atk. 13;
Lord Dudley t. Lord Ward, Amb.
113.
(I) Co. Litt. 53, a ; per Kinders-
ley, V.-C, Gibson v. Hammersmith
JR. C, 32 L. J., Chanc, 340 et seq.
Trover does not lie for fixtures until
after severance; Dumergue ▼. Ramsey,
2 H. & C. 777, 790 ; Mintkldl y.
Lloyd, 2 M. & W. 450 ; recognised,
Mackintosh t. Trotter, 3 Id. 184-
186 ; Roffey v. Henderson, 17 Q. B.
674, 586 ; London Loan, &c. , Co, y.
Drake, 6 C. R 5. S. 798, 811. In
WMe y. Waters, 16 C. B. 651,
Maule, J., delivering the judgment
of the Court, observes, "Generally
speaking, no doubt, fixtures are part
of the freehold, and are not such
goods and chattels as can be made the
Bubject of an action of trover. But
there are various exceptions to this
rule, in respect of things which are
set up for ornament or for the pur-
pose of trade, or for other particular
purposes. As to these, there are
many distinctions, some of which are
nice and intricate/' See, also, Clarke
v. Hdfordyl C. & K. 540.
400 PROPERTY — ITS RIGHTS AND LIABILITIES.
house (m) ; but here a distinction must be observed
between erections for the purposes of trade annexed to
the freehold, and those which are for purposes merely
agricultural (n). With respect to the former, the exception
engrafted upon the general rule is of almost as high
antiquity as the rule itself, being founded upon principles
of public policy, and originating in a desire to encourage
trade and manufactures. With respect to the latter class,
however, it has been expressly decided that to such cases
the general rule must be applied, unless it can be shown
that the provisions of the statutes 14 & 15 Vict. c.
25, 38 & 39 Vict. c. 92, s. 53, or 46 & 47 Vict. c. 61,
s. 34, apply, or that the object and purpose of the
erections related partly to trade of any description,
such as cyder-mills, machinery for working mines or
collieries (o).
n™ v- In the leading case on this subject ( p), it was held that
(m) Such aa stores, grates, orna- v. Blakeway, 2 M. A Gr. 729 ; Burt
mental chimney-pieces, wainscots fas- v.HadeU, 18 C. B. 162; S. C, Id.
tened with screws, coppers, a pomp 898.
very slightly affixed to the freehold, See also Powell, app., Farmer,
and various other articles ; per Erie, reap., 18 C. B. N. 8. 168, 178;
J.,andCrowder, J., Bishop v. Elliott, PoweU, app., Boratton, reap., Id.,
11 Exch. 115 ; Grynes v. Boweren, 175.
6 Bing. 487 ; and per TmdaL, C.J., (n) Per Lord Kenyon, C. J., Pen-
Id. 439, 440 ; Horn v. Baker, 9 tony. Bobart, 2 Bast, 90; Jndgm.,
East, 215, 238. In BueUand v. Earl of MtmtfiM v. Blackburne, 3
Bititerjield, 2 B. & B. 54, which is Bing., N. G., 438. A nurseryman
another important decision on this may, at the end of his term, remove
subject, it was held, that a conserva* trees planted for the purpose of sale ;
tory erected on a brick foundation, Amos k Per., Fixtures, 2nd ed., 68.
attached to a dwelling-house, and (o) Woodfall, L. & T., 12th ed.,
communicating with it by windows, 607.
and by a flue passing into the par- (p) Elwe$ v. Maw, 8 East, 38.
lour-chimney, becomes part of the See Smith v. Bender, 27 L. J., Ex.,
freehold, and cannot be removed by 83 ; and cases there cited,
the tenant or his assignees. See West
.PROPERTY— ITS RIGHTS AND LIABILITIES. 401
a tenant in agriculture, who erected at his own expense,
and for the necessary and convenient occupation of his
farm, a beast-house, and carpenter's shop, &c, which
buildings were of brick and mortar, and tiled, and let
into the ground, could not legally remove the same even
during his term, although by so doing he would leave the
premises in the same state as when he entered ; and a
distinction was here taken between annexations to the
freehold for the purposes of trade, and those made for
the purposes of agriculture and for better enjoying the
immediate profits of the land. Where, indeed, a superin-
cumbent shed is erected as a mere accessory to a personal
chattel, as an engine, it may, as coming within the defini-
tion of a trade fixture, be removed ; but where it is acces-
sory to the realty it can in no case be removed (q).
It has been stated, that the right of removal, where it
exists, should be exercised during the continuance of the
term, or during a certain time after its expiration during
which the tenant has a right to consider himself as still in
possession of the premises as tenant under the land-
lord(r). In a recent case, the lessee of business pre-
mises having become bankrupt, the trustee sold the
fixtures upon the terms that they were to be removed
within two days after the sale, which was not done, as the
buyer was negotiating with the landlord of the premises
for their purchase. The negotiations having fallen through
the trustee surrendered the lease to the landlord, who
relet the premises with the fixtures on them. About a
fortnight afterwards the buyer, hearing of the surrender,
applied for the fixtures, and it was held he was entitled
(q) Whitehead v. Bennett, 27 L. (r) Ex parte Stephens, re Lewis,
J., Ch., 474. 7 Oh. Diy. 127 j 47 L. J., Bk., 22.
D D
402 PROPERTY — ITS BIGHTS AND LIABILITIES.
to them, as he had not lost his right by delay or laches (*).
This case would seem to engraft an equitable exception
upon the common law rule that the fixtures must be
removed during such time as the tenant has a right to
consider himself in possession. It is also important to
. remark, that the legal right of the tenant to remove
fixtures is capable of being either extended or controlled
by the express agreement of the parties ; and the ordinary
right of the tenant to disannex tenants' fixtures during
the term may thus be renounced by him (t) ; it is, in fact,
very usual to introduce into a lease a covenant for this
purpose, either specifying what fixtures shall be removable
by the tenant, or stipulating that he will, at the end of
the term, deliver up all fixtures annexed during its con*
tinuance to the landlord's use (u). Where a lessee mort-
gaged tenant's fixtures, and afterwards surrendered his
lease to the lessor, who granted a fresh lease to a third
party, the mortgagees were held entitled to enter and
sever the fixtures (a?).
It is also worthy of notice, that the right of property in
fixtures may be modified by proof of a special usage pre-
vailing in the particular neighbourhood (y) ; and it may,
also, as in the case of landlord and tenant, be modified by
evidence of the intention of the parties ; ex. gr., a chattel
(a) Saint y. PiUey, L. B. 10 Bx. N. C, 438 ; Folty t. Addcnbrooix,
137; 44 L. J. Bz. 137; and see also 18 M. & W. 174 ; SUddon v. Cruib-
London Loan, <fcc., Co. v. Drake, 6 shank, 16 M. k W. 71 ; Heap ▼.
O. B. N. S. 798. Barton, 12 C. B. 274, citing Penton
(t) Dumergue v. Rwnsey, 2 H. & r. Bobart, 2 East, 88.
C 777. (x) London Loan, <£c., Co. r.
(«) See Bishop ▼. Elliott, 11 Exch. Drake, 6 C. B. N. S. 798.
118; StansfM v. Mayor, dkc., of (y) Tin. Abr., " Executor*;' U.
Portsmouth, 4C. R N. EL 120 ; Earl 74. See Davis v. Jones, 2B. & Aid.
of Mansfield t. Blackburne, 3 Bing., 165, 168.
PROPERTY — ITS RIGHTS AND LIABILITIES.
403
placed by the owner upon the freehold of another, but
severable from it without injury thereto, does not neces-
sarily become part of the freehold, it is matter of evidence
whether by agreement it does not remain the property of
the original owner (&).
In Wake v. Hail (a) the important question of the wakev
HalL
right of a mine owner against the surface owner to Mining
fixtures*
the various buildings erected by the former on the
surface for the purpose of inning the minerals was
raised and discussed. In that case the question was
between certain surface owners of lands situate in Derby-
shire, within the limits of the High Peak Mining Customs
and Minerals Courts Acts, 1851, and certain miners who
derived their title to the mines under the customs set out
in the Act The Lord Chancellor, in delivering judg-
ment, treated the case, however, as one between an owner
in fee simple of mines, reserved and excepted by a deed
granting land subject to such exception and reservation,
and the grantee of the surface. From thid case it appears
that the mine owner has the right to remove all buildings
and other erections erected by him on the surface for the
purpose of mining operations, after he has ceased to work
(z) Wood r. ffewett, 8 Q. B. 918,
followed in Lancaster v. Eve, 6 C. B.
N. 8. 717, 722, 727, 728, where
Williams, J., observes, "No doubt
the maxim Quicguid plantaiur sofo,
solo sedti is well established ; the
only question is, what is meant by
it ? It is clear that the mere patting
a chattel into the soil by another
cannot alter the ownership of the
chattel. To apply the maxim, there
must be such a fixing to the soil as
reasonably to lead to the inference
that it was intended to be incorpo-
rated with the soil."
In connection with what has been
said iupra, respecting the right to
fixtures as between landlord and
tenant, maybe consulted the cases
cited ante, which concern mortgagor
and mortgagee.
(a) 7Q. B. D. 295; 50 L. J., Q.
B., 545.
d D 2
404 .PROPERTY — ITS RIGHTS AND LIABILITIES.
the minerals, provided the removal takes place within a
reasonable time after such cessation.
concluding In concluding these remarks concerning fixtures, we
remarks. ° ^ °
may observe that the uncertainty of the law on this sub-
ject results necessarily from the fact that each case
involving a question as to the right to fixtures is pro-
fessedly and necessarily, in a great measure, decided
according to its own particular circumstances; and a
perusal of the preceding pages will sufficiently show that
the maxim Quicquid plantatur solo, solo cedit is held up
by our law only to be departed from on account of the
acknowledged ill effects which would ensue from too strict
an application of it.
nine.
DOMUS SUA CUIQUE EST TUTISSIMUM ReFUGIUM. (5 Re}?*
92.) — Every man's house is his castle (b).
srymuynt*. In a leading case which well exemplifies the applica-
tion of the above maxim, the facts may be shortly stated
thus : — The defendant and one B. were joint tenants of a
house in London. B. acknowledged a recognisance in
the nature of a statute staple to the plaintiff, and, being
possessed of certain goods in the said house, died, where-
upon the house in which the goods remained became
vested in the defendant by survivorship. Plaintiff sued
out process of extent on the statute to the sheriffs of
London ; and, on the sheriffs having returned the conusor
dead, he had another writ to extend all the lands which
B. had at the time of acknowledging the statute, or at
any time after, and all the goods which he had at the day
(6) Nemo de domo wd extrahi debet, D. 60. 17. 103.
PROPERTY — ITS RIGHTS AND LIABILITIES. 405
©f his death. This writ plaintiff delivered to the sheriffs,
and told them that divers goods belonging to B. at the
time of his death were in the defendant's house ; upon
which the sheriffs charged the jury to make inquiry
according to the said writ, and the sheriffs and jury came
to the house aforesaid, and offered to enter in order to
extend the goods, the outer door of the house being then
open; whereupon the defendant, jyrcemisaorum non
ignaru8, and intending to disturb the execution, shut the
door against the sheriffs and jury, whereby the plaintiff
lost the benefit of his writ (c).
In the above case, the following points, which bear
upon the present subject, were resolved, and may be thus
shortly stated.
1st That the house of every one is his castle, as well *iwt **o-
. . lution.
for his defence against injury and violence, as for his
repose ; and, consequently, although the life of man is a
thing precious and favoured in law, yet if thieves come to
a man's house to rob or murder him, and the owner or
his servants kill any of the thieves in defence of himself
and his house, this is not felony. So, if any person
attempt to burn or burglariously (d) to break and enter
any dwelling-house in the night-time, or attempt to break
open a house in the day-time, with intent to rob, and be
killed in the attempt, the slayer shall be acquitted and
discharged, for the homicide is justifiable (e). And in
(c) Seymaync'i «we, 6 Rep. 91 ; of construction. See, per Coltman,
cited per Tindal, C.J., Hollier v. J., 6 C. B. 10.
Laurie, 3 C. B. 339. (e) 1 Hale, P. 0., 481, 488. By
(d) In determining what is a 6i*r- stat. 24 & 25 Vict. c. 100, ft. 7, no
gtarhus entry of a dwelling-house, punishment or forfeiture shall be in-
trar lawhas, infavoremvitce, resorted curred by any person who shall kill
to many refinements and much nicety another in his own defence.
406
PROPERTY — ITS RIGHTS AND LIABILITIES.
such cases, not only the owner whose person or property
is thus attacked, but his servants and the members of his
family, or even strangers who are present at the time, are
equally justified in killing the assailant (/).
In order, however, that a case may fall within the
preceding rule, the intent to commit such a forcible and
atrocious crime as above mentioned must be clearly mani-
fested by the felon ; otherwise, the homicide will amount
to manslaughter, at least, if not to murder (g).
Second
resolution.
Third
resolution.
2ndly. It was resolved in the principal case, that when
any house is recovered by ejectment, the sheriff may
break the house, in order to deliver seisin and possession
thereof to the lessor of the plaintiff. The officer may, if
necessary, break open doors, in order to execute a writ
of habere facias possessionem, if the possession be not
quietly given up; or he may take the posse comitatws
with him, if he fear violence (h) ; and he may remove all
persons, goods, &c, from off the premises before he gives
possession (i). After verdict and judgment in ejectment,
it was in practice usual for the lessor of the plaintiff to
point out to the sheriff the premises recovered, and then
the sheriff gave the lessor, at his own peril, execution of
what he demanded (£). By the County Court Acts (I) a
summary mode of obtaining possession of small tene-
ments is provided.
3rdly. The third exception to the general rule is, where
(/) 1 Hale, P. 0., 481, 484, et eeq.
[g) 1 Hale, P. C, 484 ; B. v.
Scully, 1 0. & P. 819.
(A) 6 Bap. 91.
(t) Upton r. Wells, 1 Leon ft. 145.
(*) Ad. Eject, 4th ed., 800, 801.
See, per Pattesoh, J., Doe d. Stevens
y. Lord, 6 Dowl. 256, 266.
(I) As to recovering possession of
a tenement in the County Court, see
Broom's C. C. Pr., 2nd ed., 288, 292.
PROPERTY — ITS RIGHTS AND LIABILITIES.
407
the execution is at suit of the Crown, as where a felony
or misdemeanor has been committed, in which case the
sheriff may break open the outer door of the defendant's
dwelling-house, having first signified the cause of his
coming and desired admission (m).
But bare suspicion touching the guilt of the party will
not warrant the proceeding to this extremity, though a
felony has been actually committed, unless the officer
comes armed with a warrant from a magistrate grounded
on such suspicion (ri). And a plea justifying the break-
ing and entering a man's house without warrant on sus-
picion of felony, ought distinctly to show, not only that
there was reason to believe that the suspected person was
there, but also that the defendant entered for the purpose
of apprehending him (o).
4thly. In all cases where the outer door of a house is Fourth
i i •«* , * . . n resolution.
open the sheriff may enter and do execution, either of the
body or goods of the occupier, at the suit of any subject
of the Crown, and the landlord may, in such case, like-
wise, enter to distrain for rent, or may even open the
outer door in the ordinary manner — as by lifting the
latch — to levy the distress (p), or he may, it has been held,
for that purpose enter through an open window (q). But
(m) Seymayne8Q&&Qy 3rd resolution;
Finch, Law, 89. See, also, Shervtin v.
Svrindall, 12 M. & W. 783 ; Launock
t. Brown, 2 B. & Aid. 592, which was
a case of arrest for a misdemeanor ;
BurdeU v. Abbot, 14 East, 157, 158,
where the plaintiff was arrested under
the Speaker* 8 warrant for a breach of
privilege ; Foster on Homicide, 820.
As to the power of arrest under the
warrant of a Secretary of State, see
-ff. v. Wilkes, 2 Wils. 151 ; Entick v.
Carrington, Id. 275; S. C, 19
Howell, St. Tr. 1080.
(») Foster on Homicide, 820.
(o) Smith v. Shirley, 8 C. B. 142.
(p) Ryan v. ShUcock, 7 Exch. 72.
(q) Nixon y, Freeman, 5 H. AN.
652, as to which see jot Cockburn,
0. J., L. B. 2 Q. B. 592. Secus if
the window be fastened by a hasp,
Hancock v. Austin, 14 0. B. N. S.
408
PROPERTY — ITS RIGHTS AND LIABILITIES.
the sheriff cannot, in order to execute a writ of ecu aa. or
fi. fa. at suit of a private person, break open the outer
door of a man's house, even after request made, and
refusal to open it (r). " Nothing is more certain than that
in the ordinary cases of the execution of civil process
between subject and subject, no person is warranted in
breaking open the outer door in order to execute such
process ; the law values the private repose and security
of every man in his own house, which it considers as his
castle, beyond the civil satisfaction of a creditor " (*).
Nor can the outer door of a house be broken open, nor
an entry be made through a window which is shut but
not fastened (t), in order to make a distress, except in
the case of goods fraudulently removed (u) ; neither can
a landlord break open the outer door of a stable, though
not within the curtilage, to levy an ordinary distress for
rent (x).
634 ; Attack y. Bramwdl, 3 R & S.
520.
" The ground of holding entry
through a closed bnt unfastened door
to be lawful is that access through
the door is the usual mode of access,
and that the licence from the occu-
pier to any one to enter who has
lawful business, may therefore be im-
plied from his leaving the door un-
fastened. Entry through a window
is not the usual mode of entry, and,
therefore, no such licence can be im-
plied from the window being left un-
fastened : " per Lush, J., L. R. 2 Q.
B. 593.
(r) Duke of Brunswick v. Showman,
8 C. R 817 ; Curlewis v. Laurie, 12
Q. B. 640. See Percival v. Stamp,
9 Exch. 167.
Where the sheriff's officer put his
hand into the debtor's dwelling-house
and touched the debtor, who was in-
side the house, saying "you are my
prisoner," and thereupon broke open
the outer door and seized the debtor,
the arrest was held to have been
legally effected ; Sandon v. Jervis,
E. B. & E. 935 ; discussed and ex-
plained in Nash v. Lucas, L. R. 2 Q.
B. 590, 594.
(«) Per Lord Ellenborough, C.J.,
Burdttt v. Abbot, 14 East, 154.
(t) Nash v. Lucas, LR.2Q.B.
590.
(u) Williams v. Roberts, 7 Exch,
618. See Thomat v. Watkins, Id*
630.
(x) Brown y. Glenn, 16 Q. B. 254.
PROPERTY — ITS RIGHTS AND LIABILITIES. 409
Where, however, the sheriff has obtained admission to
a house, he may justify subsequently breaking open inner
doors, if he finds that necessary, in order to execute his
process (y). Where A. therefore, let a bouse, except one
room, which he reserved for himself and occupied sepa-
rately, and, the outer door of the house being open, a
constable broke open the door of the inner room occupied
by A. in order to arrest him ; it was held that trespass
would not lie against the constable (z). So, where it
appeared that the front door of the house was in general
kept fastened, the usual entrance being through the back
door, and that the sheriff, having entered by the back
door while it was open in the night, broke open the door
of an inner room in which A. B. was with his family,
and there arrested him ; the arrest was held to have been
lawful (a). In an action of trespass against a sheriff for £3j*J-
breaking and spoiling a lock, bolt, and staple, affixed to
the outer door of plaintiff's dwelling-house, the defendant
pleaded that, being lawfully in a room of the dwelling-
house occupied by D., as tenant to the plaintiff, he
peaceably entered into the residue of the said house
through the door communicating between the room and
the residue, and took plaintiff's goods in execution under
a Ji.fa.; and because the outer door was shut and
fastened with the lock, bolt, and staple, so that defendant
could not otherwise take away the goods, and because
neither plaintiff nor any other on his behalf was in the
dwelling-house to whom request could be made (6),
• {y) Lee v. Gansel, Cowp. 1 ; Rat- (z) William* v. Spence, 5 Johns.
cliffe v. Burton, 3 B. & P. 223; (U. S.) R. 352.
BrovmingT. Dann, Cas. temp. Hardw. (a) Hubbard v. Mace, 17 Johns.
167. See Woodsy. Durrant, 16 M. (U. S.) R. 127.
& W. 149 ; Hutchinson v. Birch, i (b) SeeRalcliffe v. Burton, 3 B. &
Taunt. 619. P. 223.
410 PROPERTY — ITS RIGHTS AND LIABILITIES.
defendant did, for the purpose aforesaid, open the outer
door and, in so doing, did break and spoil the lock, and
doing no unnecessary damage (c). The Court held that
the plea was good, although It was not shown how the
defendant entered into the house, nor who fastened the
outer door; they also -thought it sufficiently appeared
that there was no other way of getting out than that
adopted ; and that, in the absence of the plaintiff, the
sheriff was excused from making a demand, and was
justified in breaking the lock, &c, as matter of necessity,
in order to get the goods out to execute the writ In the
previous case of White v. Wiltshire (d)y it had been held
that, though the sheriff cannot break open a house in
order to make execution under &fi. fa., yet, if the door is
open, and the bailiffs enter and are disturbed in their
execution by the parties who are within the house, he
may break into the house and rescue his bailiffs, and so
take execution. In this case, as observed by the Court
in Pugh v. Oriffith, above cited, the breaking into the
house was justified, because 'the plaintiff himself had
occasioned the necessity of it ; but it does not follow that
there may not be other occasions where the outer door
may be broken (e).
The privilege which, by the fourth resolution in
Seymayne'8 case, was held to attach to a man's house,
must, however, be strictly confined thereto, and does not
extend to barns or outhouses unconnected with the
dwelling-house (/). It admits also of this exception, that
if the defendant escape from arrest, the sheriff may,
{c)Pugk r. Qri/Uh, 7 A. & E. (f)Pento* ▼. Browne, ISid. 186;
827. distinguished in Brown v. Olenn, 10
(<*) Palm. R. 52 ; Cro. Jac. 555. Q. B. 254, 257.
(?) Judgm., 7 A. & E. 840.
PROPERTY — ITS RIGHTS AND LIABILITIES. 411
after demand of admission and refusal, break open either
his own house or that of a stranger for the purpose of
retaking him (g). Moreover, if the sheriff breaks open an
outer door when he is not justified in doing so, this, it
would seem, does not vitiate the execution, but merely
renders the sheriff liable to an action of trespass (h). A
sheriff's officer, in execution of a bailable writ, peaceably
obtained entrance by the outer door ; but before he could
make an actual arrest, was forcibly expelled from the
house, and the outer door fastened against him. The
officer thereupon, having obtained assistance, broke open
the outer door, and made the arrest ; and it was held
that he was justified in so doing; for, the outer door
being open in the first instance, the officer was entitled
to enter the house under civil process, and, being law-
fully in the house, the prosecutor was guilty of a trespass
in expelling him ; and that, the act of locking the outer
door being unlawful, the prosecutor could confer no pri-
vilege upon himself by that unlawful act. In the above
case it was further held, that a demand of re-entry by
the officer was not, under the circumstances, requisite to
justify him in breaking open the outer door ; 'for " the
law, in its wisdom, only requires this ceremony to be
observed when it possibly may be attended with some
advantage, and may render the breaking open of the
outer door unnecessary " (i).
5thly. It was resolved that a man's house is not a castle ™]l
" resolution.
for any one but himself, and shall not afford protection to
(g) Anon., 6 Mod. 105 ; Lloyd ▼. aUion" (N.) ; Percival v. Stamp, 9
SandOandt, 8 Taunt. 260. SeeOmner Ezch. 167.
y. Spark**, 1 Salk. 79. (i) Aga Kvrboolie Mahomed t.
(A) See ithresolution, in Seymayne's The Queen, 4 Moore, P. C. Cas.,
ca*ey ad finem; 2Bac Abr., "Exe- 239.
412 PROPERTY — ITS RIGHTS AND LIABILITIES.
a third party who flies thither, or to his goods, if brought
or conveyed into the house to prevent a lawful execution,
and to escape the ordinary process of law. In these latter
cases, therefore, the sheriff may, after request and denial,
break open the door, or he may enter if the door be
open (k). It must be observed, however, that the sheriff
does so at his peril ; and if it turn out that the defendant
was not in the house, or had no property there, he is a
trespasser (I).
The distinction being now clearly established, that, if a
sheriff enters the house of the defendant himself for the
purpose of arresting him or taking his goods, he is justi-
fied, provided he has reasonable grounds for believing
that the party is there or his goods ; but if he enters the
house of a stranger with the like object in view, he can be
justified only by the event (?/i). It has been suggested,
however, that circumstances might exist under which the
sheriff would be justified in entering the house of a
stranger on suspicion although the defendant was not
there ; as, for instance, that the defendant were on a visit
with a stranger, the dwelling-house of the stranger might be
pro tempore the defendant's dwelling-house (n) ; but there
seems no modern decision in support of this proposition.
^roibie it may not be inappropriate to add, in connection with
the maxim under consideration, that, although, as a gene-
ral rule, where a house has been unlawfully erected on
a common, a commoner, whose enjoyment of the common
[k) Seymayne's case, supra; per Com. Dig., "Execution" (C. 5).
TincUJ, C. J., Cook t. Clark, 10 (») Morrish v. Murray, 18 M. &
Bing. 21 ; Com. Dig., " Execution* W. 52, 57 ; Cooke r. Birt, 5 Taunt.
(C. 5) ; Penton ▼. Browne, 1 Sid. 765.
186. (n) Smith's L. C, 8th ed., vol. i.y
{I) Johnson v. Leigh, 6 Taunt. 123.
246 ; Morrish t. Murray, infra ;
<'ntry.
PROPERTY — ITS RIGHTS AND LIABILITIES.
413
has been thus interrupted, may pull it down ; he is, never-
theless, not justified in doing so without previous notice
or request (o), if there are persons actually in it at the
time(p). But, as remarked by Lord Campbell, CJ. (q)t
it would be giving a most dangerous extension to the
doctrine thus laid down "to hold that the owner of a
house could not exercise the right of pulling it down
because a trespasser was in it." And, notwithstanding
some conflict among judicial dicta upon the subject (r),
it seems that in trespass " it is a perfectly good justifi-
cation to say that the plaintiff was in possession of the
land against the will of the defendant, who was owner
and that he entered upon it accordingly, even though in
so doing a breach of the peace was committed " (s). The
learned judge, whose words have been just quoted, further
intimates an opinion (t) that " where a breach of the
peace is committed by a freeholder who, in order to get
into possession of his land, assaults a person wrongfully
holding possession of it against his will, although the
freeholder may be responsible to the public in the shape
of an indictment for a forcible entry (u), he is not liable
(o) Davits v. Williams, 16 Q. B.
546, 556.
(p) Perry r. FUzhowe, 8 Q. B. 757;
Jones v. Jones, 1 H. & 0. 1.
(q) Burling y. Read, 11 Q. B. 904,
908 ; Davison v. Wilson, Id, 890.
(r) See Newton v. Harland, 1 M.
& Gr. 644 ; Pollen v. Brewer, 7 C.
B. N. S. 371 ; per Cresswell, J.,
Davis v. BurreU, 10 0. B. 825 ; per
Parke, B., and Alderson, B., 14 M.
& W. 487. In Ddaney v. Pox, 1 C.
B. N. S. 166, the point above men-
tioned was also raised. See Butcher
t. Butcher, 7B. AC. 899.
(*) Per Parke, B., Harvey y.
Brydges, 14 M. & W. 442 ; S. C, 1
Exch. 261 ; recognised and followed
in Blades v. Higgs, 10 C. B. N. 8.
718 ; 30 L. J. G. P. 347 ; see
Meriton v. Coombes, 9 C. B. 789.
(0 14 M. & W. 442 ; cited judgm.,
Blades y. Higgs, 10 C. B. N. 8. 721 ;
S. 0., 11 H. L. Gas. 621 (where the
principle laid down supra was applied
to the retaking of chattels) ; Pollen
y. Brewer, 7 C. B. N. S. 871.
(it) See, per Lord Kenyon, G.J.,
Taunton v. Costar, 7 T. £. 432.
414 THE TRANSFER OF PROPERTY.
to the other party." And it may, in concluding these
remarks be observed that although, an action of trespass
will not lie against one who, having the right to the
possession of the freehold, forcibly ejects the occupier, yet
he may render himself liable to be indicted for a forcible
entry under the statute 5 Ric. 2, ch. 7, if it be shown that
violence or threats of violence (a;) were used to obtain
possession.
§ HI.— THE TRANSFER OF PROPERTY.
The two leading maxims relative to the transfer of
property are, first, that alienation is favoured by the law ;
and, secondly, that an assignee holds property subject to
the same rights and liabilities as attached to it whilst In
the possession of tjie grantor. Besides the above very
general principles, we have included in this section several
minor maxims of much practical importance, connected
with the same subject ; and each of these, according to
the plan pursued throughout this Work, has been briefly
illustrated by decided cases.
ALIENATIO REI PRJEFERTUR JlJRI ACCRESCENDL (Co.
Lift, 185. a.) — Alienation %8 favoured by Hve law
rather than axxumulation.
Alienatio is defined to be, omnia actus per quern
dominium transfertur(y), and it is the well-known
(x) MUner v. Madean, 2 C. & P. (y) Briason. ad verb. " Alienatio."
17.
THE TRANSFER OF PROPERTY. 415
policy of our law to favour alienation, and to discounten-
ance every attempt to tie up property unreasonably, or
ih other words, to create a perpetuity.
The reader will at once remark, that the feudal policy feudal
* ' syBtem was
was directly opposed to those more wise and liberal views JJgJJjfo*
which have now long prevailed. It is, indeed, generally
admitted (z), that, under the Saxon sway, the power of
alienating real property was altogether unrestricted; and
that land first ceased to be alienable when the feudal
system was introduced into this country, shortly after
the Norman conquest; for, although the Conqueror's
right to the Crown of England seems to have been
founded on title, and not on conquest, yet, according to
the fundamental principle of that system, all land within
the king's territories was held to be derived, either
mediately or immediately, from him as the supreme lord,
and was subjected to those burthens and restrictions
which were incident to the feudal tenure. Now this
tenure originated in the mutual contract between lord
and vassal, whereby the latter, in consideration of the
feud with which he was invested, bound himself to render
certain services to the former, and as the feudatory could
not, without the consent of his lord, substitute the ser-
vices of another for his own (a), so neither could the lord,
without the feudatory's consent, transfer his fealty and
allegiance to another (fc). It is, however, necessary to
bear in mind the distinction which was recognised by the
feudal laws between alienation and subinfeudation; for,
although alienation, meaning thereby the transfer of the
(z) Wright, Tenure*, 154 et aeq. (b) Wright, Tenures, 171 ; Mr.
(a) See Brudahaw v. Lawion, 4 T. Butler's note', Co. Litt, 309, a. (1).
R. 443.
416 THE TRANSFER OF PROPERTY.
original feud, and substitution of a new for the old feu-
datory was strictly prohibited, yet subinfeudation, whereby
a new and inferior feud was carved out of that originally
created, was practised and permitted. Moreover, as
feudatories did, in fact, under colour of subinfeudation,
frequently dispose of their lands, this practice, which
was in its tendency opposed to the spirit of the feudal
institutions, was expressly restrained by the 32nd chap,
of Magna Cbarta, which was merely in affirmance of the
common law on this subject, and which allowed the
tenants of common or mesne lords — though not, it seems,
such as held directly of the Crown — to dispose of a rea-
sonable pari of their lands to subfeudatories.
stAtcum The right of subinfeudation to the extent thus ex*
pressly allowed by statute, evidently prepared the way
for the more extensive power of alienation which was
conferred on mesne feudatories by the statute Quia
Envptores, 18 Edw. 1, st 1, c. 1. This statute, which
effected, indeed, a most material change in the nature
of the feudal tenure, by permitting the transfer or
alienation of lands in lieu of subinfeudation, after stating,
by way of preamble, that in consequence of this latter
practice, the chief lords had many times lost their
escheats, marriages, and wardships of land and tene-
ments belonging to their fees, enacted, "that from
henceforth it shall be lawful to every freeman to sell at
his own pleasure his lands and tenements, or pail of
them, so that the feoffee shall hold the same lands and
tenements of the chief lord of the same fee, by sucb
service and customs as his feoffee held before."
it Edw. 2, This statute, it will be observed, did not extend to
c. 6.
tenants in capite ; and although by the subsequent Act,
17 Edw. 2, c. 6, De Prcerogativd Regis, it was declared
THE TRANSFER OF PROPERTY. 417
that no one holding of the Crown by military service
can, without the king's licence, alien the greater part of
his lands, so that enough shall not remain for the due
performance of such service: from which it has been
inferred that, prior to this enactment, tenants in capite
possessed the same right of subinfeudation as ordinary
feudatories possessed prior to the stat, Quia Emptores ;
yet it does not appear that even after the stat. De
Prcei*ogativd, alienation of any part of lands held in
capite ever occurred without the king's licence ; and,
. at all events, this question was set at rest by the subse-
quent stat. 34 Edw. 3, c. 15, which rendered valid such
alienations as had been made by tenants holding under
Hen. 3, and preceding sovereigns, although there was a
reservation of the royal prerogative as regarded alienations
made during the reigns of the two first Edwards.
Having thus remarked, that, by a fiction of the feudal
law, all land was held, either directly or (owing to the
practice of subinfeudation) mediately of the Crown, we
may next observe that gifts of land were in their origin
simple, without any condition or modification annexed to
them ; and although limited or conditional donations
were gradually introduced for the purpose of restraining
the right of alienation, yet, since the Courts construed
such limitations liberally, in order to favour that right
which they were intended to restrain, the stat. of Westm.
2, 13 Edw. 1, usually called the statute De Donis, was stat. z>*
passed, which enacted, "That the will of the giver
according to the form in the deed of gift, manifestly
expressed, shall be from henceforth observed, so that
they to whom the land was given under such condition
shall have no power to alien the land so given, but that
it shall remain unto the issue of them to whom it was
£ E
418 THE TRANSFER OF PROPERTY.
given, after their death, or shall revert unto the giver, or
his heir, if issue faiL" The effect, therefore, of the above
statute was to prevent a tenant in tail from alienating
his estate for a greater term than that of his own life ;
or rather, its effect was to render the grantee's estate
certain and indefeasible during the life of the tenant in
tail only, upon whose death it became defeasible by his
issue or the remainder-man or reversioner (o).
Prior to this Act, indeed, where land was granted to a
man and the heirs of his body, the donee was held to
take a conditional fee-simple, which became absolute the
instant issue was born ; but after the passing of the
statute De Bonis, the estate was, in contemplation of
law, divided into two parts, the donee taking a new kind
of particular estate, which our judges denominated a fee-
tail, the ultimate fee-simple of the land expectant on the
failure of issue remaining vested in the donor.
"At last," says Lord Mansfield, C.J.(d), "the people
having groaned for two hundred years under the incon-
veniences of so much property being unalienable; and
the great men, to raise the pride of their families, and
(in those turbulent times) to preserve their estates from
forfeitures, preventing any alteration by the legislature/'
Evasion of the judges adopted various modes of evading the statute
Donu. J)e Bonis, and of enabling tenants in tail to charge or
alien their estates (e). The first of these was founded
on the idea of a recompense in value; in consequence
of which it was held, that the issue in tail was bound
by the warranty of his ancestor, where assets of equal
(e) 1 Cruise, Dig., 4th ed., 77, 78. ance with prior authorities, that
(d) Taylor v. Horde, 1 Burr. 115. tenant in tail could not be restrained
(e) In Mary Portingtoris cote, 10 by any condition or limitation from
Rep. 35, b., it was held, in accord- suffering a common recovery.
THE TRANSFER OF PROPERTY.
419
value descended to him from such ancestor. In the next
place, they held, in the reign of Edw. 4, that a feigned
recovery should bar the issue in tail and the remainders
and reversion (/). And, by the stat. 32 Hen. 8, c. 36,
the legislature expressly declared that a fine should be
a bar to the issue in tail (g).
Further, under the Act for abolishing fines and reco- 3 & 4 w
veries, 3 & 4 WilL 4, c. 74, a tenant in tail may, by any
species of deed duly enrolled, and otherwise made in
conformity with the Act, absolutely dispose of the estate
of which he is seised in tail in the same manner as if
he were absolutely seised thereof in fee (h) ; and the
sale of " settled estates " (i) is, by the stat. 19 & 20 Vict.
o. 120 (amended and extended by 21 & 22 Vict. c.
77 (£)) and the Settled Estates Act, 1882, hereinafter men-
tioned, much facilitated.
Having thus seen in what manner the restrictions
which were, in accordance with the spirit of the feudal
laws, imposed upon the alienation of land by deed, have
been gradually relaxed, we must further observe, that
the power of disposing of land by will was quite as
much opposed to the policy of those laws; and, conse-
quently, although land in this country was devisable
until the conquest, yet it shortly afterwards ceased to be
win
(/) TdUarunCi caic, Yr. Bk. 12
Edw. 4, 14, 19, where the Court
expressly founded their argument
upon the assumption that a reco-
very properly suffered would destroy
an entail, although they decided that,
under the particular circumstances
of that case, the entail had not been
destroyed.
(g) Except where the reversion was
in the Crown, 34 & 85 Hen. 8, c. 20.
As to the respective effects of the
stats. 4 Hen. 7, c 24, and 32 Hen. 8,
c. 36, see Mr. Hargrave's note (1),
Go. Litt. 121, a.
(h) See 1 Cruise, Dig., 4th ed.,
88.
(t) For the statutory signification
of this term, see the interpretation
clause (8. 1).
(k) See also 27 & 28 Vict. c. 45,
s. 3.
K £ 2
420 THE TRANSFER OF PROPERTY,
so, and, in fact, remained inalienable by will {I) until
the stats. 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5 ;
the latter of which statute is explanatory of the former,
and declares that every person (except as therein men-
tioned) having a sole estate or interest or being seised
in fee-simple of and in any manors, lands, tenements,
rents, or other hereditaments in possession, reversion,
remainder, or of rents or services incident to any rever-
sion or remainder, shall have full and free liberty, power,
and authority to give, dispose, will, or devise to any
person or persons (except bodies politic and corporate)
by his last will and testament in writing, all his said
manors, lands, tenements, rents, and hereditaments, or
any of them, at his own free will and pleasure. It is,
indeed, true, that, by the above statutes, some restriction
was imposed upon the right of alienating by will lands
held by military tenure ; yet, since such tenures were, by
the stat. 12 Car. 2, c. 24, converted into free and common
socage tenures, we do, in fact, derive from the Acts passed
in the reign of Hen. 8, the important right of disposing by
will of all (except copyhold) (m) lands and tenements : a
privilege which has received some important extensions by
i vict. c 26. the modern stat. 1 Vict c. 26 (amended by 15 & 16 Vict,
c. 24), and which now attaches to all real and personal
estate to which an individual may be entitled, either at
law or in equity at the time of his death (n).
Right of It remains to consider how far the right of alienation
alienation m °
atmmunon exists at common law, when viewed without reference to
the arbitrary restrictions which were imposed under the
(Z) A tenant in gavelkind, however, (in) As to which see now, 1 Vict,
could devise by will prior to the c. 26, s. 8 ; Shelf. Copyholds, 52.
Statute of Wills : Wright, Tenures, <n) 8. 8.
207.
JTHE TRANSFER OF PROPERTY. 421
feudal system, aad to show in what manner this right has
been recognised and favoured by our courts of law, and
encouraged by the legislature. And in the first place, we
must observe, that the potestas . cdienandi, or right of
alienation is a right necessarily incident, in contemplation
of law, to an estate in fee-simple; it is inseparably
annexed to it, and cannot, in general, be indefinitely
restrained by any proviso or condition whatsoever (o) ;
for, although a " fee-simple " is explained by Littleton (p)
as being hasreditas pura, yet it is not so described as
importing an estate purely allodial (for we have already
seen that such an estate did not, in fact, exist in this
country), but because it implies a simple inheritance, clear
of any condition, limitation, or restriction to any particular
heirs, and descendible to heirs general, whether male
or female, lineal or collateral (q). In illustration of the
above incident of an estate in fee-simple, we find it laid
down (r), that " if a man makes a feoffment on condition
that the feoffee shall not alien to any, the condition is
void ; because, where a man is enfeoffed of land or tene-
ments, he has power to alien them to any person by the
law ; for, if such condition should be good, then the con-
dition would oust him of the whole power which the law
gives him, which would be against reason, and therefore
such condition is void." A testator devised land to A. B.
and his heirs for ever ; but, in case A. B. died without
heirs, then to C. D. (who was a stranger in blood to A. B.)
and his heirs ; and, in case A. B. offered to mortgage or
suffer a fine or recovery upon the whole or any part
(o) 4 Cruise, Big., 4th ed., 330. (q) Wright, Tenures, 147.
And see the analogous cases, cited (r) MUdinay's catty 6 Rep. 42 ;
post, pp. 462, 455. Co. Litt. 206. b.
(p) S. 1.
422 THE TRANSFER OF PROPERTY.
thereof, then to the said C. D. and his heirs. It was held,
that A. B. took an estate in fee, with an executory devise
over, to take effect upon the happening of conditions
which were void in law, and that a purchaser in fee from
A. B. would have a good title against all persons claiming
under the said will (8). So, if a man, before the statute
De Bonis, had made a gift to one and the heirs of his
body, after issue born, he had, by the common law,
potestatem cUienandi; and, therefore, if the donor had
in such a case added a condition, that, after issue the
donee should not alien, the condition would have been
repugnant and void. And, by like reasoning, if, after
the statute, a man had made a gift in tail, on condition
that the tenant in tail should not suffer a common
recovery, such condition would have been void ; for, by
the gift in tail, the tenant has an absolute power given
to suffer a recovery, and so to bar the entail (t). And
here we may conveniently remark, that the distinction
which exists between real and personal property is further
illustrative of the present subject; for, with respect to
the latter, it is laid down, that, where an estate tail in
things personal is given to the first or any subsequent
possessor, it vests in him the total property, and no
remainder over shall be permitted on such a limitation ;
for this, if allowed, would tend to a perpetuity, as the
devisee or grantee in tail of a chattel has no method of
barring the entail ; and, therefore, the law vests in him
at once the entire dominion of goods, being analogous to
the fee-simple which a tenant in tail may acquire in real
estate (u).
(•) Ware v. Conn, 10 B. & C. 1 Rep. 83 ; Partington'* case, 10
438. Rep. 35.
(0 6 Rep. 41 ; Aig., Taylor r. (tt) 2 Com. by Broom & Hadley,
Horde, 1 Burr. 84 ; Corbet's case, 593, 611.
THE TRANSFER OF PROPERTY. 423
We may, in connection with this subject, likewise refer
to Sir W. Blacksto7ie}8 celebrated judgment in Perrin v.
Blake (x), where a distinction is drawn between those
rules of law which are to be considered as the funda-
mental rules of the property of this kingdom (y), and
which cannot be exceeded or transgressed by any inten-
tion of a testator, however clearly or manifestly expressed,
and those rules of a more arbitrary, technical, and arti-
ficial kind, which the intention of a testator may control.
Amongst rules appertaining to the first of these two
classes, Sir W. Blackstone mentioned these: — 1st, that
every tenant in fee-simple or fee-tail shall have the power
of alienating his estates by the several modes adapted to
their respective interests; and 2ndly, that no dispo-
sition shall be allowed which, in its consequence, tends
to a perpetuity (z). Mr. Butler, moreover, remarks (a),
with reference to the case from Littleton above cited,
that it " is one of the many attempts which have been
made at different times to prevent the exercise of that
right of alienation which is inseparable from the estate of
a tenant in tail/'
Not only will our Courts oppose the creation of a Restraint
upon per-
perpetuity by deed, but, they will likewise frustrate the J**"*™8 b*
attempt to create it by will ; and, therefore, " upon the
introduction of executory devises, and the indulgence
thereby allowed to testators, care was taken that the pro-
perty which was the subject of them should not be tied up
beyond a reasonable time, and that too great a restraint
upon alienation should not be permitted " (b). The rule
(x) Hargrave's Tracts, fol. 500. (a) do. Litt. 881, a. note.
(y) See, also, EgerUm r. Sari (6) Jadgm., CadeU t. Palmer, 10
Brownhw, 4 H. L. Gas. 1, passim. Bing. 142. See Ware v. Conn, 10 B.
(z) Mr. Butler's note, Co. Litt & C. 488.
376, b. (1.)
424
THE TRANSFER OF PROPERTY.
Trustafor
accumula-
tion.
is accordingly well established, that, although an estate
may be rendered inalienable during the existence of a
life or of any number of lives in being, and twenty-one
years after, or, possibly, even for nine months beyond the
twenty-one years, in case the person ultimately entitled to
the estate should be an infant in ventre m mire (<?), at
the time of its accruing to him, yet that all attempts to
postpone the enjoyment of the fee for a longer period are
void (d).
With respect to trusts for accumulation, we may ob-
serve, that these are now regulated by stat. 39 & 40 Geo.
3, c. 98, an Act which was passed in consequence of the
will of the late Mr. Thellusson, and subsequently to the
decision establishing the validity of that will in the well-
known case of T}idlu88on v. Woodford (e). The above-
mentioned statute enacts, that no person shall thenceforth,
by any deed, surrender, will, codicil, or otherwise, settle or
dispose of any real or personal property, so that the rents
or produce thereof shall be wholly or partially accumu-
lated for any longer term than the life of the grantor or
settlor, or the term of twenty-one years from the death of
the grantor, settlor, or testator, or during the minority
or respective minorities of any person or persons who
(c) In an executory devise, the
period of gestation may be reckoned
both at the beginning and the end of
the twenty-one yean ; thus, if land is
devised with remainder over in case
A. '8 son die under the age of twenty-
one, and A. dies leaving a son in
ventre ta mire, then if the son marries
in his 21st year, and dies leaving his
widow endente, the estate vests,
nevertheless, in the infant in ventre
ta mire, and does not go over. See,
per Lord Eldon, C, Tkellunon y,
Woodford, 11 Ves. jun. 149.
(d) CadeU v. Palmer, 10 Bing.
140. See Lord Dungawnon v. Smith,
12 CI. & Fin. 546, distinguished in
Christie v. Gosling, L R. 1 H. L.
279, 292; Spencer v. Dukeof Marl-
borough, 3 Bro. P. 0. 232.
(c) 4 Ves. jun. 227 ; S, C, 11 Id.
112, in which case Mr. Hargrave's
argument respecting perpetuities is
well worthy of perusal.
THE TRANSFER OF PROPERTY. 425
shall be liying, or in ventre sa mere, at the time of the
death of such grantor or testator, or during the minority
or respective minorities only of any person or persons who,
under the uses or trusts of the deed, surrender, will, or
other assurance, directing such accumulations, would, for
the time being, if of full age, be entitled to the rents or
annual produce so directed to be accumulated.
It will be evident, from the preceding remarks and Exception
cases already cited, that the rule against perpetuities is
observed by courts both of law and of equity (J). In con- Feme
. . covert.
sequence, however, of the peculiar jurisdiction which
courts of equity exercise, for the protection of the in-
terests of married women, the right of alienation has, in
one case, with a view to their benefit, been restricted, and
that restriction thus imposed may, in fact, be regarded as
an exception to the operation of the maxim in favour of
alienation, which we have been considering. It is now
fully established, that where property is conveyed to the
separate use of a married woman in fee, with a clause in
restraint of anticipation, such clause is valid ; for equity,
having in this instance created a particular kind of estate,
will reserve to itself the power of modifying that estate
in such manner as the Court may think fit, and will so
regulate its enjoyment as to effect the purpose for which
the estate was originally created (g). The law upon this
subject may be considered to have been finally settled by
the decisions in Tvllett v. Armstrong (h), and Scarborough Tviteu v.
v. Borman(i), where Lord Cottenham, G, after an
(/) See, also, per Wilmot, C.J., 1 Coll. 138.
Bridgeman v. Green, Wilmot, Opin. (h) 4 My. k Cr. 377, 300. See
61. Wright y. Wright, 2 Johns. & Hem.
(g) See, per Lord Lyncllrorst, C, 647, 652.
BaggtU v. Meux, 1 Phill. 627 ; S. C, (0 4 My. k Cr. 878.
426 THE TRANSFER OF PROPERTT.
elaborate review of the cases and authorities, held that a
gift to the sole and separate use of a woman, whether
married or unmarried, with a clause against anticipation,
was good against an after-acquired husband; and this
decision has been in subsequent cases fully recognised and
adopted (i).
The reason of the rule thus established is fully stated
by his lordship, in a subsequent case, in these words : —
" When first, by the law of this country, property was
settled to the separate use of the wife, equity considered
the wife as a feme sole, to the extent of having a domi-
nion over the property. But then it was found that that,
though useful and operative, so far as securing to her a
dominion over the property so devoted to her support,
was open to this difficulty — that she, being considered as
a, feme sole, was of course at liberty to dispose of it as a
feme sole might have disposed of it, and that, of course,
exposing her to the influence of her husband, was found
to destroy the object of giving her a separate property;
therefore, to meet that, a provision was adopted of pro-
hibiting the anticipation of the income of the property,
so that she had no dominion over the property till the
payments actually became due " (/). To the above
exposition of the doctrine of Courts of Equity we
must add that, by various sections of the stat. 20 & 21
Vict. c. 85, for amending the law relating to divorce
and matrimonial causes, a feme coveii, will, for her
protection, be considered as a feme sole with respect
to her acquired property, and for the purposes of suing
and contracting (m).
{k) BoggeU v. Meux, supra, and Ritchie, 12 CI. & Fin. 234.
see 45 & 46 Vict. c. 75, a. 19. (m) See bs. 21, 25, 26.
(I) Per Lord Cottenham, Rennie v.
THE TRANSFER OF PROPERTY.
427
Conformable to the spirit of the elementary maxim now
under consideration is the stat. 20 & 21 Vict. c. 57, inti-
tuled " An Act to enable married women to dispose of
reversionary interests in personal estate."
Having thus observed that our law favours the aliena- Alienation
° of por-
tion of real property, or to use the words of Lord Mans* JJJJJiS^
field, that " the sense of wise men, and the general bent of
the people in this country, have ever been against making
land perpetually unalienable : " and having seen that
" the utility of the end was thought to justify any means
to attain it " (n), it remains to add, that the same policy
obtains with reference to personalty ; and, in support of
this remark, may be adduced the well-known rule of the
law merchant, that for the encouragement of commerce,
the right of survivorship, which is ordinarily incident to a
joint tenancy, shall not exist amongst trading partners —
jus acwescendi inter mercatores pro beneficio commeivii Jv8 **•!*«-
locwni n<m habet (o), — a rule which applies to manufac- mermtor»-
turers as well as to merchants (p)~- to trade fixtures also,
which, being removable, are part of the stock in trade —
and has been (q) extended to real as well as personal
property : so that all property, whatever be its nature,
purchased with partnership capital for the purposes of the
partnership trade, continues to be partnership capital, and
to have to every intent the quality of personal estate (r),
(») Per Lord Mansfield, C.J., 1
Burr. 115.
(o) Co. Litt 182, a ; Brownl. 99 ;
Noy, Max., 9th ed., 79 ; 1 Beawes,
Lex Mere., 6th ed. 42.
(p) Buckley v. Barber, 6 Bxch.
164, by comparing which case with
Orostfeld v. Such, 8 Exch. 825,
and Morgan v. MarquU, 9 Exch. 145,
the signification and operation of the
maxim, as to jus accrcscendi, will be
perceived.
(q) Buckley v. Barber, supra.
(r) Freehold lands bought with
partnership money and used for part'
nership purposes is treated as per*
sonalty, Waterer y. Waterer, L. R.
15 Eq. 402 ; Smith's Mercantile Law,
428
THE TRANSFER OF PROPERTY.
unless, indeed, a special stipulation be made between the
partners to prevent the application of this equitable doc-
trine («). The rule which thus holds in cases of partner-
ship evidently favours alienation, by rendering capital
invested in trade applicable to partnership purposes, and
directly available to the creditors of the firm.
We have already had occasion to observe, that there
cannot be an estate tail in personalty (t) ; so neither can
a perpetuity be created in property of this description.
Indeed, where the subject-matter of a grant is a personal
chattel, it is impossible so to tie up the use and enjoy-
ment of it as to create in the donee a life estate which he
may not alien. It is true, however, that this object may
be attained indirectly, in a manner consistent with the
known rules of law, by annexing to the gift a forfeiture or
defeasance on the happening of a particular event, or on
a particular act being done ; for in that case the donee
takes by the limitation a certain estate, of which the
event or act is the measure, and upon the happening of
the event or the doing of the act, a new and distinct
estate accrues to a different individual If, for instance, a
testator be desirous to give an annuity without the power
of anticipation, he can only do so by declaring that the
9th ad., 169, and see Phillips v.
Phillips, 1 My. & K. 663 ; and in
Fereday v. Wightvici, 1 Buss, ft My.
49 ; Townshend v. Devaynes, 1
Mont, Partnership, 2nd ed.9 note,
p. 96 {2 A*); per Lord Eldon, C,
Sdkrig v. Davis, 2 Dow, 242;
Houghton v. Houghton, 11 Sim. 491;
Crawshay v. Maule, 1 Swanst 521,
cited Boater v. Newman, 8 Scott,
N. R. 1035; Phillips y. Phillips,
supra, was overruled as to a different
point therein decided by Taylor v.
Taylor, 3 De G. M. &G. 190.
(«) Balmainy. Shore, 9Ves.jnn.,
500.
(t) As to heir-looms, see the maxim
A ccessoHumseouUurprincipale, post.
As to annexing personal to real estate,
the latter being devised in strict
settlement, see 2 Jarm., Wills, 2nd
ed., 492.
THE TRANSFER OF PROPERTY. 429
act of alienation shall determine the interest of the
legatee, and create a new interest in another (u).
Property may also be given to a party to be enjoyed by Jjj^jjjjjj
him until he becomes bankrupt ; and if this event should
happen, the property may be given over to another party.
A person cannot, however, create an absolute interest in
property and, at the same time, deprive the party to
whom that interest was given of those incidents and of
that right of alienation which belonged, according to the
elementary principles of the common law, to the owner*
ship of the estate. Where, therefore, a testator directed
his trustees to pay an annuity to his brother, until he
should attempt to charge it, or some other person should
claim it, and then to apply it for his support and main-
tenance, it was held that, on the insolvency of the annui-
tant, bis assignees became entitled to the annuity (x).
The distinction between a proviso or condition subse-
quent and a limitation above exemplified, may be further
explained in the words of Lord Eklon, who says : " There
is no doubt that property may be given to a man until he
shall become bankrupt. It is equally clear, generally
speaking, that, if property is given to a man for his life,
the donor cannot take away the incidents to a life estate,
and * * *, a disposition to a man until he shall become
bankrupt, and after his bankruptcy over, is quite different
from an attempt to give to him for his life, with a proviso
that he shall not sell or alien it. If that condition is so
expressed as to amount to a limitation, reducing the
interest short of a life estate, neither the man nor his
assignees can have it beyond the period limited (y).
(u) Per Lord Brougham, 2 My. & Colly. 400.
K. 204. (y) Brandon v. Robinxm, 18 Ves.
(x) Yotmghutband v. Gisborne, 1 433, 434. Bee Jarm&n on Wills, 4th
430 THE TRANSFER OF PROPERTY.
HetiiHi A most important extension of the maxim that the law
EMtatenAct, t rt
iH82. favours alienation is to be found in a recent statute called
the Settled Estates Act, 1882 (z), by which under certain
conditions the tenant for life of a settled estate, may sell
the property as against the remainderman, and against
his consent (a), and conversely it would seem that the
tenant for life can restrain the sale of any portion of the
property by the trustees of the settlement, whether his
consent is or is not required by the settlement (6). It
does not come within the . scope of this work to enter
minutely into the details of this statute, but the foregoing
cases will illustrate how largely the legislature has inter-
fered with the power of an owner of property to prevent
its alienation in the hands of those to whom he has
granted it.
Cujus EST DARE EJUS EST DISPONERE. ( Wing. Max. 53.)
— TIte bestower of a gift lias a right to regulate Us
disposal (c).
Derivation- It will be evident, from a perusal of the preceding
pages, that the above general rule must, at the present
day, be received with very considerable qualification. It
does, in fact, set forth the principle on which the old
feudal system of feoffment depended ; tenor est qui legem
dot feudo(d) — it is the tenor of the feudal grant which
ed. Vol. II. p. 22. A covenant prohibit- (a) Thomas r. William*, 52 L. J.
ing alienation, except to a certain spe- Ch. 60S.
cified and limited class, held repugnant (b) Duke of Newcastle's 8ettled
to the nature of an estate in fee Estates, 52 L. J. Ch. 645.
simple and void. Morris v. Morris, (c) Bell, Diet. & Dig. of Scotch
6 T. E. C. L. 73. Law, 242.
(z) 45 k 46 Vict. c. 38. (d) Craig, Jus Feud., 3rd ed., 66.
THE TRANSFER OF PROPERTY. 431
regulates its effect and extent : and the maxim itself is,
in another form, still applicable to modern grants — moduB
legem dot donationi (e) — the bargainor of an estate may,
since the land moves from him, annex such conditions as
he pleases to the estate bargained, provided that they are
not illegal, repugnant, or impossible (/). Moreover, it is
always necessary that the grantor should expressly limit
and declare the continuance and quantity of the estate
which he means to confer ; for, by a bare grant of lands,
the grantee will take an estate for life only, a feoffment
being still considered as a gift, which is not to be ex-
tended beyond the express limitation or manifest inten-
tion of the feoffor (or). As, moreover, the owner may, Reaervatibn
. . . in demise
subject to certain beneficial restrictions, impose conditions of land.
at his pleasure upon the feoffee, so he may likewise, by
insertion of special covenants in a conveyance or demise
reserve to himself rights of easement and other privileges
in the land so conveyed or demised, and thus surrender
the enjoyment of it only partially, and not absolutely, to
the feoffee or tenant " It is not," as remarked by Lord
Brougham, C. (A), at all inconsistent with the nature of
property, that certain things should be reserved to the
reversioners all the while the term continues. It is only
something taken out of the demise — some exception to
the temporary surrender of the enjoyment : it is only that
they regain more or less partially the use of what was
wholly used by them before the demise, and what will
again be wholly used by them when that demise is at an
end."
It must not, however, therefore be inferred that " inci-
(4 Co.Litt. 19. a. (g) Wright, Tenures, 161, 152.
(/') 2 Rep. 71. (A) 2 My. & K. 536, 537.
432 THE TRANSFER OF PROPERTY.
dents of a novel kind can be devised and attached to
property at the fancy or caprice of any owner" (i). " No
man," remarks Lord St Leonards, in Egerton v. Earl
BvoivtUow (k), " can attach any condition to his property
which is against the public good," nor can he " alter the
usual line of descent by a creation of his own. A man
cannot give an estate in fee simple to a person and his
heirs on the part of his mother. Why ? Because the law has
already said how a fee simple estate should descend" (2).
It is further to be observed that it is not in the power
of an owner of land to create rights not connected with its
use or enjoyment and to annex them to it, nor can he
subject the land to a new species of burden, so as to bind
it in the hands of an assignee ; thus, in the well-known
case of Ackroyd v. Smith (m), the plaintiff and his mort-
gagee had granted to the defendants' predecessors in title,
their heirs and assigns, certain premises, together with
the right and privilege of passing and repassing for all
purposes along a certain road. It was held that as the
right or privilege was to use the road for all purposes, it
was not a right incidental to the enjoyment of the pre-
mises granted, and, therefore, was not appurtenant to
them, and was not assignable, and that the defendants
who justified their user of the road under the grant as
assignees must be treated as trespassers.
It is questionable how far in the present day this case
would be followed as between grantor and assignee of the
(t) Per Lord Brougham, C, 2 128 ; per Cresswell, J., and Watson,
My. & K. 585 ; Ackroyd v. Smith, B., in Rowbotkam v. Wilson, 8 B. &
10 C. B. 164 ; Bailey v. Stephens, B. 123 : S. C, 8 H. L. Gas. 348.
12 C. B. N. a 91 ; Ellis v. Mayor, (*) 4 H. L. Cas. 241, 242.
<£*., of Bridgnorth, 15 C. B. N. S. {I) See also Marquis of Salisbury
52, 78 ; Tulk v. Moxhay, 2 PhilL v. Gladstone, 9 H. L. Cas. 241,
774 ; Hill v. Tapper, 2 H. & C. 121, (in) 10 C. B. 164,
THE TRANSFER OF PROPERTY. 433
right, now that equitable principles prevail in all the
Courts ; it seems inequitable that the grantor of the right
should be able to disregard his own act and sue as tres-
passers the successors in title of those to whom he has
given the right, the enjoyment of which he seeks to
restrain. The case is, however, an authority for the pro-
position we have stated, and has been followed in recent
times (?i).
"The general principle," says Mr. Justice AsJJturst(o), umiioni
"is clear, that the landlord having the jus disponendi
may annex whatever conditions he pleases to his grant,
provided they be not illegal or unreasonable." It is, for
instance, reasonable that a landlord should exercise his
judgment with respect to the person to whom he trusts
the management of his estate ; and, therefore, a covenant
not to assign is legal ; and ejectment will lie on breach of
such a covenant (p).
On this principle, likewise, an agreement by defendant
to allow plaintiff, with whom he cohabited, an annuity for
life, provided she should continue single, was held to be
valid, for this was only an original gift, with a condition
annexed ; and citjtts est dare ejics est disponere. More-
over, the grant of the annuity was not an inducement to
the plaintiff to continue the cohabitation, it was rather an
inducement to separate (q).
Another remarkable illustration of the jus disponendi
presents itself in that strict compliance with the wishes of
(n) Eyerton v. Lord Brownlow, 4 (p) Per Ashliurat, J., 2 T. R.
H. L. Cases, 1 ; Hill v. Tuppr, 2 H. 138.
& C. 121 ; Re Stockport WatcrtcorK*, (7) (iibwn v. Dickie, 8 M. k S.
3 H. & C. 300. 463, cited Arg., Parker v. Rolls, 14
(0) Roe d. Hunter v. Gallicr*, 2 C. B. 697.
T. R. 137.
F F
434 THE TRANSFER OF PROPERTY.
the grantor, which was formerly (r) regarded as essential
to the due execution of a power («).
Assignatus utitur Jure Auctoris. (Halk. Max., p.
14.) — An assignee is clothed with the rights of his
principal (t).
It is laid down as a general and leading rule with
reference to alienations and forfeitures, that quod meum
est sine facto meo vel defectu meo amitti vel in alivm
transferri non potest (tt), where factum niay be translated
" alienation/' and defectus " forfeiture/' (x) ; and it seems
desirable to preface our remarks as to the rights and
liabilities which pass by the transfer of property, by
stating this elementary and obvious principle, that where
property in land or chattels has once been effectively and
indefeasibly acquired, the right of property can only be
lost by some act amounting to alienation or forfeiture on
the part of the owner or his representatives.
who is an An "assignee" is one who, by such act as aforesaid,
asaignee.
(r) By 1 Vict c 26, 8. 10, every (t) " Auctores " dicuntur a quibta
will executed as prescribed by that jus in nos transiit. Brisson. ad verb.
Act will be a valid execution of a " Auctor."
power of appointment by will, ol- (u) This maxim is well illustrated
though other required solemnities by Vyner v. Mersey Docks, <&?.,
may not have been observed. This Board, 14 C. B. N. S. 753.
Act, however, does not extend to (*) 1 Prest, Abs. Tit, 147, 318.
any will made before January 1st, The kindred maxims are, Quod semel
1838. meum est amplius meum, esse non
(s) Rutland v. Doe d. Wythe, 12 potest, Co. Litt 49, b. ; Duo non
M. & W. 357, 373, 378 ; S. C, 10 possunt in solido unam rem possi-
CL & Fin. 419 ; Doe d. Sari of dere, Co. Litt. 868, a. See 1 PreBt,
Egremont v. Burrough, 6 Q. B. 229; Abs. Tit 318 ; 2 Id. 86, 286 ; 2
Doe d. Blomfidd v. Eyre, 3 C. B. Bods., Adm. B. 157 ; 2 Curt 76.
557.
THE TRANSFER OF PROPERTY. 435
or by the operation of law, as in the event of death, pos-
sesses a thing or enjoys a benefit ; the main distinction
between an assignee (y) and a deputy being, that the
former occupies in his own right, whereas the latter
occupies in the right of another (z),
A familiar instance of the first mode of transfer just
mentioned presents itself in the assignment of a lease
by deed ; and of the second, in the case of the heir
of an intestate who is an assignee in law of his
ancestor (a).
Further, under the term " assigns " (6) is included the
assignee of an assignee in perpetuwn (c), provided the
interest of the person originally entitled is transmitted
on each successive devolution of the estate or thing
assigned; for instance, the executor of A.'s executor is
the assignee of A., but not so the executor of A.'s
administrator, or the administrator of A's executor, who
is in no sense the representative of A., and to whom,
therefore, the unadministered residue of A's estate will
not pass.
In order to place in a clear light the general bearing
and application of the maxim assignatus utitur jure
auctoris, we propose to inquire, first, as to the quantity ;
and, secondly, as to the quality or nature of the interest
in property which can be assigned by the owner to
another party. And, 1st, it is a well-known rule, im-
(y) See Bromage v. Lloyd, 1 Exch. Baily y. De Crtsplgny, L. R. 4 Q B.
32 ; Bishop v. Curtis, 18 Q. B. 878 ; 186.
Lysaglti v. Bryant, 9 C. B. 46. See also Mitcalfe v. Westaway, 17
(z) Parkin's Prof. Bk., s. 100 ; C. B. N. a 658. An underlease of
Dyer, 6. the whole term amounts to an assign-
fa) Spencer' 9 case, 5 Rep. 16. ment» Beardman v. Wilson, L. B. 4
(6) As to the meaning of the word c. P. 57.
" assigns "in a covenant, seeJudgm., (<?) Co. Lift. 384, b.
F F 2
43G
THE TRANSFER OF PROPERTY.
What
amount of
interest can
bu aligned.
Qtinlitloa-
tion of rule
upon this
Kiibject.
ix>rtetl into our own from the civil law, that no man can
transfer a greater right or interest than he himself
possesses — Nemo jduMjui'is ad alium tmnsfewe potest
quum ipse Ivahevet (d). The owner, for example, of a base
or determinable fee can do no more than transfer to
another his own estate, or some interest of inferior degree
created out of it ; and if there be two joint tenants of
land, a grant or a lease by one of them will operate only
on his own moiety (c). In like manner, where the grantor
originally possessed only a temporary or revocable right
in the thing granted, and this right becomes extinguished
by efflux of time or by reservation, the title of the assignee
must, of course, cease to be valid, according to the rule
vewluto jure, concedentis resolvitur jus conces&uvi (/).
We find it, however, laid down that the maxim above
mentioned, which is one of the leading rules as to titles,
or the equivalent maxim, non dat qui noti habet, did not,
prior to the stat. 8 & 9 Vict. c. 106, apply to wrongful
conveyances or tortious acts (g) ; for instance, before the
passing of that Act, if a tenant for years made a feoff-
ment, this feoffment vested in the feoffee a defeasible
estate of freehold ; for, according to the ancient doctrine,
every person having possession of land, however slender,
or however tortious his possession might be, was, never-
theless (unless, indeed, he were the mere bailiff of the
party having title), considered to be in of the seisin in
fee, so as to be able by livery to transfer it to another ;
and, consequently, if, in the case above supposed, the
feoffee had, subsequently to the conveyance, levied a fine,
such fine would, at the end of five years after the expira-
(d) D. 50. 17. 54 ; Wing. Max., (/) Mackeld., Civ. Law, 179.
1». 56. iff) 3 Prest., Abs. Tit., 25 ; Id.
(e) 3 Prest., Abs. Tit., 25, 222. 244.
THE TRANSFER OF PROPERTY. 437
tion of the term, have barred the lessor (h). But now, by
sect. 4 of the statute just cited (/), a feoffment "shall not
have any tortious operation."
In connection with copyhold law also, an exception
presents itself to the elementary rule above noticed, for
the lord of a manor having only a particular interest
therein as tenant for life, may grant by copy for an estate
which may continue longer than his own estate in the
manor, or for an estate in reversion, which may not come
into possession during the existence of his own estate (k).
The special principle on which the grants of a lord pro
tempore stand good after his estate has ceased, being
that the grantee's estate is not derived out of the lord's
only, but stands on the custom (/).
In mercantile transactions, as well as in those con- ltuie holds
nected with real property, the general rule undoubtedly mercantile
is, that a person cannot transfer to another a right which tiol,s
he does not himself possess. The law does not "enable
any man by a written engagement to give a floating right
of action at the suit of any one into whose hands the
wilting may come, and who may thus acquire a right of
actiou better than the right of him under whom he
derives title (m).
Of the rule above stated, a familiar instance is noticed
by M. Pothier, who observes that, where prescription has
begun to run against a creditor, it will continue to do so
as against his heir, executors, or assigns, for the latter
(h) The reader will find this sub- 6th ed., 595.
ject elaborately considered in Mr. (jfc) Shelford, Copyholds, 20.
Butler's note (1) Co. Litt. 330, b. ; (/) Id. ibid.
Macliell v. Ckirke, 2 Lord Raym. (m) Per Lord Cran worth, C,
778 ; 1 Cruise, Dig., 4th ed.f 80. Dixon v. Bovill, 3 Macq. Sc. App.
(0 See Shelford, Keal Prop. Stats., Cas. 1(3.
438 THE TRANSFER OF PROPERTY.
succeed only to the rights of their principal, and cannot
stand in a better position than he did himself, nemo plu*
juris in alium trans/ewe lyotest quam ipse habet(n).
The assignee of a mortgagee cannot stand in any different
character, or hold any different position from that of the
mortgagee himself, although the mortgagor may not have
been a party to the assignment (o). So the indorsee of
an order for the delivery of goods acquires by the indorse-
ment no better title and no higher right than the indorser
had before (p) ; nor could the assignee of such an order
Exceptions sue upon it (q). However, in considering hereafter
to rule. a i_ii
maxims applicable to the law of contracts (r), we shall
have occasion to notice several cases which are directly
opposed in principle to the rule now under review.
Bearing upon this part of the subject we find in a recent
case («) the following remarks : — " The general rule of law
is undoubted, that no one can transfer a better title than
he himself possesses, Nemo dat quod non habet. To this
there are some exceptions, one of which arises out of the
rule of the law-merchant as to negotiable instruments,
which may shortly be defined, as instruments the delivery
whereof from one man to another passes the legal right to
the property secured (or represented) thereby (J). These
being part of the currency are subject to the same rule as
money ; and if a negotiable instrument, such as a bill of
exchange, be transferred before it is overdue, it becomes
(») 2 Pothier, Oblig., 263. The (?) Dixon v. Bovill, 3 Macq. Sa
maxim supra is also applied per App. Cas. 1.
Parke, B., Awde v. Dixon, 6 Exch. (r) Chap. IX.
872. (*) Whistler v. Forster, 14 C. B.
(o) Walker v. Jones, L. R. 1 P. C. N. & 248, 257-8. See Deutert ▼.
50, 61. Townsend, 5 B. & a 613, 616.
(p) Griffith y. Perry, 1 E. & E. (t) See Smith's Mercantile I*">
680, 689. 7th ed., 538.
THE TRANSFER OF PROPERTY. 439
available in the hands of a holder who takes it bond fide
and for value, notwithstanding fraud, which would have
rendered it unavailable in the hands of a previous holder.
This rule, however, is only intended to favour transfers in
the ordinary and usual manner, whereby a title is acquired
according to the law-merchant.
Further, by a sale in market overt, one wrongfully in
possession of a chattel may convey a good title to a bond
fide purchaser ; and, where possession of goods, coupled
with the property in them, has been obtained by fraud, a
bond fide purchaser for value without notice of the fraud
is not affected by it ; thus, where D. and Co. deposited
certain goods with the plaintiffs as security for an advance,
and afterwards obtained possession of the goods by fraud-
ulently representing to the plaintiffs tha,t they had sold
them to the defendants, and would hand over to the
plaintiffs the money to be received in payment, but in fact
deposited the goods with the defendants, with a power of
sale as security for an advance, it was held that as the
plaintiffs had 'parted with their special property in the
goods to D. and Co., they could not recover them from the
defendants, who had obtained them bond fide and for a
good consideration (u).
Again, if the true owner of goods permits another to
hold himself out as the real owner, as by entrusting him
with the documents of title to goods for certain limited
purposes, a third person who bond fide deals with the
agent as the owner of the goods may acquire a good title
to them as against the true owner (x).
Another remarkable exception to the rule occurs in indorse
* of bill of
lading.
(u) Bdbcock y. Lawson, 5 Q.B. 4, c. 83 ; 6 Geo. 4, c. 94 ; 5 & 6
D. 284 ; 49 L. J. Q. B. 408. Vict. c. 89 ; 40 & 41 Vict. c. 39.
(as) See the Factors Acts, 4 Geo.
440
THE TRANSFER OF PROPERTY.
connection with the important subject of stoppage in
transitu : for although, as between the consignor and
consignee of goods, the title to the goods, and the
question whether or not the property in them has passed,
will depend upon the real contract entered into by the
parties ; yet, if the consignor and original owner indorses
and delivers the bill of lading to the consignee, he
thereby puts it in the power of the latter to transfer
the property in the goods to a bond fide purchaser for
a valuable consideration, and thus to deprive himself of
any right of stoppage in transitu which he might have
had as against the consignee prior to such transfer ((/).
"The actual owner of an indorsed bill of lading/' said
Tindal, C.J. (z), " may, undoubtedly, by indorsement,
transfer a greater right than he himself has (a). It is at
variance with the general principles of law, that a man
should be allowed to transfer to another a right which he
himself has not; but the exception is founded on the
nature of the instrument in question, which being, like a
bill of exchange, a negotiable instrument, for the general
convenience of commerce, has been allowed to have an
(y) Pctue v. Gloaftec, L. R. 1 P.
C. 219 ; j*rKrle, C.J., L. R. 2C. P.
45.
(z) Jenkyns v. U«borne, 8 Scott,
N. R. 523 ; S. S., 7 M. & Gr. 678.
See further, as to the effect of indors-
ing a bill of lading, 18 & 19 Vict. c.
Ill, s. 1. Under this section the
rights and liabilities of the indorsee
of the bill of lading \maa from him by
indorsement over to a third person,
Dmcdchi v. Anylo-Egyptian iViar.
Co., L. R. 3 C. P. 190 ; Smurth-
waite v. Willi ns, 11 C. B. N. S. 842.
As to the effect of re-indorsing a
bill of lading, see Short v. Simpson,
L. R. 1 C. P. 248.
(a) See also Judgm., L. R. 2 P. C.
405, where the above exception to
the general rule is said to be "founded
on the negotiable quality of the docu-
ment. It is confined to the case
where the person who transfers the
right is himself in actual and au-
thorised possession of the document,
and the transferee gives value on the
faith of it, without having notice of
any circumstance which would render
the transaction neither fair nor
honest."
THE TRANSFER OF PROPERTY.
441
effect at variance with the ordinary principles of law.
But this operation of a bill of lading, being derived from
its negotiable quality, appears to us to be confined to the
case where the person who transfers the right is himself
in possession of the bill of lading, so as to be in a situa-
tion to transfer the instrument itself, which is the symbol
of the property itself " (&).
Having thus adverted to the amount or quantity of j*"1™"1* t
interest assignable, with reference more especially to the JjJgJ^
grantor, we must, in the next place, observe that, as a
general rule, the assignee of property takes it subject
to all the obligations or liabilities (c), and clothed with
all the rights, which attached to it in the hands of the
assignor (d) ; and this is in accordance with the maxim of
the civil law, qui in jus dominiumve alter i us succedit
jure ejus uti debet (e). We have already given one
instance illustrative of this rule, viz., where an heir or
executor becomes invested with the right to property
against which the Statute of Limitations has begun to
run.
We may here remark that, although formerly at law Aaniguecof
. *> a ^hose in
there was a distinction between the transfer of a chose in action may
8uo for it
action and the transfer of the right to sue for the same, in]»l80WU
o ' name.
that distinction has largely ceased to exist since the
(6) Sec Judgm., (lumcy v. Bch-
rcnd, 3 E. k 1). 633, 634 ; 1 Smith
L. C, 8th e«l., 825.
(r) See White v. Crisp, 10 Exch.
312.
(d) As te this rule in equity, see
Mangles v. Dixon, 3 H. L. Cas. 702,
cited Uiggs v. Assam Tea Co., L. R.
4 Ex. 396 ; Rodger v. The Comptoir
(FEscbmpte dt Paris, L. It. 2 P. C.
393, 405 ; Dickson v. Swansea Vale
R. C.t L. R. 4 Q. I). 44, 48. If a
man gives a licence and then parts
with the property over which the
privilege is to he exercised, the
licence is gone : Col/nan v. Foster, 1
H. & N. 37, 40.
(e) D. 50. 17. 177. pr. For in-
stance, fee-simple estates are subject,
in the hands of the heir or devisee,
to debts of all kinds contracted by
the deceased.
442
THE TRANSFER OF PROPERTY.
passing of the Judicature Act, 1873, by which an absolute
assignment by writing, under the hand of the assignor of
any debt, or other legal chose in action of which express
notice in writing shall have been given to the debtor,
trustee, or other person from whom the assignor would
have been entitled to receive or claim such debt or chose
in action, shall be deemed in law to pass and transfer the
legal right to such debt or chose in action, and all legal
and other remedies for the same(/).
Without attempting to enumerate the various rights
which are assignable, either by the express act of the
party, or by the operation of law, we may observe,
generally, that the maxim, as&ignatus utitur jure
auctoris, is subject to very many restrictions (g) besides
those to which we have just alluded ; for instance,
although the assignee of the reversion in land is, by the
common law, entitled to sue upon covenants in law (h),
and has, under the stat. 32 Hen. 8, c. 34 (which applies
only to leases by deed (i) ), a right to sue on express
covenants contained in the lease, yet the operation of this
statute is confined to such covenants as are technically
said to run with the land, that is, such as require some*
thing to be done which is in some manner annexed and
(/) Sect. 25, sub-sect. 6, Act,
1873, where the right to a debt or
chattel in the hands of a third person
is transferred to another, the latter
should always give notice to the
debtor or holder of the chattel, other-
wise his title is incomplete : He
FrcshfieWs Trusts, 11 Ch. Div. 198.
As to assignment of the beneficial in-
terest in a policy of marine insurance,
see 81 & 82 Vict. c. 86, s. 1.
(g) See Sandrey v. MkheU, S B.
& S. 405 ; Young v. Hughes, 4 H.
& N. 76 ; M'Kune v. Joynson, 6 0.
B. N. S. 218.
(A) See Williams v. BurreU, 1 0.
B. 429 ; Coote, L. &T. 314 ; Vyvyan
y. Arthur, 1 B. & 0. 414 ; Harper
v. Burgh, 2 Ley. 206.
(*') Per Lush, J., Elliott v. John-
son, L. R. 2 Q. B. 122, citing
Standen v. Christmas, 10 Q. B.
135.
THE TRANSFER OF PROPERTY.
443
appurtenant to the land itself (fc). Bills of exchange (I),
promissory notes, and cheques (m) upon bankers, are in
general assignable. And where a bill is indorsed in blank,
the owner may hand it over to a third person to sue upon
it on his behalf (n). In like manner, the legal effect of a
marriage entered into prior to the passing of the Married
Women's Property Act, 1882 (o), is to vest in the hus-
band the right of reducing into possession the chattels
real and choses in action generally of the wife, yet if he
dies without having exercised this power, the above
descriptions of property will survive to the wife (p). Now
every woman married since the Act is entitled to have
and to hold as her separate property all real and personal
m
property which belonged to her at the time of marriage,
or is acquired by or devolves upon her after marriage (q).
The rule also that a vested right of action is by death
transferred to the personal representatives of the deceased
is subject to some important exceptions, which will here-
after be referred to, and must, therefore, be applied with
considerable caution (?•).
The case of a pawn or pledge of a chattel should per-
(k) Spencer1 $ case, 5 Rep. 16, 1st
resolution ; Martyn v. Clue, 18 Q.
B. 661 ; Martyn t. Williams, 1 H.
& N. 817 ; Hooper v. Clark, L. R.
2 Q. B. 200 ; Stevens v. Copp, L. R.
4 Bx. 20 ; Thomas v. Hayward, L.
R. 4 Ex. 311 ; Williams v. Hayward,
1 E. & E. 1040 ; Gorton y. Gregory,
SB. & S. 90 ; Bennett v. Herring,
3 C. B. N. S. 870 ; Sharp v. Water-
house, 7 E. & B. 816.
(I) SeeHarrop, app., Fisher, resp.,
10 C. B. N. S. 196.
(m) Keene t. Beard, 8 C. B. N.
S. 872.
(n) Law t. Parnell, 7 C. B. N. 8.
282. See Judgni., Ingham v. Prim*
rose, 7 C. B. N. 8. 85.
(o) 45 & 46 Vict c 75.
(p) Per Parke, B., Gaters v.
Madeley, 6 M. & W. 426, 427;
Fleet v. Perrins, L. R. 4 Q. B. 500,
and cases there cited.
(q) Sect 2.
(r) See the maxim, Actio persona'
lis moritur cum persond ; post, Chap.
IX.
444
THE TRANSFER OF PROPERTY.
l»n»l<*rt\.
baps also be referred to in connection with the principle,
i9H8tgmitu8 utitur jure auctitri*, for here the pawnor
retains a property in the chattel, qualified by the right
vested in the pawnee; and a sale of the chattel by its
owner would, therefore, transfer to the vendee that quali-
fied right only which the vendor himself possessed (x).
To constitute a valid pledge, there must, however, be a
delivery of the chattel, either actual or constructive, to the
pawnee (/), and if the pawnee parts with the possession of
the chattel he may lose the benefit of his security, and
will do so if such parting is absolute (m).
Again, the well-known distinction between absolute and
8i>eci(rf property may be adverted to generally, as showing
in what manner and under what circumstances the maxim,
that an assignee succeeds to the rights of his grantor,
must, in a large class of cases, be understood. Absolute
property, according to Mr. Justice Liurrencf, is, where one
having the possession of chattels, has also the exclusive
right to enjoy them, which right can only be defeated by
some act of his own. Social property, on the other hand,
is, where he who has the possession holds them subject to
the claims of other persons (x). According, therefore, as
the property in the grantor was absolute or subject to a
special lien, so will be that transferred to his assignee —
qui in jiw tlominiumve alteriu* zuccedit jure ejus uti
is) FramUim t. Xcate, 13 M. Jb
W. 4S1, cited Re AtUnljorvH<jli9 11
Kxch. 463. As to the true nature
of a pledge, see per Parke, I)., Chtts-
man r. Eralh 6 Kxcb. 344.
As to the right of the pledgee to
sell the pledge, see Iftillitlay v. llol-
</fi/f, L. R. 3 Ex. 299. approving
IhmaUl t. SucUiR% LR.1Q.U.
it) Per Erie, C.J., Marti mr. JUid,
11 C. B. X. 8. 734.
(«) Mt*rcr*tein r. Barber, L» R. 2
C. P. 51 ; 36 L. J. C. P. 57 ; Yornny
r. Lambert, L. R. 3 C. P. 142 ; Byal
v. RUle, 1 Atk. 164.
(jr) Webb v. Fox, 7 T. B. 398.
See per Pollock, C.B., LancasAirt
Waygo* tV- t. FitJiu'jkj 6 H. Jb N
506.
THE TRANSFER OF PROPERTY. 445
debet ; and the same principle applies where a subsequent
transfer of the property is made by such assignee (y).
We shall now proceed to an enumeration of some few
other kindred maxims, which are indeed of minor im-
portance, but, nevertheless, could not properly be omitted
in even the most cursory notice of the above-mentioned
branch of our legal system.
CUICUNQUE ALIQUIS QUIT) CONCEDIT CONCEDERE VIDETUR
ET ID SINE QUO RES IPSA ESSE NON POTUIT (11 Rep.
52.) — Whoever grants a thing is supposed also
tacitly to grant that witlioiU which tlve gva/nt itself
would be of no effect.
" If you grant anything, you are presumed to grant to Ruie.-in-
the extent of your power that also without which the Jta*pp»«-
J * tlOIl
thing granted cannot be enjoyed" (z). Thus, in The
Caledonian Railway Company v. Sprot (a), Lord Cran-
woiih, C, in reference to the right to support, observes,
" If the owner of a house were to convey the upper story
to a purchaser, reserving all below the upper story, such
purchaser would, on general principles, have a right to
prevent the owner of the lower stories from interfering
with the walls and beams upon which the upper story
rests, so as to prevent them from affording proper support.
The same principle applies to the case of adjacent support,
(g) As to a sale or wrongful con- (;) Judgra., Lordx.Commimoncrt
version by bailee for hire, see Cooper for City of Sydney, 12 Moo. P. C. C.
v. Willomatt, 1 C. B. 672 ; Bryant 499-500.
y. Wardell, 2 Exch. 479 ; Fenn v. (a) 2 Macq. Sc. App. Go*. 449,
Bittleston, 7 Exch. 152 ; S/mcl-man 450, 451. See Great Western It. C.
v. MUler, 12 C. 15. N. S. 659, 676. v. Fletcher, 5 II. & N. 689.
446 THE TRANSFER OF PROPERTY.
80 far, at all events, as to prevent a person who has granted
a part of his land from so dealing with that which he
retains, as to cause that which he has granted to sink or
fall. How far such adjacent support must extend is a
question which, in each particular case, will depend on its
own special circumstances. * * * And it must further
be observed, that all which a grantor can reasonably be
considered to grant or warrant, is such a measure of
support as is necessary for the land in its condition at the
time of the grant, or in the state for the purpose of putting
it into which the grant is made. Thus, if I grant a
meadow to another, retaining both the minerals under it,
and also the adjoining lands, I am bound so to work my
mines and to dig my adjoining lands as not to cause the
meadow to sink or to fall over. But if I do this, and the
grantee thinks fit to build a house on the edge of the land
he has acquired, he cannot complain of my workings or
diggings, if, by reason of the additional weight he has put
on the land, they cause his house to fall. If, indeed, the
grant is made expressly to enable the grantee to build his
house on the land granted, then there is an implied
warranty of support, subjacent and adjacent, as if the
house had already existed.
The above reasoning is in conformity with the spirit
of the maxim supra, p. 445. So it is laid down, that
when anything is granted, all the means to attain it (6),
and all the fruits and effects of it, are granted also,
and shall pass inclusive, together with the thing by the
grant of the thing itself, without the words cum peril-
(6) See Dalton's Justice, 397 (ed. of WhiUtable v. Gann, 11 C. B. N.
1655) ; cited, Evans ▼. See*, 12 A. S. 387 ; S. C, 13 Id. 853, 11 H. L.
& E. 57, 58 ; Arg. Mayor of London Caa. 192.
v. Bcg.y 13 Q. B. 37 ; Free Ftiker*
THE TRANSFER OF PROPERTY.
447
nentiis (c), or any such-like words (d). And a right of
way appurtenant to land passes to the tenant by a parol
demise of the land, although nothing is said about it at
the time of the demise (e).
Therefore, by the grant of a piece of ground is granted
a right of way to it over the grantor's land, as incident to
the grant ; and, in like manner, by a reservation of the
close is reserved also a right of way to it (/) ; and by the
grant of trees is granted power to enter on the land to
cut them down and take them away (g). If a man leases
his land and all mines, where there are no open ones, the
lessee may dig for the minerals (A) ; and by the grant of
(c) As to the effect of these words,
see Cort y. Sagar, 8 H. & N. 870 ;
Bae. Abr. Grant (T. 4).
(d) Shep. Touch. 89; Hobart, 234;
Vaugh. R. 109. See, also, Jink* v.
Edward*, 11 Exch. 775, in illustra-
tion of the above maxim.
(e) Skull y. GUnistcr, 16 C. B. N.
a 81.
(/) 1 Wms. Saunds. 323, n. ;
Pinnington y. Gotland, 9 Exch. 1,
12 ; cited, per Parke, B. , Richards
t. Rose, Id 220 ; and distinguished
in White v. Bass, 7 H. & N. 729,
732 ; Buckby v. Coles, 5 Taunt. 311;
Robertson v. GanUett, 16 M. & W.
289.
The mode of creating and nature
of a way of necessity were much con-
sidered in Pearson v. Spencer, 1 B. &
S. 571.
A right of way of necessity can
only arise by grant express or im-
plied ; Proctor t. Hodgson, 10 Exch.
824. See Arg. Grove v. Withers, 4
Exch. 879.
The right to use a drain may pass
impliedly by the grant of a house,
Pyer y. Carter, 1 H. & N. 916 (which
" went to the utmost extent of the
law," per Martin, B., Dodd v. Bur-
cheU, 1 H. & C. 121 ; cited Chad-
wick y. Marsdcn, L. R. 2 Ex. 289 ;
Swart y. Cochrane, 4 Macq. 8c. App.
Cas. 117, 122 ; Hall v. Lund, 1 H.
& C. 676. See Polden v. Bastard,
32 L. J., Q. B., 372.
{g) Howton v. Frearton, 8 T. R.
56 ; Noy, Max., 9th ed., 54, 56
Plowd. Com. 16. a. ; Finch, Law, 63
Clarke v. Cogge, Cro. Jac. 170
Beaudefy v. Brook, Id. 190; per
Best, C. J., 2 Bing. 83. See Robert-
son y. GanUett, 16 M. & W. 289.
(h) Where minerals are granted by
deed, it .must prima facie be pre-
sumed that the minerals are to be
enjoyed, and, therefore, that a power
to get them must also be granted or
reserved as a necessary incident : per
Lord Wensleydale, Rowbotham v.
Wilson, 8 H. L. Cas. 360; per
Martin, B., S. C, 8 E. & B. 149.
448
THE TRANSFER OF PROPERTY.
fish in a man's pond is -granted power to come upon the
banks and fish for them (i). On the same principle, where
trees are excepted in a lease, the lessor has a power by
law, as incident to the exception, to enter upon the land
demised at all reasonable times in order to fell and carry
away the trees ; and the like law holds with regard to a
demise by parol (k). So a rector may enter into a close to
carry away the tithes over the usual way, as incident to
his right to the tithes (I). And a tenant at will, after
notice to quit, or any other party who is entitled to
emblements, shall have free entry, egress, and regress, to
cut and carry them away (m). The right to emblements
does not, however, give a title to the exclusive occupation
of the land. Therefore, it seems, that, if the executors
occupy till the corn or other produce be ripe, the land-
lord may maintain an action for the use and occupation
of the land (n). On the same principle, where a tenant
is entitled to an away-going crop, he may likewise be
entitled by custom to retain possession of that portion
of the land on which it grows ; and, in this case, the
custom operates as a prolongation of the term, or rather of
the legal right of possession as to such portion (o).
So, it has been observed, that when the use of a thing
is granted, everything is granted by which the grantee
(i) 1 Wins. Saund. 323, n. (6);
Shep. Touch. 8J> ; Co. Litt. 59. b. ;
Liford'* c<uc, 11 Rep. 52 ; Foster v.
Spooner, Cro. Eliz. IS; Saunders'
case, 5 Rep. 12 ; Noy, Max., 9th e<l.,
p. 56 ; Doe d. Rt«jcr* v. Price, 8 C.
J*. 894.
(k) Ihiriit v. Isham, 7 Exch. 77,
79 ; LifortV* case, 11 Uep. 52 ; Ath-
mead v. Ranycr, 1 Ld. ltaym. 552.
{1) 1 Wins. Saund. 323, note (6),
adp'netn.
{m) Litt. s. 68 ; Co. Litt 56. a.,
153. a , cited 1 M. & S. 660.
(n) VToodf., L. & T., 12th ed.f 722.
(0) Per -Bayley, J., Boraslon v.
Green, 16 Eaat, 81; Grij/Uhs v.
Puleston, 13 M. & W. 358 ; Ex
parte MmuMl, 2 Madd. 315. See
Strickland v. Maxiccll, 2 Cr. k M.
639.
THE TRANSFER OF PROPERTY. 449
may have and enjoy such use ; as, if a man gives me a
licence to lay pipes of lead in his land to convey water
to my cistern, I may afterwards enter, and dig the land,
in order to mend the pipes, though the soil belongs to
another, and not to me (p).
And where an Act of Parliament empowers a railway
company to cross the line of another company by means
of a bridge, it wits held, that the first-mentioned com-
pany, had, consequently, the right of placing temporary
scaffolding on the land belonging to the latter, if the
so placing it were necessary for the purpose of con-
structing the bridge (q), for ubi illiquid conceditur, con-
ceditwr et id sine quo res ipsa esse won potest And a
person lawfully exposing goods for sale in a public market
has a right to occupy the soil with baskets necessary and
proper for containing the goods (r).
In a modern case, it was held, that a certain coal-shoot,
water and other pipes, all which were found by special
verdict, to be necessary for the convenient and beneficial
use and occupation of a certain messuage, did under the
particular circumstances pass to the lessee as integral
parts of such messuage : and it was further held, in strict
accordance with the rule of law now under consideration,
that the right of passing and repassing over the soil of
a certain passage for the purpose of using the said coal-
shoot, and using, cleaning, and repairing the said pipes,
(p) Per Twysden, J., Pomfret v. Hodgecn r. Field, 7 East, 622, 623.
Rieroft, 1 Saund. R. 323 ; per Wig- (q) Clarence R. C. v. Great North
ram, P.-C., Blabesley v. Whieldon, of England R. C, 13 M. & W. 706,
1 Hare, 180 ; per Story, J., Charlee 721 ; S. C, 4 Q, B. 46. See Doe t.
River Bridge v. Warren Bridge, 11 Archb. of York, 14 Q. B. 81.
Peters (U. &), R. 630, cited Rich- (r) TovmendY. Woodruff, 6Exch.
mond R. C. v. Louisa R. C, 13 506.
Howard (U. S.), B. 81 ; Judgm.,
o G
450
THE TRANSFER OF PROPERTY.
Power of
corporation
to make
bye-la wg.
likewise passed to the lessee as a necessary incident to
the subject-matter actually demised, although not spe-
cially named in the lease (•).
In a deed of conveyance of certain land, the grantor
excepted and reserved out of the grant all coal-mines,
together with sufficient way-leave and stay-leave to and
from the said mines, and the liberty of sinking pits : the
Court held, that, as the coals were excepted, and a right
to dig pits for getting those coals reserved, all things
" depending on that right, and necessary for the obtaining
it/' were, according to the above rule, reserved also, and
consequently that the owner had, as incident to the
liberty to sink pits, the right to fix such machinery as
would be necessary to drain the mines, and draw the coals
from the pits ; and, further, that a pond for the supply of
the engine, and likewise the engine-house, were necessary
accessories to such an engine, and were, therefore, law-
fully made (t).
Again, the power of making bye-laws, is on the same
principle incident to a corporation ; for, when the Grown
creates a corporation, it grants to it, by implication, all
powers that are necessary for carrying into effect the
objects for which it is created, and securing a perpetuity
of succession. Now a discretionary power somewhere to
make minor regulations, usually called bye-laws, in order
to effect the objects of the charter, is necessary ; and the
reasonable exercise of this power is, therefore, impliedly
(«) Einchdige r. Earl of Kinnoul,
6 Bing., N. C, 1 ; HaU v. Lund, 1
H. & C. 676 ; seePfeyaqr t. Vicary,
16 M. & W. 484.
(t) Band v. Kingscott, 6M.&W.
174, sod cases there cited ; Rogers
t. Taylor, 1 H. ft N. 706, 711 ;
citing Band v. KingscoU, supra,
and Earl of Cardigan v. Armiiagt,
2 R ft C. 197 ; Hodgson y. Field, 7
Bast, 613.
THE TRANSFER OF PROPERTY.
451
granted by the Crown, and is conferred by the very act
of incorporation (u). So, a corporation incorporated for
trading purposes has impliedly power to contract by parol
for purposes necessary for the carrying on of their trade (x).
The above maxim, however, must be understood as Limitation
of rule to
applying to such things only as are incident to the grant, JjJJgJJJJg
&nd directly necessary for the enjoyment of the thing
granted : therefore, if a man, as in the instance above put,
grants to another the fish in his ponds, the grantee cannot
cut the banks to lay the ponds dry, for he may take the
fish with nets or other engines (y). So, if a man, upon a
lease for years, reserve a way for himself through the
house of the lessee to a back -house, he cannot use it but
at seasonable times, and upon request (0). A way of
necessity is also limited by the necessity which created it,
and, when such necessity ceases, the right of way likewise
ceases ; therefore, if, at any subsequent period, the party
formerly entitled to such way can, by passing over his own
land, approach the place to which it led by as direct a
course as he would have done by using the old way, the
way ceases to exist as of necessity (a). A way of necessity
(u) R. t. Westwood, 7 Bing. 20.
See Chilton v. London and Croydon
It. C 16 M. k W. 212 ; Colder
and Hebble Nav. Co. v. Pitting, 14
M. & W. 76. A bye-law is " a rule
made prospectively and to be applied,
whenever the circumstances arise for
which it is intended to provide : "
Judgm. Gosling v. Veley, 7 Q. B.
451 ; Bac Abr., Corporations (D).
(z) Addison on Contracts, 8th ed.}
p. 90, et seq.
(y) 1 Wms. Saund. 283, n. (6), ad
Jinem; Lord Darcy v. Askwkh,
Hob. 284 ; per Parke, B., 6 M. k
W. 189.
(z) TonUin v. Fuller, 1 Ventr. 48.
See, also, Morris v. Edgington, 3
Taunt. 24, cited 6 M. k W. 18$ ;
Wilton v. Bagshaw, 6 Kan. k Ry.
448; Osborn v. Wise, 7 0. & P.
761.
(a) Holmes v. Coring, 2 Bing. 76.
As to which case see, per Parke, B.,
Proctor v. Hodgson, 10 Exch. 828 ;
Judgm., 1 B. k S. 684. See drove
v. Wither*, 4 Exch. 876.
The maxim considered in the text
is also applied, per Alderson, B.,
Breese v. Owens, 6 Exch. 417.
a a 2
452
THE TRANSFER OF PROPERTY.
General ob-
servations.
Authority
implied by
law.
once created, must, however, remain the same way as long
as it continues at all (b).
We may conclude our observations on this part of our
subject with the following extract from the work of a very
learned writer: "Upon the conveyance of part of an estate
a grant of all such rights and easements over the residue
retained by the vendor as are essential to the due enjoy-
ment of the part conveyed will, if there be nothing in the
conveyance to negative the presumption, be presumed at
law; for instance, the grant of . . . drainage or of
the right to the continued enjoyment of modern lights on
the sale of a house, or of any other continuous easement
necessary to the enjoyment of the property ; or of the
right to that extraordinary support by the adjoining soil
which is requisite in order to support the buildings on the
part conveyed ; and conversely in the absence of anything
in the conveyance to negative the presumption, the law
will presume a reservation in the conveyance of all such
rights and easements over the part conveyed as are
essential to the due enjoyment of the part retained by the
vendor (c).
On a principle similar to that which has been thus
briefly considered, it is a rule, that, when the law com-
mands a thing to be done, it authorises the performance
of whatever may be necessary for executing its command :
Quando aliquid mairidatv/r, Ttiandatur et owme pet% quod
per venitur ad illud(d). Thus, when a statute gives a
(6) Pearson v. Spencer, 1 B. k S.
571, 584.
(c) Dart's Vendors and Purchasers,
5th ed., VoL 1, 537.
(d) 5 Rep. 116.
In accordance with the same prin-
ciple, an agent is sometimes held to
be impliedly clothed with power to
act in cases of necessity. See Ed-
ward* y. Havill, 14 C. B. 107;
Beldon v. Campbell, 6 Bxch. 886,
889 ; cited, per Sir R. Phillimore,
The Karnak, LR.2A. k & 802 ;
a C, L. R. 2 P. C. 505 ; FroHv.
THE TRANSFER OF PROPERTY.
453
justice of the peace jurisdiction over an offence, it im-
pliedly gives him power to apprehend any person charged
with such offence (e). So, constables, whose duty it is to
see the peace kept, may, when necessary, command the
assistance of others (/). In like manner, the sheriff is
authorised to take the posse comitatus, or power of the
county to help him in executing a writ of execution, and
every one is bound to assist him when required so to
do (g) ; and, by analogy, the persons named in a writ of
rebellion, and charged with the execution of it, have a
right at their discretion, to require the assistance of any
of the liege subjects of the Crown to aid in the execution
of the writ (h).
The foregoing are simple illustrations of the last-men-
tioned maxim, or of the synonymous expression, Quando
lex aliquid alicui concedit, conced/Uwi* et id sine quo res
ipsa esse non potest (i), the full import of which has been
thus elaborately set forth (k) : — " Whenever anything is
authorised, and especially if, as matter of duty, required
to be done by law, and it is found impossible to do that
thing unless something else not authorised in express
terms be also done, then that something else will be
diver, 2 E. & B. 801, with which
cases compare Organ v. Brodie, 10
Exch. 449; 8tory on Agency, 9th
ed., pp.85, 141, 198, 237. The maxim
cited supra has indeed a very wide
applicability in connection with the
law of Principal and Agent, see ex. gr.
BayUy t. WUkiru, 7 C. B. 886. It
was unsuccessfully relied on in Brady
v. Todd, 9 C. B. N. & 592 ; with
which compare Miller v. Lawton, 15
C. B. N. S. 834.
(e) Bane v. Methuen, 2 Bing. 63.
See 22. ▼. Benn, 6 T. £. 198.
(/) Noy, Max., 9th ed., p. 85.
(g) Foljamb's catt, 5 Rep. 116;
cited 4 Bing., N. C, 588; Noy,
Max., 9th ed., p. 55 ; Judgm.,
Howden, v. Standish, 6 0. B.
521.
(A) Miller v. Knox, 4 Bing., N. C,
574.
(i) 12 Rep. 131.
(h) Fenion v. Hampton, 11 Moo.,
P. C. C, 360.
454 THE TRANSFER OF PROPERTY.
supplied by necessary intendment But if, when the
maxim comes to be applied adversely to the liberties or
interests of others, it be found that no such impossibility
exists, — that the power may be legally exercised without
the doing that something else, or, even going a step
farther, that it is only in some particular instances, as
opposed to its general operation, that the law fails in its
intention unless the enforcing power be supplied, — then
in any such case the soundest rules of construction point
to the exclusion of the maxim, and regard the absence of
the power which it would supply by implication as a casus
omissus.1'
The mode of applying the maxim just cited may be
thus exemplified : —
The Lower House of Assembly of the island of
Dominica is a legislative assembly constituted under
royal proclamation (I), and empowered by various com-
missions given subsequently to the governor for the time
being to make with the advice and consent of the
Council, laws for the peace, welfare, and good government
•of the inhabitants of the colony (m). The question not
long since arose (ri), has this legislative assembly authority
to commit and punish for contempts committed, and for
interruptions and obstructions to the business of the said
House by its members or others in its presence and
during its sittings ? In deciding this question adversely
to the asserted right, the Judicial Committee of the Privy
Council observed in substance as follows: — It must be
conceded that as the common law sanctions the exercise
of the prerogative by which the Assembly was created,
{l) 21st June, a.d. 1775. 0. C, N. S. 208 ; S. C, L. R. 1 ?•
(m) Clark, Col. L., 134. C. 828.
(n) Doyle v. Falconer, 4 Moo. P.
THE TRANSFER OF PROPERTY. 455
the principle of the common law, embodied in the maxim,
qucmdo lex aliquid concedit, concedere videtu/r et ittud
sine quo res ipsa esse non potest, applies to the body so
created. The question, therefore, is reduced to this : Is
the power to punish and commit for contempts committed
in its presence, one neceasary to the existence of such a
body as the Assembly of Dominica and the proper exercise
of the functions which it is intended to execute ? It is
necessary to distinguish between a power to punish for a
contempt, which is a judicial power, and a power to
remove any obstruction offered to the deliberations or
proper action of a legislative body during its sitting,
which last power is necessary for self-preservation. If a
member of a Colonial House or Assembly is guilty of
disorderly conduct of the house whilst sitting he may
be removed, or excluded for a time, or even expelled ; but
there is a great difference between such powers and the
judicial power of inflicting a penal sentence for the
offence. The right to remove for self-security is one
thing, the right to inflict punishment is another. The
former is all that is warranted by the maxim above cited,
but the latter is not its legitimate consequence. To
establish a right to the particular privilege claimed —
it must be shown to be essential to the existence of the
Assembly — an incident sine quo res ipsa esse non
potest (o).
On the other hand, qua/ndo aliquid prohibetur, prohi- Prohibition
betur et omne per quod devenitur ad Mad (p) — whatever ia*
is prohibited by law to be done directly cannot legally be
(o) Jndgm., 4 Moo., P. C. C, N. & Barrett, 1 Id. 59.
219, 221 ; KieUy v. Carton, 4 Moo. ( p) 2 Inst 48.
P. G. C. 68, overruling Beaumont v.
456
THE TRANSFER OF PROPERTY.
effected by an indirect and circuitous contrivance (g) ; — a
transaction will not be upheld which is " a mere device
for carrying into effect that which the legislature has
expressly said shall not be done" (r) ; of which maxim the
following instances must suffice : — The donee of a power
of appointment must exercise the power without any in-
direct object, and in doing so must act with good faith and
sincerity, and with an entire and single view to the real
purpose and object of the power, and not for the purpose
of accomplishing any by or sinister object which he may
desire to effect (s). If a tenant, under covenant not to
" let, set, assign, transfer, or make over " the indenture of
lease, give a warrant of attorney to confess judgment to
a creditor, for the express purpose of enabling such
creditor to take the lease in execution under the judg-
ment, this is in fraud of the covenant, and the landlord,
under a clause of re-entry in the lease for breach of the
condition, may recover the premises in ejectment from a
purchaser under the sheriff's sale. In this case, the tenant
could not by any assignment, under-lease, or mortgage,
have conveyed his interest to a creditor, and, consequently,
he cannot convey it by an attempt of this kind If the
lease had been taken by the creditor under an adverse
(q) Booth v. The Bank of England,
7 CI. & Fin. 509 ; Judgm., 12 Peters
(U. 8.), R. 605 ; Co. Lit*. 228. L. ;
Wing. Max., p. 618 ; per Lord Ken-
yon, C. J., 8 T. R. 301, 415. See
Hughe* v. Statham, 4 B. & C. 187,
193 ; Duke of Marlborough v. Lord
Godolphin, cited 2 T. R. 251, 252.
A court of law will not use a power
which it has for the purpose of in-
directly exercising a power which
it has not : A.-G. v. Bovet, 15 M. &
W. 71. " In actions for the infringe*
ment of patent rights, it is of con-
stant recurrence that the gravamen is
laid, not as a direct infringement,
but as something amounting to a
colourable evasion of the right
secured to the party : * per Tindal,
C. J., 7 CI. k Pin. 546.
(r) Morris v. Blackman, 2 H. &
C. 912, 918.
(«) Duke of Portland v. Topkatfh
11 H. L. Cas. 32, 54.
THE TRANSFER OF PROPERTY.
457
judgment, the tenant not consenting, it would not have
been a forfeiture ; but, in the above case, the tenant con-
curred throughout, and the whole transaction was per-
formed for the very purpose of enabling the tenant to
convey his term to the creditor (t).
ACCESSOR1UM NON DUCIT SED SEQUITUR SUUM PRINCI-
PALS (Co. Litt. 152. a.). — The incident shall pass by
the grant of the principal, but not the principal by
the grant of the incident (u).
Upon the maxim Res accessoria sequitur rem princi- Rule de-
x A rived from
palem (x), depended the important doctrine of accessio (y) Roman i**-
in the Roman law, accessio being that particular mode of
. (0 Doe d. MUehinson v. Carter,
8 T. R. 300; 8. C, Id. 57 ; Croft v.
Lumley, 6 H. L. Cas. 739-40; 27
L. J. Q. B. 321 ; 5 B. k B. 648,
682, 688 ; per Martin, B., Price v.
Worwood, 4 H. & N. 513. In HiU
V. Cowdery, 1 H. & N. 360, 365,
Bramwell, B. citing Croft v. Lum-
ley, observes, that the doctrine there
laid down is, that " when a person
covenants that he will not do an
act, he does not break his covenant
if he does an act which indirectly
brings about the result provided
against."
(u) Co. Iitt 152, a., 151, b. ; per
Vanghan, B., Harding v. PoUock, 6
Ring. 63.
{x) "A principal thing (res prin-
cipalis) is a thing which can subsist
by itself, and does not exist for the
sake of any other thing. All that
belongs to a principal thing, or is in
connexion with it, is called an acces-
sory thing (res accessoria)." Mackeld.
Civ. Law, 155. See ex. gr. Ashworth
app., Heyworth resp., L. R. 4 Q. B.
816, 319.
(y) " Accessio is the general name
given " in the Roman Law " to every
accessory thing, whether corporeal or
incorporeal, that has been added to a
principal thing from without, and
has been connected with it, whether
by the powers of nature or by the
will of man, so that in virtue of
this connexion it is regarded as part
and parcel of the thing. The appur-
tenances to a thing are to be noticed
as a peculiar kind of accession ; they
are things connected with another
thing, with the view of serving for its
perpetual use.'* Mackeld. Rom. Law,
155, 156.
458 THE TRANSFER OF PROPERTY.
acquisition of property whereby the proprietor of the prin-
cipal thing became, ipso jure, proprietor also of all be-
longing to the principal as accessory to it. Two extensive
classes of cases were accordingly comprised within the
operation of the above-mentioned principle : 1st, that
in which the proprietor of a thing acquired a right of
property in the organic products of the same, as in the
young of animals, the fruit and produce of trees, the
alluvion or deposit on land, and in some other descriptions
of property originating under analogous circumstances.
The second class of cases above alluded to comprised those
in which one thing becomes so closely connected with
and attached to another that their separation cannot be
effected at all, or at all events not without injury to one
or other of them ; and in such cases the owner of the
principal thing was held to become proprietor also of the
accessory connected therewith (z).
Example* of The above maxim, Accessoriura noil ducit sed sequitur
rule in our ...
law. mum principals, is, then, derived from the Roman law,
and signifies that the accessory righc follows the princi-
pal (a) ; it may be illustrated by the remarks appended to
the rule immediately preceding (b), as also by the follow-
ing examples : —
An easement to take water from a river to fill a canal
ceases when the canal no longer exists (c). The owner of
land has, pri/md facie, a right to the title-deeds, as some-
thing annexed to his estate in the land, and it is accord-
ingly laid down, that, if a man seised in fee conveys land
(2) See Mackeld. Civ. Law, 279, (6) See, also, Chanel t. Robotkam,
281 ; I. 2. 1., De Xerum Dtrieione ; Yeiv. 68 ; Wood v. BeUt 5 E. & B.
Brisson. ad verb. " Acctsriorum." 772.
(a) Bell, Diet and Dig. of Scotch (e) National Guaranteed Manure
Law, p. 7. See, also, Co. Litt. 389, a. Co. v. Donald, 4 H. k N. 8.
THE TRANSFER OF PROPERTY. 459
to another and his heirs, without warranty, all the title-
deeds belong to the purchaser, as incident to the land (d)>
though not granted by express words (e). In like man-
ner, heir-looms are such goods and chattels as go by
special custom to the heir along with the inheritance, aud
not to the executor or administrator of the last owner of
the estate ; they are due to the heir by custom, and not
by the common law, and he shall accordingly have an
action for them. There are also some other things in the
nature of heir-looms which likewise descend with the par-
ticular title or dignity to which they are appurtenant (/).
Again, rent is incident to the reversion, and, therefore,
by a general grant of the reversion, the rent will pass ;
though, by the grant of the rent generally, the reversion
will not pass, for Acceaaoriura non ducit sed aequitur
miwm principale : however, by the introduction of special
words, the reversion may be granted away, and the rent
reserved (g). So, an advowson appendant to a manor is f^™™^1}
so entirely and intimately connected with it, as to pass by
the grant of the manor cum pertinentiie, without being
expressly mentioned or referred to ; and, therefore, if a
tenant in tail of a manor with an advowson appendant
suffered a recovery, it was not necessary for him to make
any express mention of his intention to include the
advowson in the recovery; for any dealing with the
manor, which is the principal, operates on the advowson,
which is the accessory, whether expressly named or not.
It is, however, to be observed that, although the convey-
(d) See jKi-Tindal, C. J., Tinnis- 193, et seq ; AUwood v. Heywood,
wood v. PatUson, 3C. B, 248, et 32 L. J., Ex., 153.
vide, Id. n. (b.) (/) See 1 Crabb, Real Prop. 11, 12.
(e) Lord Buckhurst'i caief 1 Rep. {g) 2 Com. by Broom & Hadley,
1 ; Ooode v. Burton, 1 Exch. 189, 339 ; Litt. s. 229 ; Co. Litt 148, a.
appendant.
460
THE TRANSFER OF PROPERTY.
Severance
from grant.
Common
attendant,
Ac.
ance of the manor primd facie draws after it the advow-
Bon also, yet it is always competent for the owner to sever
the advowson from the manor, either by conveying the
advowson away from the manor, or by conveying the
manor without the advowson (h) ; and hence there is a
marked distinction between the preceding cases and those
in which the incident is held to be inseparably connected
with the principal, so that it cannot be severed therefrom.
Thus, it is laid down that estovers, or wood granted to be
used as fuel in a particular house, shall go to him that
hath the house ; and that, inasmuch as a court baron is
incident to a manor, the manor cannot be granted and the
court reserved (i). In some cases, also, that which is
parcel or of the essence of a thing passes by the grant of
the thing itself, although at the time of the grant it were
actually severed from it ; by the grant, therefore, of a
mill, the mill-stone will pass, although severed from the
mill (k).
Again, common of pasture appendant is the privilege
belonging to the owners or occupiers of arable land holden
of a manor, to put upon the wastes of the manor their
horses, cattle, or sheep ; it is appendant to the particular
farm, and passes with it, as incident to the grant (I).
But divers things which, though continually enjoyed with
other things, are only appendant thereto, do not pass by a
grant of those things ; as, if a man has a warren in his
(h) Judgm., Mosdey y. Afatteux,
10 M. & W. 544; Baa Abr.,
" Grants " (L 4).
■ (i) Finch, Law, 15.
(£) Shep. Touch. 90. See Wyld
v. Pictford, 8 M. & W. 443. As to
*
what shall be deemed to pass as
appendant, appurtenant, or incident,
see Bac. Abr., "Grants" (I. 4).
Smith y. Ridgeway, 4 H. ft C. 37,
577 ; Langley v. Hammond, L. R.
3Bx. 161; 37 L. J. Ex. 118.
(J) Shep. Touch. 89, 240 ; Bac
Abr., "Grants" (I. 4); Co. Litt.,
by Thomas, vol. i. p. 227.
THE TRANSFER OF PROPERTY. 461
land, and grants or demises the land, by this the warren
does not pass, unless, indeed, he grants or demises the
land cum petiivaentiid, or with all the profits, privileges,
&c, thereunto belonging, in which case the warren might,
perhaps, pass (m).
In Eivart v. Cochrane (ri), it was stated to be the law
of England that when two properties are possessed by the
same owner, and there has been a severance made of one
part from the other, anything which was used and was
necessary for the comfortable enjoyment of that part of
the property which is granted, shall be considered to
follow from the grant if there are the usual words in the
conveyance.
Another well-known application of the maxim under
consideration is to covenants running with the land,
which pass therewith, and on which the assignee of the
lessee, or the heir or devisee of the covenantor, is in
many cases liable, according to the kindred maxim of
law, transit temu cum onere (o) ; a maxim, the principle
of which holds not merely with reference to covenants,
but likewise with reference to such customs as are
annexed to land — for instance, it is laid down that the
custom of gavelkind, being a custom by reason of the
land, runs therewith, and is not affected by a fine or
recovery had of the land ; but " otherwise it is of lands
in ancient demesne partible among the males, for there
the custom runneth not with the land simply, but by
{m) Shcp. Touch. 89; 1 Crabb, dale v. Rigg% 11 Exch. 654; S. C,
Real. Prop. 488. See PanneU y. 1 H. ft N. 928.
Mitt, 8 C. B. 625 ; Graham y. (n) 4 Macq. 122 ; Francis y.
Ewart, 1 H. ft N. 550 ; S. C, 11 Eayward, 20 Cb. Diy. 778 ; 52 L. J.
Exch. 320 ; cited in Jeffryei y. Evam, Ch. 12.
19 0. B. N. S. 266 ; Earl qf Lon** (o) Oo. Lit*. 281, a.
462
THE TRANSFER OF PROPERTY.
Amplication
of rule to
titles.
reason of the ancient demesne : and, therefore, because
the nature of the land is changed, by the fine or recovery,
from ancient demesne to land at the common law, the
custom of parting it among the males is also gone " (p).
With reference to titles, moreover, one of the leading
rules is, cessante statu j^imitivo cessat derivatives (q) —
the derived estate ceases on the determination of the
original estate ; and the exceptions to this rule have been
said to create some of the many difficulties which present
themselves in the investigation of titles (r). The rule
itself may be illustrated by the ordinary case of a demise
for years by a tenant for life, or by any person having a
particular or defeasible estate, which, unless confirmed by
the remainderman or reversioner, will determine on the
death of the lessor ; and the same principle applies when-
ever the original estate determines according to the ex-
press terms or nature of its limitation, or is defeated by a
condition in consequence of the act of the party as by the
marriage of a tenant durante viduitate, or by the resig-
nation of the parson who has leased the glebe lands or
tithes belonging to the living («).
An exception to the foregoing rule arises in cases of
copyholds, where the tenant has granted a lease to
another with the license of the lord, and then commits a
forfeiture, here the license operates as a confirmation by
the lord of the term thus created, and, therefore, pending
(p) Finch, Law, 1, 16.
{q) 8 Rep. 34.
(r) 1 Prest., Aba. Tit. 245.
The maxim tupra "applies only
when the original estate determines
by limitation or is defeated by a con-
dition. It does not apply when the
owner of the estate does any act
which amounts to an alienation or
transfer, though such alienation or
transfer produces an extinguishment
of the original estate." Shop. Touch,
by Preston, 286. See London, dte., Loan
Co. v. Drake, 6C. B. N. S. 798, 810.
(*) 1 Prest. Abe. Tit. 197, 817,
858, 359.
THE TRANSFER OF PROPERTT.
463
the term, the lord cannot maintain ejectment for the
land (t).
The law relative to contracts and mercantile transac- Mercantile
transac-
tions likewise presents many examples of the rule that tions.
the accessory follows and cannot exist without its prin-
cipal ; thus, where framed pictures are sent by a carrier,
the frames, as well as the pictures, are within the Carriers'
Act (11 Geo. 4 & 1 Will. 4, c. 68, s. 1) (u). Again, the
obligation of the surety is accessory to that of the prin-
cipal, and is extinguished by the release or discharge of
the latter, for quum principalis causa non cormstit ne
ea quidem quce sequuntur locum habent(x), and quce
accessionum locum obtinent extinguuntwr cum prin-
cipals res peremptcB fuerint (y). The converse, however,
of the case just instanced does not hold, and the reason is
that accesaoriwm non trahit prmcipale (z).
So, likewise, interest of money is accessory to the prin- Principal
cipal, and must, in legal language, u follow its nature" (a) ; interest
and, therefore, if the plaintiff in any action is barred from
recovering the principal, he must be equally barred from
recovering the interest (b). And, " If by a will the whole
of the personal estate, or the residue of the personal
(t) Clarke v. Ardcn, 16 G. B. 227.
(u) Henderson v. London and
North-Western 12. C, L. R. 5 Bx.
90 ; 39 L. J. Ex. 55 ; distinguishing
Treadmn v. Great Eastern R. C,
L.K30. P. 808.
(x) D. 50. 17. 129, § 1 ; 1 Pothier,
Oblig., 418.
(y) 2 Pothier, Oblig., 209.
(z) 1 Pothier, Oblig., 477 ; 2 Id.
147, 202.
(a) 8 Inst. 189 ; Finch, Law, 28.
(6) Jndgm., Clarke v. Alexander,
S Scott, N. R. 165. See per Lord
EUenborongh, C. J., 3 M. & 8. 10 ; 2
Pothier, Oblig., 479. "The giving
of interest is not by way of a penalty,
but is merely doing the plaintiff full
justice, by having his debt with all
the advantages properly belonging to
it. It is in truth a compensation for
delay." Judgm., 16 M. k W. 144.
See ffollis v. Palmer, 2 Bing. N.
C. 713 ; Florence v. Drayton, 1 C.
B. N. S. 584 ; Florence v. Jennings,
2 Id. 454 ; Forbes v. Forbes, 18
Beav. 552.
464
THE TRANSFER OF PBOPEBTT.
Freight
follows
ownership
of vessel.
estate, be the subject of an executory bequest, the
income of such personal estate follows the principal as
an accessory, and must, during the period which the law
allows for accumulation be accumulated and added to
the principal (c) ; and where certain stock to which the
assignor was entitled in reversion upon the death of his
mother was assigned with all his right, title, and interest
thereon, it was held that the bonuses which accrued during
his mother's life, subsequently to the assignment, passed
under it (d).
The title to freight is primd facie an incident of owner-
ship, and, if a sale or transfer of shares be effected, while
the ship is under a contract of affreightment, without the
mention of the word freight, that will pass the correspond-
ing share in the freight to the purchaser, notwithstanding
a subsequent contract of the vendor to transfer this par-
ticular freight to another (e).
Licet Dispositio de interesse futuro sit inutilis
tamen fieri potest declaratio pr^cedens qtxfi
sortiatur effectum interveniente novo acto.
(Bac. Max., reg. 14.) — Although the grant of a future
interest is invalid, yet a declaration precedent may
be made which will take effect on the intervention of
some new act
tt
RuieUid The law," says Lord Bacon, "doth not allow of
iSTdflLor. grants except there be a foundation of an interest in the
(c) Per Lord Westbury, C, Bee-
live y. Hodgson, 10 H. L. Cas. 665.
(d) Re Armstrong's Trust*, 3 K. &
J. 486 ; Cooper v. WooJfiU, 2 H. ft
N. 122.
(e) Lindsay v. Gibb$, 22 Bear.
522 ; see also Rusden v. Pope, L. B.
3 Ex. 276; 37 L J. Ex. 137.
THE TRANSFER OF PROPERTY.
465
grantor ; for the law that will not accept of grants of
titles, or of things in action which are imperfect interests,
much less will it allow a man to grant or incumber that
which is no interest at all, but merely future. But of
declarations precedent, before any interest vested, the law
doth allow, but with this difference, so that there be some
new act or conveyance to give life and vigour to the
declaration precedent (/).
With respect to the first part of the above rule, viz.,
that a disposition of after-acquired property is altogether
inoperative, it has been observed (</) that Lord Bacon
assumes this as a proposition of law which is to be
considered as beyond dispute, and accordingly we find the
same general rule laid down by all the older writers of
authority. " It is," says Perki/tis (h), " a common learning
in the law, that a man cannot grant or charge that which
he hath not." And again, it has been said, that if a man
grants unto me all the wool of his sheep, meaning thereby
the wool of sheep which the grantor at that time has, the
grant is good (i) ; but that a man could not grant all the
wool which should grow upon his sheep that he should
buy hereafter (k). Such formerly was the rule at common
law, but the rule in equity was different, and is now good
(/) Bac Max., reg. 14.
iff) Judgm., 1 C. B. 886.
(h) Tit, " Chants" s. 65. See,
also, Vin. Abr., "Grant*" (H. 6) ;
Noy, Max., 9th ed., 162 ; Com. Dig.,
"Grant" (D).
(i) Perkins, tit. " Grants," s. 90.
(k) Grantham v. HawLey, Hob.
132. See Shep. ToUch., by Preston,
241.
In Webster v. Power, L. R. 2 P. C.
69, a mortgage of a certain number
of branded sheep and herds of cattle,
on a run in the colony of New South
Wales, with the issue, increase, and
produce thereof, was held limited to
the issue and increase of the specific
sheep, and not to include sheep after-
wards brought upon the run, though
in substitution for those specified in
the original mortgage.
H H
466
THE TRANSFER OF PROPERTY.
Antgnment
bywilL
law in all the Courts, namely, that a contract which
engages to transfer to a purchaser or mortgagee property
of which the vendor or mortgagor is not possessed at the
time, transfers the interest immediately on the property
being acquired by him, provided the contract itself
purports to convey the interest in the property, and is not
a mere licence to seize (I).
Property to which the testator has become entitled
subsequently to the execution of a will, will pass under
it(m) ; a will is an instrument of a peculiar nature, being
ambulatory and revocable during the life of the testator,
and speaking only at his death, unless an intention to the
contrary is clearly manifested (n), according to the maxims,
AnibuUtioina enim est voluntas de/uncti usque ad vita
supremum exitum(o), and Omne testamentum morte
consummatum est(p).
(I) Eolroyd t. Marshall, 10 H. L.
C. 191 ; 33 L. J. Ch. 193 ; Reeve v.
Whitmore, 4 De GL J. k S. 1 ; 33 L.
J. Ch. 63.
(m) 1 Vict. c. 26, s. 3. See, per
Lord Mansfield, C. J., 1 Cowp. 305,
806 ; Norris v. Norris, 2 Coll. 719 ;
Jepson v. Key, 2 H. & C. 873. In
Doe d. Cross v. Cross, 8 Q. R 714,
a point arose as to whether an instru-
ment operated as a gift inter vivos or
by way of devise. In regard to gifts
inter vivos, see Bourne t. Fosbrooke,
18 0. B. N. S. 515 ; Shower v. POck,
4 Exch. 473 ; Plory v. Denny, 7
Kxch. 581 ; cited per Williams, J.,
Maugham v. Sharpe, 17 C. B. N. S.
464 ; per Parke, R, Oulds y. Har-
rison, 10 Exch. 575; MUnes v.
Dawson, 5 Exch. 950.
(n) 1 Vict c. 26, s. 24 ; QTooU
y. Browne, 3 & k R 572 ; per Sir
J. Leach, M. K, OitHngs v. M'Der-
mott, 2 My. k K. 73. See, per Lord
Brougham, C, 1 My. k K. 485.
(©) D. 34. 4. 4. ;4 Rep. 61. "De-
liYery " of a will implies "something
whereby the party acknowledges that
the instrument is a complete act con-
taining his final mind — that it is no
longer ambulatory ; " per Parke, B.,
Curieis v. Kenrick, 3 M. k W. 471 ;
et vide per Lord Abinger, C. B.v Id.
472; Vincent y. Bishop of Sodor and
Man, 8 C. B. 905, 933.
As bearing on the finality of a
testamentary instrument, see Doe <L
Strickland v. Strickland, 8 0. B.
724 ; Plenty y. West, 6 C. R 201 ;
Andrew r. Motley, 12 C. R N. R
514.
(p) Co. Litt 322, b.
t THE TRANSFER OF PROPERTY. 467
It may be gathered from the preceding remarks that
since the application of rules of equity to the common
law effected by the Judicature Act of 1873, the maxim
laid down by Lord Bacon has ceased to be of much, if
any, practical importance.
h h 2
468
CHAPTER VII.
EULES RELATING TO MARRIAGE AND DESCENT.
It baa been thougbt convenient to insert a selection of
rules relating to Marriage and Descent immediately after
those which concern the legal rights and liabilities
attaching to property in general. For additional infor-
mation on the subjects treated of in this Chapter, the
authorities and references below given may with advan-
tage be consulted (a).
Marriage,
how
•constituted.
Consensus, non Concubitus, facit Matrimonium. (Co.
Litt. 33 a.) — It is the consent of Hie parties, not their
concubinage, which constitutes a valid wiarriage (b).
Marriage is constituted by the conjunctio animorum,
(a) 2 Com. by Broom & Hadley,
Vol 1, Chap. XV., which treats of
Husband and Wife ; the Law of
Husband and Wife by Montagu Lush
the important judgments delivered in
Beg. v. Millie, 10 CI. & Fin. 534
Beamish v. Beamish, 9 H. L. Cas.
274 ; Brook v. Brook, Id. 193
Dolphin t. Robins, 7 H. L. Cas
390 ; Shaw r. Gould, L. R. 3 H. L
55, 79 ; Fenton v. Livingstone, 3
Macq. Sc. App. Cas. 497 ; Ydverton
v. Longworth, 4 Id. 743 ; Reg. v.
Inhabs. of Brighton, 1 B. & S. 447 ;
HaU v. Wright, E. B. k E. 746,
which contain learned researches
respecting the nature and requisites
of the marriage contract ; Cruise,
Dig., 4th ed., vol. 3, tit. 29, chaps.
1, 2, 3, which treat of Descent and
Consanguinity; and the elaborate
judgment of Kindersley, V.-C, re-
specting the operation of the stat.
3 & 4 Will. 4, c. 106, in Be Don's
Estate, 4 Drew. 194.
(6) As to this maxim, see per Lord
RULES RELATING TO MARRIAGE AND DESCENT.
469
or present consent of the parties expressed under such
circumstances as by law required, so that, though they
should, after consent so given, by death or disagreement
or any other cause, happen not to consummate the mar-
riage conjunctivae corporum, they are, nevertheless,
entitled to all the legal rights consequent thereon (c).
The above maxim has been adopted from the civil
law (d) by the common lawyers, who, indeed, have
borrowed (especially in ancient times) almost all their
notions of the legitimacy of marriage from the canon and
civil laws(e) ; and, by the latter, as well as by the earlier
ecclesiastical law, marriage was a mere consensual con-
tract, only difiering from other contracts of this class
in being indissoluble even by the consent of the con-
tracting parties. It was always deemed to be " a contract
executed without any part performance ; " so that the
maxim was undisputed and peremptory, Consensus, non
concubitugy facit nuptias vd Tnatrirnonium (/).
By the law of England {g\ also, marriage is considered ""*"*?
Campbell, C, 9 H. L. Cas. 835 ; as
to its applicability in relation to the
Scotch law of marriage, see Ydverton
v. Longworth, 4 Macq. Sc App. Cas.
743, 856, 861.
(c) See Bell, Diet. & Dig. of Scotch
Law, p. 217. See Field1 $ Marriage
Annulling Bill, 2H.L Cas. 48.
{d) Nuptias non concubitus sed
consensu* facit, D. 50. 17. 80.
(e) 1 Com. by Broom & Hadley,
524 ; Co. Lit*. 33. a. See 2 Voet
Com. Pandect., lib. 23, tit. 2.
(/) Per Lord Brougham, in Beg. v.
Millis, 10 CL & Fin. 719. See also
Lord Stowell's celebrated judgment in
Dalrymple v. Dalrymple (by Dod-
son), p. 10 (a), where many autho-
rities respecting this maxim are col-
lected. See, also, the remarks upon
this case, 10 CI. & Fin. 679 ; and,
per Cresswell, J., Brook v. Brook,
27 L. J., Chanc. 401 ; S. C, 9 H. L.
Cas. 193. FieLdCt Marriage Annul-
ling BUI, supra, well illustrates the
maxim cited in the text.
(g) The following authorities may
be referred to, as explanatory of the
law of Scotland respecting marriages
per verba de prcesenti; Ydverton r.
Longworth, 4 Macq. Sc. App. Cas.
743; Dalrymple t. Dalrymple, 2
Hagg. Cons. R. 54 ; Hamilton v.
Hamilton, 9 CL & Fin. 827 ; Stewart
470
RULES RELATING TO MARRIAGE AND DESCENT.
JUg. v.
MiUU.
in the light of a contract, and therefore the ordinary
principles which attach to contracts in general are, with
some exceptions, applied to it The principle expressed
in the above maxim, and which alone we propose to
consider, is, that, in order to render a marriage valid,
the parties must be willing to contract. The weight of
authority, indeed, seems to show that, even prior to the
Marriage Acts (h), a present and perfect consent, that is, a
consent expressed per verba de prcesewti, was sufficient to
render a contract of marriage indissoluble between the
parties themselves, and to afford to either of them, by
application to the spiritual court, the power of compelling
the solemnisation of an actual marriage ; but that such
contract never constituted a full and complete marriage in
itself, unless made in the presence and with the interven-
tion of a minister in holy orders (t).
In Reg. v. MUlis (j), the facts were these : — A. and B.
entered into a present contract of marriage per verba de
praesenti in Ireland, in the house and in the presence of
a placed and regular Presbyterian minister. A. was a
member of the Established Church; B. was either a
v. Menzies, 8 Id. 809; Bell v.
Graham, 13 Moo. P. P. C. 242;
Shelf, on Marriage and Div. 91.
(h) 4 Geo. 4, c. 76.
(i) Per Tindal, C.J., delivering
the opinion of the judges in Reg. v.
MiUU, 10 01. & Fin. 655 ; Cather-
wood v. Cadon, 13 M. & W. 261 ;
Beamuk v. Beamish, 9 H. L. Cas.
274.
There is a Btrong legal presump-
tion in favour of marriage, Pier* v.
Piers, 2 H. L. Gas. 831 ; Beg. v.
Manwaring, Dearsl. 8 B. 132. In
Skedden v. Patrick, L. B. 1 Sc. App.
Cas. 470, the presumption of a mar-
riage prior to the birth of children
arising from cohabitation and acknow-
ledgment was held to be completely
rebutted by evidence of the strongest
kind.
(j) 10 a & Fin. 584 (as to which
case, see the observations of Lord
Campbell, C, 9 H. L. Cas. 838-9 ;
of Dr. Lushington, CaUeraU v. Cat-
teraU, 1 Robertson, 582 ; j*r Willes,
J., Beg. t. Manwaring, Dears]. &
B. 189) ; Beamuk r. Beamish, 9 H.
L. Cas. 274.
RULES RELATING TO MARRIAGE AND DESCENT. 471
member of the Established Church, or a Protestant dis-
senter. A religious ceremony of marriage was performed
on the occasion by the said minister between the parties
according to the usual form of the Presbyterian Church
in Ireland. A. and B. after the contract and ceremony,
cohabited and lived together for two years as man and
wife. A. afterwards, and whilst B. was living, married C.
in England. It was held, that A. was not indictable for
bigamy.
Where, prior to the stat. 7 & 8 Vict. c. 81, a clergyman Beami&v.
of the Church of England, being in holy orders, performed
a ceremony of maniage between himself and a certain
woman, by reading the form of solemnisation of matri-
mony as set forth in the Book of Common Prayer, without
witnesses, other than one who happened to see what was
passing from an adjoining yard : the marriage having been
consummated, was held, by the House of Lords, conform-
ably to the ratio decidendi in Reg. v. Millis, to have been
invalid (k).
In Yelverton v. Longwo/rih (I), a marriage celebrated Yeinrtcnv
in Ireland by a Roman Catholic priest between a Roman
Catholic lady and a gentleman of a Protestant family who
had been brought up a Protestant, and who at the cere-
mony declared himself a " Protestant Catholic," was held
per Lords Wendeydale and Chelmsford to be void under
the Irish Act, 19 Geo. 2, c. 13, s. 1.
In Reg. v. Millie above abstracted, are to be found the
following remarks apposite to the principal maxim under
our notice, and deserving of perusal : —
"It will appear, no doubt, says Tindal, C. J., deliver- lumariuiof
rr ' * J ' ' Tindal, C. J.,
(*) Btamuh v. Beamish, 9 H. L. (I) 4 Macq. Sc. App. Cas. 743,
Cm. 274. 746, 862, 893.
472 RULES RELATING TO MARRIAGE AND DESCENT.
in fog. ▼. ing the opinion of the judges in the case just cited, " upon
J2E£]^ga referring to the different authorities, that at various
common periods of our history there have been decisions as to the
nature and description of the religious ceremonies neces-
sary for the completion of a perfect marriage, which can*
not be reconciled together; but there will be found no
authority to contravene the general position, that, at all
times, by the common law of England, it was essential to
the constitution of a full and complete marriage, that
there must be some religious solemnity ; that both modes
of obligation should exist together, the civil and religious ;
that, besides the civil contract, that is, the contract per
verba de prcesenti, which has always remained the same,
there has at all times been also a religious ceremony,
which has not always remained the same, but has varied
from time to time, according to the variation of the laws
of the Church ; with respect to which ceremony, it is to
be observed, that, whatever at any time has been held by
the law of the Church to be a sufficient religious ceremony
of marriage, the same has at all times satisfied the common
law of England in that respect." Where, for instance, the
Church has held, as it often has done, down to the time of
passing the Marriage Act, that a marriage celebrated by a
minister in holy orders, but not in a church, or by such
minister in a church, but without publication of banns,
and without licence, is irregular, and renders the parties
liable to ecclesiastical censures, but is sufficient, neverthe-
less, to constitute the religious part of the obligation, and
that the marriage is valid notwithstanding such irregu-
larity; the law of the land has followed the spiritual court
in that respect, and held such marriage to be valid. " But
it will not be found in any period of our history, either
that the Church of England has held the religious cele-
RULES RELATING TO MARRIAGE AND DESCEKT. 473
bration sufficient to constitute a valid marriage, unless it
was performed in the presence of an ordained minister,
or that the common law has held a marriage complete
without such celebration " (m).
In support of the position thus laid down, the learned
Chief Justice, whose words we have above quoted, refers
to the state of the law relative to the validity of marriages
of Quakers and Jews, both prior and subsequent to the
Marriage Act. Since the passing of this Act, he observes,
it has generally been supposed that the exception con-
tained therein, as to the marriages of Quakers and Jews,
amounted to a tacit acknowledgment by the legislature,
that a marriage solemnised with the religious ceremonies
which they were respectively known to adopt ought to be
considered sufficient ; but before the passing of that Act,
when the question was left perfectly open, we find no case
in which it has been held that a marriage between
Quakers was a legal marriage, on the ground that it was
a marriage by a contract per verba de prcesenti, but, on
the contrary, the inference is strong that it was never
considered legal. As to the case of the Jews, he subse-
quently proceeds to remark : it is well-known, that, in
early times, they stood in a very peculiar and excepted
condition. For many centuries they were treated not as
natural-born subjects, but as foreigners, and scarcely
recognised as participating in the civil rights of other
subjects of the Crown. The ceremony of marriage by
their own peculiar forms might, therefore, be regarded as
constituting a legal marriage, without affording any argu-
ment as to the nature of a contract of marriage, per verba
de prcesenti, between other subjects (n).
(m) 10 CI. & Fin. 655, 656. (n) 10 CL ft Fin. 671, 673.
474 RULES RELATING TO MARRIAGE AND DESCENT.
6 * 7 win. 4, The preceding remarks, with reference to the requisites
at common law of the marriage contract (o), must, of
course, be understood as subject to restriction by the
various enactments which have from time to time been
passed by the Legislature with reference to this subject.
Without entering at length into their provisions, we may
observe that the stat 6 & 7 Will. 4, a 85, recognises
marriage as essentially a civil contract ; and by the 20th
section enacts, that marriages may be solemnised in
places registered for the purpose in the presence of a
registrar and two witnesses, and, subject to certain pro-
visoes, according to such form and ceremony as the parties
may see fit to adopt By the 21st section it is further
provided, that persons who shall object to marry under the
provisions of the Act in any registered building may, after
due notice and certificate issued, contract and solemnise
marriage at the office of the superintendent registrar in
the manner therein pointed oxit(p).
fut^f6 Having thus observed that marriage is a contract
entered into by consent of the parties, and with certain
forms, either of a purely civil or of a religious nature,
prescribed and sanctioned by the law, it is important
further to remark the difference which exists between a
contract of marriage per verba de prcesenti and a contract
per verba de futuro ; for the latter does not, under any
circumstances, constitute a marriage by our law ; it only
gives a right of action for damages in case of its violation,
though mutual consent will relieve the parties from their
engagement (q) ; and this, like most other contracts, is
(o) See Shelf. Marriage, Index, £ Fin. 837. As to a plea of exone-
"Statute*" ration and the evidence necessary to
(p) See also 19 & 20 Vict, c 119. support it, see particularly King v.
(q) Per Lord Lyudhuret, C, 10 CL OUlelt, 7M.4W. 65, 59.
RULES RELATING TO MARRIAGE AND DESCENT. 475
voidable, unless the party making the promise be of the
fall age required by law, viz., twenty-one ; so that, if
there are mutual promises to marry between two persons,
one of whom has attained the age of twenty-one, and the
other of whom is within that age, the first is so far bound
by the contract as to be liable to an action, if it be
broken (r) ; but the latter may avoid it, if he pleases (*) ;
and this distinction is founded on the well-known prin-
ciple, that, where a contract may be to the benefit of an
infant, or to his prejudice, the law so far protects him as to
give him an opportunity of reconsidering it when he comes
of age, and it is good or voidable at his election (t).
Not only moreover is want of age sufficient to avoid a Want of age.
contract of marriage to take place infiUuro, but, in some
cases, it renders void, or rather voidable, the actual cere-
mony, by reason of the presumed imbecility of judgment
in the parties contracting, and their consequent inability
to consent. Therefore, if a boy under fourteen, or a girl
under twelve years of age, marries, this marriage is only
inchoate and imperfect ; and, when either of them comes •
to full age, that party may disagree, and declare the
marriage void, without any divorce or sentence in the
spiritual court; and this is founded on the civil law;
whereas the canon law pays greater regard to the consti-
tution than the age of the parties, and, if they are habilea
ad matrimonium, the marriage is good, whatever be
their respective ages ; and in our law the marriage will be
good to this extent, that, if at the age of consent they
agree to continue together, they need not be married
again. If, moreover, the husband be of years of discre-
(r) Per Lord Bllenborough, C. J., 118 ; HoU ▼. Ward, 2 Stm. 937.
Warwick v. Bruce, 2 M. & S. 209 ; («) Jtidgm., 2 Str*. 939.
8. C, affirmed in error, 6 Taunt. (t) lb.
47G RULES RELATING TO MARRIAGE AND DESCENT.
tion, and the wife under twelve, when she comes to years
of discretion he may disagree as well as she, for in con-
tracts the obligation must be mutual ; both must be
bound, or neither; and so it is, vice verad, when the
wife is of years of discretion, and the husband under (u).
consent or Again, by the common law, if the parties themselves
p«rtie«. were of the age of consent, the concurrence of no other
party was necessary in order to make the marriage valid,
and this was agreeable to the canon law. Where, how-,
ever, one of the contracting parties is under age, the law
is now regulated by the stat. 4 Geo. 4, c. 76, which enacts,
(sect 8), that, from and after the 1st of November, 1823,
no parson shall be punishable by ecclesiastical censures
for solemnising a marriage without the consent of parents
or guardians between persons, both or one of whom shall
be under twenty-one, after banns published, unless such
parson shall have notice of the dissent of such parents or
guardians. And if such parents or guardians shall openly
declare their dissent at the time of publication, such
publication shall be void. And by sect. 14, where either
of the parties (not being a widower or widow) shall be
under the age of twenty-one, it is required (x), that one
of the parties shall personally swear that the consent
of those persons whose consent is necessary has been
obtained. By sect. 16, the father, if living, of any party
under twenty-one, not being a widow or widower, or, if
the father be dead, the guardian of the person of the
party so under age, and if no guardian, then the mother
if unmarried, and, if married, the guardian appointed by
the Court of Chancery, shall have authority to give con-
(u) 1 Com. by Broom & Hadley, 8. 12 ; 19 & 20 Vict. c. 119, ss. 2,
526, 627. 17, 18.
(«) See also 6 & 7 Will. 4, c. 85,
RULES RELATING TO MARRIAGE AND DESCENT; 477
sent to the marriage of such party ; and, by sect 17, if
the father shall be non compos, or the guardian or mother
shall be non compos, or in parts beyond seas, or shall
unreasonably withhold consent, application may be made
to the Court of Chancery, by petition, in a summary way ;
and if the marriage shall appear to be proper, it shall
be so declared. It has, moreover, been held, that the
language of the 17th section only goes to require consent,
and the marriage is not absolutely void if solemnised
without it (y).
Further, by 6 & 7 Will. 4, c. 85 (z), (amended by 1 Vict.
c. 22, 3 & 4 Vict. c. 72, and 19 & 20 Vict c. 119), the like
consent is required to any marriage in England solem-
nised by license, as would have been required by law in
a case of marriage solemnised by license immediately
before the passing of the Act; and every person whose
consent to a marriage by license is required by law, is
thereby authorised to forbid the issue of the superin-
tendent registrar's certificate, whether the marriage is
intended to be with license or without
In connection with this branch of the subject, viz., as to Royai
the consent of other than the contracting parties to the Act,
marriage, we may observe that, by the Royal Marriage
Act (12 Geo. 3, c 11), no descendant of the body of King
George II. (other than the issue of princesses married
into foreign families) is capable of contracting matrimony
without the previous consent of the sovereign, signified
under the great seal, and any marriage contracted
without such consent is void ; provided, that such of the
said descendants as are above the age of twenty-five,
may, after a twelvemonth's notice given to the Privy
(y) R t. Birmingham, 8 B. & 0. $5. (z) Sect 10.
478 RULES RELATING TO MARRIAGE AND DESCENT.
Council, contract and solemnise marriage without the
consent of the Crown, unless both Houses of Parliament
shall, before the expiration of the said year, expressly
declare their disapprobation of such intended marriage.
In order to bring a marriage within the prohibition of
this statute, it is not necessary that it should have been
contracted within the realm of England ; but the statute
extends to prohibit and to annul marriages wherever the
same be contracted or solemnised, either within the realm
of England or without (a).
Non ampoi The rule, that consensus facit matrimonium is also
mentis. ' # J
applicable to cases in which either party, at the date of
the marriage, is labouring under mental incapacity : for,
without a competent share of reason, neither this nor any
other express contract can be valid, for consent is abso-
lutely requisite to matrimony, and persons non compotes
mentis are incapable of consenting to anything (6).
The validity of a marriage celebrated between two
persons in a place other than that of their domicile seems
to be regulated by the lex loci domicilii, and not by the
law of the place where the parties are married. Thus in
Brook v. Brook (c) (followed in the recent case of
Sottomayer v. Be Barros (d) ) the facts were as follows :
— A. and C. were both British subjects domiciled in
England. A. had previously intermarried with B., who
died, leaving a sister named C. A. and C, after B.'s
death, went to Denmark, and were there duly married
(a) The Suntx Peerage, 11 01. & wick, 11 Q. B. 173.
Fin. 85 ; and see the opinion of (b) 1 Com. by Broom k Hadlev,
Creeewell, J., in Brook v. Brook, 527 ; L. R. 1 P. k D. 335.
27 L. J., Chanc 401 ; S. C, 9 H. (c) 9 H. L. Cas. 193.
L. Cas. 193 ; in connection with [d) 3 P. D. 1 ; 47 L. J. P. k D.
which case see also Reg. r. Chad' 23.
RULES RELATING TO MARRIAGE AND DESCENT. 479
according to the laws of Denmark, by which a man may
marry his deceased wife's sister. It was held that under
the provisions of 5 & 6 Will. 4, prohibiting marriage with
a deceased wife's sister, the marriage in Denmark was void.
The Lord Chancellor (Lord Campbell), after stating the
general rule to be that a foreign marriage, valid according
to the law of a country where it is celebrated is good
everywhere, laid it down that while the forms of entering
into the contract of marriage are to be regulated by the
lex loci contractus (the law of the country in which it is
celebrated) the essentials of the contract depend mpon the
lex domicilii, the law of the country in which the parties
are domiciled at the time of the marriage, and in which
the matrimonial residence is contemplated. This decision
was followed by the Court of Appeal in Sottomayer v. Be
Barms, where, the marriage having been solemnised in
England, the judgment proceeded upon the assumption
that both the contracting parties were domiciled in Por-
tugal, in which country marriage between first cousins
is prohibited. The Lord Justice James, in delivering
judgment, thus states the law : "The law of a country
where a marriage is solemnised must alone decide all
questions relating to the validity of the ceremony by
which the marriage is alleged to have been constituted ;
but as in other contracts, so in that of marriage, per-
sonal capacity must depend on the law of domicile;
and if the . laws of any country prohibit its subjects
within certain degrees of consanguinity from contracting
marriage .... this renders invalid a marriage
between persons both at the time of their marriage
subjects of and domiciled in the country which imposes
this restriction, wherever such marriage may have been
solemnised.1'
480
RULES RELATING TO MARRIAGE AND DESCENT.
It subsequently was shown that one of the parties,
although a Portuguese, was domiciled in England at the
time the marriage was solemnised, and as the rule nisi
for dissolution of the marriage had not been made abso-
lute, the mother came again before the Court, when it was
decided by Sir James Hannen, the President of the
Probate Division, that where a marriage is celebrated
between two persons, one of whom is domiciled in the
country where the marriage is solemnised, and the other
is not, the contract is to be governed by the laws of the
country where the marriage is solemnised (e).
ILERES LEGITIMUS EST QUEM NUPTIiE DEMONSTRANT. (Co.
Litt.t 7 6.) — Tlie common law takes him only to be
a son whom the marriage proves to be so (/).
Legal mean- The word "heir" (a), in legal understanding, signifies
ingofword ° o ■*
••heir." him to whom lands, tenements, or hereditaments, by the
act of Qod and right of blood, descend, of some estate of
inheritance, for Deus solves hmredem facere potest non
(e) Sottomaycr v. De Barros, 5
P. D. 94 ; 49 L. J. P. & D. 1 ; and
see Harvey v. Farnit, 8 App. Cos.
43 ; 52 L. J. P. & D. 33.
By stat. 4 Geo. 4, c. 91, marriages
performed by a minister of the
Church of England in the chapel of
any British embassy or factory, or in
the ambassador's house, or by an
authorised person within the British
lines, are declared to be valid. See
Lloyd v. Petitjean, 2 Curt. 251.
The marriage of an officer cele-
brated by a chaplain of the British
army within the lines of the army
when serving abroad, is valid under
the 9 Geo. 4, c 91, 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 : The Woldc*
grave Peerage, 4 CI. & Fin. 649.
(/) Mirror of Justices, p. 70;
Fleta, lib. 6, c 1.
(g) As to the popular and technical
meaning of the word *' ancestor," see
per Kindersley, V.-C, in JU Don'*
Estate, 27 L. J., Chanc. 104, 105 ;
S. C, 4 Drew. 194.
RULES RELATING TO MARRIAGE AND DESCENT. 481
homo, and he only is heir who is ex justis wwptiis pro-
creatus (h). It is, then, a rule or maxim of our law, with
respect to the descent of land in England from father to
son, that the son must be " hceres legitimus " — thus in a
recent case the facts were these : —
An English marriage took place between two English gj2jjv«
persons who never lived together, the husband committed
adultery, and some years afterwards consented to go to
Scotland to found jurisdiction against himself, because by
the law of Scotland adultery without cruelty is a ground
of divorce. He did so, and the Scotch court pronounced
a decree of divorce a vinculo matrimonii. Held, that a
Scotch marriage duly celebrated between the divorced
wife and an Englishman (who was thenceforth domiciled
in Scotland), did not give to their children the character
of " lawfully begotten," so as to enable them to succeed to
property in England — the Scotch divorce not having dis-
solved the English marriage (i).
Again, in order that land in England may descend from
father to son, the son must have been born after actual
marriage between his father and mother ; and this is a
rule juris positivi, as indeed are all the laws which
regulate succession to real property, this particular rule,
having been framed for the direct purpose of excluding,
in the descent of land in England, the application of the
rule of the civil and canon law, pater est quern wwptim
denwnstrant (k), by which the subsequent marriage
between the father and mother was held to make the son
(A) Co. Litt. 7. b. ; cited 6 B. & B. N. S. 852.
C. 440, 454. The role respecting (t) Shaw v. Gould, L. R. 3 H.
property in the young of animals is L. 55. See Bit* v. Boutinez, L. R.
in accordance with the Roman law, 1 P. & D. 487; and Harvey y. Farnie,
partus sequitur verUrem : I. 2. 1. 19 ; 8 App. Gas. 43 ; 52 L. J. P. k D. 33.
D. 0. 1. 5., § 2 ; per Byles, J., 6 C. (it) D. 2. 4, 5.
I T
482
RULES RELATING TO MARRIAGE AND DESCENT.
Doe a. BirU
irhistle v.
VordlU.
Heir to the
lather is
heir to the
son.
born before marriage legitimate ; and this rule of descent,
being a rule of positive law, annexed to the land itself,
cannot be broken in upon or disturbed by the law of the
country where the claimant was born. Therefore, in the
case of Doe d. Birtwhistle v. Vardill (I), it was held, that
a person born in Scotland of parents domiciled there, but
not married till after his birth, though legitimate by the
law of Scotland (m), could not take real estate in England
as heir, the father having died intestate. And in Re
Don's Estate, Kindersley, V.-C, held that the father of
an ante natus born in Scotland, and legitimated by the
subsequent marriage of his parents, could not, under the
statute 3 & 4 Will. 4, c. 106, succeed to real estate whereof
the son had died seised in England (ri).
If, moreover, the parent be incapable of inheriting land
himself, he has no heritable blood in him which he can
transmit to his child, according to the maxim and old
acknowledged rule of descent, qui doit inheriter al pire
doit inheriter al fitz, — he who would have been heir to
the father shall be heir to the son ; and, therefore, if, in
the case first above put, Doe d. Birtwhistle v. Vardill, the
son had died, leaving a child, before the intestate, such
•child could not, according to the English law, have in-
herited under the circumstances (o), and if in Re Don's
Estate there had been a son post natus, such son could
not have inherited to his ante natus brother.
Formerly also the rule was that attainder so entirely
{l) 2 CI. & Fin. 571 ; S. C. 1
Scott, N, B. 828; 6 Bing N. C.
385 ; 5 B. & C. 438 ; explained per
Lord Brougham, Fenton y. Living-
stone, 3 Macq. Sc. App. Cas. 532 ;
per Lord Cran worth, Id. 544. See
also Shedden v. Patrick, L. R. 1 Sc.
App. Cas. 470.
(m) See Countess of Dathoune v.
M'DovoaU, 7 CI. & Fin. 817 ; Munro
v. Munro, Id. 842 ; BirttohisUe ▼.
Vardill, Id. 895.
(n) 4 Drew. 194.
(o) 1 Scott, N. R. 842.
RULES RELATING TO MARRIAGE AND DESCENT. 483
corrupted the blood of a person attainted that not only
.could no person inherit from him, but no person could
inherit through him : so that if there were grandfather,
father, and son — three generations, and the father was
attainted, and the grandfather died seised of lands in fee,
the attainted father being dead in the meantime, the
grandson could not have inherited to the grandfather (p).
Now, however, it is enacted by stat 3 & 4 Will. 4, c. 106,
s. 10, that when the person from whom the descent of
any land is to be traced shall have any relation who,
having been attainted, shall have died before such descent
shall have taken place, then such attainder shall not
prevent any person from inheriting such land who would
have been capable of inheriting the same by tracing his
descent through such relation if he had not been attainted,
unless such land shall have escheated in consequence of
such attainder before the first day of January, 1834.
This Act, however, by sect. 11, shall not extend to any
descent which shall take place on the death of any person
dying before that day.
There is likewise another rule of law immediately con- xuiiim
nected with, and similar in principle to, the preceding,
which may be here properly mentioned, it is as follows : —
Qui ex damnato coitv, nascuntv/r inter liberos non
computentur (q) — neither a bastard (r) nor any person
not born in lawful wedlock can be, in the legal sense of
the term, an heir (s) ; for a bastard is reckoned by the
(p) Per Kindersley, V.-C, 27 L. (r) "The strictly technical sense
J., Chanc, 102, 103 ; S. C, 4 Drew. of the term * bastard' is one who is
194. See further as to the former not born in lawful wedlock ; " per
law upon the subject above adverted Kindersley, V.-C, 27 L. J., Chanc,
to, Kynnaird v. Zettfe, L. R. 1 C. 102.
P. 389. (*) Glanville, lib. 7, c 13 ; Shaw
(q) Co. Litt. 8. a. v. Gould, ante, p. 481, n. (t).
I I 2
Jtlius.
484 RULES RELATING TO MARRIAGE AND DESCENT.
law to be nvMius JUius, and, being thus the son of
nobody, he has no inheritable blood in him (t), and, con-
sequently, cannot take land by succession ; and, if there
be no other claimant than such illegitimate child (a cir-
cumstance which, however, can rarely happen), the land
shall escheat to the lord. Moreover, as a bastard cannot
be heir himself, so neither can he have any heirs but
those of his own body; for, as all collateral kindred
consists in being derived from the same common ancestor,
and, as a bastard has no legal ancestors, he can have no
collateral kindred, and consequently, can have no legal
heirs but such as claim by a lineal descent from himself;
and, therefore, if a bastard purchases land, and dies seised
thereof without issue and intestate, the land shall escheat
to the lord of the fee (u).
Under the stat. 3 & 4 Will. 4, c. 106, s. 2, descent is
now to be traced from the purchaser, and under this
section a son claiming by descent from an illegitimate
father who was the purchaser, could not have transmitted
the estate by descent, upon failure of his own issue, to his
heir ex parte Tnateimd. But this has been remedied
by a recent statute (#), and in such a case, instead of
escheating the land will descend, the descent being
traced from the person last entitled to it as if he had
purchased it.
Rightofin- The right of inheritance does not follow the law
hentance
uxUxl^* °^ *^e domicile of the parties, but that of the country
where the land lies, yet, with respect to personal property,
(t) See the argument Stevenson s 117, 118. For a summary method
Heirs t. Sullivant, 5 Wheaton (U. of proving the legitimacy of a person
S.) R. 226, 227 ; Id. 262, note. see 22 & 28 Vict. c. 93.
(u) 2 Com. by Broom & Hadley, (x) 22 k 23 Vict c. 35.
898 Co. Litt. 3. b. ; Finch, Law,
RULES RELATING TO MARRIAGE AND DESCENT.
485
which has no locality, and is of an ambulatory nature, it
is part of the law of England that this description of
property should be distributed according to the jus
domicilii (y). " It is a clear proposition," observed Lord
Loughborough, " not only of the law of England, but of
every country in the world where law has the semblance
of science, that personal property has no locality. The
meaning of that is, not that personal property has no
visible locality, but that it is subject to that law which
governs the person of the owner, both with respect to the
disposition of it, and with respect to the transmission of it,
either by succession, or by the act of the party ; it follows
the law of the person. The owner in any country may
dispose of his personal property. If he dies, it is not the
law of the country in which the property is, but the law
of the country of which he was a subject, that will regulate
the succession " (z). Mobilia sequwnter personam (a), is
the maxim of our own as of the Roman Law. The
personal estate of a testator accompanies him wherever he
may reside and become domiciled, so that he acquires the
right of disposing of and dealing with it, according to the
law of his domicile (6).
{y) Per Abbott, C.J., 5 B. k C.
461, 452 ; per Holroyd and Bay ley,
JJ.f Id. 454.
(z) Sill v. Warwick, 1 H. Bla.
690 ; cited in Freke ▼. Carbery, L. R.
16 Eq. 466 ; per Lord Wensleydale,
Fenton v. Livingstone, 8 Macq. 8c.
App. Cas. 647 ; per Lord Brougham,
Bain v. Whitehaven and Fumes*
Junction R C.t 3 H. L. Cas. 19 ;
Dogiioniy. Crispin, L. B. 1 H. L.
301.
(a) Story, Confc of Laws, 8 th e<L,
534, et seq:
(o) Doglioni v. Crispin, L. &. 1
H. L. 301 ; Bremer v. Freeman, 10
Moo. P. C. C. 306; Hodgson v.
Beauchesne, 12 Id. 285 ; Crookenden
v. Fuller, 29 L. J. P. M. * A. 1 ;
S. C, 1 Swab. & Tr. 441 ; Anderson
v. LanerwiUe, 9 Id. 325.
486
RULES RELATING TO MARRIAGE AND DESCENT.
Meaning of
rale
Relaxation
of the rule.
Nemo est ILeres viventis. (Co. Litt. 22. &.)— No one
can be heir during the life of his ancestor.
By law, no inheritance can vest, nor can any j>erson be
the actual complete heir of another, till the ancestor is
dead; before the happening of this event he is called
heir-apparent, or heir-presumptive (c), and his claim, which
can only be to an estate remaining in the ancestor at the
time of his death, and of which he has made no testa-
mentary disposition, may be defeated by the superior
title of an alienee in the ancestor's lifetime, or of a devisee
under his will. Therefore, if an estate be made to A. for
life, remainder to the heirs of B. ; now, if A. dies before
B., the remainder is at an end ; for, during B.'s life, he
has no heir; but, if B. dies first, the remainder then
immediately vests in his heir, who will be entitled to the
land on the death of A. (d).
So it has been said that " a will takes effect only on
the testator's death ; during his life it is subject to
his control ; and, until it was consummated by his death,
no one had, in a legal view, any interest in it — Nemo est
hceres vwentis n (e).
The general rule being, that the law recognises no one
as heir until the death of his ancestor, it follows, that
though a party may be heir-apparent, or heir-presumptive,
(c) 2 Bla. Com. by Stewart, 231 ;
Co. Litt. 8. a.
(d) Per Patteson, J., Doe d. Win-
ter y. PerraU, 7 Scott, N. R. 23, 24 ;
S. C, 9 CL k Fin. 606 ; per Little-
dale, J., 5 B. k C. 59 j 2 Com. by
Broom k Hadley, 211.
(e) Per Spencer, J., Mann ▼•
Pearson, 2 Johnson (U. S.) R. 36.
RULES RELATING TO MARRIAGE AND DESCENT. 487
yet he is not very heir, living the ancestor : and, there-
fore, where an estate is limited to one as a purchaser
under the denomination of heir, heir of the body, heir
male, or the like, the party cannot take, as a purchaser,
unless, by the death of the ancestor, he has, at the time
when the estate is to vest, become very heir. But this
rule has been relaxed in many instances, and an excep-
tion engrafted on it, that, if there be sufficient on the will
to show, that by the word "heir" the testator meant
heir-apparent, it shall be so construed ; and in such a
case the popular sense shall prevail against the tech-
nical (/). In other words, the authorities appear to
establish this proposition, that, primd fade, the word
"heir" is to be taken in its strict legal sense; but that,
if there be a plain demonstration in the will, that the
testator used it in a different sense, such different sense
may be assigned to it. What will amount to such plain
demonstration must in each case depend on the language
used, and the circumstances under which it was used
and is not a question to be determined by reference to
reported cases, but by a careful consideration of that
language and those circumstances in the particular case
under discussion (g).
Hence, if a devise be made to A. for life, remainder to instances
where rule
the heirs of the body of B. so long as B. shall live, an te ^eluded.
estate pur autre vie being given, and the ancestor being
cestui que vie, the rule of law would plainly be excluded.
So, a devise to A. for life, remainder to the right heirs of
(/) Doe d. Winter ▼. Perratt, 10 ed., 210, and see further, as to the
Bing. 207, 208, 229. See S. C, 7 rule, tuj>ra, Id., Index, tit. Maxims.
Scott, N. R. 45, et aeq. ; Egerton ▼. (g) Per Pattesoo, J., 7 Scott, N.
Earl BrownZow, 4 H. L. Cat, 108, E. 26.
137; 1 Fearne, Cont. Bern., 10th
488 RULES RELATHTG TO MARRIAGE AND DESCENT.
B. now liying, vests the remainder in B/s heir-apparent
or presomptive ; and a devise to A. for life, remainder to
the right heir of B., he paying to Ran annuity upon
coming into possession, would clearly vest the remainder
in B.'s heir-apparent (h). In like manner, the familiar
expressions, "heir to the throne," "heir to a title or
estate," u heir-apparent," " heir-presumptive," prove that
the existence of a parent is quite consistent with the
popular idea of heirship in the child. In all such cases
the legal maxim has no place, nor can it have in any in
which the person speaking knows of the existence of the
parent, and intends that the devise to the child shall take
effect during the life of the parent. It would appear
that the question proper to be asked in each such case
would be, " Did the testator use the word ' heir ' in the
strict legal sense, or in any other sense ? " and, if the
answer should be that he used the term, not in the legal
and technical, but in some popular sense, the sense thus
ascertained should be carried out(i).
Respecting the subject here touched upon, detailed
information must be sought for in treatises more tech-
nical than this.
(k) Per Lord Brougham, 7 Scott, (t) Per Lord Cotteatam, 7 Scott,
N. R. 46, 60. N. R. 60, 61 ; & C, 5 B. & C. 48.
RULES RELATING TO MARRIAGE AND DESCENT. 48$
Hjsreditas nunquah ascendit. (GlanviUe, lib. 7, c. 1.)
— The right of inheritance never lineally ascends.
The above was an express rule of the feudal law, and Hula, how
remained an invariable maxim (k) until the recent stat
3 & 4 Will. 4, c. 106, which effected so great a change in
the law of inheritance. The rule is thus stated and illus-
trated by Littleton (I) : If there be father and son, and
the father has a brother, who is, therefore, uncle to the
son, and the son purchase land in fee-simple, and die
without issue, living his father, the uncle shall have the
land as heir to the son, and not the father, although the
latter is nearer in blood, because it is a maxim in law
that the inheritance may lineally descend, but not ascend.
Yet if the son in this case die witiiout issue, and his uncle
enter into the land as heir to the son, and afterwards the
uncle die without issue, living the father, the father shall
have the land as heir to the uncle, and not as heir to the
son, for he should rather come to the land by collateral
descent than by lineal ascent.
It was, moreover, a necessary consequence of this rule,
coupled with the maxim, Seieinafacit stipitem, that, if,
in the instance above put, the uncle did not enter into
the land, the father could not inherit it, because a man
claiming as heir in fee simple by descent must make him-
self heir to him who was last seised of the actual freehold
and inheritance ; and if the uncle, therefore, did not enter,
he would have had but a freehold in law, and no actual
freehold, and the last person seised of the actual freehold
was the son, to whom the father could not make himself
heir (m).
(k) 2 Com. by Broom k Hadley, (I) Sect 8.
ITS ; 3 Cruise, Dig., 4th ed., 331. (m) Co. Litt. 11. b.
490 BULES RELATING TO MARRIAGE AND DESCENT.
The maxim, Hcereditas nunquam ascendit, therefore,
applied only to exclude the ancestors in a direct line, for
the inheritance might ascend indirectly, as in the pre*
ceding example, from the son to the uncle (ft).
8*JLWIV» The above rule has, however, been altered with respect
c. 106, •. 0. ' ' r
to descents on deaths on or after the 1st of January, 1834,
it being enacted by stat. 3 & 4 Will. 4, c. 106, s. 6, that
every lineal ancestor shall be capable of being heir to
any of his issue ; and in every case where there shall be
no issue of the purchaser, 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 lineal ancestor to any of his issue other than a
nearer lineal ancestor or his issue. But by sect 7 it is
provided, that none of the maternal ancestors of the
person from whom the descent is to be traced, nor any of
their descendants, shall be capable of inheriting until all
his paternal ancestors and their descendants shall have
failed ; and also that no female paternal ancestor of such
person, nor any of her descendants, shall be capable of
inheriting until all his male paternal ancestors and their
descendants shall have failed, and that no female maternal
ancestor of such person, nor any of her descendants, shall
be capable of inheriting until all his male maternal ances-
tors and their descendants shall have failed.
Lineal a©. And here we may conveniently advert to a well-known
•cent pre- y .
ferred. maxim of our law, which is thus expressed : Linea recta
semper prcpfertur transv&i^aali (o) — the right line shall
(n) Biacton, lib. S, c 29. (o) Co. Litt. 10. b.; Flete, lib. 6, c. 1*
RULES RELATING TO MARRIAGE AND DESCENT. .491
always be preferred to the collateral. It is a rule of
descent that the lineal descendants in infinitum of any
person deceased shall represent their ancestor, that is,
shall stand in the same place as the person himself would
have done had he been living (p).
Hence it is, that the son or grandchild, whether son or
daughter, of the eldest son succeeds before the younger
son, and the son or grandchild of the eldest brother before
the younger brother ; and so, through all the degrees of
succession by the right of representation the right of
proximity is transferred from the root to the branches,
and gives them the same preference as the next and
worthiest of blood (q).
Another rule immediately connected with the preced- Exclusion or
ing, was that which related to the exclusion of the half Mood.
blood, but which, originally, it would seem extended
only to exclude &frater uterinvs from inheriting land
descended d patre : frvUerfratri uterino non succedet in
hcereditate paternd(r). This rule, however, although
expressed with considerable limitation in the maxim just
cited, had this more extended signification — that the heir,
in order to take by descent, need not be the nearest kins-
man of the whole blood ; but, although a distant kinsman
of the whole blood, he should nevertheless be admitted to
the total exclusion of a much nearer kinsman of the half
blood : and, further, that the estate should escheat to the
lord, rather than the half blood should inherit (s).
It has, however, been observed by Mr. Preston, that
the mere circumstance that a person was of the half blood
(p) 3 Cruise, Dig., 4th ed., 333. Amos, p. 15.
(q) Hale, Hist., 6th ed. 822, 323; («) Per Kindersley, V.-O., 27 L.
3 Cntise, Dig., 4th ed., 388. J., Chane., 102* #
(r) Fort, de Land. Leg. Aug., by
492 RULES RELATING TO MARRIAGE AND DESCENT.
to the person last seised, would not have excluded him
from taking as heir, if he were of the whole blood to
those ancestors through whom the descent was to be
derived by representation : thus, if two first cousins, D.
and E. had intermarried, and had issue a son, F., and D.
had married again and had issue, G., and F. died seised,
G. could not have taken as half brother of F., but he
might as maternal cousin to him (t) ; for Quando duo
jura in und persond concurrunt cequum est ac si essent
in diversis (u).
3*4 will. 4, The law on this subject has been, however, entirely
altered and materially improved by the stat. 3 & 4 WilL 4,
c. 106, a 9, which enables the half blood to inherit next
after any relation in the same degree of the whole blood
and his issue, where the common ancestor is a male, and
next after the common ancestor where a female, so that
the brother of the half blood on the part of the father
shall inherit next after the sisters of the whole blood on
the part of the father and their issue, and the brother of
the half blood on the part of the mother shall inherit next
after the mother.
Descent of * We may add that the rule excluding the half blood did
not hold on the descent of the Crown. Therefore, if a
king had issue a son and a daughter by one venter, and
a son by another venter, and died ; on the death of the
eldest son without issue, the younger son was entitled to
the Crown, to the exclusion of the daughter. For instance,
the Crown actually did descend from King Edward VI. to
Queen Mary, and from her to Queen Elizabeth, who were
respectively of the half blood to each other. Nor did the
rule apply to estates tail (x).
(0 2 Preet. Abe.#Tit 447. H. t N. 607 ; & C., 5 Id. 76*.
(u) Id. 449. The maxim tupra is (x) 1 Com. by Broom & Hadley,
exemplified by J one* y. Davits, 7 228 ; Chit. Pre. Crown, 10 ; Litt.
rules relating to marriage and descent. 493
Persona conjuncta jsquiparatur interesse proprio.
(Bac. Max., reg. 18.)—Tlie interest of a personal
connection is sometimes regarded in law as that of
the individual himself
In the words of the civil law, jura sanguinis nvllo Buieuid
jure civili diri/mi posswnt (y), the law, according to Lord Lord Baoom
Bacon, hath so much respect for nature and conjunction
of blood, that in divers cases it compares and matches
nearness of blood with consideration of profit and interest,
and, in some cases, allows of it more strongly. Therefore,
if a man covenant in consideration of blood, to stand
seised to the use of his brother or son, or near kinsman,
an use is well raised by his covenant without transmuta-
tion of possession (z).
The above maxim, as to persona conjuncta, is likewise,
in some cases, applicable in determining the liability of
an infant on contracts, for what cannot strictly be con-
sidered as " necessaries " within the ordinary meaning of
that term (a). Thus, as observed by Lord Bacon, " if a
man under the years of twenty-one, 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
contracted for his own aliments or erudition" The ohappuv.
Cooper.
like legal principle was, in a modern case, extended so
as to render an infant widow liable upon her contract
for the funeral of her husband, who had left no property
to be administered (6).
The maxim under consideration does not, however,
n. 14, 15 ; 3 Cruise, Big., 4th ed., (z) Bac. Max., reg. 18.
386. See, also, Hume's Hist, of Eng- (a) As to which see Ryder r.
land, vol. 4, pp. 242, 265. WombweU, L. R. 4 Ex. 82.
D. 50. 17. 8; Bac. Max., (6) Chappie v. Cooper, 13 M. &W.
reg. 11. 259, 260.
494
RULES RELATING TO MARRIAGE AND DESCENT.
Qualification apply so as to render a parent liable on the contract of
the infant child, even where such contract is for " neces-
saries/' unless there be some evidence that the parent has
either sanctioned or ratified the contract If, says Lord
Abinger, C. B. (c), a father does any specific act from
which it may reasonably be inferred that he has authorised
his son to contract a debt, he may be liable in respect of
the debt so contracted ; but the mere moral obligation on
the father to maintain his child affords no inference of a
legal promise to pay his debts. "In order to bind a
father in point of law for a debt incurred by his son, you
must prove that he has contracted to be bound, just in
the same manner as you would prove such a contract
against any other person ; and it would bring the law into
great uncertainty if it were permitted to juries to impose
a liability in each particular case, according to their own
feelings or prejudices." " It is," observed Parke, B., in
the same case, " a clear principle of law, that a father
is not under any legal obligation to pay his son's debts,
except, indeed, by proceedings under the 43 Eliz. (d), by
which he may, under certain circumstances, be compelled
to support his children according to his ability ; but the
mere moral obligation to do so cannot impose upon him
any legal liability " (e).
Again, we read, " It hath been resolved by the justices
(c) Mortimore v. Wright, 6 M. &
W. 487 ; Skdton v. Springett, 11 C.
B. 452. See Ambrose v. Kerriton,
10 C. B. 770 (followed in Bradshaw
v. Beard, 12 C. B. N. S. 344) ; Read
v. Legard, 6 Exch. 636, and Rice v.
Shepherd, 12 C. B. N. S. 832;
Richardson v. Dubois, L. R. 5 Q. B,
51* See Bazeley v. Forder, L. R. 3
Q, B. 559, as showing under peculiar
circumstances the liability of the
husband in respect of his wife.
(d) See Gi-innell v. WdU, 7 M. k
Gr. 1033 ; Ruttinger v. Temple, 4
B. & S. 491.
(c) For Courts of Law "are to
decide according to the legal obliga-
tion* of parties : " per Aldenon, B.,
Turner v. Maam, 14 M. & W. 117.
RULES RELATING TO MARRIAGE AND DESCENT, 49S
that a wife cannot be produced either against or for her Evidence of
, , wife against
husband, quia sunt duce anvmce in carna und, and it hu*bMid,&c.
might be a cause of implacable discord and dissension
between the husband and the wife, and a means of great
inconvenience " (/). At common law, however, the above
rule did not apply where a personal injury had been com-
mitted by the husband against the wife, or vice verod (g).
And the rule in question has recently been in great
part abrogated by the legislature, for by " The Evidence
Amendment Act, 1853" (16 & 17 Vict. c. 83), ss. 1—3,
husband and wife may give evidence for or against each
other — subject to these exceptions : 1st, that the husband
shall not be competent or compellable to give evidence
for or against his wife, nor the wife for or against her
husband, "in any criminal proceeding;1' and 2ndly, that
" no husband shall be compellable to disclose any com-
munication made to him by his wife during the marriage,
and no wife shall be compellable to disclose any com-
munication made to her by her husband during the
marriage." Further, "the parties to any proceeding
instituted in consequence of adultery, and the husbands
and wives of such parties," are now, by the stat. 32 & 33
Vict. c. 68, s. 3, "competent to give evidence in such
proceeding."
In the sense then above explained, and with the re-
strictions above suggested, must be understood the maxim
illustrated by Lord Bacon, and with which we conclude
our list of rules relative to marriage and descent — Per-
sona conjvmcta cequi'paratur interesse froyrrio.
(/) Co. Litt. 6. b. But aee 45 security of her separate property as
& 46 Vict, c 75, s. 12, by which a though she were &feme 90U,
married woman has the same re- {g) Lord AudUy's case, 3 How.
medies by way of criminal proceed- St. Tr. 402, 413.
ings against her husband for the
496
CHAPTER VIIL
THE INTERPRETATION OF DEEDS AND WRITTEN
INSTRUMENTS.
In the pages immediately following, an attempt has
been made to give a general view of such maxims as are
of most practical utility, and are most frequently cited
with reference to the mode of construing deeds and
written instruments; and some remarks have been
occasionally added, showing how these rules apply to the
interpretation of wills and statutes. As the authorities
and decided cases on the above subject are extremely
% numerous, and as in a work like the present it would be
undesirable, and indeed impossible, to refer to any con-
siderable portion of them, those only have been cited
which exhibit and tend to elucidate most clearly the
meaning, extent, and qualifications of the various maxims;
and, as far as was consistent with this plan, the more
modern judgments of the courts of law have been espe-
cially consulted and selected for reference, because the
principles of interpretation are better understood at the
present day, and, consequently, more clearly defined and
more correctly applied than they formerly were. The
importance of fixed and determinate rules of interpreta-
tion is manifest, and not less manifest is the importance
of a knowledge of those rules. In construing deeds and
testamentary instruments, the language of which, owing
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 497
to the use of inaccurate terms and expressions, frequently
falls short of, or altogether misrepresents, the views and
intentions of the parties, such rules are necessary in order
to insure just and uniform decisions ; and they are equally
so where it becomes the duty of a court of law to unravel
and explain those intricacies and ambiguities which occur
in legislative enactments, and which result from ideas not
sufficiently precise, from views too little comprehensive, or
from the unavoidable and acknowledged imperfections of
language (a). In each case, where doubt or difficulty
arises, peculiar principles and methods of interpretation
are applied, reference being always had to the general
scope and intention of the instrument, the nature of the
transaction, and the legal rights and situation of the
parties interested.
The principles developed in this chapter being appli-
cable to the solution of many questions connected with
the Law of Contracts and of Evidence, have been con-
sidered before proceeding to the subjects specified, which
are briefly treated of in the concluding chapters of this
work.
The rules of construction and interpretation separately
considered in this chapter are the following : — 1st, that
an instrument shall be construed liberally and according
to the intention of the parties ; 2ndly, that the whole
context shall be considered ; 3rdly, that the meaning of a
word may often be known from the context ; 4thly, that
no man shall derogate from his own grant ; othly, that
a latent ambiguity may, but a patent ambiguity cannot,
be explained by extrinsic evidence; 6thly, that whera
there is no ambiguity, the natural construction shall pre-
(a) See Lord Teignmouth's life of Sir W. Jones, 261.
49H ixTTzmrrirzox or dcem ast>
▼all ; 7tiJj. thai an ixutrnaect or «pre»:« is ssSaenslr
certain wtkt can be ma-ie » : vJlIt. thai cttbl vate Bay
be reacted ; JKLIv, that a £Lae deacriptk-ei is often im-
material ; KhLlr, that general wc-ris but be restrained
by reference to the sr:\:-**-marrer: Ili>. that the
special mention of one th:^g mist be understood as ex*
eluding another; 12thly, that the expreasaon of what is
implied is inoperative ; 13:Lly, that a clause nifcued to
matt be understood as incorporated with that referring to
it; 14thly, that relative words refer to the next ante-
cedent; 15thlv, that that mode of exposition is best
which is founded on a reference to contemporaneoos facts
and circumstances ; 16thlv, that he who too minuteJv
regards the form of expression, takes bat a superficial
and, therefore, probably an erroneous view of the meaning
of an instrument
BeNION^E FAClENDiE SCNT INTERPRETATION ES PROPTER
SlMPLICITATEM LAICORUM UT RES MAGIS YALEAT
QUA* PEREAT ; ET VERBA INTENTIONI, NON E CON-
TRA, debent inservire. (Co. Lift 36. a.) — A liberal
construction should be put upon written instru-
ments, so as to uphold them, if possible, and carry
into effect the intention of the parties.
The two rules of most general application in construing
a written instrument are — 1st, that it shall, if possible, be
so interpreted ut res magis valeat quam pereat (o), and
(6) flee per Bile, C.7., Cheney r. 600 ; SUde t. Hoe, HQ.B. 431,
Courioit, 18 C. B. N, 8. 640 ; Broom 445 ; Ford r. JBeeck, 11 Q. B. 852,
v. BaUhdor, 1 H. & N. 255 ; cited 866, 868, 870 ; OUUnkaw r. King,
is Befcr t. Meadows, L. R. 4 C. P. % H. & N. 517 ; a C, Id. 899 ;
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
490
2ndly, that such a meaning shall be given to it as may
carry out and effectuate to the fullest extent the intention
of the parties. These maxims are, indeed, in some cases
restricted by the operation of technical rules, -which, for
the sake of uniformity, ascribe definite meanings to par,
ticular expressions; and, in other cases, tbey receive
certain qualifications when applied to particular instru-
ments, such qualifications being imposed for wise and
beneficial purposes ; notwithstanding, however, these ex-
ceptions and qualifications, the above maxims are un-
doubtedly the most important and comprehensive which
can be used for determining the true construction of
written instruments.
It is then laid down repeatedly by the old reporters and General
r J J r . principles of
legal writers, that in construing a deed, every part of it J^£lctlwi
must be made, if possible to take effect, and every word
must be made to operate in some shape or other (c). The
construction, likewise, must be such as will preserve
rather than destroy (d) ; it must be reasonable, and
agreeable to common understanding (e) ; it must also be
favourable, and as near the minds and apparent intents
Stratton v. Pettit, 16 0. B. 420;
Mare v. Charley f> R & B. 978 ;
Approved in Penrose v. Martyr, E.
B. & E. 503.
" All contracts should, if possible,
be construed ut re$ magis valeai quant
pereat:" per Byles, J., Vestry of
Skoreditch v. Hughes, 17 C. R N. S.
162.
The maxim supra was applied in
Reg. t. Inhabitants of Broadhemp-
ston, 1 E. & E. 154, 163 ; Pugh v.
StHngfieU, 4 C. B. N. S. 364, 370.
See Blackwell v. England, 8 E. k B.
541, 549.
u If a plea admits of two construc-
tions, one of which gives a sensible
effect to the whole, and the other
makes a portion of it idle and insen-
sible, the Court is bound to adopt the
former construction : " per WUliama,
J., Peter v. Daniel, 5 C. B. 579.
(c) Shep. Touch. 84 ; Plowd. 156.
(d) Per Lord Brougham, C, Lang-
ston v. Langston, 2 CI. and Fin. 243 ;
cited Arg., Baker v. Tucker, 8 H. L.
Cas. 116.
(e) 1 Bulst. 175 ; Hob. 304.
K k 2
500 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
of the parties as the rules of law will admit (/), and, as
observed by Lord Hale, the judges ought to be curious
and subtle to invent reasons and means to make acts
effectual according to the just intent of the parties (g) ;
they will not, therefore, cavil about the propriety of words
when the intent of the parties appears, but will rather
apply the words to fulfil the intent, than destroy the
intent by reason of the insufficiency of the words (h).
. It may, indeed, chance that, on executing an agreement
under seal, the parties thereto failed to contemplate the
happening of some particular event, or the existence of
some particular state of facts at a period subsequent
thereto (i) ; and all the Court can do in such a case, is to
ascertain the meaning of the words actually used ; and, in
construing the deed, they will adopt the established rule
of construction, " to read the words in their ordinary and
grammatical sense, and to give them effect, unless such a
construction would lead to some absurdity or incon-
venience (k), or would be plainly repugnant to the inten-
tion of the parties to be collected from other parts of the
deed " (I). For * the golden rule of construction," to
which we shall presently revert, " is that words are to
be construed according to their natural meaning, unless
such a construction would either render them senseless or
would be opposed to the general scope and intent of the
(/) 1 Anderson, 60 ; Jenk. Cent L. B. 1 Q. B. 120.
260. (£) The element of inconvenience is
(g) Crossing v. Scudamore, 2 Lev. not to be considered if the construe-
9 ; per Lord Hobart, Hob. R. 277, tion of the document is clear. Bot-
ched Willes, R., 682 ; Motley v. tomley's case, 16 Ch. Div. 681, 686 ;
Motteux, 10 M. & W. 5S3. 50 L. J. Ch. 167.
(h) 1 Plowd. 159, 160, 162. (I) Per Parke, B., Bland r. Crow-
(t) See Judgm., Lloyd ▼. Guibert, ley, 6 Exch. 529.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
501
instrument, or unless there be some very cogent reason of
convenience in favour of a different interpretation " (m).
Deeds, then, shall be so construed as to operate accord- Deeds *u*ii
* be made
ing to the intention of the parties, if by law they may ; °P^1le'e' ,f
and if they cannot in one form, they shall operate in that
which by law will effectuate the intention : Quando res
non valet ut ago, valeat quantum valere potest (n). For,
in these later times, the judges have gone further than
formerly, and have had more consideration for the
substance, to wit, the passing of the estate according to
the intent of the parties, than the shadow, to wit, the
manner of passing it (o).
Thus, where A., in consideration of natural love and of Roe v. rran-
100Z., by deeds of lease and release, granted, released, and
confirmed certain premises, after his own death, to his
brother R, in tail, remainder to C, the son of another
brother of A., in fee ; and he covenanted and granted that
the premises should, after his death, be held by B. and the
heirs of his body, or by C. and his heirs, according to the
true intent of the deed ; it was held, that, although the
deed could not operate as a release, because it attempted to
convey a freehold infuturo,yet it was good as a covenant
to stand seised (p). So, if the King's charter will bear a
marr.
(») Per Bramwell, B., FoweU v.
Tranter, 3 H. & C. 461.
(n) Per Lord Mansfield, C.J.,
OoodtiUe y. Bailey, Cowp. 600;
cited Roe d. Earl of Berkeley r.
Arehbiehop of York, 6 East, 105 ; 1
Ventr. 216. See also the instances
of the above role mentioned in Oibeon
t. Minet, 1 H. Bla, 614, 620.
(o) Osmanv. Sheaf, 3 Lev. 370;
cited Doe d. Lewie v. Daviee, 2 M.
& W. 616 ; per Willes, C. J., Smith
y. Paekhuret, 3 Atk. 136; cited,
Marquis of Cholmonddey v. Lord
Clinton, 2 B. & Aid. 637 ; Tarleton
v. Stanjforth, 5 T. &. 695 ; per
Maule, J., Borradaile v. Hwder, 5
Scott, N. B. 431, 432; 2 Wms.
Saund. 96 a, n. (1) ; 3 Prest. Abetr.
Tit. 21, 22 ; 1 Id. 313.
( p ) Roe v. Tranmarr, Willes, B.
682. See the cases collected 2 Wms.
Saund. 96 a, n. (1) ; 1 Prest. Abstr.
Tit. 313; 1 Bep. 76; Perry t.
502
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Bale as to
deed* fur-
ther consi-
dered.
double construction, one which will cany the grant into
effect, the other which will make it inoperative, the former
is to be adopted (q). And generally, * if words have a
double intendment, and the one standeth with law, and
the other is against law, they are to be taken in the sense
which is agreeable to law " (r).
In accordance with the same principle of construction,
where divers persons join in a deed, and some are able
to make such deed, and some are not able, this shall be
said to be his deed alone that is able (s) ; and if a deed be
made to one that is incapable and another that is capable,
it shall enure only to the latter (0- So, if mortgagor and
mortgagee join in a lease, this enures as the lease of the
mortgagee, and the confirmation of the mortgagor (ti).
And if there be a joint lease by tenant for life and
remainderman, such lease operates during the life of the
tenant as his demise, confirmed by the remainderman,
and afterwards as the demise of such last-mentioned
party (x).
The preceding examples may suffice to show that where
a deed cannot operate in the precise manner or to the full
extent intended by the parties, it shall, nevertheless, be
Watts, 4 Scott. N. R. 866 ; Doe d.
Danidl t. Woodrofe, 10 M. k W.
608 ; 15 M. * W. 769 ; 2 H. L. Cos.
811.
"The general rule," also, "ia that
a covenant not to sue when it does
not affect other parties, and is so in-
tended, may be pleaded as a release."
Per Byles, J., Bay t. Jones, 19 C. B.
N. S. 423. A deed of bargain and
sale Toid for want of inrolment will
operate as a grant of the reversion ;
Haggerston v. Honour y, 5 B. k C.
101 ; Adams r. Steer, Cro. Jac 210.
iq) Per Hndal, C.J., Butter t.
Chapman, 8 M. k W. 102.
(r) Shep. Touch. 80, adopted per
Martin, B., Fussett v. Danid, 10
Exeh. 597 ; Go. Lit*. 42 a. 183 ; Noy,
Max., 9th ed. 211.
{$) Shep. Touch. 81 ; Finch, Law,
60.
(0 Shep. Touch. 82.
(t<) Doe d. Barney v. Adams, 2
Cr. k J. 232 ; per Lord Lyndhurst,
C. B., Smith v. Pocklington, 1 Cr. &
J. 446.
(x) Treporfs case, 6 Hep. 15.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 503
made as far as possible to effectuate their intention.
Acting, moreover, on a kindred principle, the Court will
endeavour to affix such a meaning to words of obscure and
doubtful import occurring in a deed, as may best carry out
the plain and manifest intention of the parties, as col*
lected from the four corners of the instrument, — with
these qualifications, however, that the intent of the parties
shall never be carried into effect contrary to the rules of
law, and that, as a general rule, the Court will not intro-
duce into a deed words which are not to be found
there (y), nor strike out of a deed words which are there
in order to make the sense different (z). The following
important illustrations of the above propositions may
advantageously be noticed, and many others of equal prac-
tical importance will, doubtless, suggest themselves to the
reader.
In cases prior to and excluded from the operation of instrument
of demise.
the stats. 7 & 8 Vict. c. 76 s. 4 (a), and 8 & 9 Vict.
c. 106, s. 3 (b), the question whether a particular instru-
ment should be construed as a lease or as an agreement
for a lease must be answered by considering the intention
of the parties, as collected from the instrument itself; and
any words which suffice to explain the intent of the
parties, that the one should divest himself of the posses-
sion, and the other come into it for such a determinate
time, whether they run in the form of a licence, covenant,
(y) Vide, per Willes, 0. J., Park- Q. B. 156 ; teetu as to mere eur-
hurtt t. Smith, Willes, 332 ; cited plunge, pott,
and applied per Alexander, C.B., (a) See Burton v. Beevel, 16 M. k
Colmore v. TyncUdl, 2 To. & J. 618 ; W. 307 ; Bond v. Boding, 1 B. &
per Lord Brougham, 0., Langston v. S. 371.
Langston, 2 OL &Fin. 243 ; PanneU (b) See BoOason v. Leon, 7 H. &
▼. Mitt, 3 C. B. 625, 637. N. 73.
(s) White r. Burnby, 16 L. J.
504
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
CoilftlTtC-
tfan of Cove-
nant*.
or agreement, will of themselves be held, in construction
of law, to amount to a lease for years as effectually as if
the most proper and pertinent words had been made use
of for that purpose (c).
The rules applicable and cases decided with reference
to the construction of covenants will also be found to
furnish strong and abundant instances of the anxiety
which our Courts evince to effectuate the real intention (d)
of the parties to a deed or agreement (e) ; for it is not
necessary, in order to charge a party with a covenant,
that there should be express words of covenant or agree-
ment, but it is enough if the intention of the parties to
create a covenant be apparent (/). Where, therefore,
words of recital (g) or reference manifest a clear intention
that the parties shall do certain acts, the Courts will,
from these words, infer a covenant to do such acts, and
will sustain actions of covenant for their non-performance
as effectually as if the instruments had contained express
covenants to perforin them (A). In brief, " no particular
(c) Bac. Abr. " Leases " (K.) ; and
2 Shep. Touch., by Preston, 272 ;
cited Judgm., Doe d. Parsley v.
Day, SQ. B. 152 et seq.; Alder-
man v. NeaU, 4M.&W. 704.
(d) Such intention may however
be frustrated by the operation of a
positive and technical rule of law.
"A technical rule is one which is es-
tablished by authority and precedent,
which does not depend upon reason-
ing or argument, bnt is a fixed estab-
lished rule to be acted upon, and only
discussed as regards its application —
in truth is the law." Such a rule is
that where a deed is made inter
partes —no one who is not expressed to
be a party can sue upon a covenant
contained in it; C/testerjUld, <Lc,
Colliery Co. v. Hawkins, 8 H. & C.
677, 691, cited in Gurrin v. Kopera,
Id. 699.
(e) See Dot d. Rogers v. Pries, 6
C. B. 894.
(/) Per Tindal, C.J., Courtney ▼.
Taylor, 7 Scott, tf. R. 765 ; Wood
v. The Copper-miners' Co., 7 C B.
906 ; per Parke, B., Rigby v. Great
Western R. C, 14 M. & W. 815;
and in James v. Cochrane, 7 Exch.
177 ; 8. C.f 8 Id. 556 ; Farrall ▼.
Hilditch, 5 C. B. N. S. 840. See
Bealey v. Stuart, 7 H. & N. 758,
759.
{g) See Lay v. Mottram, 19 C. B.
N. S. 479.
{h) Judgm., Aspdin v. Austin^ 5
Q. B. 683 ; cited Dunn v. Sayttt,
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
505
form of words is necessary to form a covenant; but
wherever the Court can collect from the instrument an
engagement on the one side to do or not to do something,
it amounts to a covenant, whether it is in the recital or
in any other part of the instrument (i).
In like manner, where the language of a covenant is Joint or
several cove-
such that the covenant may be construed either as joint .£J£j; or
or as several, it shall be taken, at common law, to be joint
or several, according to the interest of the covenantees.
Where, however, the covenant is in its terms expressly
and positively joint, it must be construed as a joint
covenant in compliance with the declared intention of the
parties (k).
In like manner, the rule has been established by a Dependent
or lndepen*
long series of decisions in modern times, that the ques- denteove-
tion, whether covenants are to be held dependent or
independent of each other, is to be determined by the
intention or meaniug of the parties as it appears on the
instrument, and by the application of common sense to
each particular case : to the intention, when once dis-
Id. 692 ; and in Churchward r. Reg.,
LB.1Q.B, 191, 208, and Rust t.
NoUidgt, 1 E. k B. 104 ; Williams
y. Burrtll, 1 C. B. 429, where the
distinction between express covenants
and covenants in law is pointed out
Per Grompton, J., 2 B. & & 516.
(t) Per Farke, B., Great Northern
R. C. t. Harrison 12 C. B. 609 ;
Judgm., Rashleigh v. South Eastern
11. C, 10 C. B. 632, as to which
case see Knight v. Oravetend and
Milton Waterworks Co., 2 H. & N.
10, 11.
(k) Jndgm., Bradburne v. Bat-
field, 14 M. & W. 564, 572 ; I/addon
v. Ayers, 1 K. & E. 118 ; Pugh v.
Strinyfield, 8 C. B. N. S. 2 ; per
Maule, J., Beer v. Beer, 12 C. B.
78 ; citing Wetherell v. LangsUm, 1
Exch. 634 ; Hopkinaon r. Lee, 6
Q. B. 964 ; Foley v. Addenbrooke, 4
Q. B. 207 ; followed in Thompson v.
Hokewill, 19 C. B. N. 8. 713, 728 ;
Sorsbie v. Park, 12 M. & W. 146 ;
Mills v. Ladbroke, 7 Scott, N. R.
1005, 1023 ; per Parke, B., Wootton
v. Steffenoid, 12 M. & W. 134 ;
Harrold v. Whitaker, 11 Q. B. 147,
163 ; Wakefield v. Brown, 9 Q. B.
209, followed in Magnay v. Edwards,
13 C. B. 479.
600 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
covered, all technical forms of expression most give way (I).
Where, therefore, a question arose whether certain cove-
nants in marriage articles were dependent or not, Lord
Cottenham, C, observed, "If the provisions are clearly
expressed, and there is nothing to enable the Court to put
upon them a construction different from that which the
words import, no doubt the words must prevail : but if
the provisions and expressions be contradictory, and if
there be grounds appearing upon the face of the instru-
ment, affording proof of the real intention of the parties,
then that intention will prevail against the obvious and
ordinary meaning of the words. If the parties have them-
selves furnished a key to the meaning of the words used,
it is not material by what expression they convey their
intention " (m).
The notes to Pordage v. Cole(n) may usefully be referred
to when construing a particular clause in a contract for
the purpose of ascertaining whether the breach of that
part of the contract entitles the other contracting party to
put an end to it, or whether on the other hand it only
entitles him to damages. If the clause or stipulation goes
it) Judgm., Stavers t. Curling, 3 (m) Per Lord Cottenham, C, Lloyd
Bing. N. C. 363 ; Baylis v. Le Gros, y. Lloyd, 2 My. & Cr. 202.
4 C. B. N. S. 537 ; London Oas (») Williams* Notes to Saunders,
Light Co. t. Vestry of Chelsea, 8 Vol I., 548; Jonassohn t. Young,
C. B. N. 8.215; Sibthorpv. Brunei, 4 B. & S. 296. In the notes
3 Exch. 826, 828 ; Hemans y. Pic* to Pordage v. Cole, are specified
ciotto, 1 C. B. N. S. 646. See Mac- various cases in which the Court
kintosh y. Midland Counties R. C, has done great violence to the strict
14 M. & W. 548. letter of covenants for the purpose
The answer to the question, what of carrying into effect what was con-
is or what is not a condition prece- sidered to he the real intention of
dent, depends not on merely technical the parties.
words but on the plain intention of See Marsden y. Moore, 4 H & tf.
the parties to be deduced from the 504, where Pordage v. Cole, is cited
whole instrument ; Roberlt v. Brett, and distinguished.
11 H. L. Cas. 837, 354.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 507
to the root of the contract between the parties, the con-*
tract may be put an end to ; if it goes only to part of
the consideration on both sides, the sole remedy is by
way of damages.
The same sense, we may in the next place observe, is omeni mie
t i • *■ *° oon"
to be put upon the words of a contract in an instrument strains an
* x # agreement
under seal as would be put upon the same words in any in- or contract.
strument not under seal : that is to say, the same intention
must be collected from the same words, whether the parti*
cular contract in which they occur be special or not (o).
In the case, then, of a contract or agreement, whether
by deed or parol, the Courts are bound so to construe it,
ut res vnagis valeat quam pereat — that it may be made
to operate rather than be inefficient ; and, in order to
effect this, the words used shall have a reasonable intend*
ment and construction (p). Thus, where A. guaranteed to
B. the payment of all bills of exchange drawn by B. on
and accepted by C, and the payment of any balance that
might be due from C. to B., the Court observing that if
the words "might be due" were to be limited to past
transactions the guarantee would be void for want of
consideration, and as the document must be construed if
possible, so as to make it operative, decided, that the
guarantee extended to future as well as past transactions.
It should be noticed with reference to this case that
Bramwell, B., differed from the majority of the Court
upon the ground that the words primd fade referred to
past transactions, and that the maxim is inapplicable
where there are extrinsic circumstances in relation to
which the words used are in their primary sense intel-
(o) Per Lord EUenborough, C.J., 25) ; Bac., Works, vol. 4, p. 25 ;
13 East, 74. Noy, Max., 9th ed., p. 50.
(p) Com. Dig., "Pleader," (C.
508
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Charter*
ligible (q). Words of art, which, in the understanding
of conveyancers, have a peculiar technical meaning, shall
not be scanned and construed with a conveyancer s acute-
ness, if, by so doing, one part of the instrument is made
inconsistent with another, and the whole is incongruous
and unintelligible; but the Court will understand the
words used in their popular sense, and will interpret the
language of the parties aecu/ndwni subjectam materiem,
referring particular expressions to the particular subject-
matter of the agreement, so that full and complete force
may be given to the whole (r).
Whether, for example, a particular clause in a charter-
party shall be held to be a condition, upon the non-per-
formance of which by the one party, the other is at
liberty to abandon the contract, and consider it at an end.
— or whether it amounts to an agreement only, the breach
whereof is to be recompensed by an action for damages,
— must depend, in each particular case, upon the inten-
tion of the parties to be collected from the terms of the
agreement itself, and from the subject-matter to which it
relates ; it cannot depend on any formal arrangement of
the words, but on the reason and seuse of the thing, as it
is to be collected from the whole contract (#). In such
(q) Broom v. Batchdor, 1 H. &
N. 255.
(r) HaUtweU y. MorrtU, 1 Scott,
N. R. 309 ; per car., Bill r. Orange,
PlowcL 164, 170; cited Arg., 2 Q.
B. 609 ; per Willes, O.J., Willes, R,,
882 ; Hescltinc r. Siggcrs, 1 Exch.
856. If an instrument is capable of
two constructions, that one shall be
preferred which will make the instru-
ment operate rightfully ; FaunseU v.
Carpenter, 2 Dow. & Clark. N. S. 232.
As to construing an award, see Law
y. Bladburrow, 14 C. a 77; Mag$
t. Cannell, 15 C. B. 107, and cases
there cited.
(*) Judgm., Glakolm, r. Hayt, 2
Scott, N. B. 482 ; recognised in OUive
t. Booker, 1 Exch, 416, 423 ; Bekn v.
Burnet*, 32 L. J. Q. B. 204 ;8.C,
1 B. & S. 877 ; Seeger r. Duthrb, 8
C. B. N. 8 45 ; Oliver v. FieHen,
4 Exch. 135, 138 ; and Crodktwil r.
Fletcher, 1 H. & N. 911 ; Gattorno
v. Adam, 12 C. B. N. S. 660 ; per
Lord Ellenborough, C.J., Ritchie v.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
509
a case, therefore, the rule applies, In conventionibus
contrahentium voluntas potias quam verba spectari
placuit (t) — in contracts and agreements the intention
of the parties, rather than the words actually used by
them should be considered (u).
Subject, however, to the preceding remarks, Courts Meaning of
will apply the ordinary rules of construction in inter-
preting instruments, and will construe words according
to their strict and primary acceptation, unless, from the
immediate context or from the intention of the parties
apparent on the face of the instrument, the words ap-
pear to have been used in a different sense, or unless,
in their strict sense, they are incapable of being carried
into effect. It must, moreover, be observed that the
meaning of a particular word may be shown by parol
evidence to be different in some specified place, trade, or
business, from its proper and ordinary acceptation (x) ;
various cases illustrating this remark will be hereafter
cited.
With respect to patents, it was long since observed by Patent, eon-
struction of*
Lord Eldon, that they are to be considered as bargains
between the inventor and the public, to be judged of on
the principles of good faith, by making a fair disclosure
of the invention, and to be construed as other bargains (y).
Moreover, although formerly there seems to have been
Atkinson,, 10 East, 806; Jndgm.,
Furze t. Skarwood, 2 Q. B. 415.
See White r Beeton, 7H.4N. 42.
(t) 17 Johns. (U.S.) R. 150, and
cases there cited.
(») Dimech v. Corlett, 12 Moo., P.
C. C. 199, 228, citing Olaholm y.
JIays, supra.
(x) See per Pollock, C.B., MaUan
w. May, 13 M. & W. 511 ; Lewis r.
Marshall, 8 Scott, N. R. 477, 494 ;
per Parke, B., OUft t. Schwabe, 8 C.
B. 469, 470 ; per Lord Cranworth,
C, 6 H. L. Cas. 78 ; poet, Chap. X.
(y) Per Alderson, B., Neilson t.
Bwrfordy Webs. Pat. Cas. 341 ; Nor-
man on Patents, 78, 79.
The mode of construing a patent as
between the patentee and the Crown,
is stated posU
510
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS,
very much a practice, with both judges and juries, to
destroy the patent right even of beneficial patents, by
exercising great astuteness in taking objections as to the
title of the patent, and more particularly as to the speci-
fication, in consequence of which many valuable patent
rights have been destroyed ; yet, more recently, the
Courts have not been so strict in taking objections to the
specification, but have rather endeavoured to deal fairly
both with the patentee and the public, willing to give to
the patentee, on his part, the reward of a valuable patent,
but taking care to secure to the public, on the other hand,
the benefit of that proviso (i.e., the proviso requiring a
specification) which is introduced into the patent for their
advantage, so that the right to the patent may be fairly
and properly expressed in the specification (z). In con-
struing a specification accordingly, the whole instrument
must be taken together, and a fair and reasonable inter-
pretation is be given to the words used in it (a) ; the
words of the specification being construed according to
their ordinary and proper meaning, unless there be some-
thing in the context to give them a different meaning, or
unless the facts properly in evidence, and with reference
to which the patent must be construed, should show that
a different interpretation ought to lje made (6). It has
(z) Per Parke, B., NeOson't Patent,
Webs. Fat. Cm. 310 ; per Aldenon,
B., Morgan y. Seaward, Id. 173,
who observes : " It is the duty of
a party who takes oat a patent to
specify what his invention really is ;
and although it is the bounden dnty
of a jury to protect him in the fair
exercise of his patent right, it is of
great importance to the public, and
by law it is absolutely necessary, that
the patentee should state in his speci-
fication, not only the nature of his
invention, but how that invention
may be carried into effect."
(a) Beard v. EgerUm, 8 C. B. 165.
(b) Judgm., Elliott v. Turner (m
error), 2 C. B. 446, 461. As to con-
struing a specification which contains
terms of art, see BetU v. ifatstet,
10 H. L. Gas. 117.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 511
been laid down that the test of the sufficiency of a speci-
fication is whether it would enable an ordinary workman,
exercising the actual knowledge common to the trade, to
make the machine (c). It was attempted in a recent case
to introduce evidence of the various patents in existence E*tnn*ic
* # evidence to
at the time the particular patent was granted, the speci- Jgjjjjj,"1*"
fication of which was under consideration, for the purpose
of construing the specification so as to exclude from
its operation prior patents, and thereby make it valid.
It was held such evidence could not be used for this
purpose, although it was properly admissible to explain
words of art to be found in the specification in question,
and that words used in a patent must be construed, like
the words of any other instrument, in their natural sense,
regard being had to the fact that the document is not
addressed to the world at large, but to a particular class
possessing a certain amount of knowledge on the
subject (d).
The following remarks of Lord Ellenborough, C. J., F^^
with reference to a policy of insurance, here also occur to
mind as generally applicable. "The same rule of con-
struction/' says that learned Judge, " which applies to all
other instruments, applies equally to this instrument of a
policy of insurance, viz., that it is to be construed accor-
ding to its sense and meaning, as collected, in the first
place, from the terms used in it, which terms are them-
selves to be understood in their plain, ordinary, and
popular sense, unless they have generally, in respect to
the subject-matter, — as by the known usage of trade, or
(e) Plimpton v. MaUoimaon, 3Ch. {d) Clark t. Adit, 2 App. Cascu,
DiY. 531; 45 L. J. Ch. 505 ; Morgan 423 ; 46 L. J. Ch. 585, 698.
y. Seaward, 1 Webs. P. R. 174.
512
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
the like, — acquired a peculiar sense distinct from the
popular sense of the same words, or unless the context
evidently points out that they must, in the particular
instance, and in order to effectuate the immediate inten-
tion of the parties to that contract, be understood in some
other special and peculiar sense " (e). And again, " the
contract of insurance/' it has been said, " though a mer-
cantile instrument, is to be construed according to the
same rules as all other written contracts, namely, the
intention of the parties, which is to be gathered from the
words of the instrument, interpreted together with the
surrounding circumstances. If the words of the instrument
are clear in themselves, the instrument must be oonstrued
accordingly, but if they are susceptible of more meanings
than one, then the judge must inform himself by the aid
of the jury and the surrounding circumstances which
bear on the contract " (/).
Rales to be In construing a will, it has been said, that the intention
obserredin ° ' '
construing a 0f the testator is the polar star by which the Court should
be guided, provided no rule of law is thereby infringed (9).
" It is the duty of those who have to expound a will, if
they can, exfwmo dcvre lucem" (h). In other words, the
first thing for consideration always is, what was the
(e) Robertson y. French, 4 East,
135, 136 ; died per Lord Tenteiden,
C.J. Hunter v. LeathUy, 10 B. t,
C. 871.
(/) Per Brie, C.J., Carr t. Men*
tcfiore, 5 B. k S. 428 ; citing Robert-
son t. French , supra.
(g) Per Lord Kenyon, C. J., Watson
t. Poxon, 2 East, 42; per Willes,
C. J., Doe t. Underdown, Willes, R.
296 ; per Bailer, J., Smith t. Coffin,
2 H. BU. 450; cases cited, Aig.
Ley t. Ley, 3 Scott, N. K. 168;
Doe d. Amlot r. Dames, 4 M. & W.
599, 607 ; Doe d. Tremewen r. Per-
mewen, 11 A. & E. 181 ; per Parke,
B., Grover v. JBurningham, 5 Exch.
191 ; Martin v. Let, 14 Moo., P. C.
C. 142.
(h) Per V.-C. E., De Beauvoir v.
De Beauvoir, 15 L. J., Chanc. 308 ;
8. 0., 15 Sim. 163 ; 3 H. L. Caa.
524.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
513
testator's intention at the time he made the will ; and
then the law carries that intention into effect as nearly as
it can, according to certain settled technical rules (i).
" Touching the general rules to be observed for the true
construction of wills," says Dodderidge, J., — " in testa-
mentis plenivx testatoris intentionem scrutamur. But
yet this is to be observed with these two limitations :
1st, his intent ought to be agreeable to the rules of law :
2ndly, his intent ought to be collected out of the words of
v the will. As to this it may be demanded, how shall this
be known ? To this it may be thus answered : first, to
search out what was the scope of his will ; secondly, to
make such a construction, so that all the words of the will
may stand ; for to add anything to the words of the will,
or in the construction made to relinquish and leave out
any of the words, is maledicta glossa. But every string
ought to give its sound " (ft).
In a modern case, involving important interests (I), the
following were laid down as the leading and fundamental
rules for construing a will. In the first place, the inten-
tion of the testator ought to be the only guide of the
Court to the interpretation of his will ; yet it must be his
intention as collected from the words employed by himself
in his will(m). No surmise or conjecture of any object
(%) Jndgm., Doed Scott v. Roach,
5 M. k 8. 490 ; Hodgson r. Ambrose,
Dough 341 ; Feting r. Allen, 12 M.
k W. 279 ; Alexander v. Alexander,
16 C. B. 59 ; Doe <L Bills v. Hop-
kinson, 5 Q. B. 223 ; Doe d. Steven-
son v. Glover, 1 0. B. 459.
* ' The general role in interpreting a
will and codicil is that the whole of
the will takes effect, except in so far
as it is inconsistent with the codicil"
Judgm., Robertson v. Powell, 2 H. &
C. 766-7 ; citing Doe d. HearU t.
Hicks, 1 CI. k P. 20 ; Jndgm., Rich-
ardson v. Power, 19 C. B. N. S. 799.
(k) Per Dodderidge, J., Blamford
v. Blamford, 3 Bals. 103. See
Parker v. Tootal, 11 H. L. Cas. 143.
(1) Earl of Scarborough v. Doe d.
Savile, 3A.&E. 897.
(m) In Doe d. Sams v. Oarlick,
14 M. k W. 701, Parke, B., ob-
L L
514
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
which the testator may be supposed to have had in view
can be allowed to have any weight in the construction of
his will, unless such object can be collected from the plain
•language of the will itself (n).
Lord Cottenham, in the somewhat curious case of the
Earl of Hardwicke v. Douglas (o), thus stated the rule :
" It is not, according to my impression of the rule upon
which the Courts have acted, consistent with the principles
of construction to set aside the effect of clear and unam-
biguous words because there is reason to suppose that they
do not produce the effect which the testator intended
they should produce. If there be any ambiguity, then of
course it is the duty of all Courts to put that construction
upon the words which seems best to carry the intention
into effect; but if there be no ambiguitity, however
unfortunate it may be that the intention of the testator
shall fail, there is no right in any Court of Justice to say
those words shall not have their plain and unambiguous
meaning."
In the second place, it is a necessary rule in the inves-
tigation of the intention of a testator, not only that regard
should be paid to the words of the will, in order to deter-
mine the operation and effect of the devise, but that the
serves, that difficulties have arisen
from confounding the testator's in-
tention with his meaning. "Inten-
tion may mean what the testator in-
tended to have done, whereas the
only question in the construction of
wills is on the meaning of the
word*." In Grover v. Bumingham,
& Exch. 194, Rolfe, B., also observes,
*' We are to ascertain by construing
the will non quod voluii sed quod
dixit, or rather we are to ascertain
quod voluit by interpreting quod
dixit." And see, per Lord Wensley-
dale, Grey v. Pearson, 6 H, L Cat.
106 ; and in Slingsby v. Grainger, 7
H. L. Gas. 284.
(») Judgm., Earl of Scarborough
v. Doe d. Savile, 3 A. & B. 962,
963 ; cited 8 M. & W. 200.
(o) 7 Clark & Fin. 795, 815. See
also Quieke v. Leach, 13 M . & W.
218.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 515
legal consequences which may follow from the nature and
qualities of the estate, when once collected from the
words of the will itself, should be altogether disre-
garded (p) ; for 'example, in determining whether the
intention of the testator was, in any particular case to
give the devisee an estate-tail, or for life only, it is not a
sound or legitimate mode of reasoning to import into the
consideration of the question, that, if the estate is held to
be an estate-tail, the devisee will have the power of
defeating the intention of the testator altogether ; for the
Court will not assume that the testator was ignorant of
the legal consequence and effect of the disposition which
he has himself made (q) ; and a person ought to direct
his meaning according to the law, and not seek to mould
the law according to his meaning ; for, if a man were
assured, that, whatever words he made use of, his mean-
ing only would be considered, he would be very careless
about the choice of his words, and the attempt to explain
his meaning in each particular case would give rise to
infinite confusion and uncertainty (r).
Hence, although it is the duty of the Court to ascertain
and carry into effect the intention of the party, yet there
are, in many cases, fixed and settled rules by which that
intention is determined ; and to such rules the wisest
judges have thought proper to adhere, in opposition to
their own private opinions as to the probable intention of
the party in any particular case (a).
(p) At the Barae time the circum- r. Leach, 13 M. & W. 228.
stance, that the language if strictly (q) 3 A. &E. 963,964; j*r Parke,
construed will lead to a consequence B., Morrice v. Langham, 8 M. & W.
inconsistent with the presumable in- 207.
fcention, is not to be left out of view, ' (r) Plowd. 162.
especially if other considerations lead ($) See, per Alexander, C.B., 6
to the same result : Judgm., Quicke Bing. 478 ; Judgm., 2 Phill. 68.
L L 2
516 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS,
The object, indeed, of all such technical rules is to
create certainty, and to prevent litigation, by enabling
those who are conversant with these subjects to give
correct advice, which would evidently T>e impossible if
the law were uncertain and liable to fluctuation in each
particular case (t).
In accordance with the remarks above offered, Parke,
B., in an important case respecting the application of the
rule against perpetuities, thus expressed himself : — " We
must first ascertain the intention of the testator, or more
properly the meaning of his words, in the clause under
consideration, and then endeavour to give effect to them
so far as the rules of law will permit. -Our first duty is to
construe the will, and this we must do exactly in the
same way as if the rule against perpetuity had never been
established, or were repealed when the will was made, not
varying the construction in order to avoid the effect of
that rule, but interpreting the words of the testator
wholly without reference to it " (u).
SSh1"* The rule in SlieUeifs case{x) — by which, where an
estate of freehold is limited to a person, and the same
instrument contains a limitation, either mediate or imme-
diate, to his heirs or the heirs of his body, the word
"heirs" is construed as a word of limitation (y) — will
occur to the reader as a familiar instance of an arbitrary
and technical rule of construction, the authority of which
(t) Per Pollock, C.B., Doe d. Broom & Hartley, S30.
Sams v. Garlick, 14 M. & W. 707. (y) 2 Jarm., Wills, 4th ed., 332,
(u) Per Parke, B., Lord Dungan- See Harrison v. Harrison, 8 Scott,
non v. Smith, 12 CI. & Fin. 599 ; N. R. 862, 873 ; Cole v. GobU, 13
difltingniflhed in Christie v. Gosling, C. B. 445 ; Jordan v. Adams, 6* CL
L. R. 1 H. L. 279. B. N. S. 748.
(x) As to which see 2 Com. by
case
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
517
is acknowledged by the Courts, even where its applica-
tion may tend to defeat the intention of the testator.
So, in construing a power to lease contained in a will,
the Courts have said, it " becomes necessary to look to the
language of the testator in the creation of the power itself,
and to ascertain his intention by considering the true
meaning of the language which he has used, giving to it its
natural signification according to the ordinary rules of in-
terpretation ; giving effect, if possible, to every part of the
clause ; and if any part of it be ambiguous, interpreting
it by reference to the context, to the general intent of
the will, and, if necessary, to the surrounding circum-
stances " (z).
Not only are there fixed and established rules by which Technical
the Courts will, in certain cases, be guided in deter-
mining the legal effect and operation of a testamentary
instrument, but there are likewise certain technical ex-
pressions of which the established legal interpretation is
different from the meaning which in ordinary language
would be attributed to them ; and, consequently, a will in
which such expressions occur may, in some cases, be made
to operate in a manner different from that intended by
the testator (a) : the duty of the Court being to give
effect to all the words of the will, if that can be done
without violating any part of it, and also to construe
(z) Judgm., Jegon v. Vivian, L.
E.2C.P. 427 ; S. C, affirmed L. R.
3H.L 285.
" Facte extrinsic to the will most
be ascertained for the Court in the
usual manner, either by admission of
the parties or by a jury. When they
have been ascertained, the operation
of construction is to be performed by
the Court." Judgm., Webber v.
Stanley, 16 C. B. N. S. 752.
(a) See 2 Powell on Devises, by
Jarman, 3rd. ed. , 564, et seq. ; Doe d.
Blcsard v. Simpson, 8 Scott, N. R.
774; cited, per Byles, J., Richards
v. Davits, 13 C. B. N. S. 87, and
distinguished in HardcasUe v. Den*
nisonf 10 C. B. N. S. 606.
518
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
technical words in their proper sense, where they can be
so understood consistently with the context (6).
The following observations of V.-C. Knight Bmvce,
although having reference to the particular circumstances
of the case immediately under his consideration, show
clearly the general principles which guide the Court in
assigning a meaning to technical expressions.
"Both reason and authority, I apprehend," says the
learned Judge, " support the proposition that the de-
fendants are entitled to ask the Court to read and con-
sider the whole of the instrument in which the clause
stands; and, in reading and considering it, to bear in
mind the state of the testator's family, as at the time
when he made the codicil he knew it to be ; and if the
result of so reading and considering the whole document
with that recollection is to convince the Court, from its
contents, that the testator intended to use the words in
their ordinary and popular sense, and not in their legal
and technical sense, as distinguishable from their ordi-
nary and popular sense, to give effect to that conviction
by deciding accordingly " (c).
(b) Judgm. tDoe d. Cape v. Walker,
2 Scott, N. R. 334 ; Towns v. Went-
worth, 11 Moo., P. C. C. 526, 543 ;
per Martin, B., Biddulph v. Lees,
R. B. & E. 817 ; per Aldereon, B.,
Lees y. Moslty, 1 To. ft Coll. 589 ;
cited Arg. Greenwood v. Roth well 7
6 Scott, N. R. 672. See, also, Arg.
Testing v. Alien, 12 M. & W. 286 ;
Jack v. M'Intyre, 12 CI. & Fin.
158 ; Jenkins v. Hughes, 8 H. L.
Cas. 571.
Where the testator appears to have
been very illiterate, "the rules of
grammar and the usual meaning of
technical language may be disregarded
in construing his will ; " per Lord
Campbell, C, Hall y. Warren, 9 H.
L. Cas. 427.
Generally as to the duty of the Court
in construing a wjll containing tech-
nical words, see, further, per Lord
Westbury, C, Young v. Robertson,
4 Macq. Sc. App. Cas. 325 ; distin-
guished in Richardson t. Power, 19
C. B. N. S. 798 ; Ralston t. Hamil-
ton, 4 Macq. Sc App. Cas. 397;
Jenkins v. Hughes, 8 H. L Cas. 571.
(c) Per Knight Bruce, V.-C., Early
▼. Benbow, 2 Coll. 353.
INTERPBETATION OF DEEDS AND WRITTEN INSTRUMENTS. 519
The following instances may serve to illustrate the "Children."
above remarks (d) : — If a testator leaves his property to
be divided amongst his " children/' which is a word bear-
ing a strict technical meaning in law, the Court would at
once construe " children " as meaning children born in
wedlock ; and if there were any such children to whom
that term could be applied, the bequest would be limited
to them, although it might also appear that the testator
had other children born out of wedlock : and no evidence
would be admissible to show that he intended that his
property should be equally distributed amongst all his
children, whether legitimate or illegitimate. But if, upon
the evidence, it should appear that the testator never was
married, so that it was impossible to apply the language
of his will in its strict and primary sense, and if it further
appeared that he had illegitimate children whom he had
always treated as his children, such evidence, and any
other that would tend to prove that these were the
intended objects of his bounty, might be used for the
purpose of construing the bequest according to the less
strict and technical meaning of the term " children," so as
to give effect to the bequest of the testator, which would
otherwise be wholly inoperative (e).
In like manner, where a bequest is made to the " chit*
dren " or " issue " of A. B., the whole context of the will
must be considered, in endeavouring to ascertain the
proper effect to be attributed to the word " children "
or "issue." It may be, that the word " children," must be
(d) As to the meaning of the word 429.
" unmarried," see Clarke v. Colls, 9 (e) Per Erekine, J., Shore v. Wil-
H.L.Cas. 601,— of the words "eldest *m, 5 Scott, N. R. 990. See Sir
male lineal descendant/' TheUuston James Wigram's Treatise on Kxtr.
r. Lord BendUtham, 7 H. L. Cas. End., 3rd ed., 43, 58.
520
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
enlarged and construed to mean " issue " generally, or the
word "issue" restricted so as to mean "children/' and
each case must depend on the peculiar expressions used,
and the structure of the sentences (/). When, however,
the context is doubtful, the Court, so far as it can, will
prefer that construction which will most benefit the
testator's family generally, on the supposition that such
a construction must most nearly correspond with his
intention (g).
Lastly, in determining whether an estate-tail or a life
estate only passes under the words of a given testamen-
tary instrument, the same general rule of interpretation
above considered is applicable, and has thus been forcibly
stated and illustrated by Lord Brougham, who observes —
" I take the principle of construction, as consonant to reason
and established by authority, to be this — that, where by
plain words, in themselves liable to no doubt, an estate-
tail is given, you are not to allow such estate to be altered
and cut down to a life estate, unless there are other words
which plainly show the testator to have used the former
as words of purchase contrary to their natural or ordinary
sense, or unless in the rest of the provisions there be some
plain indication of a general intent inconsistent with an
estate-tail being given by the words in question, and
which general intent can only be fulfilled by sacrificing
(/) Also, -where in a devise there
is a gift over on general failure of
"issue," the word "issue" most,
primd facie, be understood to mean
" heirs of the body," unless from the
context it clearly appear that the
testator intended to give it a different
meaning ; Roddy v. Fitogerald, 6 H.
L. Gas. 828. See Bradley v. Cart-
wriyhl, L. R. 2 G. P. 511 ; East*
wood v. Avuony L. R. 4 Ex. 141 ;
per Lord Chelmsford, C, William*
t. Lewis, 6 H. L. Gas. 1021.
(g) Per Lord Langdale, M.B.,
FarrarU v. Nichols, 9 Bear. 329,
880 ; Slater v. Vangerfield, 15 M.
& W. 263 ; Richards y. Davics, 18
C. B. N. S. 69.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 521
the particular provisions, and regarding the expressions as
words of purchase. Thus, if there is a gift first to A. and
the heirs of his body, and then, in continuation, the
testator, referring to what he had said, plainly tells us,
that he used the words, * heirs of the body ' to denote A.'s
first and other sons, then, clearly, the first taker would
only take a life estate. So, again, if a limitation is made
afterwards, and is clearly the main object of the will,
which never can take effect unless an estate for life be
given instead of an estate-tail : here, again, the first
words become qualified, and bend to the general intent of
the testator, and are no longer regarded as words of
limitation, which, if standing by themselves, they would
have been " (h).
To the general maxims of construction applicable to
wills, viz., Benignb fadendce sunt interpretati(me8 et
verba intentioni debent in8ei*vire, the doctrine of cy-pres
is referable (i). According to this doctrine, which proceeds
upon the principle of carrying into effect as far and as
nearly as possible the intention of the testator, if there be
a general and also a particular intention apparent on
the will, and the particular intention cannot take effect,
the words shall be so construed as to give effect to the
general intention (k). Thus, where the devise was to the
second son of W. N. (who at the death of the testator had
no son) for his life, and after his death, or in case he should
inherit the paternal estate by the death of his elder
(h) Fethertton v. Fethertton, 3 CI. Hardcastit, 2 T. R. 254 ; Sfaep.
& Fin. 75, 76 ; per Lord Brougham, Touch. 87. The rale as to cy-pres is
C, Thornhill v. Hcdly 2 CL & Fin. stated, per Lord St. Leonards, C.,
36. Monypenny v. Bering, 2 De <3L M.
(») See per Lord St. Leonards, & G. 173. See, per Lord Kenyon,
Eatt v. Twyford, 4 H. L. Cas. 556. C.J., Brudendl v. JSZtpet, 1 East,
(k) Per Buller, J., Robinson v. 451.
022
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Cy-pres
when inap-
plicable.
Summary of
preceding
remark*.
brother, to his second son lawfully to be begotten and his
heirs male ; remainder to the third and other sons of
W. N. successively in tail male. Held, that the estate
vested in the second son of W. N. (when born) by exe-
cutory devise for an estate in tail male, determinable on
the accession of the paternal estate (I). So in the
case of a condition precedent annexed to a legacy, with
which a literal compliance becomes impossible from
unavoidable circumstances, and without any default of the
legatee ; or where a bequest is made for charitable pur-
poses, with which a literal compliance becomes inexpedient
or impracticable : in such cases a court of equity will apply
the doctrine of cy-pr&s, and will endeavour substantially,
and as nearly as possible, to carry into effect the intention
of the testator (m).
It is to be observed that the doctrine of cy-prfes does
not apply to limitations of personal estate, nor of a
mixed fund (n). Tt is also inapplicable where an' attempt
is made to limit a succession of life estates to the issue of
an unborn person either for a definite or indefinite series
of generations; and also where the limitation to the
children of the unborn person gives them an estate in fee
simple (o).
The remarks above made, and authorities referred
to, will serve to give a general view of the mode of
(l) Nicholl v. NicluM, 2 W. Bl.
1159. See, however, Monypenny
r. Daring, 16 M. k W. 418 ; 2 M. k
a. 145.
(m) 1 Story, Bq. Jarisp., 12th
ed., 1169-80, where this doctrine
is considered ; 1 J arm. Wills, 4th ed.,
248 ; Ironmonger* Co. v. A.-Q.9
10 CL k Fin. 908 ; Mill* v. Farmer,
19 Yes. 488. The entire doctrine of
equity with regard to trusts, and
especially such as are raised in a will
by precatory words, will at once occur
to the reader as fraught with illus-
trations of the maxims commented on
in the text.
(») Boughton y. Jama, 1 Coll. 1
H. L. Ca. 406.
(o) Jarman on Wills. 4th ed., Vol.
I. 801.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 523
applying to the interpretation of wills those very com-
prehensive maxims which we have been endeavouring to
illustrate and explain, and which are, indeed, comprised
in the well-known saying, — Ultima voluntas testator is est
perimplenda secundum yeram intentionem suam (p).
We shall, therefore sum up this part of our subject
with observing that the only safe course to pursue in
construing a will is to look carefully for the intention
of the testator as it is to be derived from the words
employed by him within the whole of the will, regardless
alike of any general surmise or conjecture from without
the will, as of any legal consequences annexed to the
estate itself, when such estate is discovered within the
will (q) ; bearing in mind, however, that where technical
rules have become established, such rules must be
followed, although opposed to the testator's presumable
and probable intention — that where technical expressions
occur they must receive their legal meaning, unless, from
a perusal of the entire instrument, it be evident that the
testator employed them in their popular signification —
that words which have no technical meaning shall be
understood in their usual and ordinary sense, if the con-
text do not manifestly point to any other (r) — that where
the particular intention of the testator cannot literally be
performed, effect will, in many cases; be given to the
general intention, in order that his wishes may be carried
out as nearly as possible, and ut res magis valeat qudm
pereat ; and lastly, that where, by acting on one interpre-
tation of the words used, it would make the testator act
(p) Co. Litt. 822. b. will is elaborately discussed, Duke qf
(q) Jndgm., 3 A. Sc E. 064. Leeds v. Earl Amherst, 9 Jur. 359 ;
(r) The question as to what will S. C, 18 Sim. 459.
pass tinder the word " portrait " in a
524? INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
capriciously without any intelligible motive, contrary to
the ordinary mode in which men in general act in
similar cases, then, if the language 'admits of two con-
structions, that construction may reasonably and properly
be adopted which avoids those anomalies, even though
that construction be not the most obvious or the most
grammatically accurate. But if the words used are un-
ambiguous, they cannot be departed from merely because
they lead to consequences which may be considered
capricious or even harsh and unreasonable («).
rriSSpic^of •"■t may n0* ^e uninteresting further to remark, that
the Roman ^e ^^ j^j down in the Roman law upon the subject
under consideration, are almost identical with those
above stated, as recognized by our own jurists at the
present day. Where, for instance, ambiguous expres-
sions occurred, the rule was, that the intention of him
who used them should especially be regarded, — In am-
biguis orationibus maodme sententia spectanda est ejus
qui eas protulisset (£), a rule which we learn was confined
to the interpretation of wills wherein one person only
speaks, and was not applicable to agreements generally,
in which the intention of both the contracting parties
was necessarily to be considered (u) ; and, accordingly
in another passage in the Digest, we find the same rule so
expressly qualified and restricted — Cum in testamenio
ambigue aut etiam perperam swlptum est benigne inter-
pretari et secundum id quod credibUe est cogitatum ere"
dendum est (x) — where an ambiguous, or even an erro-
{$) Abbott y. Middlcton, 7 H. L. (u) Wood, Inst 107.
Cas. 89 ; Bathurst y. Errington, 4 (x) D. 84. 5. 24 ; vide Brisaon.
Ch. D. 251 ; 2 App. Cas. 698 ; 46 L. ad. verb. "Pcrperum; " Pothier ad
J. Ch. 748. Pand. (ed. 1819), vol. 3, p. 46, where
(t) D. 50. 17. 96. examples of this rule are collected.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
525
neous expression occurs in a will, it should be construed
liberally, and in accordance with the testator's probable
meaning. In like manner we find it stated, that a
departure from the literal meaning of the words used is
not justifiable, unless it be clear that the testator himself
intended something different therefrom : — Non alitur a
significations verborwm recedi oportet qudm cum mani-
festum est aliud seTisisse testatorem (y) ; and, lastly, we
find the general principle of interpretation to which we
have already adverted thus concisely worded—- In testa-
mentis plenius voluntates testantium interpretantur (z),
that is to say, a will shall receive a more liberal construc-
tion than its strict meaning, if alone considered, would
permit (a).
The construction of a statute, like the operation of a conatmc-
' r # tlon of
devise, depends upon the apparent intention of the statutes.
maker, to be collected either from the particular provision
or the general context, though not from any general
inferences drawn merely from the nature of the objects
dealt with by the statute (6). Acts of Parliament and
wills ought to be alike construed according to the inten-
tion of the parties who made them (c) \ and the preceding
(y) D. 32. '69. pr. applied per
Knight Bruce, L. J., 2 De G., M. &
G. 318.
(*) D. 50. 17. 12.
. (a) Oajac. ad loc., cited 3 Pothier
ad Pand. 46.
(6) Fordyce v. Bridges, 1 H. L
Gas. 1. Where a casus omissus oc-
curred in a statute, the doctrine of
cy-prds was applied, Smith v. Wed-
derburne, 16 M. & W. 104. See
Balkeid v. Johnson, 2 C. B. 757.
(c) It is said, that a will is to be
favourably construed, because the
testator is inops consUii: "This,"
observed Lord Tenterden, " we can-
not say of the legislature, but we may
say that it is magnas inter opes
inops.1* 9 B. & C. 752, 753.
See the remarks of Wood, V.-C,
as to determining whether a man-
datory enactment is to be considered
directory only, or obligatory with an
implied nullification for disobedience,
Liverpool Borough Bank v. Turner,
29 L. J., Ohanc, 827 ; S. C, 30 Id.
379, approved in Ward v. Beck, 13
C. R N. S. 675-6.
526 INTERPRETATION OF DEEDS AKD WRITTEN INSTRUMENTS.
remarks as to the construction of deeds and testamentary
instruments will, therefore, in general, hold good with
reference to the construction of statutes, the great object
being to discover the true intention of the legislature ;
and where that intention can be indubitably ascertained,
the Courts are bound to give it effect, whatever may be
their opinion of its wisdom or policy (d) ; " acting upon
the rule as to giving effect to all the words of the statute,
a rule universally applicable to all writings, and which
ought not to be departed from, except upon very dear
and strong grounds " (e).
" The general rule," as observed by Bylesy J. (/), " for
the construction of Acts of Parliament is, that the words
are to be read in their popular, natural, and ordinary
sense, giving them a meaning to their full extent and
capacity, unless there is reason upon their face to believe
that they were not intended to bear that construction,
because of some inconvenience which could not have been
absent from the mind of the framers of the Act, which
must arise from the giving them such large sense."
And again — "In construing an Act of Parliament,
when the intention of the legislature is not clear, we must
adhere to the natural import of the words ; but when it is
clear what the legislature intended, we are bound to give
effect to it notwithstanding some apparent deficiency in
the language used " (g).
(d) See the analogous remarks of (e) Judgm., 8 Ezch. 860.
Lord Brougham, with reference more (/) Birks, app., Allison, reap., 13
particularly to the common law, in C. B. N. S. 23.
Meg. t. MiUis, 10 CL & Fin. 749 ; (?) Per Pollock, C.B., Huxham y.
also, per Vaughan, J., 9 A. & E. Wkcdar, 3 H. & 0. 80. See also
$$Q; Judgm., Fellow* y. Clay, 4 Q. Rothet y. Kirkcaldy WaUrwrlcB
B. 349 ; per Alexander, C.B., 2 Yo. Commistwncrs, 7 App. Cas. 702.
k J. 215.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
527
Hence, although the general proposition be undisputed
that " an affirmative statute giving a new right, does not
of itself and of necessity destroy a previously existing
right/' it will nevertheless have such effect, " if the
apparent intention of the legislature is that the two
rights should not exist together " (h).
A remedial statute, therefore, shall be liberally con- ^ffi£aax
strued, so as to include cases which are within the mischief ***<"**•
which the statute was intended to remedy (i); whilst,
on the other hand, where the intention of the legislature
is doubtful, the inclination of the Court will always be
against that construction which imposes a burthen (k),
tax (1), or duty (m), on the subject. It has been desig-
nated as a " great rule " in the construction of fiscal laws,
"that they are not to be extended by any laboured
(h) Per Lord Cran worth, 0.,
O'Flaherty v. MtDowell, 6 H. L.
Cas. 167. See Ez parte Warring-
ton, 3 De Gk, H. & G. 159.
(i) See Twyne's ease, 3 Rep. 80.
(k) Per Lord Brougham, Stockton
and Darlington R. C. v. Barrett,
11 CI. & Pin. 607; per Parke, B.,
Ryder v. Mills, 3 Bxch. 869, and in
Wrought™ v. Turtle, 11 M. & W.
567. "All acts which restrain the
common law ought themselves to be
restrained by exposition : " Ash v.
Abdy, 3 Swanst. 664. Mere per-
missive words shall not abridge a
common law right, Ex parte Clayton,
1 Rnss. k My. 372 ; per Erie, 0. J.,
Caswell, app., Cook, resp. 11 C. B.
N. S. 652.
(I) Per Parke, B., Re Mlckle-
ihvsait, 11 Bxch. 456 (cited Arg. 2 H.
& N. 373), and in A.-Q. v. Brad-
bury, 7 Bxch. 116, citing Dcnn v.
Diamond, 4 B. & C. 243 ; Mayor of
London v. Parkinson, 10 C. B. 228 ;
Judgm., Vauxhatt Bridge Co. v.
Sawyer, 6 Exch. 509.
(m) Judgm., Marquis of Chandos
r. Commissioners of Inland Revenue,
6 Exch. 479 ; per Wilde, C.J., 5 C.
B. 135. See per Bramwell, B.,
Foley v. Fletcher, 3 H. & N. 781-2.
" Acts of Parliament, however,
imposing stamp duties ought to be
construed according to the plain and
ordinary meaning of the words used : "
Judgm., Lord Foley v. CommU~
sioners of Inland Revenue, L. R. 3
Ex. 268.
If a statute imposing a toll contain
also exemptions from it in favour of •
the crown and of the public, any
clause so exempting from toll is " to
have a fair, reasonable, and not strict
construction :" per Byles, J., Toomer
v. Reeves, L R. 3 C. P. 66.
528
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
construction, but that you must adhere to the strict
rule of interpretation ; and if a person who is subjected
to a duty in a particular character or by virtue of a
particular description no longer fills that character, or
answers that description, the duty no longer attaches
upon him, and cannot bo levied " (n). A penalty, more-
over, must be imposed by clear words (o). The words of
a penal statute (p) shall be restrained for the benefit of
him against whom the penalty is inflicted, and the lan-
guage of the statute must be strictly looked at in order to
see whether the person against whom the penalty is
sought to be enforced has committed an offence within
it (3).
"The principle," remarked Lord Abinger, C. B.,
" adopted by Lord Tenterden (r), that a penal law ought
to be construed strictly, is not only a sound one, but the
only one consistent with our free institutions. The inter-
pretation of statutes has always in modern times been
(n) Per Lord Westbury, C, Dick-
son v. Reg. 11 H. L. Cas. 184.
(o) Per Alderson, B., WooUey v.
Kay, 1 H. & N. 309 ; Judgin.,
Ryder v. Mills, 8 Exch. 869, et seq. ;
Cot y. Lawrance, 1 E. & R 516,
520 ; Archer v. James, 2 B. & S. 61,
108. .
(p) In JL-G. v. SOlem, 2 H. & C.
481, the method of construing a
penal statute was much considered,
and there (Id. 530} Bramwell, B.,
says, "The law that governs this
case is a written law, an Act of Par-
liament, which we must apply acord-
ing to the true meaning of the words
used in it. We must not extend it
to anything not within the natural
meaning of those words, but within
the mischief or supposed mischief in-
tended to be prevented, nor must we
refuse to apply it to what is within
that natural meaning, because not, or
supposed not to be within the mis-
chief :" see also per Pollock, C.B.,
Id. 509.
"I suppose 'within the equity'
means the same thing as ' within the
mischief ' of the statute : "per Byles,
J., ShuUletDorth v. Le Fleming, 19
C. B. N. S. 703.
(q) Per Field, J., Graff v. Evans,
8 Q. B. D. 378; 61 L. J. M. C. 25.
(r) See Proctor ▼. Mainwaring,
3 B. & Aid. 145.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
529
highly favourable to the personal liberty of the subject,
and I hope will always remain so " (s).
This rule, however, which is founded on the tender-
ness of the law for the rights of individuals, and on the
plain principle that the power of punishment is vested
in the legislative and not in the judicial depart-
ment, must not be so applied as to narrow the words of
the statute to the exclusion of cases which those words
in their ordinary acceptation, or in that sense in which
the legislature has obviously used them, would com-
prehend (t).
We may add, in connection with this part of the Preamble.
subject, that although the enacting words of a statute are
not necessarily to be limited or controlled by the words of
the preamble, but in many instances go beyond it, yet, on
a sound construction of every Act of Parliament, the
words in the enacting part must be confined to that which
is the plain object and general intention of the legislature
in passing the Act ; and the preamble affords a good clue
to discover what that object was (u). " The only rule," it
has been said, " for the construction of Acts of Parliament
(«) Per Lord Abinger, O.8., Hen-
derson t. Sherborn, 2 M. & W. 286 ;
Judgm., Fletcher v. CaUhrop, 6 Q.
B. 887 ; cited and adopted, Murray
v. Beg., 7 Q. B. 707.
(t) See Judgm., United States v.
WUtberger, 5 Wheaton (U.S.), B* 95 ;
per Pollock, C.B., 3 H. & N. 812.
(u) Per Lord Tenterden, C.J.,
Saltan v. Cave, 1 B. & Ad. 538 ;
Judgm., Salkeld v. Johnson, 2 Exch.
288, and cases there cited ; per Kelly,
C.B., Winn v. Mossman, L. B. 4 Ex.
800 ; Carr ▼. Royal Exchange Ass.
Co., 1 B. & S. 956 ; per Maule, J.,
Edwards v. Hodges, 15 C. B. 484,
citing, per Lord Oowper, 0., Oopeman
v. Gallant, 1 P. Wms. 314; per
Coleridge, J., Pocock v. Pickering,
18 Q. B. 797, 798 ; Co. Litt. 79. a. ;
per Bailor, J., Crespigny v. Witte-
noom, 4 T. R. 793 ; Arg., Skinner v.
Lambert, 5 Scott, N. R., 206 ; and
cases cited in Whitmore v. Robertson,
8 M. & W. 472 ; Stockton and Dar-
lington R. O. v. Barrett, 11 CI. &
Fin. 590; Arg., Sterry v. Clifton,
9 C. B. 110.
M M
530
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Headings
and Recitals.
is, that they should be construed according to the intent
of the Parliament which passed the Act. If the words of
the statute are in themselves precise and unambiguous,
then no more can be necessary than to expound the words
in their natural and ordinary sense. The words them-
selves alone do, in such case, best declare the intention of
the lawgiver. But if any doubt arises from the terms
employed by the legislature, it has always been held a
safe means of collecting the intention, to call in aid the
ground and cause of making the statute, and to have
recourse to the preamble, which, according to Chief
Justice Dyer (x), is a ' key to open the minds of the
makers of the Act, and the mischiefs which they intended
to redress ' " (y).
The heading of a portion of a statute may, it would
seem, be referred to to determine the sense of any
doubtful expression in a section ranged under it (z) ; and
a recital of an Act of Parliament, stating its object, has
been held to limit general words in the enacting part to
the object as declared in the recital (a).
(x) Plowd. 369.
(y) Per Tindal, C.J., delivering
the opinion of the Judges in The
Sussex Peerage, 11 CI. & Fin.
148.
See farther as to the office of the
preamble, per Bnller, J., R. v. Robin-
son, 2 Bast, P. C. 1113, cited R. v.
Johnson, 29 St. Tr. 308.
The title of a statute " is certainly
no part of the law, and in strictness
ought not to be taken into considera-
tion at all:" Judgm., Salheid v.
Johnson, 2 Exoh. 288, and cases
there cited. See 8 H. L. Cas. 603 (h) ;
per Willes, J., Claydon v. Green, L.
R. 3 C. P. 522.
The marginal note to a section of a
statute in the copy printed by the
queen's printer, forms no part of the
statute itself, and does not bind as
explaining or construing the section.
Oaydon v. Green, L. B. 3 C. P. 511,
522, followed in Sutton y. Sutton, 22
Ch. DiT. 521 ; 52 L. J. Ch. 334, dis-
senting from Venour r. Selion, 2
Ch. D. 522.
(e) Hammersmith Railway Co. v.
Brand, LR.4H.L Cas. 171. 8ee
Eastern Counties R. Co. r. Marriage,
9 H. L. Cas. 32.
(a) Howard v. Earl of Shrews'
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
531
The golden rule for construing wills, statutes, and, in The "golden
rule*
fact, all written instruments has been thus stated : " The
grammatical and ordinary sense of the words is to be
adhered to unless that would lead to some absurdity or
some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary
sense of the words may be modified, so as to avoid that
absurdity and inconsistency, but no further "(6). The
"golden rule" must, however, be applied with much
caution. " If," remarked the late Chief Justice Jervis (c),
M the precise words used are plain and unambiguous in our
judgment, we are bound to construe them in their ordinary
sense, even though it do lead, in our view of the case, to
an absurdity or manifest injustice. Words may pe
modified or varied, where their import is doubtful or
obscure. But we assume the functions of legislators
when we depart from the ordinary meaning of the precise
words used, merely because we see, or fancy we see, an
absurdity or manifest injustice from an adherence to their
literal meaning."
It may then safely be stated as an establishsd rule of JJJJJj11* of
construction, that an Act of Parliament should be read
according to the ordinary and grammatical sense of the
words (d), unless, being so read, it would be absurd or
bury, L. R. 17 Eq. 378 ; 34 L. J.
«fa. 495.
(6) Qrey v. Pearson, 6 H. L. Cas.
61, 106 ; cited with approval, Cale-
donian Railway Co. v. North British
Railway Co., 6 App. Cam 114, 131 ;
29 W. R. 685.
(c) 11 C. B. 391 ; per Pollock,
C.B., 9 Exch. 475. See Woodward
v. Watts, 2 E. & B. 457.
(d) " It is a good role, in the con-
struction of Acts of Parliament, that
the Judges are not to make the law
what they may think reasonable, but
to expound it according to the common
sense of its words : " per Cresswell,
J., Biffin v. Yorke, 6 Scott, N. R.,
235 ; Richards v. M'Bride, 8 Q. B.
D. 119 ; 51 L. J. M. C. 15. See
also, .Judgm., R. v. Hall, 1 B. & C.
M M 2
532
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
inconsistent with the declared intention of the legislature,
to be collected from the rest of the Act (e), or unless a
uniform series of decisions has already established a par-
ticular construction (/), or unless terms of art are used
which have a fixed technical signification : as, for in-
stance, the expression " heirs of the body/' which conveys
to lawyers a precise idea, as comprising in a legal sense
only certain lineal descendants; and this expression
shall, therefore, be construed according to its known
meaning (g).
It is also a rule of the civil law adopted by Lord Bacon,
which was evidently dictated by common sense, and is in
accordance with the spirit of the maxim which we have
been considering, that, where obscurities, ambiguities, or
faults of expression render the meaning of an enactment
doubtful, that interpretation shall be preferred which is-
most consonant to equity, especially where it is in con-
formity with the general design of the legislature. In
ambigud voce legis ea potius acdpienda est signification
quce vitio caret, prcesertim cum etiam voluntas legis ex
hoc coUigipossit (h). And, according to a recent case, if the
Act is ambiguous, and upon one construction the balance
of hardship or inconvenience seems to be strongly against
123 ; cited 2 C. B. 66 ; and in The
Lion, L. B. 2 P. C. 530 ; Straeey t.
Nelson, 12 M. k W. 541 ; United
States ▼. Fisher, 2 Cranch. (U. S.),
R. 286 ; cited 7 Wheaton (U. &), R.
169.
(e) Judgm., Smith v. Bell, 10 M.
k W. 389 ; Turner r. Sheffield R. C,
Id. 434 ; Judgm. , Steward ▼. Qreaves,
10 M. k W. 719 ; per Alderson, B.,
A.-G. 7. loci-wood, 9 M. k W. 398 ;
Judgm., Hyde v. Johnson, 2 Ring.,
N. C. 780.
(/) Per Parke, B., Doe d. EUi*
t. Owens, 10 M. k W. 521 ; per
Lord Brougham, C, The Earl of
Waterford's Peerage, 6 CI. & Pin.
172.
{g) 2 Dwarr. Stats. 702 ; Poole ▼.
PooU, 3 B. & P. 620.
(h) D. 1. 8. 19 ; Baa, Max., reg.
3.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 533
the public, the balance of inconvenience may be considered
in determining the question of construction (i).
EX ANTECEDENTIBUS ET CONSEQUENTIBUS FIT OPTIMA
Interpretatio. (2 Inst 173.) — A passage will be
best interpreted by reference to that which precedes
and follows it
It is a true and important rule of construction, that Rule.
the sense and meaning of the parties to any particular
instrument should be collected ex antecedentibus et conse-
quentiims ; that is to say, every part of it should be
brought into action, in order to collect from the whole
one uniform and consistent sense, if that may be done (k) ;
or, in other words, the construction must be made upon
the entire instrument, and not merely upon disjointed
parts of it (I) ; the whole context must be considered, in
endeavouring to collect the intention of the parties,
although the immediate object of inquiry be the meaning
of an isolated clause (m). In short, the law will judge of
a deed, or other instrument, consisting of divers parts or
clauses, by looking at the whole ; and will give to each
(t) Dixon y, Caledonian Co., 5 (Q Lord North v. Bishop of Ely,
App. Gas. S27 ; 43 L. T. 513. cited 1 Bulst. 101 ; and Judgm.,
(k) Per Lord Ellenborongh, C. J., Doe d. Mtyrick v. Meyrick, 2 Cr. &
Barton v. Fitzgerald, 15 East, 541 ; J. 230 ; MaiUand v. Mackinnon, 1
Shep. Touch. 87 ; per Hobart, C. J., H. & 0. 607.
Winch. 93. See Micldethwait v. (m) Coles v. ITulme, 8 B. & 0.
Micklethwait, 4 C. B. N. S. 790, 568 ; Hobart, 275 ; cited QdU v.
862. Heed, 8 East, 79.
534 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
part its proper office, so as to ascertain and carry out tbe
intention of the parties (ri).
Examples. Thus, in the case of a bond with a condition, the latter
may be read and taken into consideration, in order to
correct and explain the obligatory part of the instru-
ment (o). So, in construing an agreement in the form of
a bond in which a surety becomes liable for the due
fulfilment of an agent's duties therein particularly enu-
merated, a general clause in the obligatory part of tbe
bond must be interpreted strictly, and controlled by
reference to the prior clauses specifying the extent of the
agency (p). On the same principle, the recital in a deed
or agreement may be looked at in order to ascertain the
meaning of the parties, and is often highly important for
that purpose (q) : and the general words of a subsequent
distinct clause or stipulation may often be explained or
qualified by the matter recited (r). Where, indeed, " the
words in the operative part of a deed of conveyance are
clear and unambiguous, they cannot be controlled by the
recitals or other parts of the deed." But where, on the
other hand, " those words are of doubtful meaning, the
recitals and other parts of the deed may be used as a
test to discover the intention of the parties, and to fix
(») See Hobart, 275 ; Doe d. Mar- (r) PayUr v. Homershun, 4 M. ft
quia of Bute v. Guest, 15 M. ft W. 8. 423 ; cited in Harrison v. Black-
160. burn, 17 0. B. N. S. 691 ; Simons r,
(o) Coles v. Hulme, 8 B. ft 0. Johnson, 3 a ft Ad. 180 ; Boyes ▼,
568 ; and cases cited, Id. 574, n. (a). Bluek, 18 C. B. 652 ; Solly v. Forbe$T
(p) Napier v. Bruce, 8 CI. & Fin. 2 B. & B. 38 ; Charletonr. Spencer,
470. 3 Q. B. 693 ; Sampson v. Easterby,
(q) Shep. Touch. 76 ; The Mar- 9 B. ft C. 506 ; 8. C. (affirmed in
quis of ChoUnondeley v. Lord Clin- error), 1 Or. ft J. 105 ; Price t.
ton, 2 B. ft Aid. 625 ; S. C, 4 Barker, 4 B. ft a 760, 777 ; Hen-
Bligh, 1. derson v. Stobart, 5 Bxch. 99.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 535
the true meaning of those words "(0). So, covenants
are to be construed according to the obvious intention of
the parties, as collected from the whole context of the
instrument containing them, and according to the reason-
able sense of the words ; and, in conformity with the rule
above laid down, a covenant in large and general terms
has frequently been narrowed and restrained (<), where
there has appeared something to connect it with a
restrictive covenant, or where there have been words
in the covenant itself amounting to a qualification (u) :
and it has, indeed, been said, in accordance with the
above rule, that, " however general the words of a cove-
nant may be, if standing alone, yet, if from other
covenants in the same deed, it is plainly and irresistibly
to be inferred that the party could not have intended to
use the words in the general sense which they import,
the Court will limit the operation of the general
words " (x).
It is, moreover, as a general proposition, immaterial
in what part of a deed any particular covenant is in-
serted (y) ; for the construction of a deed does not depend
on the order of the covenants, or upon the precise terms
of them ; but regard must be had to the object, and the
whole scope of the instrument (2). For instance, in the
(9) Judgm.,Walsh y. Trevanion, 265.
15 Q. B. 751. (u) Jndgm., Smith v. Compton, 8
(t) Per Lord EUenborongh, O.J., B. ft Ad. 200.
Iggulden v. May, 7 Batt> 241 ; (a?) Judgm., Hem t, Stevemon, S
Plowd. 329 ; Cage v. Paxton, 1 B. ft P. 574. See the maxim as to
Leon. 116 ; Broughton v. Conway, verba generalia, poet.
Moor, 58 ; Qale v. JUed, 8 East, 89 ; (y) Per Bailer, J., 5 T. R. 526 ;
Sicklemorev. Th*deton,6M.£c S. 9; 1 Wms. Saand. 60, n. (/).
cited, JoweU v. Spencer, 15 M. ft W. (2) Per Wilde, O.J., Richardt v.
662 ; Hern v. Stevenson, 8 B. ft P. Muck, 6 C. B. 441.
865. See Doe v. Godwin, 4 M. ft S.
536 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS,
indenture of lease of a colliery, two lessees covenanted
"jointly and severally in manner following;" and then
followed a number of covenants as to working the colliery ;
after which was a covenant, that the moneys 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
covenants by the lessees extended to all the subsequent
covenants thoughout the deed on the part of the lessees,
there not being anything in the nature of the subject to
restrain the operation of those words to the former part
only of the lease (a).
Again, words may be transposed, if it be necessary to
do so in order to give effect to the evident intent of the
parties (b) ; as, if a lease for years be made in February,
rendering a yearly rent payable at Michaelmas-day and
Lady-day during the term, the law will make a transpo-
sition of the feasts, and read it thus, "at Lady-day and
Michaelmas-day," in order that the rent may be paid
yearly during the term. And so it is in the case of an
annuity (c). And, although courts of law have no power
to alter the words, or to insert words which are not in
the deed, yet they may and ought to construe the words
in a manner most agreeable to the meaning of the grantor,
and may reject any words that are merely insensible (d).
Likewise, if there be two clauses or parts of a deed (e) re-
pugnant the one to the other, the former shall be received,
and the latter rejected, unless there be some special reason
(a) Duke of Northumberland v. (c) Co. Litt. 217. b.
JSrrinffton, 5 T. R. 522 ; Copland v. (d) Per Willes, C.J., 3 Atk. 136 ;
Laporte, 3 A. & E. 517. S. C, Willes, R. 332 ; Savile, 71.
(6) Parkhurtt v. Smith, Willes, R. (e) Seeut of a will, see p. 538.
332 ; 8. a, 8 Atk. 135.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
637
to the contrary (/) ; for instance, in a grant, if words of
restriction are added which are repugnant to the grant,
the restrictive words must be rejected (g).
It seems, however, to be a true rule, that this rejection
of repugnant matter can be made in those cases only
where there is a full and intelligible contract left to
operate after the repugnant matter is excluded ; other-
wise, the whole contract, or such parts of it as are de-
fective, will be pronounced void for uncertainty (h). And
as already observed, "if a deed can operate two ways, one
consistent with the intent, and the other repugnant to it,
the Courts will be ever astute so to construe it, as to give
effect to the intent/' and the construction must be made
on the entire deed (i).
A marriage settlement recited that it was the intention
of the parties to settle a rent-charge or annuity of 1,000Z.
per annum on the intended wife, in case she should
survive her husband. In the body of the deed the words
used were " 1,000£. sterling lawful money of Ireland."
It was held that the words " of Ireland " must be excluded,
for the expression could have no meaning, unless some of
the words were rejected, and it is a rule of law, that, if the
first words used would give a meaning, the latter words
(/) Shop. Touch. 88 ; Hardr. 94 ;
Walker v. Giles, 6 C. B. 662, cited,
In re Royal Liver Friendly Society,
L. ft 5 Ex. 80.
(y) Hobart, 172 ; Mills v. Wright,
1 Proem. 247.
(h) 2 Anderson, R. 103. In Doe
d. Wyndham v. Carew, 2 Q. B. 817,
a proviso in a lease was held to be
insensible. In Youde v. Jones, 13
M. & W. 534, an exception intro-
duced into a deed of appointment
under a power was held to be repug-
nant and void. See, also, FurnivaU
v. Coombes, 6 Scott, N. ft, 522 ;
cited in Kdncr v. Baxter, LR.2C.
P. 186 ; White v. Hancock, 2 C. B.
830. In Scott v. Avery, 8 Exch.
487 ; S. C, 5 H. L. Gas. 811, various
authorities having reference to repug-
nant stipulations in contracts are
cited.
(i) Per Turner, V.-C, Squire v.
Ford, 8 Hare, 57.
538 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
must be excluded (j). So, we read that, if one makes a
lease for ten years " at the will of the lessor/' this is a
good lease for ten years certain, and the last words are
void for the repugnancy (i). And without multiplying
examples to a like effect, the result of the authorities
seems to be that " when a court of law can clearly collect
from the language within the four corners of a deed or
instrument in writing the real intention of the parties,
they are bound to give effect to it by supplying anything
necessarily to be inferred from the terms used, and by
rejecting as superfluous whatever is repugnant to the
intention so discerned " (2).
Where, however, two clauses or gifts in a will are irre-
concilable, so that they cannot possibly stand together, the
clause or gift which is posterior in position shall prevail,
the subsequent words being considered to denote a subse-
quent intention : Cum duo inter ae pugnantia reperi-
untur in testamento vltimum ratv/m est (m). It is well
settled that where there are two repugnant clauses in a
will, the last shall prevail, as being most indicative of the
intent (n), and this results from the general rule of con-
struction; for, unless the principle were recognized of
adopting one and rejecting the other of two repugnant
clauses, both would be necessarily void, each having the
effect of neutralising and frustrating the other (o). There-
(j) Cope t. Cope, 15 Sim. 118. are also considered.
(*) Bac Abr., tit Leases and (m) Co. Liti. 112. b.
Items for Tears, L. 3, cited and dis- (n) 16 Johns. (U.S.), R. 546.
tingnished in Morton ▼. Wood*, L. B. (o) 1 Jann., Wills, 4th edL, 472-3,
4 Q. B. 805. Also, words and passages in a will,
(/) Per Kelly, C.B., Owyn v. which cannot be reconciled with
Neath Canal Co., L. B. 3 Ex. 215, the general context, may be re-
where the functions of a court of jected.
equity in reforming an instrument
INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS.
539
fore, if a testator, in one part of his will, gives to a
person an estate of inheritance in land, or an absolute
interest in personalty, and in subsequent passages un-
equivocally shows that he means the devisee or legatee
to take a life-interest only, the prior gift is restricted
accordingly (p).
The maxim last mentioned must, however, in its
application, be restricted by, and made subservient to,
that general principle, which requires that the testator's
intention shall, if possible, be ascertained and carried into
effect (q).
Lastly, it is an established rule, in construing a statute interpre-
that the intention of the law-giver and the meaning of the ■***!*■•
law are to be ascertained by viewing the whole and every
part of the Act. One part of a statute must be so con-
strued by another that the whole may, if possible,
stand (r) ; and that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignifi- Every woni
cant ; and it is a sound general principle, in the exposition effect.
of statutes, that less regard is to be paid to the words
used than to the policy which dictated the Act ; as,
if land be vested in the King and his heirs by Act
of Parliament, saving the right of A, and A has at
that time a lease of it for three years, in this case
(p ) Id. 472. See, also, Doe d.
Murch v. Marchant, 7 Scott, N. R.
644.
(q) Morrall v. Sutton, 1 Phill.
545, 546. See Greenwood v. Sut-
cliffe, 14 C. B. 226, 235 (a) ; Plenty
r. West, 6 C. B. 201, 219.
(r) Thus, in Fitzgerald's case, L.
R. 5 Ex. 33, Pigott, B., referring to
stat 15 & 16 Vict. c. 57, says, " We
must deal with the Act in the ordinary
way, that is, put on it a reasonable
construction ; and if the words are
ambiguous we must interpret it ut
res magi* valeat quampereat."
Where the proviso of an Act of
Parliament is directly repugnant to
the purview, the proviso shall stand
and be a repeal of the purview, as
it speaks the last intention of the
makers: A.-G. v. Chelsea Water*
works Co., Pitzgib. 195.
540 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
A. shall hold it for his term of three years, and after-
wards it shall go to the King; for this interpretation
furnishes matter for every clause to work and operate
upon (*).
Also, if any section be intricate, obscure, or doubtful
the proper mode of discovering its true meaning is by
comparing it with the other sections, and finding out the
sense of one clause by the words or obvious intent of
another (t). This, as Sir E. Coke observes, is the most
natural and genuine method of expounding a statute (u) ;
and it is, therefore, a true principle, that verba posteriora
propter certitudinem addita ad priora quce certitvdine
indigent sunt referenda (x) — reference should be made to
a subsequent section in order to explain a previous clause
of which the meaning is doubtful.
We may add, too, that, " Where an Act of Parliament
has received a judicial construction putting a certain
meaning on its words, and the legislature in a subsequent
Act in pari miter id uses the same words, there is a pre-
sumption that the legislature used those words intending
to express the meaning which it knew had been put upon
the same words before ; and unless there is something to
rebut that presumption, the Act should be so construed,
even if the words were such that they might originally
have been construed otherwise " (y). This principle was
recognized and followed by the Court of Appeal in the
(*) 1 Com. by Broom ft Hadley, (x) Wing. Max., p. 167 ; 8 Rep.
96, 97 ; Bac Abr., " Statute " (I. 2) ; 236. See 4 Leon B. 248.
Arg. Bine v. Reynridi, 2 Scott, N. B. <y) 11 H. L. Cm. 480-1. & v.
419. The Poor Law CommUsionere (St.
(t) StovoeU v. Lord Zouch, Howd. Pancrat), 6 A. ft B. 7. See, also,
365 ; Doe d. Bywattr r. Brandling, per Parke, B., Perry v. Skinner, 2
7 B. ft C. 643. M. ft W. 476.
(u) Co. Litt. 381. a.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
541
case of Greaves v. Tofield (z)9 where a landowner by deed
charged his land with a life annuity which was never regis-
tered under the provisions of 18 & 19 Vict. c. 15, s. 12 ; he
subsequently mortgaged the property to a third person, who
took with notice of the annuity : it was held that as the
statute 18 & 19 Vict. c. 15, s. 12, was in similar terms to
the clauses in the Registry Acts which had been decided
not to make an unregistered conveyance void as against a
subsequent purchaser who had notice, the legislature
must be taken to have used the words in the later Act in
the sense given to them by those decisions, and that the
annuities, therefore, were valid as against the mortgagee.
Noscitur A Socus. (3 T. & 87.) — The meaning of a
word may be ascertained by reference to the meaning
of words associated with it (a).
It is a rule laid down by Lord Bacon, that copvZatio Grammati-
col rules.
verborum indicat acceptationem in eodem sensu (b) —
the coupling of words together shows that they are to be
understood in the same sense. And, where the meaning
of any particular word is doubtful or obscure, or where
the particular expression when taken singly is inoperative,
(z) 14 Ch. Div. 563 ; 50 L. J. Ch.
119.
(a) This, it has been observed, in
reference to King v. Melting, 1 Vent.
225, was a role adopted by . Lord
Hale, and was no pedantic or incon-
siderate expression when falling from
him, bat was intended to convey, in
short terms, the grounds upon which
he formed his judgments. See 3 T.
B. 87 ; 1 B. k C. 644 ; Arg. 13 East,
531. See, also, Buhop v. Elliott, 11
Exch. 113 ; S. C, 10 Id. 496, 519,
which offers an apt illustration of the
maxim tupra ; Burt v. ffasleU, 18
C. B. 162 ; S. C, Id. 893.
(6) Bac. Works, vol. 4, p. 26.
542 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
the intention of the party who has made use of it may
frequently be ascertained and carried into effect by looking
at the adjoining words, or at expressions occurring in other
parts of the same instrument, for quae non valeant
singula juncta juvant (c) — words which are ineffective
when taken singly operate when taken conjointly : one
provision of a deed, or other instrument, must be con-
strued by the bearing it will have upon another (d).
It is not proposed to give many examples of the
application of the maxim Noeeitur A sociis, nor to enter
at length into a consideration of the very numerous cases
which might be cited to illustrate it : it may, in truth, be
said to be comprised in those principles which universally
obtain, that courts of law and equity will, in construing a
written instrument, endeavour to discover and give effect
to the intention of the party, and with a view to so doing,
will examine carefully eveiy portion of the instrument.
The maxim is, moreover, applicable, like other rules of
grammar, whenever a construction has to be put upon a
will, statute, or agreement ; and although difficulty very
frequently arises in applying it, yet this results from the
particular words used, and from the particular facts exist-
ing in each individual case ; so that one decision, as to
the inference of a person's meaning and intention, can be
considered as an express authority to guide a subsequent
decision only where the circumstances are similar, and the
words are identical or nearly so.
Policy of The following instance of the application of the maxim,
Noscvtur A sociis, to a mercantile instrument may be
mentioned on account of its importance, and will suffice
(c) 2 Bulstr. 132. Bing. 391 ; per Lord Kenyon, C.J.,
(d) Arg. Galley v. BarrvngUm, 2 4 T. R. 227.
insurance.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
to show in what manner the principle which it expresses
has been made available for the benefit of commerce.
The general words inserted in a maritime policy of in-
surance after the enumeration of particular perils are as
follow : — " and of all peril*, losses, and misfortunes, that
have or shall come to the hurt, detriment, or damage of
the said goods and merchandises, and ship, &c., or any
part thereof." These words, it has been observed, must
be considered as introduced into the policy in furtherance
of the objects of marine insurance, and may have the
effect of extending a reasonable indemnity to many cases
not distinctly covered by the special words: they are
entitled to be considered as material and operative words,
and to have the due effect assigned to them in the con*
struction of this instrument ; and this will be done by
allowing them to comprehend and cover other cases of
marine damage of the like kind with those which are
specially enumerated, and occasioned by similar causes ;
that is to say, the meaning of the general words may
be ascertained by referring to the preceding special
words (e).
That the exposition of every will must be founded on Maxim ap-
plies In the
the whole instrument, and be made ex antecedentibus et ^p^]?oa
consequentibus, is, observes Lord EUenborough, one of
the most prominent canons of testamentary construction ;
of wills.
(«) See Judgm., Chdlen v. Butler,
5 M. & 8. 495 ; cited in Davidson v.
Burnand, L. R. 4 C. P. 117, 120 ;
West India Telegraph Co. v. Home
and Colonial Insur. Co., 6 Q. B. D.
51 ; 50 L. J. Q. B. 41 ; Lozano r.
Janson, 2 E. & E. 160 ; Phillips v.
Barber, 5 B. & Aid. 161 ; Devavx
y. J' Anson, 5 B. & C. 519. In
Borradaile v. Hunter, 5 M. & Gr.
639, 667, this maxim is applied by
Tindal, C.J. {diss, from the rest of
the Court), to explain a proriso in a
policy of life insurance. In Clift v.
Schwabe, 3 C. B. 437, the same
maxim was likewise applied in similar
circumstances ; see Dormay v. Borra-
daile, 5 C. B. 380.
544 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
and therefore, in this department of legal investigation,
the maxim Noscitur d, sociis is necessarily of very frequent
practical application : yet where between the parts there
is no connection by grammatical construction, or by some
reference, express or implied, and where there is nothing
in the will declarative of some common purpose, from
which it may be inferred that the testator meant a similar
disposition by such different parts, though he may have
varied his phrase or expressed himself imperfectly, the
Court cannot go into one part of a will to determine
the meaning of another, perfect in itself, and without
ambiguity, and not militating with any other provision
respecting the same subject-matter, notwithstanding that
a more probable disposition for the testator to have made
may be collected from such assisted construction. For
instance, if a man should devise generally his lands, after
payment of his debts and legacies, his trust (/) estates
would not pass ; for, in such case Noscitwr A sociis what
the land is which the testator intended to pass by such
devise : it is clear he could only mean lands which he could
subject to the payment of his debts and legacies. But,
from a testator having given to persons standing in a cer-
tain degree of relationship to him a fee-simple in certain
land, no conclusion which can be relied on can be drawn,
that his intention was to give to other persons standing in
the same rank of proximity the same interest in another
part of the same land ; and where, moreover, the words of
«
the two devises are different, the more natural conclusion
is, that, as the testator's expressions are varied, they were
altered because his intention in both cases was not the
same (g).
(/) Roed. Reade v. Readt, 8 T. (?) Judgm., Right v. Compton, 9
R. 118. East, 272, 278 ; 11 East, 228 ; Hay
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 545
In addition to the preceding remarks, a few instances Distinction
may here conveniently be referred to, illustrating the conjunctive
distinction between the conjunctive and the disjunctive {J^™"
which it is so essential to observe in construing a testa-
mentary instrument
A leasehold estate for a long term was devised after
the death of A., to B. for life, remainder to his child or
children by any woman whom he should marry, and his
or their executors, &c, for ever, upon condition, that,
in case the said B. should die, " an infant, unmarried, and
without issue," the premises should go over to his father
and his three other children, share and share alike, and
their heirs, executors, &c. : — Held, that the devise over
depended upon one contingency, viz., B.'s dying an infant
attended with two qualifications, viz., his dying without
leaving a wife surviving him, or dying childless ; and that
the devise over could only take effect in case B. died in
his minority, leaving neither wife nor child; and it was
observed by Lord Ellenborough, in delivering judgment,
that, if the condition had been, " if he dies an infant, or
unmarried, or without issue/' that is to say, in the dis-
junctive throughout, the rule would have applied in dis-
junctivis sufficit alteram partem esse veram (h) ; and,
consequently, that if B. had died in his infancy, leaving
children, the estate would have gone over to B.'s father
and his children, to the prejudice of B.'s own issue (i).
t. Earl of Coventry, 3 T. R. 83 ; 450. See, also, Vanddeur v. Van-
per Coltman, J., Knight v. Sdby, deleur, 8 CL & Fin. 98, where the
3 Scott, N. R. 409, 417 ; Arg. 1 M. maxim is differently applied.
& S. 333. See Sanderson ▼. Dobson, (h) Co. Litt 225. a. ; 10 Rep. 58 ;
cited ante, p. ; and per Byles, J., Wing. Max., p. 18; D. 50. 17. 110.
Jegon v. Vivian, L. B, 1 C. P. 24 ; § 3.
S. C, 2 Id., 422, L. R. 3 H. L. 289 ; (i) Doedu Everett v. Cooke, 7 East,
Doe d. Haw v. Earles, 15 M. & W. 272 ; Johnton v. Simcock, 7 H. & N.
N N
546 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
According to the same rule of grammar, also, where a
condition inserted in a deed consists of two parts in the
conjunctive, both must be performed, but otherwise where
the condition is in the disjunctive ; and where a condition
or limitation is both in the conjunctive and disjunctive,
the latter shall be taken to refer to the whole ; as, if a
lease be made to husband and wife for the term of twenty-
one years, " if the husband and wife, or any child between
them shall so long live/' and the wife dies without issue,
the lease shall, nevertheless, continue during the life of
the husband, because the above condition shall be con-
strued throughout in the disjunctive (k).
The disjunctive is also read as conjunctive, except in
devises which create an estate tail, where an estate is
limited to A. and his heirs, but if A. should die under the
age of twenty-one or without issue then over. The
principle is stated to. be that where the dying under
twenty-one is associated with the event of the devisee
leaving an object who would take an interest derivatively
through him, the copulative (or conjunctive) construction
is to prevail (I). Therefore if A dies under twenty-one
leaving issue the gift over fails ; and also if A. attains the
age of twenty-one, but dies without issue, the gift over
fails since both events must happen, i.e., A dying under
twenty-one and leaving no issue, before the gift over can
take effect.
statutes. In the construction of statutes, likewise, the rule
344; S. 0., 6 Id. 6. An to changing (k) Co. Litt 225. a, ; Shep. Touch.
the copulative into the disjunctive, 138, 139. See, also, Bwrgen v.
see 1 Jarman on Wills, 4th ed., 505, Bracker, 2 Lord. Raym. 1366.
et teq. ; Mortimer v. Hartley, 6 (I) Jarman on Wills, 4th ed., toL
Sxch. 47 ; a 0., 6 0. B. 819 ; 8 De 1, 508.
G. fc 8. 816.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 547
Nosdtv/r d sociis is very frequently applied, the meaning
of a word, and, consequently, the intention of the legis-
lature, being ascertained by reference to the context, and
by considering whether the word in question and the
surrounding words are, in fact, ejusdem generis, and
referable to the same subject-matter (m). Especially
must it be remembered that " the sages of the law have
been used to collect the sense and meaning of the law by
comparing one part with another and by viewing all the
parts together as one whole, and not of one part only by
itself — nemo enim aZiquam, partem recti intdligere possit
antequam totum iterum atque iterum perlegerit " (ri).
The following illustrations will show how general words General
words iu ft
in a statute are more or less limited by the particular 8tat**«» *>ow
"/ r controlled.
words which precede them. By the statute 7 & 8 Geo.
IV., c. 75, 8. 37, a penalty is imposed upon any person
not being a freeman of the Watermen's Company, who
shall navigate any wherry, lighter, or other craft upon
the Thames within certain limits. It was held upon the
principle of the maxim Noscitur d sociis, that a steam
tug of eighty-seven tons burden engaged in moving
another vessel was not a craft within the meaning of the
statute (o).
Again, by 5 Geo. IV., a 83, s. 4, it is an offence to use
any subtle craft, means, or device by palmistry, or other-
wise, to deceive and impose on any of His Majesty's
(m) Per Coleridge, J.v Cooper v. gey, 5 Bxch. 294, 298 — to ascertain
Harding, 7 Q. B. 941 ; Judgm., the meaning of libellous words in
Stephen* v. Taprell, 2 Curt. 465 ; WaUey x. Cooke, 4 Bxch. 511, 519.
per Channel!, B., Pearton v. Hull (») Arg., 7 Howard (U.S.), B.
Local Board of Health, 3H.&C. 637, citing Lincoln College cote, 3
944. Bep. 596.
The maxim supra was applied to (o) Heed v. Ingham, 3 HL & BI.
construe a statute in Hardy v. Tin- 889.
K N 2
548 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
subjects. The defendant having attempted to deceive
and impose upon certain persons by falsely pretending to
have the supernatural faculty of obtaining from the spirits
of the dead answers and raps, was held properly convicted
of the offence specified in the statute, the words "or
otherwise " not being limited to any precise class or
genus of deception, but simply limited to such deceptions
as were similar in character to palmistry (p). Here the
general words were not limited to things ejusdem generis
as the specified offence, but to things like in their
nature to that offence.
We shall conclude these remarks with observing, that
the three rules or canons of construction with which we
have commenced this chapter are intimately connected
together, — that they must always be kept in view col-
lectively when the practitioner applies himself to the
interpretation of a doubtful instrument
Verba Chartarum fortius accipiuntur contra pro-
ferentem. (Co. Litt. 36. a.) — Tlie words of an
instrument shall be taken most strongly against the
party employing them.
This maxim ought to be applied only where other rules
of construction fail (q)y and, indeed, it is doubtful whether
it is to be regarded as a sound canon of construction since
the case of Taylor v. The Corporation of St. Helen's (r),
in which the late Master of the Rolls, Jessel, M. R, is
reported to have said : " I do not see how, according to
(p ) Monek v. Hilton, 2 Ex. Div. 3H.&N. 182.
268 ; 46 L. J. M. C. 163. (r) 6 Ch. Div. 264, 280; 46 L J.
(q) Judgment, Lindus v. Melrose, Ch. 857.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 549
the now established rules of construction as settled by the
House of Lords in the well-known case of Grey v.
Pearson (s), followed by Roddy v. Fitzgerald (t) and
Abbott v. Middleton(v,), the maxim can be considered as
having any force, at the present day. The rule is to find
out the meaning of the instrument according to the
ordinary and proper rules of construction. If we can thus
find out its meaning, we do not want the maxim. If, on
the other hand, we cannot find out its meaning, then the
instrument is void for uncertainty, and in that case it may
be said that the instrument is construed in favour of the
grantor, for the grant is annulled - Perhaps the maxim
may be paraphrased thus, — that, as between the grantor
and grantee, or between the maker of an instrument and
the holder, if the words of the grant or instrument are of
doubtful import, that construction shall be placed upon
them which is most favourable to the grantee or holder.
The rule has been held to apply more strongly to a
deed-poll (x) than to an indenture, because in the former Deed-ioiL
case the words are those of the grantor only (y). But
though a deed-poll is to be construed against the grantor,
the Court will not add words to it, nor give it a meaning
contradictory to its language (z).
If, then, a tenant in fee simple grants to any one an Grant, &c.
estate for life generally, this shall be construed to mean
an estate for the life of the grantee, because an estate for
a man's whole life is higher than for the life of another (a).
(«) 6 H. L. Cas. 61. {y) Plowd. 134 ; Shep. Touch., by
(t) 6 H. L. Cas. 823. Preston, 88, n. (81).
(u) 7 H. L. Cas. 68. (z) Per Williams, J., Docd. MyaU
(?) See stats. 8 ft 9 Vict. c. 106, v. St. Hden*y JR. C.t 2 Q. B. 873.
b. 5; 7 ft 8 Vict, c 76, s. 11. (a) Co. Litt. 42. a, ; Plowd. 156 ;
Finch. Law, 63 ; Shep. Touch. 88.
550 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
But if tenant for life leases to another for life, without
specifying for whose life, this shall be taken to be a lease
for the lessor's own life; for this is the greatest estate
which it is in his power to grant (6). And, as a general
rule, it appears clear, that, if a doubt arise as to the
construction of a lease between the lessor and lessee,
the lease must be construed most beneficially for the
latter (c).
In like manner, if two tenants in common grant a rent
of 10s. this is several, and the grantee shall have 108.
from each ; but if they make a lease, and reserve 10&
they shall have only 10s. between them (d). So it is a
true canon of construction, that where there is any rea-
sonable degree of doubt as to the meaning of an excep-
tion in a lease, the words of the exception, being the
words of the lessor, are to be taken most favourably for
the lessee, and against the lessor (e) ; and where a deed
may enure to divers purposes, he to whom the deed is
made shall have election which way to take it, and he
shall take it in that way which shall be most to his
advantage (/). But it seems that the instrument should,
in such a case, if pleaded, be stated according to its
legal effect, in that way in which it is intended to have it
operate (g).
According to the principle above laid down, it was held
that leasehold lands passed by the conveyance of the
freehold, " and all lands or meadows to the said messuage
(b) Finch, Law, 55, 56. See also, Litt. 197. a., 267. b.
Id. 60. (e) Per Bayley, J., Bullen r. Den-
(c) Dunn v. Spurrier, 3 B. ft P. ning, 5 B. ft C. 847.
399, 408, where various authorities (/) Shep. Touch. 83 ; cited 8
are cited. See also Judgm., 1 Cr. ft Bing. 106.
M. 657. G/) 2 Smith, L. 0., 8th ed., 545,
(d) 5 Bep. 7 ; Plowd. 140 ; Co. and cases there cited.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
551
or mill belonging, or used, occupied, and enjoyed, or
deemed, taken, or accepted as part thereof." This, said
Lord Loughborough, C.J., being a case arising on a deed,
is to be distinguished from cases of a like nature which
have arisen on wills. In general, where there is a ques-
tion on the construction of a will, neither party has done
anything to preclude himself from the favour of the
Court But, in the* present instance, the legal maxim
applies, that a deed shall be construed most strongly
against the grantor (h).
The rule of law, moreover, that a man's own acts shall
be taken most strongly against himself, not only obtains
in grants, but extends, in principle, to other engagements
and undertakings (i).
Thus, the return to a writ ofji. fa. shall, if the meaning
be doubtful, be construed against the sheriff; nor, if sued
for a false return, shall he be allowed to defend himself
by putting a construction on his own return which would
make it bad in law, when it admits of another construction
which will make it good (£).
In like manner, with respect to contracts not under simple con.
tracts.
seal, the generally received doctrine of law undoubtedly
is, that the party who makes any instrument should take
care so to express the amount of his own liability, as that
he may not be bound further than it was his intention
{h) Doe d. Davie* v. William, 1
H. Bla. 25, 27.
(i) 1 H. Bla. 586.
A release in deed, being the act of
the party, shall be taken most strongly
against himself; Co. Litt. 264. b. ;
cited Judgm., Ford v. Buck, 11 Q,
B. 869.
" Although the words of a covenant
are to be construed according to the
intent of the parties, yet they are to
be taken most strongly against the
party who stipulates : " per Holroyd,
J., Webb v. Plvmmer, 2 B. & Aid.
752. See West London R. C. v.
London and North Western R. C,
11 C. B. 254, 309, 839.
(£) See Reynolds v. Barford, 7 M.
& Or. 449, 456.
552
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
that he should be bound ; and, on the other hand, that
the party who receives the instrument, and parts with his
goods on the faith of it, should rather have a construction
put upon it in his favour, because the words of the instru-
ment are not his, but those of the other party (l). This
principle applies to a condition in a policy of insurance
which " being the language of the company must, if there
be any ambiguity in it, be taken most strongly against
them " (to).
A remarkable illustration of the maxim is to be found
in a case arising out of the failure of the Glasgow Bank.
By the Articles of that Bank any person who became the
holder of a share became subject to all the liabilities of
an original partner. Certain shares in the Bank were
transferred into the names of four persons who were
entered in the stock ledger as ' trustees.' The bank sus-
pended payment with large liabilities, and the trustees
were placed on the first part of the list of contributories
as liable to calls in their own right. On a petition to
rectify the list it was decided that they were personally
liable to the creditors of the Bank as partners, the
House of Lords being of opinion that the expression, as
trustees, was ambiguous and must be construed fortius
contra proferentes, so as to carry out the main object of
the contract (ri).
(Q Per Alderson, B., Mayer v.
Isaac, 6M.&W. 612 ; commenting
on the obserrationa of Bay ley, B., in
Nicholson v. Paget, 1 Cr. & M. 48.
See Alder v. Boyle, 4 C. B. 635.
(m) Per Cockbnni, C.J., Notman
v. Anchor Am. Co., 4 C. B. N. S.
481; Fitton r. Accidental Death
Insur. Co., 17 C. B. N. S. 134, 135;
Foxokes r. Manchester and London
Life Ass. Co., 32 L. J. Q. B. 168,
157, 159 ; 8 B. & a 917 ; per Lord
St. Leonards, Anderson v. Fitzgerald,
4 H. L. Cas. 484 ; per Blackburn,
J., Braunstein v. Accidental Death
Insur. Co., 1 B. & S. 799.
(n) Muir v. City of Glasgow Bank,
4 App. Cas. 337 ; 40 L. J. 389.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
553
If the party giving a guarantee leaves anything am-
biguous in his expressions, it has been said that such
ambiguity must be taken most strongly against him-
self (o) ; though it would rather seem that the document
in question is to be construed according to the intention
of the parties to it as expressed by the language which
they have employed, understood fairly in the sense in
which it is used, the intention being, if needful, ascer-
tained by looking to the relative position of the parties at
the time when the instrument was written (p).
If a carrier give two different notices, limiting his re-
sponsibility in case of loss, he will be bound by that which
is least beneficial to himself (q). In like manner, where
a party made a contract of sale as agent for A., and, on the
face of such agreement, stated, that he made the purchase,
paid the deposit, and agreed to comply with the condi-
tions of sale, for A., and in the mere character of agent, it
was held, that this act of the contracting party must be
taken fortissimo contra prof erentem ; and that he could
not, therefore, sue as principal on the agreement, without
notice to the defendant before action brought, that he
was the party really interested (r). So, if an instrument
be couched in terms so ambiguous as to make it doubtful
whether it be a bill of exchange or promissory note, the
holder may, as against the party who made the instru-
ment, treat it as either (*). If documents are drawn and
(o) Hargrtave v. Smee, 6 Bing.
244, 248 ; Stephens v. Pdl, 2 Cr. &
M. 710. See Gumption v. Haifa 2
Bing. N. C. 449, 454.
(p) Per Bovill, O.J., Coles v.
Pack, L. R. 5 C. P. 70 ; Wood v.
Priestner, L. R. 2 Ex. 66, 282.
(?) Munn v. Baker, 2 Stark. , N.
P. C. 255. See Phillips v. Edwards,
3 H. & N. 813, 820.
(r) Bickerton r. Burrell, 5M.&
S. 383, 336, as to which case, see
Bayner v. Grote, 15 M. & W. 359.
See also, Boulton v. Jones, 2 H. & N.
564, and cases there cited ; Garr v.
Jackson, 7 Exch. 382.
(«) Edis ▼. Bury, 6 B. k C. 433 ;
Block v. Bell, 1 M. & Rob. 149 ;
554 INTEBPRETATIOX OF DEEDS AND WRITTEN INSTRUMENTS.
accepted by the same parties (which in strictness would
make them promissory notes and not bills of exchange),
yet if the intention to give and receive such documents
as bills of exchange be clear both the parties to the docu-
ments and the holders may treat them as such (t).
In the Roman law, the rule under consideration for the
construction of contracts may be said, in substance, to
have existed, although its meaning differed considerably
from that which attaches to it in our own: the rule
there was, Fere secundum pramisaorem interpreta-
mur (u), where pnmiiseor, in fact, signified the person
who contracted the obligation (x), that is, who replied to
the etipidatio proposed by the other contracting party.
In case of doubt, then, the clause in the contract thus
offered and accepted, was interpreted against the stipu^
lator, and in favour of the promissor; in stipvlationibus
dim quceritur quid actv/m sit verba contra stipulatorem
interpretanda sunt (y) ; and the reason given for this
mode of construction is, quia stipidatori liberu/in fait
verba late concipere (z) : the person stipulating should
take care fully to express that which he proposes shall
be done for his own benefit. But, as remarked by Mr.
Chancellor Kent, the true principle appears to be "to
give the contract the sense in which the person making
the promise believed the other party to have accepted
it, if he in fact did so understand and accept it " (a) ;
Uoyd y. Oliver, 18' Q. B. 471 ; (u) D. 45. 1. 99. pr.
Forbes v. Marshall, 11 Exch. 166. (x) Brinon. advert. "Promissory
In M'Call v. Taylor, 19 C. B. N. " Stipulation 1 Pothier, by Brans,
S. 801, the instrument in question 58.
was held to be neither a bill of ex- (y) D. 45. 1. 38, § 18.
change nor a promissory note. («) D. 45. 1. 99. pr. ; D. 2. 14.
(0 WtUans y. Ayres, 8 App. Cas. 89.
188 ; 47 L. J., P. C. 1. (a) 2 Kent, Com., 12th ed.,yol. %
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 555
though this remark must necessarily be understood as
applicable only where an ambiguity exists after applying
those various and stringent rules of interpretation by
which the meaning of a passage must, in very many cases,
be determined. When dealing with a mercantile instru-
ment, moreover, " the Courts are not restrained to such
nicety of construction as is the case with regard to con-
veyances, pleadings, and the like/1 and in reference to a
charter-party, it has been observed (6), that "generally
speaking where there are several ways in which the
contract might be performed, that mode is adopted which
is the least profitable to the plaintiff and the least bur-
thensome to the defendant." Further, in reference to the
same instrument, it has been remarked that the merchant
" is in most cases the party best acquainted with the trade
for which the ship is taken up, and with the difficulties
which may impede the performance by him of his contract;
words, therefore, in a charter-party relaxing in his favour a
clause by which an allowance to him of time for a specified
object is in the i uteres t of the ship precisely limited, must
be read as inserted on his requirement, and construed at
the least with this degree of strictness against him that
they shall not have put upon them an addition to their
obvious meaning ; " though where that meaning is ambi-
guous it must be gathered from the surrounding circum-
stances to which the charter-party was intended to
apply (c)
It must further be observed, that the general rule in JS^i*
557: 20 Day (U.S.), R. 281; Paley Gether v. Capper, 15 C. B. 707;
Moral Phil., 4th ed., 125, 127; S. C, 18 Id. 866.
1 Drier, Insur. 159, 160. (c) Judgm., Hud*m v. Ede, L. R.
(b) Per Maule, J., Cockburn v. 2 Q. B. 578.
Alexander, 6 C. B. 814, and in
556
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
nhoaM be
Kxceiitiou
t<> rule —
When it
would work
ft w rung U>
a third i«r-
fooU.
Will* and
hlatute*.
Public com-
I'dniea.
question, being one of some strictness and rigour, is the
last to be resorted to, and is never to be relied upon but
when all other rules of exposition fail (d). In some cases,
indeed, it is possible that any construction which the
Court may adopt will be contrary to the real meaning of
the parties ; and, if parties make use of such uncertain
terms in their contracts, the safest way is to go by the
grammatical construction, and if the sense of the words
be in equilibria, then the strict rule of law must be
applied (e).
Moreover, the principle under consideration does not
seem to hold when a harsh construction would work a
wrong to a third person, it being a maxim that Constructio
leyis non facit injuriam (/). Therefore if tenant in tail
make a lease for life generally, this shall be taken to mean
a lease for the life of the lessor (g), for this stands well
with the law ; and not for the life of the lessee, which it
is beyond the power of a tenant in tail to grant (A).
Acts of Parliament are not, in general, within the
reason of the rule under consideration, because they are
not the words of parties, but of the legislature ; neither
does this rule apply to wills (i). Where, however, an
Act of Parliament is passed for the benefit of a canal,
railway, or other company, it has been observed, that this,
like many other cases, is a bargain between a company
of adventurers and the public, the terms of which are
(<f) Bac. Max., reg. 3 ; 1 Duer.
Insur. 210.
(e) Per Bayley, J., Love v. Pares,
13 East, 86.
(/) Co. Lift. 183, a; Shepp. Touch.
88 ; Judgm., Rodger \. The Comptoir
tfEtcompU de Parti, L. R. 2 P. C.
406.
(?) Per Bayley, J., Smith r. Doe
d. Earl of Jeney, 2 B. ft B. 551 ;
Finch, Law, 60.
(A) 2 Com. by Broom ft Hadley,
507.
(t) 2 Dwarr. Stats. 688; Bac.
Max., reg. 3.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
557
expressed and set forth in the Act, and the rule of con-
struction (j ) in all such cases is now fully established to
be, that any ambiguity in the terms of the contract must
operate against the adventurers, and in favour of the
public, the former being entitled to claim nothing which
is not clearly given to them by the Act (&). Where,
therefore, by such an Act of Parliament, rates are im-
posed upon the public and for the benefit of the company,
such rates must be considered as a tax upon the subject ;
and it is a sound general rule, that a tax shall not be con-
sidered to be imposed (or at least not for the benefit of a
subject) without a plain declaration of the intent of the
legislature to impose it (I).
In a well-known case, which is usually cited as an
authority with reference to the construction of Acts for
the formation of companies with a view to carrying works
of a public nature into execution, the law was thus laid
(j) The rale that a private Act of
Parliament " is to be construed as a
contract or a conveyance, is a mere
rule of construction ; " per Byles, J.,
6 C. B. N. S. 218-9. As to the
recitals in a Private Act, see The
Shrewsbury Peerage, 7 H. L. Cas. 1.
(k) Per Lord Tenterden, C.J.,
Stourbridge Canal Co. v. WheeUy,
2 B. & Ad. 793 ; recognized Priestley
t. Foulds, 2 Scott, N. R. 228 ; per
Coltman, J., Id. 226 ; cited Arg.
Id. 738 ; Judgm., Gildart v. Glad-
stone, 11 Bast, 685 ; recognized
Barrett v. Stockton and Darlington
R. C, 2 Scott, N. R 370 ; S. C,
affirmed in error, 3 Scott, N. R. 803 ;
and in the House of Lords, 8 Scott,
N. R. 641 ; cited Ribble Navigation
Co. v. Hargreaves, 17 0. B. 385,
402 ; per Maule, J., Portsmouth
Floating Bridge Co, v. Nance, 6
Scott, N. R. 831 ; Blakemore v.
Glamorganshire Canal Navm, 1 My.
& K. 165 (as to the remarks of Lord
Eldon in which case, see per Alderson,
B., Lee v. Milner, 2 Yo. fc C. 618 ;
per Lord Chelmsford, C, Ware v.
Regent's Canal Co., 28 L. J. Chanc.
157 ; per Erie, C.J., Baxendale v.
Great Western R. C, 16 C. B. N. S.
137) ; Arg., Thicknesse v. Lancaster
Canal Co,, 4 M. & W. 482.
{I) Jndgm., Kingston-upon-Hutt
Dock Co. v. Browne, 2 B. k Ad. 58,
59 ; Grantham Canal Nav. Co. v.
HaU (in error), 14 M. & W. 880.
558 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Remark* down by Lord Eldon : — " When I look upon these Acts
Eidon, c. of Parliament, I regard them all in the light of con-
tracts made by the legislature on behalf of every person
interested in anything to be done under them ; and I
have no hesitation in asserting, that, unless that prin-
ciple is applied in construing statutes of this description,
they become instruments of greater oppression than any-
thing in the whole system of administration under our
constitution. Such Acts of Parliament have now become
extremely numerous, and from their number and opera-
tion, they so much affect individuals, that I apprehend
those who come for them to Parliament do in effect
undertake that they shall do and submit to whatever the
legislature empowers and compels them to do, and that
they shall do nothing else ; that they shall do and shall
forbear all that they are thereby required to do and to
forbear as well with reference to the interests of the
public as with reference to the interests of individuals" (m).
Acts of Parliament, such as here referred to (n), have been
called Parliamentary bargains made with each of the
landowners. Perhaps more correctly they ought to be
treated as conditional powers given by Parliament to take
the land of the different proprietors, through whose estates
the works are to proceed. Each landowner, therefore, has
a right to have the powers strictly and literally carried
into effect as regards his own land, and has a right also to
require that no variation shall be made to his prejudice in
the carrying into effect the bargain between the under*
takers and any one else (o).
(m) Blabemore v. Glamcrgantkirt (n) See also supra (j) and {Q.
Canal Nav.f 1 My. & E. 162 ; cited (o) Per Alderson, B., Lee r.
Judgm., 1 E. & B. 868, 869. Milner, 2 To. & C. 611, 618 ;
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 559
So, with respect to Railway Acts, it has been repeatedly RaUwij
Acts*
laid down, that the language of these Acts of Parliament
is to be treated as the language of the promoters of them ;
they ask the legislature to confer great privileges upon
them, and profess to give the public certain advantages in
return. Acts passed under such circumstances should be
construed strictly against the parties obtaining them, but
liberally in favour of the public (p). " The statute," says
Alderson, B. (q), speaking of a railway company's Act,
"gives this company power to take a man's land without
any conveyance at all ; for if they cannot find out who
can make a conveyance to them, or if he refuse to convey,
or if he fail to make out a title, they may pay their
money into Chancery, and the land is at once vested in
them by a parliamentary title. But in order to enable
them to exercise this power, they must follow the words
of the Act strictly" And it is clear that the words of a
statute will not be strained beyond their reasonable import
to impose a burthen upon, or to restrict the operation of,
a public company (r). It will, of course, be borne in
mind that the general principle of construing an Act of
Parliament of the kind above alluded to contra profer-
entem, can only be applied where a doubt presents itself
as to the meaning of the legislature ; for such an Act, and
every part of it, must be read according to the ordinary
adopted Judgm., York and North Gas. 576, 599 ; per Lord Langdale,
Midland R. C. v. Reg., 1 E. ft B. M. R., Gray v. Liverpool and Bury
869. R C, 4 Id. 240.
(p) Judgm., Parker t. Great (r) SmMJi v. Bell, 2 Eailw. Cm.
Western R C, 7 Scott, N. R. 870. 877 ; ParreU Nav. Co. v. Robins,
(q) Doe d. Hutchinson v. Man- 8 Id. 383 ; with which ace, OrackntU
Chester, Bury, and Rossendale R.C., v. Mayor, <&c, of Thetfbrd, L. S. 4
14 M. ft W. 694 ; Webb y. Man- C. P. 634, 687.
Chester and Leeds R C.} 1 Railw.
560
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Grant from
the Crown.
and grammatical sense of the words used, and with refer-
ence to those established rules of construction which we
have already stated.
Lastly, with reference to the maxim fortius contra pro-
ferentem,,— where a question arises on the construction of
a grant from the Crown, the rule under consideration is
reversed ; for such grant is construed most strictly against
the grantee, and most beneficially for the Crown, so that
nothing will pass to the grantee but by clear and express
words (0) ; the method of construction just stated seeming,
as judicially remarked (t), "to exclude the application of
either of these two phrases (u), expressum facit cessare
taciturn, or expressio univs est excliurio cdterius. That
which the Crown has not granted by express, clear and
unambiguous terms, the subject has no right to claim
under a grant or charter " (x).
(t) Arg., R. v. Mayor, Ac., of
London, 1 Cr. K. & R.f 12, 15, and
cases there cited ; Chit. Pre. of the
Crown, 891 ; Finch, Law, 101.
(t) Per Pollock, C.B., Battern
Archipelago Co. v. Reg., 2 E. & B.
906, 907 ; S. C., Id. 310.
(u) Post, p. 606.
(x) It is established on the best
authority, that in construing grants
from the Crown, a different rule of
construction prevails from that by
which grants from one subject to
another are to be construed. In a
grant from one subject to another,
every intendment is to be made
against the grantor, and in favour of
the grantee, in order to give full
effect to the grant ; but in grants
from the Crown an opposite rule of
construction prevails. Nothing passes
except that whioh is expressed, or
which is matter of necessary and un-
avoidable intendment, in order to
give effect to the plain and undoubted
intention of the grant. And in no
species of grant does this rule of con-
struction more especially obtain than
in grants which emanate from, and
operate in derogation of, the preroga-
tive of the Crown : ex. gr. where
a monopoly is granted, Judgm.,
Feather v. Reg., 5 B. & S. 28S-4 ;
citing, per Lord Stowell, The Rebedtah,
1 Rob. 227, 230.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
561
Ambiguitas Verborum latens Verifications supple-
tur ; nam quod ex facto oritur akbiouum
Verifications Facti tolutur. {Bac. Max., reg.
23.) — Latent ambiguity may be supplied by evi-
dence ; for an amJbigwity which arises by proof of
an extrinsic fact may, in the same mannei% be
removed.
m
Two kinds of ambiguity occur in written instruments : Definition of
i * • latent and
the one is called ambiguitas latens (y), %.e., where the ^yiam"
writing appears on the face of it certain and free from
ambiguity ; but the ambiguity is introduced by evidence
of something extrinsic, or by some collateral matter out of
the instrument: the other species is called ambiguitas
patens, i.e., an ambiguity apparent on the face of the
instrument itself (z).
Ambiguitas patens, says Lord Bacon, cannot be holpen Rule u to
by averment, and the reason is* because the law will not Mguity.
couple and mingle matter of specialty, which is of the
higher account, with matter of averment, which is of the
lower account in law, for that were to make all deeds
hollow, and subject to averment; and so, in effect, to
make that pass without deed which the law appoints
shall not pass but by deed (a) ; and this rule, as above
(y) Of which iee an example,
Raffles t. Wichdhaui, 2 H. k C.
906.
(2) Bac. Max., reg. 23. The re-
marks respecting ambiguity here
offered, should be taken in connec-
tion with those appended to the five
T^ftYiyna which successively follow.
The subject of latent and patent
ambiguities, and likewise of misde-
scription, has been rery briefly
treated in the text, since ample in-
formation thereupon may be obtained
by reference to the masterly treatise
of Sir Jamea Wigram, upon the " Ad-
mission of Extrinsic Evidence in Aid
of the Interpretation of Wills."
(a) Bac. Max., reg. 23 ; Dot d.
TyrrtU v. Lyffbrd, 4 M. & S. 550 ;
Lord Cholmonddey v. Lord Clinton,
o o
562
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
stated and explained, applies not only to deeds, but to
written contracts in general (b) ; and especially, as will
be seen by the examples immediately following, to wills.
On this principle, a devise to " one of the sons of J. S."
(who has several sons), cannot be explained by parol
proof (c) ; and if there be a blank in the will for the
devisee's name, parol evidence cannot be admitted to show
what person's name the testator intended to insert (d) ; it
being an important rule, that, in expounding a will, the
Court is to ascertain, not what the testator actually in-
tended as contradistinguished from what his words express,
but what is the meaning of the words he has used (e).
If, as observed by Sir James Wigra/m,t the Statute of
Frauds merely had required that a nuncupative will
should not be set up in opposition to a written will, parol
evidence might, in many cases, be admissible to explain
the intention of the testator, where the person or thing
intended by him is not adequately described in the will ;
2 Mer. 343 ; Judgm., Doe d. Gord
v. Needs, 2 M. & W. 189 ; S. P.,
Stead t. Berrier, Sir T. Raym. 411.
(b) See Hottier v. Eyre, 9 CL &
Fin. 1.
A contract, observe* Pollock, C.B.,
in Nichol v. Godts, 10 Exch. 194,
"must be read according to what is
written by the parties, for it is a well-
known principle of law, that a written
contract cannot be altered by parol.
If A. and B. make a contract in
writing, evidence is not admissible
to show that A. meant something
different from what is stated in the
contract itself, and that B. at the
time assented to it. If that sort of
evidence were admitted, every written
document would be at the mercy of
witnesses who might be called to
swear anything." See Beeant v.
Cross, 10 C. B. 895; Martin v.
Pycroft, 2 De G. M. & G. 785 ; pott,
Chap. X.
(c) Strode v. JUmel, 2 Vera. 624 ;
Ckeyney's case, 5 Rep. 68. See Gu-
tledon v. Turner, 3 Atk. 257 ; Harru
v. Bishop of Lincoln, 2 P. Wins.
136, 137 ; per Tindal, C.J., Doe d.
Winter v. PerraU, 7 Scott, N. R.
36. See, also, per Littledale, J.,
and Parke, J., in Shortrede v. Cheek,
1 A. * B. 57.
(d) Baytis t. A.-G., 2 Atk. 239 ;
Hunt v. Hort, 3 Bro. C. C. 311 ;
cited8Bing. 254.
(e) Per Parke, J., Doe d. Gwillim
v. (hoMim, 5 B. & Ad. 129.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. '563
but if the true meaning of that statute be, that the
writing which it requires shall itself express the inten-
tion of the testator, it is difficult to understand how the
statute can be satisfied by a writing merely, if the de-
scription it contains have nothing in common with that
of the person intended to take under it, or not enough to
determine his identity. To define that which is indefinite
is to make a material addition to the will (/). In accord-
ance with these observations, where a testator devised
his real estates "first to K., then to , then to L.,
then to M., &c," and the will referred to a card as
showing the parties designated by the letter, in the will,
which card, however, was not shown to have been in
existence at the time of the execution of the will, it was
held clearly inadmissible in evidence ; the Court observ-
ing, that this was a case of a patent ambiguity ; and that
according to all the authorities on the subject, parol
evidence to explain the meaning of the will could not
legally be admitted (g).
If, then, as further observed in the treatise already
cited, a testator's words, aided by the light derived from
the circumstances with reference to which they were used,
do not express the intention ascribed to him, evidence
to prove the sense in which he intended to use them is
as a general proposition, inadmissible ; in other words,
the judgment of a Court in expounding a will must be
simply declaratory of what is in the will (h) ; and to make
a construction of a will where the intent of the testator
(/) See Wigram, Extrin. EvicL, ed., 87th and following pages, in
3rd ed. 120, 121. which many instances of the appli-
(g) Clayton v. Lord Nugent, 13 cation of this rule are given. And
M. & W. 200. refer to OobUi v. Beechcy, Id. p. 185 ;
(h) Wigram, Extrin. Evid., 3rd a a, 3 Sim. 24.
0 o 2
564 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS-
cannot be known, has been designated as intentio caeca et
ticca (i).
The devise, therefore, in cases falling within the scope
of the above observation, will, since the will is insensible,
and not really expressive of any intention, be void for
uncertainty (&).
Evidence is admissible to show which of two or more
persons the testator refers to when the description in the
will applies with legal certainty to them all. Thus where
a testator devised certain property to his nephew Joseph
Grant, evidence was admitted to show that the testator
had two nephews of that name, one his brother's child,
and the other the son of his wife's brother, and a latent
ambiguity being thus shown by extrinsic evidencer
further evidence was admitted to show which of the
two persons was the object of the testator's bounty,
and the Court decided in favour of the son of the wife's
brother (Z)
The rule as to patent ambiguities which we have just
been considering is by no means confined in its operation
to the interpretation of wills ; for instance, where a bill
of exchange was expressed in figures to be drawn for
245£., and in words for two hundred pounds, value re-
ceived, with a stamp applicable to the higher amount,
evidence to show that the words "and forty-five" had
been omitted by mistake, was held inadmissible (m) ; for,
the doubt being on the face of the instrument, extrinsic
evidence could not be received to explain it. The instru-
ct') Per Rolle, C.J., Taylor ▼. uncertainty of purpose.
Web, Styles, 819. (1) Chant t. Grant, L. B. 2 P. k
(k) In The Mayor, <kc., of Glou- D. 2.
cetter v. Otborn, 1 H. L. Cos. 272, (m) Saunderson y. Piper, 5 Bing.
legacies were held to hare failed for N. G. 425.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 565
meat, however, was held to be a good bill for the smaller
amount, it being a rule laid down by commercial writers,
that, where a difference appears between the figures and
the words of a bill, it is safer to attend to the words (n).
But, although a patent ambiguity cannot be explained by
extrinsic evidence, it may,' in some cases, be helped by
construction, or a careful comparison of other portions
of the instrument with that particular part in which the
ambiguity arises ; and in others, it may be helped by a
tight of election vested in the grantee or devisee (o), the
power being given to him of rendering certain that which
was before altogether uncertain and undetermined. For
instance, where a general grant is made of ten acres of
ground adjoining or surrounding a particular house, part
of a larger quantity of ground, the choice of such ten
acres is in the grantee, and a devise to the like effect is
to be considered as a grant (p) ; and if I grant ten acres
of wood where I have one hundred, the grantee may elect
which ten he will take; for, in such a case, the law
presumes the grantor to have been indifferent on the
subject (q). So, if a testator leaves a number of. articles
of the same kind to a legatee, and dies possessed of a
greater number, the legatee and not the executor has the
right of selection (r).
On the whole, then, we may observe, in the language of
Lord Bacon, that all ambiguity of words within the deed,
and not out of the deed, may be helped by construction,
(n) Id. 431, 434. per Car., in Richardson v. Watson, 4
(o) See Dttckmanton v. Duckman- B. & Ad. 787 ; Tin. Abr. "Grants"
ton, 5H. &N. 219. (H. 5).
( p) ffobson v. Blackburn, 1 My. (r) Jacques v. Chambers, 2 Colly.
&K. 571,575. 435.
(q) Bftc. Max., reg. 23. See, also
566
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Rule, haw
qualified.
Latent am*
blguity.
or, iii some cases, by election, but never by averment, but
rather shall make the deed void for uncertainty (*).
The general rule, however, as to patent ambiguity must
be received with this qualification, viz., that extrinsic
evidence is unquestionably admissible for the purpose of
showing that the uncertainty which appears on the face of
the instrument does not, in point of fact, exist ; and that
the intent of the party, though uncertainly and ambigu-
ously expressed, may yet be ascertained, by proof of facts,
to such a degree of certainty as to allow of the intent
being carried into effect (t) ; in cases falling within the
scope of this remark, the evidence is received, not for the
purpose of proving the testator's intention, but of explain-
ing the words which he has used. Suppose, for instance,
a legacy, " to one of the children of A.," by her late hus-
band B. ; suppose, further, that A. had only one son by B.,
and that this fact was known to the testator ; the neces-
sary consequence, in such a case, of bringing the words of
the will into contact with the circumstances to which they
refer, must be to determine the identity of the person
intended, it being the form of expression only, and not
the intention, which is ambiguous ; and evidence of facts
requisite to reduce the testator's meaning to certainty
would not, it should seem, in the instance above put, be
excluded ; though it would be quite another question if
A. had more sons than one, or if her husband were
living (u).
With respect to ambiguitas latans, the rule is, that,
inasmuch as the ambiguity is raised by extrinsic evidence,
(5) Bac Max., reg. 23 ; jwTindal,
C.J., 7 Scott, N. B. 86; Wigram,
Rxtrin. Evid., 3rd. ed., 83, 101.
(0 2 Phill. Evid., 10th ed., 339.
(u) Wigram, Ex. Evid., 3rd ed.,
60.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
667
so it may be removed in the same manner (x). Therefore,
if a person grant his manor of S. to A. and his heirs, and
the truth is, he hath the manors both of North S. and
South S., this ambiguity shall be helped by averment as
to the grantor's intention (y). So, if one devise to his son
John, when he has two sons of that name (z), or to the
eldest son of J. S., and two persons, as in the case of a
second marriage, meet that designation (a), evidence is
admissible to explain which of the two was intended.
Wherever, in short, the words of the will in themselves
are plain and unambiguous, but they become ambiguous
by the circumstance that there are two persons, to each
of whom the description applies, then parol evidence may
be admitted to remove the ambiguity so created (6).
A like rule applies also where the subject-matter of a
devise or bequest is called by divers names, " as if I give
lands to Christchurch in Oxford, and the name of the
corporation is Ecclesia Christi in Univer&Uctie, Oxford,
(x) 2 PhilL Evid., 10th ed., 392 ;
Wigram Bxtrin. Evid., 3rd. ed., 101;
per Williams, J., Way v. Uearn, 13
0. B. N. S. 305 ; Judgm., Bradley
v. Washington Steam Packet Co., 13
Peters (U.S.) R. 97. " A latent am-
biguity is raised by evidence ; " per
Coleridge, J., Simpson v. Margitson,
11 Q. B. 25.
Where parol evidence has been im-
properly received to explain a sup-
posed latent ambiguity, the Court in
banco will decide upon the construc-
tion of the instrument without regard
to the finding of the jury upon such
evidence; Brufv. Conybeare, 13 C.
B. N. S. 263.
(y) Bao. Max., reg. 23 ; Plowd.
85. b. ; Miller v. Trovers, 8 Bing.
248.
(z) Counden v. Gierke, Hob. 32 ;
Fleming v. Fleming, 1 H. & 0. 242 ;
Jones v. Newman, 1 W. Bla. 60 ;
Cheyney's case, 5 Rep. 68 ; per Tin-
dal, C. J., Doe d. Winter v. PerraU,
7 Scott, N. B. 36.
(a) Per Brskine, J., 5 Bing., N. C.
433 ; Doe <L Gore v. Needs, 2 Mi &
W. 129 ; Richardson v. Watson, 4
B. & Ad. 792. And see the cases on
this subject, cited 2 Phill. End.,
10th ed., 393, et seq.
(6) Per Alderaon, B., 13 M. & W.
206, and in Smith v. Jefryes, 15 M.
& W. 561 ; The Duke of Dorset v.
Lord Hawarden, 3 Curt. 80.
568 INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS.
this sball be holpen by averment, because there appear*
no ambiguity in the words. " (c).
In all cases, indeed, in which a difficulty arises in
applying the words of a will to the thing which is the
subject-matter of the devise, or to the person of the
devisee, the difficulty or ambiguity which is introduced by
the admission of extrinsic evidence may be rebutted and
removed by the production of further evidence upon the
same subject, calculated to explain what was the estate or
subject-matter really intended to be devised, or who was
the person really intended to take under the will ; and this
appears to be the extent of the maxim as to ambiguitas
latent (d). The characteristic of -these cases is, that the
words of the will do describe the object or subject intended,
and the evidence of the declarations of the testator has not
the effect of varying the instrument in any way whatever ;
it only enables the Court to reject one of the subjects or
objects to which the description in the will applies, and to
determine which of the two the devisor understood to be
signified by the description which he used in the will (e).
A devise was made of land to M. R, for life, remainder
to " her three daughters, Mary, Elizabeth, and Ann," in
fee, as tenants in common. At the date of the will, M. B.
had two legitimate daughters, Mary and Ann, living, and
one illegitimate, named Elizabeth. Extrinsic evidence
was held admissible to rebut the claim of the last-men-
tioned, by showing that M. B. formerly had a legitimate
daughter named Elizabeth, who died some years before
(c) Bac. Max., reg. 23. Fleming, 1 H. & C. 242, 247.
((f) JndgnL, Miller v. Travert, 8 (c) Judgm., Doe <L Gord v. Needs,
Bing. 247, 248; per Abbott, C.J., 2 M. & W. 140 ; Lord Walpole y.
Doe <L Wadakt v. Westiake, 4 B. & Earl of CholmondeUg, 7 T. R. 138.
Aid. 58 ; distinguished in Fleming v.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 569
the date of the will, and that the testator did not
know of her death, or of the birth of the illegitimate
daughter (/).
"The rule as to the reception of parol evidence to ex-
plain a will," remarked Sir J. Romilly, M.R., in Stringer
v. Gardiner (g), " is perfectly clear. In every case of
ambiguity, whether latent or patent, parol evidence is
admissible to show the state of the testator's family or
property ; but the cases in which parol evidence is admis-
sible to show the person intended to be designated by the
testator, are those cases of latent ambiguity, mentioned
by Sir J. Wigram, where there are two or more persons
who answer other descriptions in the will, each of whom
standing alone, would be entitled to take."
It must not, however, be supposed that because no
ambiguity arises on the face of the instrument, any doubt
which is occasioned by the introduction of extrinsic evi-
dence may be cleared up by having recourse to the decla-
rations of the writer's intentions. This is not the law,
and instances of strictly latent ambiguities might be given
where evidence of declarations of intentions would be
inadmissible. A will apparently plain and intelligible
may when an inquiry is instituted respecting the persons
or things to which it relates, turn out to be uncertain ;
that is, the persons or things may prove not to have
been described with legal certainty. Suppose a bequest
be made to the four children of A., and it appears that
A. had six children, two by a first marriage, and the
remainder by a second. Here, though evidence of the
circumstances of the family and of the respective ages
(/) Doed. Thomas y. Benyon, 12 Id. 451.-
A. & B. 431 ; Doe d. AUen v. Allen, {g) 28 L. J., Chanc, 758.
570
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS,
Extrinsio
evidence
net'eeearlly
aainiMible
for tome
purposes.
of the children would no doubt be admissible with a
view of identifying the particular legatees alluded to in
the will, it seems that proof of the testator's declarations
of intention could not be received (h).
It is true, moreover, that parol evidence must be ad-
missible to some extent to determine the application
of every written instrument. It must, for instance, be
received to show what it is that corresponds with the
description (i); and the admissibility of such evidence
for this purpose being conceded, it is only going one step
further to give parol evidence, as in the above instances,
of other extrinsic facts, which determine the application
of the instrument to one subject, rather than to others,
to which, on the face of it, it might appear equally
applicable (k).
" Speaking philosophically," says Rolfe, B., u you must
always look beyond the instrument itself to some extent,
in order to ascertain who is meant; for instance, you
must look to names and places" (f); and, "in every
specific devise or bequest it is clearly competent and
necessary to inquire as to the thing specifically devised
or bequeathed " (m). Thus, " parol evidence is always
necessary to show that the party sued is the person
making the contract, and bound by it " (n). So, if the
word Blackacre be used in a will, there must be evidence
to show that the field in question is Blackacre (o).
(h) 8eeDoed.Hiieodt$v.2Ii8Cock$t
5 M. & W. 863.
(») Macdonaid ▼. Longbottom, 1
B. fc B. 977.
(&) 2 Phffl. Ev., 10th ed., 833.
(1) 18 M. & W. 207.
(m) Per Lord Cotteoham, C», Shut-
tUtcorth y. Qrtavct, 4 My. k
Cr. 38.
(n) Judgm., Trueman v. Loder,
11 A. & B. 594. See Subbing v.
Spicer, 8 C. B. 827.
(o) Doe d. Preedy v. Molten, 4
A. & B. 82 ; recognised, Doe d. Nor-
ton t. Webster, 12 A. & E. 450 ;
cited, per Williams, J., Doe d. Hem-
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
571
Where there is a devise of an estate purchased of A., or
of a farm in the occupation of B., it must be shown by
extrinsic evidence, what estate it was that A. purchased,
or what farm was in the occupation of R, before it can be
known what is devised (p). So, whether parcel or not of
the thing demised is always matter of evidence (q). In
these and similar cases, the instrument appears on the
face of it to be perfectly intelligible, and free from am-
biguity, yet extrinsic evidence must, nevertheless, be
received, for the purpose of showing what the instrument
refers to (r).
The rule as to ambiguitas latens, above briefly stated,
may likewise be applied to mercantile instruments, with
a view to ascertain the intention, though not to vary
the contract of the parties («) ; and therefore where the
plaintiffs, the patentees of a certain invention for the
manufacture of rifles, had granted a licence to the de-
fendants to use the patent, the latter covenanting to
pay a certain royalty for every rifle manufactured " under
the powers hereby granted," it being thought at that
time (but erroneously) that all persons manufacturing for
the government were entitled to the free use of a patent
as the government itself, the Court admitted extrinsic
ming v. WUUUs, 7 C. B. 715 ; per
Bovill, C.J., Horsey t. Graham, L.
R. 5 C. P. 14.
(p) Per Sir Wm. Grant, M.R., 1
Mer. 653.
(g) Per Bailer, J., Doe d. Free-
land v. Burt, 1 T. R. 701, 704;
Paddock r. Fradley, 1 Cr. & J. 90;
Doe d. Beach r. Earl of Jersey, 3
B. & C. 870 ; Lyle v. Richards, L.
E.1H.L 222.
(r) Per Patteson, J., and Cole-
ridge, J., 4 A. k E. 81, 82. See
Doe d. Norton v. Webster, 12 A. &
E. 442. Evidence of coexisting cir-
cumstances admitted to explain the
condition of a bond, Montefiore v.
Lloyd, 15 C. B. N. a 203. Evidence
admitted to identify pauper with
person described in indenture of ap-
prenticeship, Beg. v. Wooldale, 6 Q.
B. 549.
(*) Smith v. Jeffryes, 15 M. & W.
561.
572 INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS.
evidence to show that the licence was not intended to
apply to rifles manufactured by the defendants for the
government on the ground that the words "under the
powers hereby granted" contained a latent ambiguity,
and might be explained by extraneous evidence (t). And
although, generally speaking, the construction of a written
contract is for the Court, when it is shown by extrinsic
evidence that the terms of the contract are ambiguous,
evidence is admissible to explain the ambiguity, and to
show what the parties really meant. "Where there is
an election between two meanings, it is, properly, a
question for the jury " (u). And in a recen^case (x), where
the defendants under an agreement signed, by them as
three of the directors of a company had agreed to repay
to the plaintiff 5002. advanced by him to the company,
the learned judge, referring to the cases of Macdonald v.
Longbottom (y), and Acebol v. Levy (z), admitted parol
evidence to show that the defendants were liable as prin-
cipals on the agreement, and ultimately gave judgment
accordingly.
Where, as we shall hereafter see, a contract is entered
into with reference to a known and recognized use of par-
ticular terms employed by the contracting parties, or with
reference to a known and established usage, evidence may
be given to show the meaning of those terms, or the
nature of that usage, amongst persons conversant with the
particular branch of commerce or business to which they
(t) Rodcn t. London Small Arm* (x) AfcCollin v. Gilpin, 6 Q. B.
Co., 46 L. J. Q. B. 213. D. 516 ; 49 L. J. 568.
(u) Per Maule, J., Smith r. (y) 1 E. & B. 977 ; 28 I*. J. Q. B.
Thompton, -8 C. B. 59. As to am- 293, affirmed in the Ex. Ch. 29 L. J.
biguous contracts, see, also, Boden v. Q. B. 256.
French, 10 C. B. 886, 889. (z) 10 Bing. 376.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 573
relate. But cases of this latter class more properly fall
within a branch of the law of evidence which we shall
separately consider, viz., the applicability of usage and
custom to the explanation of written instruments (a).
Quoties in Verbis nulla est Ambiguitas, ibi nulla
Expositio contra Verba fienda est. {Wing.
Max. p. 24.) — In the absence of ambiguity, no expo-
sition diall be made which is opposed to the express
woi*ds of the instrument.
It seems desirable, before proceeding with the con- Rule where
sideration of some additional maxims relative to the ambiguity.
subject of ambiguity in written instruments, to take this
opportunity of observing that, according to the rule which
stands at the head of these remarks, it is not allow-
able to interpret what has no need of interpretation, and
that the law will not make an exposition against the
express words and intent of the parties (6). Hence, if I
grant to you that you and your heirs, or the heirs of your
body, shall distrain for a rent of forty shillings within
my manor of S., this, by construction of law, ut res magis
vcdeat, shall amount to a grant of rent out of my manor
of S., in fee-simple, or fee-tail ; for the grant would be
of little force or effect if the grantee had but a bare
distress and no rent. But if a rent of forty shillings be
granted out of the manor of D., with a right to distrain if
(a) See the remarks on the maxim, per Kelynge, C. J., Zanyon v. Came,
Optimns interpret rerum umu, poet, 2 Sounds. R. 167. See ieue t. Boy,
Chap. X. 1 Cr., M. & R. S16.
(6) Co. Litt. 147. a. ; 7 Rep. 108 ;
574 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
such Tent be in arrear in the manor of S., this will not
amount to a grant of rent out of the manor of S. for the
rent is granted to be issuing out of the manor of D., and
the parties have expressly limited out of what land the
rent shall issue, and upon what land the distress shall
be taken (o).
It may, moreover, be laid down as a general - rule,
applicable as well to cases in which a written instrument
is required by law, as to those in which it is not, that
where such instrument appears on the face of it to be
complete, parol evidence is inadmissible to vary or
contradict the agreement, ex. gr., to show that the word
" and " was inserted in it by mistake (d) : in such cases the
Court will look to the written contract, in order to ascer-
tain the meaning of the parties, and will not admit the
introduction of parol evidence, to show that the agree-
ment was in reality different from that which it purports
to be (e). And, therefore, where a charter-party provided
that the vessel was to proceed to a named port or so near
thereunto as she could safely get always afloat, evidence of
a custom of the port for vessels to be lightened in the
roads before proceeding into the harbour was held in-
admissible in an action by the charterer against the ship-
owner for not lightening the vessel, but proceeding instead
to the nearest safe port to that named in the charter-
party, on the ground that such a custom would vary the
express terms of the charter (/).
Although, moreover, it has been said that a somewhat
strained interpretation of an instrument may be admis-
(c) Go. Lit*. 147. a. Williams v. Jones, 5 B. & C. 108;
(d) ffitdhin v. Groom, 5 C. B. Spartali v. Beneckt, 10 C. B. 212.
515. (/) The Alhambra, 6 P. D. 68 ;
(e) Per Bayley and Holroyd, JJ., 50 L. J. P. D. 36.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 575
sible where an absurdity would otherwise ensue, yet, if
the intention of the parties is not clear and plain, but in
eqwilibrio, the words shall receive their more natural and
proper construction (g).
The general rule, observes a learned judge, I take to be, Remarks in
Short v.
that where the words of any written instrument are free wu**.
from ambiguity in themselves, and where external circum-
stances do not create any doubt or difficulty as to the
proper application of those words to claimants under the
instrument, or the subject-matter to which the instrument
relates, such instrument is always to be construed accord-
ing to the strict plain common meaning of the words
themselves ; and that, in such case, evidence dehors the
instrument, for the purpose of explaining it according to
the surmised or alleged intention of the parties to the
instrument, is utterly inadmissible (h) ; therefore words
deleted from a document and initialed cannot be looked
at for the purpose of arriving at the intention of the
parties (i). The true interpretation, however, of every
instrument being manifestly that which will make the
instrument speak the intention of the party at the time it
was made, it has always been considered as an exception
from — or, perhaps, to speak more precisely, not so much
an exception from, as a corollary to — the general rule
above stated, that, where any doubt arises upon the
true sense and meaning of the words themselves, or any
difficulty as to their application under the surrounding
(g) Earl of BaUCs cote, Cart. R. Chichuter, 3 Taunt. 147 ; S. C.
108, 109, adopted 1 Fonbl. Eq., 5th (affirmed in error), 4 Dow. 65 ; cited
ed. , 445, n. and explained, Wigram, Extrin. Bvid.,
(h) Per Tindal, C.J., Shore ▼. 3rd ed., 77.
WiUon, 5 Scott, N. R. 1037. For (i) Inglis v. Buttetly, 8 App.
an instance of the application of thia Caa. 552.
rale to a will, see Doe d. Oxenden v.
576 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
circumstances, the sense and meaning of the language
may be investigated and ascertained by evidence dehors
the instrument itself ; for both reason and common sense
agree that by no other means can the language of the
instrument be made to speak the real mind of the
party (Jfc) ; and although parol evidence cannot be used to
add to or detract from the description in a deed, or to
alter it in any respect, such evidence is always admissible
to show the condition of every part of the property and
all other circumstances necessary to place the Court,
when it construes an instrument, in the position of the
parties to it, so as to enable the Court to judge of the
meaning of the instrument (Z). "You may," observes
Coleridge, J. (m), with reference to a guarantee under the
old law (n), " explain the meaning of the words used
by any legal means. Of such legal means, one is to look
at the situation of the parties. Till you have done that,
it is a fallacy to say that the language is ambiguous : that
which ends in certainty is not ambiguous."
cues in The following cases may be mentioned as falling within
illustration. ©J -©
the scope of the preceding remarks : 1st, where the in-
strument is in a foreign language, in which case the jury
must ascertain the meaning of the terms upon the
evidence of persons skilled in the particular language (o) ;
2ndly, ancient words may be explained by contempora-
neous usage; 3rdly, if the instrument be a mercantile
contract, the meaning of the terms must be ascertained
(*) Per Tindal, C. J., 5 Scott, N. (m) Bainbridgt ▼. Wade, 16 Q.
JL 1037, 1038 ; MonUfiore v. Lloyd, B. 100.
15 C. B. N. S. 203. (n) See, now, stat. 19 & 20 Vict.
(/) Baird ▼. Fortune, 4 Maoq. H. c. 97, s. 3.
L. *127 at p. 149 ; Magee v. Lavdl, (o) At to this proposition, see 2
L. R. 9 C. P. 107, 112. Phill. Br., 10th ed., 866.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 577
by the jury according to their acceptation amongst mer-
chants ; 4thly, if the terms are technical terms of art,
their meaning must, in like manner, be ascertained by the
evidence of persons skilled in the art to which they refer.
In such cases, the Court may at once determine, upon the
inspection of the instrument, that it belongs to the pro-
vince of the jury to ascertain the meaning of the words,
and, therefore, that, in the inquiry, extrinsic evidence to
some extent must be admissible (p).
It may be scarcely necessary to observe, that the maxim
under consideration applies equally to the interpretation of
an Act of Parliament ; the general rule being that a verbis
legis non est recedendum (q). A court of law will not
make any interpretation contrary to the express letter of
a statute ; for nothing can so well explain the meaning of
the makers of the Act as their own direct words, since
index animi sermo, and maledicta expositio quce corrum-
pit textum (r) ; it would be dangerous to give scope for
making a construction in any case against the express
words, where the meaning of the makers is not opposed to
them, and when no inconvenience will follow from a literal
interpretation ($). " Nothing," observed Lord Dewman,
C. J. in a recent case (t), " is more unfortunate than a
disturbance of the plain language of the legislature, by
the attempt to use equivalent terms."
{p) Per Rrskine, J., 5 Scott, N. (r) 4 Rep. 35; 2 Rep. 24; 11
R. 988 ; per Parke, B., Clift ▼. Rep. 84 ; Wing. Max., p. 26.
Schwabt, 3 C. B. 469, 470. As to (#) Eldrich's case, 5 Rep. 119 ;
the construction of a settlement in cited, Arg. Qaunt v. Taylor, 3 Scott,
equity, see, per Lord Campbell, Evans N. R. 709.
y. Scott, 1H.L Cas. 66. (t) Everard t. PoppUton, 5Q.fi.
(q) 5 Rep. 119 ; cited, Wing. Max., 184 ; per Coltman, J., Oadsby v.
p. 25. Barrow, 8 Scott, N. R. 804.
p p
578 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
CERTUM EST QUOD CERTUH REDDI POTEST. — (ArOy, Max.,
9th ed., 265.) — That is sufficiently certain which can
be made certain.
pSSittonSf ^e ab°ve maxim, which sets forth a rule of logic as
mk- well as of law, is peculiarly applicable in construing a
LeMe- written instrument. For instance, although every estate
for years must have a certain beginning and a certain end,
" albeit there appear no certainty of years in the lease,
yet, if by reference to a certainty it may be made certain,
it sufficeth " (it) ; and, therefore, if a man make a lease to
another for so many years as J. S. shall name, this is a
good lease for years ; for though it is at present uncertain,
yet when J. S. hath named the years, it is then reduced
to a certainty. So, if a parson makes a lease for twenty
or more years, if he shall so long live, or if he shall so
long continue parson, it is good, for there is a certain
period fixed, beyond which it cannot last, though it may
determine sooner on the death of the lessor, or his ceasing
to be parson (x).
It is true, said Lord Kenyon, C. J., that there must be
a certainty in the lease as to the commencement and
duration of the term, but that certainty need not be
ascertained at the time ; for if, in the fluxion of time, a
day will arrive which will make it certain, that is suffi-
cient As, if a lease be granted for twenty-one yean,
after three lives in being, though it is uncertain at first
when that term will commence, because those lives are in
being, yet when they die it is reduced to a certainty, and
Id ccrtum est quod cerium reddi potest, and such terms
(a) Co. Litt 45. b. 279, 280 ; 6 Rep. 35 ; Go. Utt,
(x) 2 Com. by Broom k Hadley, 45. b.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 579
are frequently created for raising portions for younger
children (y). But where an agreement for a lease con-
tained no mention of the date from which the lease was
to commence, it was held that it was not to be inferred
that it commenced from the date of the agreement, in the
absence of language in it pointing to that conclusion, and
that therefore it failed to satisfy the Statute of Frauds (z).
Again, it is a rule of law, that, "no distress can be
taken for any services that are not put into certainty nor
can be reduced to any certainty, for Id certum est quod
certum reddi potest " (a) ; and, accordingly, where land is
demised at a rent which is capable of being reduced to a
certainty, the lessor will be entitled to distrain for the
same (6).
The office of the habendum in a deed is to limit, explain, office of
habendum.
or qualify the words in the premises ; but if the words of
the habendum are manifestly contradictory and repugnant
to those in the premises, they must be disregarded (c).
A deed shall be void if it be totally uncertain ; but if the uncertain-
King's grant refers to another thing which is certain,
it is sufficient ; as, if he grant to a city all liberties which
London has, without saying what liberties London has (d).
An agreement in writing for the sale of a house, did Agreement,
not by description ascertain the particular house, but it
referred to the deeds as being in the possession of A. B.,
named in the agreement. The Court held the agreement
(y) GoodrUjht d. Hall v. Richard- to a feoffment of lands, Bee Co. Litt.
son, 3 T. 2. 463. 6. a. ; and Maughan v. Sharpe, 17
(e) Marshall ▼. Berridgc, 19 Ch. C. B. N. S. 443.
Div. 233. (c) Doe d. Timmis v. Steele, 4 Q.
(a) Go. Litt. 96. a., 142. a. ; B. 663.
Parke t. Harris, 1 Salk. 262. (d) Com. Dig., " <?«*»tf " (K. 14),
(6) Daniel v. Grade, 6 Q. B. 145 ; (G. 5) ; Finch, Law, 49.
PoUitt y. Forrest, 11 Q. B. 949. Aa
P P 2
580
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Additional
instances.
sufficiently certain, inasmuch as it appeared upon the face
of the agreement that the house referred to was the
house of which the deeds were in the possession of A. B.,
and, consequently, the house might easily be ascertained
before the Master, and Id certum est quod cerium reddi
potest (e).
Again, the word " certain " must, in a variety of cases,
where a contract is entered into for the sale of goods,
refer to an indefinite quantity at the time of the contract
made, and must mean a quantity which is to be ascer-
tained according to the above maxim (/).
And where the law requires a particular thing to be
done, but does not limit any period within which it must
be done, the act required must be done within a reason-
able time; and a reasonable time is capable of being
ascertained by evidence, and, when ascertained, is as fixed
and certain as if specified by Act of Parliament (g).
Where it was awarded that the costs of certain actions
should be paid by the plaintiff and defendant in specified
proportions, the award was held to be sufficiently certain,
since it would become so upon taxation of costs by the
proper officer (A). By the Act 3 & 4 Wm. IV., a 42, s. 28,
interest may be given by the jury upon all debts, &a, pay-
(e) Owen v. Thomas, 3 My. k K.
353.
(/) Per Lord EUenborough, C.J.,
Wildman v. Glossop, 1 B. & Aid. 12.
(g) See per Lord EUenborough,
C.J., Palmer v. Moxon, 2 M. & S.
50.
(h) Cargey v. Aitcheson, 2 B. & C.
170. See Pedley v. Goddard, 7 T.
R. 73 ; Wood v. Wilson, 2 Cr. M.
& R. 241 ; Waddle v. Doiomnan, 12
M. & W. 562 ; Smith v. Hartley, 10
C. B. 800, 805 ; Graham v. Darrtyr
6 C. B. 539; Boldmoorth ▼. Bar-
sham, 2B.&S. 480.
The maxim supra was applied to a
valuation in Gordon v. Whitehouse,
18 C. B. 747, 753— to an indenture
of apprenticeship in Reg. v. Wooldale,
6 <i B. 549, 566. It may also be
applicable in determining whether an
action of debt will lie under given
circumstances ; see Barber v. Butcher,
8 Q. B. 863, 870.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
581
able at a certain time. The plaintiff had agreed to supply
the defendant with certain furniture upon the terms that
payment was to be made, one-third in cash, as soon as the
goods and invoices were delivered, and the balance in
bills at six and twelve months. An action being brought
for the one-third cash which the defendant had failed to
pay, interest was claimed from the date when the goods
were delivered. The Court (Blackbwrn, J., dissenting)
allowed interest, considering the statute satisfied, if an
event be named on which payment is to be made, and
that the time of payment was fixed as being the time
when the goods and invoices were delivered to the
defendant (i).
Utile per inutile non vitiatur. (3 Rep. 10.)— Swr-
plusage does not vitiate that which in other respects
is good and valid.
It is a rule of extensive application with reference to
the construction of written instruments, and in the science
of pleading, that matter which is mere surplusage may be
rejected, and does not vitiate the instrument or pleading
in which it is found — SwrplvAagiwm non nocet (k) is the
maxim of our law.
(i) Buncombe v. Brighton Club
Co., L. R. 10 Q. B. 871 ; 44 L. J.
<i. B. 216 ; Gruth v. Boss, 44 L. J.
C. P. 815. See, however, Merchant
Shipping Co. v. Armitage, L. R. 9
Q. B. 99, 114.
(*) Branch, Max., 5th ed., 216 ;
Non solent qua abundant vitiare
scriptural, D. 50. 17. 94.
" Surplusage (in pleading) is some-
thing that is altogether foreign and
inapplicable : " per Manle, J., Aldis
v. Mason, 11 C. B. 189. See, also,
as to surplusage, Shep. Touch. 286 ;
cited, per Williams, J., Janes v.
Wkitbread, 11 C. B. 412 ; Maclae
v. Sutherland, 8 E. & B. 1, 83, illus-
trates the maxim supra.
582
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Example*.
Deed.
Award.
Accordingly, where words of known signification are so
placed in the context of a deed that they make it repug-
nant and senseless, they are to be rejected equally with
words of no known signification (Z). It is also a rule in
conveyancing, that, if an estate be granted in any
premises, and that grant is express and certain, the
habendum, although repugnant to the deed, shall not
vitiate it. If, however, the estate granted in the premises
be not express, but arise by implication of law, then a
void habendum, or one differing materially from the
grant, may defeat it (m).
A cause and all matters of difference were referred to
the arbitration of three persons, the award of the three, or
of any two of them, to be final The award purported on
the face of it to be made by all three, but was executed
by two only of the arbitrators, the third having refused to
sign it when requested so to do. This award was held to
be good as the award of the two, for the statement that
the third party had concurred, might, it was observed, be
treated as mere surplusage, the substance of the averment
being that two of the arbitrators had made the award (w).
So where the directors of an unincorporated and un-
registered joint-stock company issued promissory notes
(?) Vaugh. R. 176. See Whittome
v. Lamb, 12 M. & W. 813.
(m) Arg., Goodtitle v. Gibbs, 5 B. &
C. 712, 713, and cases there cited ;
Shep. Touch. 112, 113, Hobart,
171. See, also, instances of the ap-
plication of this rule to an order of
removal, Reg. v. Rotherham, 3 Q.
B. 776, 782; Reg. r. SUksUme, 2
Q. R. 422 ; to an order under 2 ft 3
Vict. c. 85, s. 1, Reg. v. Goodall,
2 Dowl. P. C, N. S., 382; Reg. v.
Oxley, 6 Q. B. 256 ; to a conviction,
Chancy v. Payne, 1 Q. B. 722 ; to a
notice of objection under 6 & 7 Vict,
c. 18, Allen, app., House, reap., 8
Scott, N. R. 987 ; cited, Arg., 2 C.
B. 9; to an information, A.-G. v.
Clere, 12 M. & W. 640.
(n) White v. Sharp, 12 M. b W.
712. See, also, per Alderson, B.,
Wynne v. Edwards, 12 M. & W.
712 ; Harlow v. Read, 1 C. B. 733.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 583
which purported to bind the shareholders severally, as
well as jointly, it was held that it was beyond the power
of the directors to make the shareholders severally liable
upon the notes, but that the expression in the notes, by
which a separate liability was sought to be created, might
easily be detached in construing it and taken pro non
scripta (o).
The above maxim, however, applies peculiarly to plead- Application
ing ; in which it is a rule, that matter immaterial cannot pleading.
operate to make a pleading double, and that mere sur-
plusage does not vitiate a plea, and may be rejected (p).
Lastly, with respect to an indictment, it is laid down, indictment.
that an averment, which is altogether superfluous, may
here be rejected as surplusage (<?). Accordingly, where a
criminal information was laid against a member of the
legislative Assembly of the Colony of New South Wales,
for an assault on a member, committed within the pre-
cincts of the House, while the Assembly was sitting,
which information averred that such assault was in con-
tempt of the said Assembly (that being in itself no
offence), it was held that the information was good, as
the alleged contempt of the Assembly could be treated
as surplusage, and the information sustainable for an
assault (r). If, however, an averment be part of the
description of the offence, or be embodied by reference in
such description, it cannot be so rejected, and its intro-
(o) Madae v. Sutherland, 3 Ell. rejection of surplusage in a declara-
nt Bl. 1. tion.
(p) Co. Litt 303, b. ; Steph. PI., (q) Reg. v. Parker, L. R. 1 C. C.
6th ed., 310, 341. 225.
Ring v. Roxburgh, 2 Cr. & J. 418 (r) Attorney-General of New South
(cited per Rolfe, B., Duke ▼. Forbes, Wales v. Macpherton, L. R. 3 P. C.
1 Kxch. 356), is an instance of the 268.
584
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
duction may, unless an amendment be permitted, be
fatal (*).
Definition of
faLiademon-
ttratio, and
rule respect-
ing it.
Falsa Demonstrate non nocet. (6 T. R. 676.) —
Mere false description does not make an instrument
inoperative.
Falsa demonstratio may be defined to be an erroneous
description of a person or thing in a written instru-
ment (t) ; and the above rule respecting it may be thus
stated and qualified : as soon as there is an adequate and
sufficient definition, with convenient certainty, of what is
intended to pass by the particular instrument, a sub-
sequent erroneous addition will not vitiate it (u) : gttic-
quid demonstrate rei additur satis demonstrate frustra
est(x). The characteristic of cases within the principal
maxim being that "the description so far as it is false
applies to no subject at all (y), and so far as it is true applies
to one only." " I have always understood," observes Lord
Kenyon, speaking with reference to a will (z), " that such
(a) Dickinfl. Quart. Sees., 5th ed.,
by Mr. Serjt. Talfourd, 175.
(t) See Bell, Diet, and Dig. of
Scotch Law, 420 ; Spooner y. Payne,
4 C. B. 828, 380 ; Robinson v. Marq.
of Bristol, 11 C. B. 208 ; S. C (in
error), Id. 241.
(u) Per Parke, B., JUeweUyn v.
Earl of Jersey, 11 M. & W. 189 ;
recognixed in Barton v. Dawes, 10
C. B. 261, 266 ; Travers v. Blundett,
6 Ch. Div. 436 ; Judgm., MorreU v.
Fisher, 4 Exch. 604 ; recognixed in
Woody. Rowdiffe, 6 Exch. 407, 410;
Harrison t. Hyde, 4 H. & N. 805 ;
Josh v. Josh, 5 C. B. N. S. 454 ;
Com. Dig., "FaUn (E. 4); Cam-
bridge v. Rous, 8 Ves. 12 ; Enohm
y. Wylie, 10 H. L. Caa. 1.
(x) D. 33. 4. 1, § 8.
(y) Judgm., Webber v. Stanley,
16 C. B. N. S. 755.
(z) Thomas v. Thomas, 6 T. B.
676. See, also, Mosley y. Jfassey,
8 East, 149 ; per Parke, J., Doe d.
Smith y. Galloway, 5 B. & Ad. 51 ;
followed in Dyne v. Nitticy, 14 C B.
122 ; per Littledale, J., Doe d. Ash-
forth v. Bower, 3 B. & Ad. 459 ;
Oynes y. Kemsley, 1 Freem. 298;
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 585
falsa demonstratio should be superadded to that which
was sufficiently certain before, there must constat de
persond; and if to that an inapt description be added,
though false, it will not avoid the devise." "I agree,"
observes PaMeson, J. (a), "to the doctrine that Falsa
demonstratio now, nocet: but that is only where the
words of the devise, exclusive of that falsa demonstratio,
are sufficient of themselves to describe the property in-
tended to be devised ; reference being had, if necessary
to the situation of the premises, to the names by which
they have been known, or to other circumstances properly
pointing to the meaning of the description in the will/9
And again, the maxim as to falsa demonstratio, says Lord
Westbury (b), " is applicable to a case where some subject
matter is devised as a whole under a denomination, which
is applicable to the entire land, and then the words of de-
scription that include and denote the entire subject-matter
are followed by words which are added on the principle
of enumeration, but do not completely enumerate and
exhaust all the particulars which are comprehended and
included within the antecedent universal or generic deno-
mination. Then the ordinary principle and rule of law
which is perfectly consistent with common sense and
reason is this : that the entirety which has been expressly
and definitely given, shall not be prejudiced by an imper-
fect and inaccurate enumeration of the particulars of the
specific gift "(c).
The foregoing observations are, in the main, applicable
Hobart, 32, 171 ; Greene v. Arm- (b) West ▼. Lawday, 11 H. L
steed, Id. 65 ; Vin. Abr., "Devise" Cas. 384.
(T. b.), pi. 4. (e) See, also, per Lefroy, C. J., Roe
(a) Doe d. Hubbard v. Hubbard, v. Lidtoell, 11 Ir. C. L. R. 326, cited
15 Q. B. 241. Arg. Skull v. Glenister, 16 C. B. N.
S. 89.
586 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
not only to wills, but to other instruments (d) ; so that
the characteristic of cases strictly within the above rule
is this, that the description, so far as it is false, applies to
no subject, and, so far as it is true, it applies to one subject
only ; and the Court, in these cases, rejects no words but
those which are shown to have no application to any
subject (e). The following case shows the anxiety of the
Court to give effect to a testator's intention, where the
subject-matter of the bequest is inaccurately described,
but when explained by extrinsic evidence may be made
sufficiently certain to enable the Court to act upon it.
A testator by his will gave an annuity of £21 per annum,
which " I purchased of," and received from " Mr. J. G."
The testator had no annuity of that amount, but he had
an annuity of £46 which he had purchased from J. G.,
and had insured J. G.'s life for the amount of the purchase-
money, the yearly premium on which came to £25, thus
leaving a clear sum of £21 as representing the bene-
ficial interest in the annuity ; it was held, that the entire
annuity of £46 per annum passed by the above be-
quest (/).
Where accordingly a question involving the legal doc-
trine now before us arises upon a will, we must inquire
is there a devise of a thing certain ? If there be, the
addition of an untrue circumstance will not vitiate the
devise (y).
(d) London (hand Junction R. C. (t) See Wigram, Ex. Ev., 3rd ed.,
▼. Freeman, 2 Scott, N. R. 705, 748. 142, 165 ; Judgm., AforrellY. Fuker,
See Reg. v. WUcorJc, 7 Q. B. 317 ; 4 Kxch. 6J4 ; Mann v. Mann, 14
Jack ▼. WIntyrc, 12 CI. & Fin. 151; Johns. (U.S.), R. 1.
Ormerod v. Ghadwick, 16 M. & W. (/) Purcha* v. ShaUis, 14 Jur.
367 ; followed, per Wightman, J., 403.
JUg. ▼. Stretfield, 32 L. J., M. C, (ff) Plowd. 191 ; cited and adopted
236. Judgm., NightingaU v. Smith, 1
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 587
In the case of Selwood v. MUdmayfh), the testator adwod v.
devised to his wife part of his stock in the £4 per Cent.
Annuities of the Bank of England, and it was shown by
parol evidence, that at the time he made his will, he had
no stock in the £4 per Cent. Annuities, but that he had
had some, which he had sold out, and of which he had
invested the produce in Long Annuities : it was held in
this case that the bequest was, in substance, a bequest of
stock, using the words as a denomination, not as the
identical corpus of the stock ; and as none could be found
to answer the description but the Long Annuities, it was
decided that such stock should pass, rather than the will
be altogether inoperative.
A testatrix, by her will, bequeathed several legacies to
different individuals, of £3 per Cent. Consols standing in
her name in the books of the Bank of England ; but, at
the date of her will, as well as at her death, she possessed
no such stock, nor stock of any kind whatever. It was
held that the ambiguity in this case being latent, evidence
was admissible to show how the mistake of the testatrix
arose, and to discover her intention (i).
But where a testatrix died possessed of property in
Consols, Reduced Annuities, and Bank Stock, and by her
will bequeathed " the whole of my fortune now standing
in the Funds to E. S." : Held, that the Bank Stock did
not pass (&).
On the same principle, in the case of a lease of a
Exch. 886 ; and, per Parke, B., (i) Lindgren v. Lindgren, 9 Beav.
MorrtU v. FUher, 4 Exch. 599. 358 ; citing Selwood v. MUdmay, 8
And, as illustrating the passage above Ves. 306 ; Miller v. Traver*, 8
cited, compare Doe d. Hiibbard v. Bing. 244 ; and Doe d. Hitcocks ▼.
Mubbard, 15 Q. B. 227, with Doe d. Iliacocki, 5 M. & W. 363.
Compton v. Carpenter, 16 Id. 181. (*) Slingtiy v. Grainger, 7H.L
(h) 3 Ves. jun. 306. Cas. 273.
588
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Rule appli-
cable to wilL
portion of a park, described as being in the occupation of
S., and lying within certain specified abuttals, with all
houses, &a, belonging thereto, and " which are now in the
occupation of S." : it was held, that a house, situated
within the abuttals, but not in the occupation of S., would
pass (I). So, where an estate is devised, called A., and
described as in the occupation of. B., and it is found that,
though there is an estate called A., yet the whole is not
in B.'s occupation (m) ; or, where an estate is devised to
a person whose surname or Christian name is mistaken,
or whose description is imperfect or inaccurate : in these
cases parol evidence is admissible to show what estate
was intended to pass, and who was the devisee intended
to take, provided there is sufficient indication of intention
appearing on the face of the will to justify the application
of the evidence (n). Thus, a devise of all the testator's
freehold houses in Aldersgate Street, where, in fact, he
had no freehold, but had leasehold houses, was held to
pass the latter, the word " freehold " being rejected (o) ;
the rule being, that, where any property described in a
will is sufficiently ascertained by the description, it passes
under the devise, although all the particulars stated in
the will with reference to it may not be true (p). In other
words, nil facit error nominis cum de corpora vel per-
il) Doe d. SmitJt v. Galloway, 5
B. & Ad. 43 ; BcaUmont v. Field, 1
B. & Aid. 247 ; 3 Preston. Alwtr.
Tit 206 ; Doe d. BoberU v. Parry,
13 M. & W. 356.
(m) Ooodtitle v. Southern, 1 M. &
S. 299.
(it) Judgm., Miller v. Travere,
8 Bing. 248 ; Doe d. Hiscocks v.
JfUcocke, 5 M. 4 W. 363 ; Riskton
v. Cobb, 5 My. &Cr. 145.
(o) Day v. Trig, 1 P. Wma. 286 ;
Doe d. Dunning v. Cranttottn, 7 M.
& W. 1. See Parker v. Marchant,
6 Scott, N. R. 485 ; Goodman v.
Edward*, 2 My & K. 759 ; Hobwn
v. Blackburn, 1 My. & K. 571.
(p) Per Parke, B., Doc d. Dun-
rung v. Cranstoun, 7 M. & W. 10 ;
Newton v. Lucas, 1 My. & Cr. 391.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 589
wn& constat (q). " It is fit, and therefore required,"
observes Mr. Preston (r), " that things should be described
by their proper names ; but, though this be the general
rule, it admits of many exceptions, for things may pass
under any denomination by which they have been usually
distinguished."
In a modern case (s), where property was devised to the Bfaiwwiv.
v n r r J ^ Gladstone.
second son of Edward W., of L., this devise was held,
upon the context of the will, and upon extrinsic evidence
as to the state of the W. family, and the degree of the
testator's acquaintance with the different members of it,
to mean a devise to the second son of Joseph W., of L.,
although it appeared that there was in fact a person
named Edvjard Joseph W., the eldest son of Joseph W.,
who resided at L., and who usually went by the name of
Edward only ; and it was remarked, that, according to
the general rule of law and of construction, if there had
been two persons, each fully and accurately answering the
whole description, evidence might be received, or argu-
ments from the language of the will, and from circum-
stances, might be adduced to show to which of those
persons the will applied ; but that where one person, and
one only, fully and accurately answers the whole descrip-
tion, the Court is bound to apply the will to that person.
It was, however, further observed, that an exception
would occur in applying the above rule, where it would
lead to a construction of a devise manifestly contrary to
what was the intention of the testator, as expressed by
his will, and that the rule must be rejected as inapplicable
(q) See Jane* v. Whitbread, 11 C. Rep. 66.
B. 406 ; and Stanley ▼. Stanley, 2 J. («) BlundeU y. Gladstone, 1 Phil.
& H. 491. 279; S. C, nom. Lord Camay* v.
(r) 3 Pros*. Abst. Tit 206; 6 BlundeU, 1 H. L. Cas. 778.
590
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Restriction
of rule.
Miter v.
Travtn.
to a case in which it would defeat instead of promoting
the object for which all rules of construction have been
framed (t).
In accordance with the spirit of the maxim under con*
sideration, where a judge's order for the admission of
documents in evidence referred to a "document mentioned
in a certain notice served by the defendant's attorney or
agent, dated the 4th day of March, 1845/' and the notice
produced at the trial was dated the 1st of March, but the
plaintiff's attorney stated that it was the only notice
served in the cause, the judge at the trial allowed the
document to be read; and the Court held that it was
admissible, on the ground that, as only one notice had
been served, the misdescription was merely Faka demon-
stratio quoe non nocet (u).
But, although an averment to take away surplusage is
good, yet it is not so to increase that which is defective
in the will of the testator (x); and, it has been ob-
served (y), that there " is a diversity where a certainty is
added to a thing which is uncertain, and where to a thing
certain."
In a leading case on this subject (z), testator devised
all his freehold and real estates in tbe county of L. and
city of L. It appeared that he had no estates in the
county of L., — a small estate in the city of L., inadequate
(t) 1 PhiL R. 285, 286.
(u) Bittlafon ▼. Cooper ; 14 M. &
W. 399.
(x) Per Anderson, C. J. , Godbolt,
R., 181, recognized 8 Bing. 253 ; per
Lord Eldon, C., 6 Ves. jun. 397.
(y) See, per Lord Ellenbvroogh,
C. J., Doe d. Harris v. Great-
hed> 8 East, 103 : Hob. R., 172 ;
Doe d. Renow v. Ashley, 10 Q. B.
663.
(a) Miller y. Travers, 8 Bing. 244,
and the observations on this decision
bj Sir James Wigram, in the treatise
already referred to, and, per Lord
Brougham, Mottyn v. J/ortyn, 5 H.
L. Cas. 168.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 591
to meet the charges in the will, — and estates in the county
of C, not mentioned in the will. It was held, that parol
evidence was inadmissible to show the testator's intention
that his real estates in the county of C. should pass by
his will. For it was observed, that this would be not
merely calling in the aid of extrinsic evidence to apply
the intention of the testator, as it was to be collected from
the will itself, to the existing state of his property: it
would he calling in aid extrinsic evidence to introduce
into the will an intention not apparent upon the face of
it. It would be not simply removing a difficulty arising
from a defective or mistaken description, it would be
making the will speak upon a subject on which it was
altogether silent, and would be the same thing in effect
as the filling up a blank which the testator might have
left in his will: it would amount, in short, by the
admission of parol evidence, to the making of a new
devise for the testator,, which he was supposed to have
omitted (a). If, then, with all the light which can be
thrown upon the instrument by evidence as to the mean-
ing of the description, there appears to be no person or
thing answering in any respect thereto, it seems, that, to
admit evidence of a different description, being intended
to be used by the writer, would be to admit evidence for
the substitution of one person or thing for another, in
violation of the rule, that an averment is not good to in-
crease that which is defective in a written instrument (&);
accordingly where a testator by his will appointed Francis
Courtenay Thorpe, gentleman, as one of his executors,
and there was living a youth of twelve years of age who
answered the description, evidence to show that the tes-
te) 8 Bing. 249, 250. (6) 2 Phil. Evid., 10th ed., 345.
592
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Ptratntia
corporis to/-
lUtrrorem
nonfat*.
tator referred to the father of the youth was not ad-
mitted (c).
Included in the maxim as to falsa demonstratio, is the
rule laid down by Lord Bacon in these words : Pra&entia
corporis tollit errorem nominis, et Veritas noniinis tollit
errorem demonstrationis (d) ; and which is thus illus-
trated by him: — "If I give a horse to J. D., when
present, and say to him, ' J. S. take this/ it is a good gift,
notwithstanding I call him by a wrong name. So, if I
say to a man, ' Here, I give you my ring with the ruby,'
and deliver it, and the ring is set with a diamond, and not
a ruby, yet this is a good gift In like manner, if I grant
my close, called 'Dale/ in the parish of Hurst, in the
county of Southampton, and the parish extends also into
the county of Berks, and the whole close of Dale lies, in
fact, in the last-mentioned county, yet this false addition
will not invalidate the grant (e). Moreover, where things
are particularly described, as, ' My box of ivory lying in
my study, sealed up with my seal of arms/ ' My suit of
(c) R. ▼. Peel, L. R. 2 P. & D. 46.
(<*) Bac. Max., reg. 24; 6 Rep.
60 ; 1 Lord Raym. SOS ; 6 T. R. 675 ;
Doe v. ffuthtvaite, 3 B. & Aid. 640 ;
per Gibbs, C. J., S. C, 8 Taunt. 318 ;
NicoU v. Chambers, 11 C. B. 996,
and Hopkins v. Hitchcock, 14 C. B.
N. S. 65, 73, where there was a
misdescription of property in a con-
tract of sale. As to the maxim
supra, Bee the remarks of Lord
Brougham in Lord Camoys v. Blun-
deU, 1 H. L. Cas. 792, 793 ; Mostyn
v. Mostyn, 5 H. L. Cas. 155 ; S. C,
3 De G. M. k G. 140.
In Drake v. Drake, 8H.L Gas.
179, Lord Campbell, C, observes,
"There is a maxim that the name
shall prevail against an error of de-
monstration ; but then you must first
show that there is an error of demon-
stration, and until you have shown
that, the rule Veritas nombUs tollit
errorem demonstrationis does not
apply. I think that there is no pre-
sumption in favour of the name more
than of the demonstration."
The maxim supra was applied per
Byles, J.f Way v. Hearn, 13 C. B.
N. S. 807.
(0 See Anstee v. Nelms, 1 H. &
N. 225; per Byles, J., Hand v.
Green, 9 C. B. N. S. 477.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 593
arras, with the story of the Nativity and Passion ; ' inas-
much as of such things there can only be a detailed and
circumstantial description, so the precise truth of all the
recited circumstances is not required ; but, in these cases,
the rule is, ex muUitudine signorum colligitur identitas
vera; therefore, though my box were not sealed, and
though the arras had the story of the Nativity, and not
of the Passion embroidered upon it, yet, if I had no other
box and no otber suit, the gifts would be valid, for there
is certainty sufficient, and the law does not expect a
precise description of such things as have no certain
denomination. Where, however, the description applies
accurately to some portion only of the subject-matter of
the grant, but is false as to the residue, the former part
only will pass ; as, if I grant all my land in D., held by
J. S., which I purchased of J. N., specified in a demise
to J. D., and I have land in D., to a part of which the
above description applies, and have also otber lands in D.,
to which it is in some respects inapplicable, this grant
will not pass all my land in D., but the former portion
only "(/). So, if a man grant all his estate in his* own
occupation in the town of W., no estate can pass except
what is in his own occupation and is also situate in that
town (g).
In a recent important case (h) connected with criminal
procedure, the maxim Prcesentia corporis tottit errorem
nominis was judicially applied, the facts being as under r
— Preparatory to a trial for murder, the name of A., a
juror on the panel, was called, and B., another juror, on
(/) Bac. Works, vol. 4, pp. 78, 75, (g) 7 Johns. (U.8.), R. 224.
77, 78 ; Bac. Abr.f " Grantt" (H. (A) Beg. y. Mdlor, 27 L. J., M. C~
1) ; Toml. Law Diet. " Gift ; " Noy, 121.
Max., 9th ed., p. 50.
Q Q
594 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
the same panel, appeared, and by mistake answered to
the name of A., and was sworn as a juror. A conviction
ensued, which a majority of the Court for the Considera-
tion of Crown Cases Reserved held ought not to be set
aside, one of the learned Judges thus founding his opinion
upon the maxim cited : — u The mistake is not a mistake
of the man, but only of his name. The very man who,
having been duly summoned, and being duly. qualified,
looked upon the prisoner, and was corporeally presented
and shown to the prisoner for challenge, was sworn and
acted as a juryman. At bottom the objection is but this,
that the officer of the Court, the juryman being present,
called and addressed him by a wrong name. Now, it is
an old and rational maxim of law, that where the party to
a transaction, or the subject of a transaction, are either of
them actually and corporeally present, the calling of either
by a wrong name is immaterial Pnvsentia corporis toUit
errorem nominis. Lord Bacon, in his maxims (i), fully
explains and copiously illustrates this rule of law and good
sense, and shows how it applies, not only to persons, but
to things. In this case, as soon as the prisoner omitted
the challenge, and thereby in effect said, ' I do not object
to the juryman there standing,' there arose a compact
between the Crown and the prisoner that the individual
juryman there standing corporeally present should try the
case. It matters not, therefore, that some of the accidents
of that individual, such as his name, his address, his occu-
pation, should have been mistaken. Constat de corpora."
Roiea u to The rules, it has been remarked (£), which govern the
construction .
«f grant* construction of grants have been settled with the greatest
wisdom and accuracy. Such effect is to be given to the
(t) UH supra, (U.S.), R. 223, 224 ; recognised IS
(fc) Jackson v. Clark, 7 Johns. Id. 84.
INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS. 595
instrument as will effectuate the intention of the parties,
if the words which they employ will admit of it, vi res
magis valeat quam *pereat. Again, if there are certain
particulars once sufficiently ascertained which designate
the thing intended to be granted, the addition of a cir-
cumstance, false or mistaken, will not frustrate the
grant (I). But when the description of the estate in-
tended to be conveyed includes several particulars, all of
which are necessary to ascertain the estate to be conveyed,
no estate will pass except such as will agree with the
description in every particular (m).
In Doe d. Gains v. Rouse (n), Lord Bacon's maxim
above cited was felicitously applied. There the testator —
having a wife Mary, to whom he was married in 1834, and
who survived him — in 1840 went through the ceremony
of marriage with a woman whose Christian name was
Caroline, and who continued to reside with him as his
wife to the time of his death, which took place in 1845.
Shortly before his decease the testator by his will devised
certain property to " my dear wife Caroline, her heirs,
&c., absolutely." It was held that Caroline took under
this devise the property in question. "The testator,"
observed Maule, J., " devises the premises in question to
his dear wife Caroline. That is a devise to a person by
name, and one which appears to be that of the lessor of
the plaintiff. There is no competition with any one else
of the same name, to whom it can be suggested that the
will intended to refer. The only question is, whether the
lessor of the plaintiff, not being the lawful wife of the
testator, properly fills the description of his ' dear wife
(J) Biayne v. Odd, Cro. Car. 447, (m) 3 Atk. 9 ; Dyer, 50.
473, where the rale was applied to a (n) 5 C. B. 422.
devise.
Q Q 2
596 DTTKRPRETATIOX OF DEEDS AND WRITTEN EffSXBUXEXTS.
Caroline.' Formerly the name was held to be the impor-
tant thing. This is shown bj the 25th maxim of Lord
Bacon, to which I have before adverted: — * Veritas
nominis toll it errorem demonstrationist So, if I grant
land, Eplxopo nunc Londincnsi qui me erudivit in
pucritid ; this is a good grant, although he never in-
strncted me.' That rule has no doubt been relaxed in
modern times, and has given place to another, that the
construction of the devise is to be governed by the evident
intention of the testator. There are cases in which the
Courts have gone some length in opposition to the actual
words of the will ; but always with a view to favouring
the apparent or presumed intention of the testator. Here,
however, the struggle against the old rule is not that the
intention of the testator may be best effectuated by a
departure from it, but to get rid of a devise to the person
who was really intended to take. Here is a person fitly
named, and there can be no reasonable doubt that she was
the person intended. It being conceded that it was the
testators intention that Caroline should have the pro-
perty, and he having mentioned her by an apt descrip-
tion, I see no ground for holding that because the words
' my dear wife' are not strictly applicable to her, the in-
tention of the testator should fail and the property go to
some one to whom he did not mean to give it Caroline
was de facto the testator's wife ; and she lived with him as
such down to the time of his death. It is possible that
the first marriage may not have been a valid one At all
events, if Mary was his lawful wife, all that can be said is
that the testator had been guilty of bigamy. It is not the
case of a description that is altogether inapplicable to the
party, but of a description that is in a popular sense
applicable. The competition is between one whom the
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 597
testator clearly did mean, and another whom it is equally
clear that he did not mean. Interpreting the language
he has used in its proper and legitimate manner, and
regard being had to the circumstances existing at the time
of the execution of the will, there can be no doubt that .
the intention of the testator is best effectuated by holding
that the lessor of the plaintiff is the person designated,
and that apt words have been used to convey the property
in question to her."
It is, lastly, a rule, which may be here noticed, that, Legal in-
. . . . tendment
Non accipi debent verba in demonstrationem falsam
quae competent in limitationem veram (o), — if it be
doubtful upon the words, whether they import a false
reference or description, or whether they be words of
restraint, limiting the generality of the former name,
the law will not intend error or falsehood (p) — " where
words can be applied so as to operate on a subject-matter
and limit the other terms employed in its description,"
or "where there is a subject-matter to which they all
apply, it is not possible to reject any of those terms as a
falsa demonstratio " (5). If, therefore, " I have some land
wherein all these demonstrations are true, and some
wherein part of them are true and part false, then shall
they be intended words of true limitation, to pass only
those lands wherein all those circumstances are true " (r) ;
and if a man pass lands, describing them by particular
(0) Bac Max., reg. 13. (r) Bac. Max., reg. 13, ad finem ;
(p) Bac. Max., reg. 13, cited 8 cited, per Parke, J., Doe d. Ash-
East, 104. forth v. Bower, 3 B. & Ad. 459, 460 ;
(q) Per Willea, J., Smkh ▼. Doe d. Chichester v. Oxenden, 3
Jlidgway, L. R. 1 Ex. 332-3 ; S. C, Taunt. 147 ; Judgm., Morrell t.
JcL 46 ; Judgm., Webber v. Stanley, Fisher, 4 Exch. 604 ; per Willes, J.,
16 C. B. N. S. 698, 752, et seq. Josh v. Josh, 5 C. B. N. S. 463.
598 INTERPRETATION OF PEEDS AND WRITTEN INSTRUMENTS.
references, all of which references are true, the Court
cannot reject any one of them («).
Smrwt° Before concluding these remarks, it may be well to
•fcited. state shortly the rules respecting ambiguity and falsa
demonstratio, in connection with the exposition of wills,
which seem to be applicable to four classes of cases : —
1. Where the description of the thing devised, or of
the devisee, is clear upon the face of the will, but, upon
the death of the testator, it is found that there is more
than one estate or subject-matter of devise, or more than
one person whose description follows out and fills the
words used in the will; in this case parol evidence is
admissible to show what thing was intended to pass, or
who was intended to take (£).
2. Where the description contained in the will of the
thing intended to be devised, or of the person who is
intended to take, is true in part, but not true in every
particular: in which class of cases parol evidence i*
admissible to show what estate was intended to pass, and
who was the devisee intended to take, provided there is &
sufficient indication of intention appearing on the face of
the will to justify the application of the evidence (u).
3. A third class of cases may arise, in which a judge,
knowing aliunde for whom or for what an imperfect
description was intended, would discover a sufficient cer-
tainty to act upon ; although, if ignorant of the intention,
he would be far from finding judicial certainty in the
words of the devise ; and here it would seem that evidence
of intention would not be admissible, the description
(«) Per Le Blanc, J., Doe r. (t) 8 Ring. 248.
Lyford, 4 M. & S. 657. («) Id.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 599
being, as it stands, so imperfect as to be useless, unless
aided thereby (x).
4. It may be laid down as a true proposition, which is
indeed included within that secondly above given, that, if
the description of the person or thing be wholly inapplic-
able to the subject intended or said to be intended by it,
evidence is inadmissible to prove whom or what the testa-
tor really intended to describe (y).
Lastly, we may observe that the maxim, Falsa demon-
etratio non nocet, which we have been considering,
obtained in the Roman law (z) ; for we find it laid down
in the Institutes, that an error in the proper name or in
the surname of the legatee should not make the legacy
void, provided it could be understood from the will what
person was intended to be benefited thereby. Si quidem
in nomine, cognomine, prcenomine legatarii testator
emaverit, cum de persond constat, nikilominus valet le-
gatum (a). So, it was a rule akin to the proceeding, that
falsd demonstratione legatum non perimi (6), as if the
testator bequeathed his bondman, Stichus, whom he
bought of Titius, whereas Stichus had been given to him.
or purchased by him of some other person (c) ; in such a
case the misdescription would not avoid the bequest (d).
It is evident that the maxims above cited, and others
to a similar purport which occur both in the civil law and
in our own reports, are, in fact, deducible from those very
(x) See this subject considered, 1. 4 ; also, 2 Domat Bk. 2, tit. 1,
Wigram, Ejrtrin. Er., 3rd ed., 166, s. 6, § 10, 19 ; lb. s. 8, § 11.
167. (b) I. 2. 20. SO. See Whitfield v.
(y) Wigram, Extrin. By., 3rd ed., OUmment, 1 Mer. 402.
163. (c) I. % 20. 30.
(z) See PMllimore, Roman Law, \d) Id. ; Wood, Inst., 3rd ed.,
35. 165.
(a) I. 2. 20. 29 ; compare D. 30.
600
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
general principles with the consideration of which we
commenced this chapter — Benigni faciendce sunt inter-
pretationes, et verba intent ioni non e caniixi debent
inservire (e).
Rule as laid
down and
illustrated
by Lord
Bacon.
Verba generalia restringuntur ad Habilitatem Rei
vel Personam. (Bac. Max. reg. 10.) — General
worth may be aptly restrained according to the
subject-matter or person to which they relate (/)-
"It is a rule," observes Lord Bcuxm(g), "that the
king's grant shall not be taken or construed to a special
intent. It is not so with the grants of a common person,
for they shall be extended as well to a foreign intent as
to a common intent, but yet with this exception, that
they shall never be taken to an impertinent or repugnant
intent ; for all words, whether they be in deeds or statutes,
or otherwise, if they be general, and not express and
precise, shall be restrained unto the fitness of the matter
and the person." Qi).
(t) It may probably be unnecessary
to remind the reader that the cases
decided with reference to the rule of
construction considered in the pre-
ceding pages are exceedingly nume-
rous, and that such only have been
noticed as seemed peculiarly adapted
to the purposes of illustration. A
similar remark is equally applicable
to the other maxims commented on
in this chapter.
(/) Per Willes, J., Moore v. Saw-
lira, 6 C. B. N. a 820; citing
Payler v. Homertham, 4 M. & S.
423 ; and in Chariton v. Lings, L-
B. 4 C. P. 387.
General words may be controlled
by tho recital in an instrument. See
Bank of British North America v.
CuviUier, 14 Moo., P. C. C. 187,
and cases there cited.
(g) Bac. Max., reg. 10; 6 Sep.
62.
(h) The maxim supra was accord-
ingly applied to restrain the words
of a general covenant by a Railway
Company to " efficiently work" a
line demised to them — the covenant
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
601
Thus, if I grant common " in all my lands " in D., if
I have in D. both open grounds and several, it shall not
be stretched to common in my several grounds, much
less in my garden or orchard. So, if I grant to J. S.
an annuity of 101. a year, "pro concilio, impenso et
impendendo " (for past and future council), if J. S. be
a physician, this shall be understood of his advice
in physic, and, if he be a lawyer, of his council in legal
matters (i)). And in accordance with the same principle
a right of common of turbary claimed by prescription and
user has been held to be restrained to those parts of the
locus in quo in which it could be used (k).
In accordance, likewise, with the above maxim — the Additional
illaatra-
subject-matter of an agreement is to be considered in tion»-
construing the terms of it, and they are to be understood
in the sense most agreeable to the nature of the agree-
ment (I). If a deed relates to a particular subject only,
general words in it shall be confined to that subject,
otherwise they must be taken in their general sense (m).
The words of the condition of a bond " cannot be taken
at large, but must be tied up to the particular matters of
the recital " (n), unless, indeed, the condition itself is
being construed "with a reference to
the subject-matter and the character
of the defendants.'' West London
JL C. v. London and North Western
id. a, 11 C. B. 254, 356.
The maxim was applied to a policy
of insurance, Arg., Baines v. Holland,
10 Exch. 805.
Though a release be general in its
terms, its operation will, at law, in
conformity with the doctrine recog-
nized in courts of equity, be limited
to matters contemplated by the par-
ties at the time of its execution.
Lyall v. Edwards, 6 H. & N. 337.
(i) Bac. Works, vol. 4, p. 46. See
Com. Dig., "Condition" (K. 4).
(*) Peardon v. Underhill, 16 Q.
B. 120.
(1) 1 T. R. 703.
(wt) Thorpe v. Thorpe, 1 Lord
Raym. 235 ; & C, Id. 662.
(n) Per Eyre, J., Gilb., Gas. 240.
See Seller ▼. Jones, 16 M. & W. 112,
118 ; Stoughton v. Day, Aleyn, 10 ;
Lord Arlington v. Merrick, 2 Saund.
414 ; as to which, see Mayor of Ber-
wick v. Oswald, 3 E. & B. 653;
602
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Principles
of construc-
tion.
Roles upon
this subject
manifestly designed to be extended beyond the recital (o) ;
and, further, it is a rule, that what is generally spoken
shall be generally understood, generalia verba sunt gene-
ixditer intelligenda(p), unless it be qualified by some
special subsequent words, as it may be (q) ; ex. gr., the
operative words of a bill of sale may be restricted by what
follows (r).
In construing the words of any instrument, then, it is
proper to consider, 1st, what is their meaning in the
largest sense which, according to the common use of
language, belongs to them (s) ; and, if it should appear
that that sense is larger than the sense in which they
must be understood in the instrument in question, then,
2ndly, what is the object for which they are used. They
ought not to be extended beyond their ordinary sense in
order to comprehend a case within their object, for that
would be to give effect to an intention not expressed ; nor
can they be so restricted as to exclude a case both within
their object and within their ordinary sense, without
S. £, 5 H. L. Cos. 856 ; Kitwn v.
Julian, 4 R. & B„ 854, 85S ; Napier
v. Bruce, 8 CL & Fin. 470 ; North-
Western B. C. v. Whinray, 10 Exch.
77.
(o) Sansom v. Bell, 2 Camp. 89 ;
Com. Dig., " ParoU" (A. 19);
Evan* v. Earle, 10 Exch. 1.
(p) 8 Inst. 76.
(q) Shop. Tonch. 88; Co. Lift. 42,
a. ; Com. Dig. "Parol*" (A. 7).
(r) Wood v. Rowdiffcy 6 Exch.
407.
See, also, with reference to a re-
lease* the authority cited, ante, p.
600, n. (A).
Where the words in the operative
part of a deed of conveyance are of
doubtful meaning, the recitals and
other parts of the deed may be used
as a test to discover the intention of
the parties, and to fix the tine mean-
ing of those words : Jndgm., Welsh
t. Trevanion, 15 Q. B. 751. See,
also, Young v. Baineock, 7 C. B.
810.
As to the mode of construing a
deed containing restrictive covenants,
see, per Dallas, C. J., Nind v. Mar-
shall, 1 B. & B. 848, 849 ; cited
arg., CrostfiM v. Morrison, 7 C. B.
802.
(*) 8 Inst. 76.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 603
violating the fundamental rule, which requires that effect
should be given to such intention of the parties as they
have used fit words to express (f). Thus, in a settlement,
the preamble usually recites what it is which the grantor
intends to do, and this, like the preamble to an Act of
Parliament, is the key to what comes afterwards. It is
very common, moreover, to put in a sweeping clause, the
use and object of which are to guard against any acci-
dental omission ; but in such cases it is meant to refer to
estates or things of the same nature and description with
those which have been already mentioned, and such
genera] words are not allowed to extend further than was
clearly intended by the parties (u).
In construing a deed of grant clear words of convey- £^n?i£l
ance cannot be controlled by words of recital. But if JSJ^nce.
the words of conveyance are general and not specific,
they may be controlled by a specific recital ; thus, where
the lord of the manor of E., which was situated in the
parish of K. in the county of M., being also entitled to
certain other real estate in K., not parcel of the manor,
mortgaged this real estate, not including the manor, to
A., and afterwards by a deed reciting that he was seised
of or entitled to the messuages, lands, hereditaments, and
premises thereinafter intended to be conveyed, subject to
the mortgage to A., he conveyed to B., by way of mort-
gage, all the property comprised in the mortgage to A.,
and all other the lands, tenements, and hereditaments iu
the county of M., whereof or whereto the mortgagor is
seised or entitled for any estate of inheritance. It was
(0 Per Maul©, J., Borradaile v. 533.
Evader, 5 Scott, N. R., 431, 432. (w) Per Lord Mansfield, C.J.,
See, in illustration of these remarks, Moore r. Magrath, 1 Cowp. 12 ;
Motdey v. MoUeux, 10 M. & W. Shep. Touch., by Atherley, 79, n.
C()4 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
held that the manor of K. was not included in the mort-
gage to B. (s).
B.l^j So, in construing a will, a court of justice is not by
'"'"' conjecture to take out of the effect of general words
property which those words are always considered as
comprehending ; the best rule of construction being that
which takes the words to comprehend a subject which
falls within their usual sense, unless there is something
like declaration plain to the contrary (y). Thus, it is a
certain rule, that reversions are held to be included in
the general words of a devise, unless a manifest intention
to the contrary appears on the face of the will (?).
Again, it is a well-known rule that a devise of an
indefinite estate by will prior to the 1st of January, 1838,
without words of limitation, is j>rimd facie a devise for
life only ; but this rule will give way to a different inten-
tion, if such can be collected from the instrument, and
the estate may be accordingly enlarged (a). So, words
which would jrrimd facie give an estate tail may be cut
down to a life estate, if it plainly appear that they were
used as words of purchase only, or if the other provisions
of the will show a general intent inconsistent with the
particular gift (6).
with what The doctrine, however, that the general intent must
tiou.
(x) Rooke t. Lord Kensington, 2 Faveett, 3 C. R 274; Lewis v.
K. & J. 753 : see farther Jenner v. Parley, 16 M. & W. 733. See stai.
Jenner, L. B. 1 Eq. 361. 1 Vict, c 26, s. 28.
(y) Per Lord Hdon, C, Church v. In Eogan r. Jackson, 1 Cowp. 299 ;
Mundy, 15 Ves. 396 ; adopted per S. C, affirmed 3 Bra. P. C, 2nd
Tindal, CJ.f Doe d. Howell t. exL, 388, the effect of general words
Thomas, 1 Scott, N. R. 871. in a will was much considered.
(z) 1 Scott, N. B. 371. (h) Fethertton ▼. Fethertton, 3 CI.
(a) Doe d. Sams ▼. Garlick, 14 & Fin. 75, 76.
M. k W. 698 ; Doe d. Atkinson ▼.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 605
overrule the particular intent, observes Lord Denman,
C. J., has, when applied to the construction of wills, been
much and justly objected to of late, as being, as a general
proposition, incorrect and vague, and likely to lead in its
application to erroneous results. In its origin it was
merely descriptive of the operation of the rule in Shettey's
case (c) ; and it has since been laid down in other cases
where technical words of limitation have been used, and
other words, showing the intention of the testator that
the objects of his bounty should take in a different way
from that which the law allows, have been rejected ; but
in the later cases the more correct mode of stating the
rule of construction is, that technical words, or words of
known legal import, must have their legal effect, even
though the testator uses inconsistent words, unless those
inconsistent words are of such a nature as to make it
perfectly clear that the testator did not mean to use the
technical words in their proper sense (d). The doctrine
of general and particular intent, thus explained, should
be applied to all wills (e), in conjunction with the rule
already considered, viz., that every part of that which the
testator meant by the words he has used should be
carried into effect as far as the law will permit, but no
further ; and that no part should be rejected, except what
the law makes it necessary to reject (/).
Lastly, it is said to be a good rule of construction, that, statute-a
" where an Act of Parliament begins with words which observed m
construing.
(c) See Doe d. Cannon v. Aucastle, v. Wright, 2 Bligh, 57 ; Roddy
8 C. B. 876. ▼. Fitzgerald, 6 H. L. Cas. 823 ;
(d) SeeJudgm., Toller v. Wright, Jordan v. Adams, 9 C. R N. S.
15 Q. B. 954, and cases there cited. 483 ; Jenkins v. Hughes, 8 H. L.
(e) Jndgm., Doe d. Qallini v. Cas. 571.
Gallini, 5 P. & Ad. 621, 640 ; Jesson (/) Judgm., 5 B. & Ad. 641.
606
INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS.
describe things or persons of an inferior degree and con-
cludes with general words, the general words shall not be
extended to any thing or person of a higher degree " (g),
that is to say, "where a particular class [of persons or
things] is spoken of, and general words follow, the class
first mentioned is to be taken as the most comprehensive,
and the general words treated as referring to matters
eju8dem generis with such class " (A), the effect of general
words when they follow particular words being thus
restricted (i).
EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. (Co. Lift.
210. a.). — The express mention of one thing implies
the exclusion of another.
R d ra****1 ^e a^°ve "^ or» as i* lQ otherwise worded, expressv/m
tmted. fadt cessare taciturn (&), enunciates one of the first
principles applicable to the construction of written instru-
ments (I) ; for instance, it seems plainly to exclude any
increase of an estate by implication, where there is an
estate expressly limited by will (m). So an implied cove-
{g) Archb. of Canterbury's ease, 2
Rep. 46, a., cited, Arg. Cosher v.
Holmes, 2 K & Ad. 594 ; and in
Governors of Bedford Infirmary v.
Commissioners of Bedford, 7 Exch.
772.
(h) Per Pollock, C.B., Lyndon ▼.
Stanbridge, 2 H. & N. 51 ; per Lord
Campbell, C.J., Reg. v. Edmundson,
2 E. & E. 83; Oibbs v. Lawrence,
30 L. J., Chanc. 170.
"Where a general enactment is fol-
lowed by a special enactment on the
came subject, the later enactment
overrides and controls the earlier
one ; " per Erie, C.J., 14 C. B. If. 8.
433.
The rule stated in the text applies
also to deeds and agreements. See,
for instance, Agar v. Athenaeum Lift
Ass. Soc, 3 C. B. N. S. 725.
(t) See Reg. v. Cleworth, 4 B. A
S. 927, 934.
(*) Co. Litt. 210, a. 183, b.
(1) See per Lord Denman, C.J., 5
Bing. N. C. 185.
(m) Per Crompton, J., Roddy v.
Fitzgerald, 6H.L Cas. 856.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS,
607
nant is to be controlled within the limits of an express
covenant (n). Where a lease contains an express covenant
on the part of the tenant to repair, there can be no
implied contract to repair arising from the relation of
landlord and tenant (o). So, although the word " demise "
in a lease implies a covenant for title and a covenant for
quiet enjoyment, yet both branches of such implied cove*
nant are restrained by an express covenant for quiet
enjoyment (p). And, where parties have entered into
written engagements with express stipulations, it is mani-
festly not desirable to extend them by implications ; the
presumption is, that having expressed some, they have
expressed all the conditions by which they intend to be
(») Notes' ease, 4 Rep. 80 ; S. C,
Cro. Elii. 674; Merrill v. Frame,
4 Taunt. 329 ; Gainsford v. Griffith,
1 found. R. 68 ; Vaugh. R 126 ;
Deering v. Farrington, 1 Ld. Raym.
14, 19 ; Matheto r. Blackmorc, 1 H.
& N. 762. See Bower v. Hodges,
13 C. B. 765 ; Fashleigh v. South
Eastern JL C., 10 C. B. 612.
(o) Standen v. Ckrismas, 10 Q.
8. 135, 141 ; as to which see per
Bramwell, B., Churchward v. Ford,
2 H. & N. 446 ; et vide QeU v.
Gandy, 2 E. & B. 847.
" The authorities cited in the text-
books establish these rules, that
where there is a general covenant to
repair and keep and leave in repair,
the inference is that the lessee un-
dertakes to repair newly erected
buildings. On the other hand, where
the covenant is to repair, and keep
and leave in repair the demised build-
ings, no such liability arises : " per
Channell, B., Cornish v. Cleiff, 3 H.
b C. 452-8.
(p) Line v. Stephenson, 5 Ring.,
N. C. 183; Merrill v. Frame, 4
Taunt. 329 ; per Lord St. Leonards,
Monypenny v. Monypenny, 9 H. L.
Cas. 139. See Messent v. Reynolds,
8 C. B. 194. By stat. 8 & 9 Vict,
c. 106, s. 4, it is enacted, that the
word "give" or "grant" in a deed
executed after the 1st of October,
1845, shall not imply any covenant
in law in respect of any heredita-
ment, except by force of some Act of
Parliament. A covenant for quiet
enjoyment, however, is also implied
by the word " demise " in a lease for
years ; and this implication is not
taken away by either of the recent
stats. (7 & 8 Vict c. 76, and 8 ft 9
Vict, c 106).
As to the obligation of a lessor to
show a title to the demised premises,
see the Vendor and Purchaser's Act,
1874, s. 2, rule 1.
008 INTEKPRETATION OF DEEDS AND WRITTEN U
boand under that instrument (g). And it is an ordinary
rule that "if authority is given expressly, though by
affirmative words, upon a defined condition, the expression
of that condition excludes the doing of the act authorised,
under other circumstances than those so defined : expressio
unius est exclusio aUerius " (r). In a case of the Queen
v. Eastern Archipelago Company (a), a company had
been incorporated under Royal charter, which contained a
proviso that it should be lawful for the Queen, by any
writing under the Great Seal or sign manual, to revoke
the charter, under circumstancces which subsequently
happened. The charter was not revoked in the manner
mentioned in the proviso, but proceedings were taken
under a scire facias to repeal it. It was objected that
the only mode of getting rid of the charter was the one
given by the proviso. The Judges were equally divided
in opinion, and consequently a ride to arrest judgment,
on the ground that the declaration did not show that the
Queen had, by writing under the Great Seal or sign
manual, revoked the charter, was lost. The following
observations of Coleridge, J., in delivering judgment,
seem pertinent to the subject under consideration :
" Whatever (says that learned Judge) might be the con-
dition of grantees under other charters, in this charter
the law and mode of revocation was specially laid down
in this sentence (i.e., the proviso). These grantees were
to understand they held this charter subject to this power
(g) Jadgm., Aspdin v. Austin, 5 per Crompton, J., Worthinyton v.
Q. B. 683, 684 ; Dunn y. Sayles, Id. Ludlow, 2 B. & S. 516.
685 ; Emmens y. ElderUm, 4 H. L. (r) Per WUles, J., North Stafford
Cm. 624 ; M'Ouire r. Scully, Beatt. Steel, <*<*., Co. y. Ward, L. R. 3 Ex.
870. 177.
A* to Atpdin v. Austin, supra, see (s) lBH.Sc Bl. 810.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 600
of revocation and this only. Commonly speaking, ex-
yyre&wm fadt cessare taciturn* and this would seem
a case in which the wholesome maxim eminently
applies " (t).
Great caution is necessary in dealing with the maxim caution r»-
eospressio unius est exchisio alterius (u), for, as Lord Jj£ying
Campbell, C, observed, in Saunders v. Eva/as (x), it is
not of universal application, but depends upon the in-
tention of the party as discoverable upon the face of the
instrument or of the transaction ; thus, where general
words are used in a written instrument, it is necessary,
in the first instance, to determine whether those general
words are intended to include other matters besides such
as are specifically mentioned, or to be referable exclusively
to them, in which latter case only can the above maxim
be properly applied (y). Where, moreover, an expression,
which is prvmd facie a word of qualification, is in-
troduced, the true sense and meaning of the word can only
be ascertained by an examination of the entire instru-
ment, reference being had to those ordinary rules of con-
struction to which we have heretofore adverted (z)
In illustration of the maxim above proposed for con- Examples.
sideration, the following cases may be mentioned: — In
an action of covenant on a charter-party, whereby the
defendant covenanted to pay so much freight for " goods
(«) P. 342. J., P. M. & A. 194.
(«) To show the caution necessary (y) See Fetch v. Tutvn, 15 M. &
in applying the above rale may be W. 110.
cited Price t. The Cheat Western JL (z) In Doe d. Uoyd r. Ingleby,
C, 16 M. & W. 244; Attwood v. 15 M. & W. 465, 472, the maxim
Small, 6 CI. & Fin. 482 ; and see was applied, by Parke, B., diss., to
the remarks, post, p. 624. a proviso for re-entry in a lease, and
(x) 8 H. L. Cas. 729 ; et vide, per this case will serve to illustrate the
Dr. Lushington, The AmaUa, 82 L. above remark, ,
610 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
delivered at A.," it was held, that freight could not be
recovered pro rata Uineris, the ship having been wrecked
at B. before her arrival at A., although the defendant
accepted his goods at B. ; for, the action being on the
original agreement, the defendant had a right to say in
answer to it, non Jicec in fo&dera veni (a). In order to
recover freight pro rata itineris, the owner must, in such
a case, proceed on the new agreement implied by law
from the merchant's behaviour (&). And where a mort-
gage deed contained a covenant on the part of the
mortgagor that he would out of the monies to come to
him from certain lands and personal estate pay to the
mortgagee the principal sum and interest thereon secured
by the mortgage deed, it was held that an action by
the mortgagee against the mortgagor for money lent
would not lie, on the ground that the parties had ex-
pressly stated the mode of payment, and therefore the
implied promise to pay on demand as for money lent
was excluded (c).
Again, on a mortgage of dwelling-houses, foundries, and
other premises, "together with all grates, boilers, bells,
and other fixtures in and about the said two dwelling-
houses and the brewhouses thereunto belonging;1' it was
held, that, although, without these words, the fixtures
in the foundries would have passed, yet, by them, the
fixtures intended to pass were confined to those in the
dwelling-houses and brewhouses (d). So, where in an
(a) Cook r. Jennings, 7 T. R. 381. 8 E. & B. 301.
See Vlierboom v. Chapman, 13 M. & (6) Per Lawrence, J., 7 T.'R. 385;
W. 230. Mitchell v. Darthez, 2 Bing., N. O.
In Fowkes v. Manchester and Lon- 555, 571.
don L\fe An, Co., 3 B. & S. 917, (c) Mathew v. Black-more, 1 EL &
930, the principal maxim, supra, was N. 762.
applied to a policy of insurance. See (cQ Hare v. Horton, 5 B. & Ad*
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
611
instrument there are general words first, and an express
exception afterwards, the ordinary principle of law
has been said to apply — eocpressio unius eocclusio
alterius (e).
The case of Doe d. Spilsbury v, Burdett (/), furnishes f*"d-8&*'
a good illustration of the above maxim. In that case, d€tt-
lands were limited to such uses as S. should appoint by
her last will and testament in writing, to be by her.
signed, sealed, and published, in the presence of and
attested by three or more credible witnesses. S. (prior
to the stat. 7 Will. 4 & 1 Vict. c. 26 (g)) signed and sealed
an instrument, containing an appointment, commencing
thus : " I, S., do publish and declare this to be my last
will and testament;" and concluding, "I declare this only
to be my last will and testament ; in witness whereof I
have to this my last will and testament set my hand and
seal, this 12th of December, 1789." And then followed
the attestation, thus: " Witness, C. B., E. B., A. B." It
was decided by the House of Lords that the power was
715 ; cited Mather v. Frazer, 2 K.
& J. 536. See Ringer v. Cann, 3
M. k W. 343 ; Cooper v. Walker, 4
R. k C. 36, 49.
(e) Spry v. Flood, 2 Curt. 865.
(/) 7 Scott, N. R. 66, 79, 101,
104 ; S. C, 9 A. k E. 936 ; 4 A. k
E. 1. The decision of the House of
Lords in the above case went upon the
principle, expressio unius exclusio
altering {per Sir H. Jenner Fust,
Barnes v. Vincent, 9 Jar. 261 ; S.
C. (reversed in error), 5 Moore, P.
O. C. 201), and the opinions de-
livered in it by the judges will also
be. found to illustrate the import-
ance of adhering to precedents,
and the general principle of con-
struing an instrument ut ret magi*
valeat quani pereat. Doe d. Spilt-
bury v. Burdett, is commented on
per Wigram, V.-C, Vincent v.
Bishop of Sodor and Man, 8 C. B.
929 ; and was followed and affirmed
in Newton v. Ricketts, 9 H. L. Cas.
262, 269. See, also, Johns v. Dickin-
son, 8 C. B. 934 ; Roberts v. Phillips,
4 E. k B. 450, 453.
(g) Sect. 9 enacts, that every will
shall be in writing, and signed by the
testator in the presence of two wit-
nesses at one time; and sect. 10,
that appointments by will shall be
executed like other wills, and shall
be valid, although other required
solemnities are not observed.
it R 2
612
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Will*.
Simple con-
tracts.
well executed ; and this case was distinguished from
several (h), in which the attestation clause, in terms,
stated the performance of one or more of the required
formalities, but was silent as to the others, and in which,
consequently, the power was held to have been badly
exercised, on the ground, that legal reasoning would
necessarily infer the non-performance of such others in
the presence of the witnesses, but that a general attesta-
tion clause imported an attesting of all the requisites.
It has been decided that a will expressly subjecting the
personal estate to certain charges to which it was before
liable does not by force of the maxim raise a necessary
implication that it is not to bear other charges not so
expressly directed to be paid out of it to which it is
primarily liable (i).
The operation of the principle under consideration is
the same, whether the contract be under seal or by
parol. For instance, in order to prevent a debt being
barred by the Statute of Limitations, a conditional
promise to pay " as soon as I can/' or " as soon as con-
venient," is not sufficient, unless proof be given of the
defendant's ability to perform the condition ; and the
reason is, that upon a general acknowledgment, 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, then
(A) See, particularly, Wright v.
Wakeford, 17 Vea. jun. 454 ; S. a,
4 Taunt. 213 ; commented on per
Wigram, V.-C., S C. B. 928 et seq. ;
Doe d. Mansfield v. Peach, 2 M. k
8. 576 ; Doe d. Hotehkiu v. Pears*,
2 Marsh. 102 ; S. C, 6 Taunt. 402.
See, per Patteson. J., 7 Scott, N. R.
120, 121 ; per Tindal, C. J., Id.
126.
(t) Brydget r. PhiUip*, 6 Ves.
567 ; Jarman on Wills, 4th ecL, toK
ii. 657.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
613
the rule, exprewwm, facit cessare taciturn, applies (k). In
like manner, when the drawer of a bill, when applied to
for payment, does not state that he has received no notice
of dishonour, but instead of doing so, sets up some other
matter in excuse of non-payment, from this conduct the
jury may infer an admission that the valid ground of
defence does not in fact exist (I).
The above cases will sufficiently show the practical
application and utility of the maxim or principle of con-
struction, expresmm facit cessare tacitom; and several
of them will likewise serve to illustrate the general rule,
which will be considered more in detail hereafter (m), viz,,
that parol evidence is, except in certain cases, wholly
inadmissible to show terms upon which a written instru-
ment is silent ; or, in other words, that, where there is an
express contract between parties, none can be implied (n).
The Court will not, "by inference, insert in a contract
implied provisions with respect to a subject which the
contract has expressly provided for. If a man sell a horse
and warrant it to be sound, the vendor knowing at the
(k) Judgm., Tanner v. Smart, 6
B. & C. 609 ; Edmunds v. Dowries,
2 Cr. & M. 459. See Irving v.
Veiieh, 3 M. k W. 90.
{I) Campbell r. Webster, 2 C. B.
258, 266.
(m) See the maxim, Nihil tarn
convenient eat noturali osquitati
quam unumquodque dissolvi eodem
ligamine quo ligatum est, post,
Chap. IX., and the maxim, Optimus
interpret rerttm usus, post, Chap. X.
(a) Per Bay ley, J., Orimman v.
Legge, 8 B. & C. 326 ; Moorsom v.
Kymer, 2 M. & S. 316, 320 ; Cook
v. Jennings, 7 T. R. 383, 885 ; per
Lord Kenyon, C. J., Id. 137 ; Cow-
ley v. Dunlop, Id., 568 ; Cutter v.
Powell, 6 T. R. 320 ; S. C., 2 Smith,
L. C, 8th ed., 1 (with which com-
pare Taylor t. Laird, 1 H. & N.
266 ; Button v. Thompson, L. R. 4
0. P. 330) ; per Bailor, J., Toussaint
v. Martinnant, 2 T. B. 105 ; per
Parke, B., Bradbury ▼. Anderton,
1 Cr., M. & B. 190 ; AfitcheU v.
Dartiuz, 2 Bing., N. C. 555 ; Law-
renee ▼. Sydsbotham, 6 East, 45, 52 ;
per Blackburn, J., Fowkes t. Man-
chester and London Life Ass. Co,,
8 B. & 8. 930.
614 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS-
time that the purchaser wants it for the purpose of carry-
ing a lady, and the horse though sound proves to be
unfit for that particular purpose, this would be no breach
of the warranty. So, with respect to any other kind of
warranty : the maxim expresmm facit cessare taciturn
applies to such cases. If this were not so, it would be
necessary for the parties to every agreement to provide
in terms that they are to be understood not to be bound
by anything which is not expressly set down, — which
would be manifestly inconvenient " (o).
The following cases may here properly be noticed in
further illustration of the maxim before us : — where the
rent of a house was specified in a written agreement, to
be 26/. a year, and the landlord in an action for use and
occupation, proposed to show, by parol evidence, that the
tenant had also agreed to pay the ground-rent, the Court
refused to admit the evidence (p).
By an agreement between plaintiff and defendant for
the purchase by the former of the manor of S., it was
agreed that, on the completion of the purchase, the
purchaser should be entitled to the "rents and profits
of such parts of the estate as were let " from the 24th
day of June, 1843 : it was held, that the plaintiff was
not, by virtue of this agreement, entitled to recover from
the defendant the amount of a fine received by the latter
on the admittance of a tenant of certain copyhold pre-
mises, part of the said manor, this admittance, after being
(o) Per Maule, J., Dickxm r. Pullen, 2 Bing. N. C. 749, 753,
Zizinia, 10 C. B. 610, 911. where the maxim considered in the
(p) Pretton t. Merceau, 2 W. Bla. text is applied by Tindal, C. J.f to
1249 ; Rich t. Jackson, 4 Bro. C. C. the case of a tenancy between mort-
515. See Sweetland y. Smith, 1 Cr. gagor and mortgagee.
& M. 58$, 596 ; Doe d. Roger* v.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 615
postponed from time to time, having taken place on the
1st of July, 1843, and the fine having been paid in the
December following; for the condition above mentioned
was held applicable to such parts of the estate only as
might be " let " in the ordinary sense of that word, and
expressio unius est exclusio alterius ; the lands in ques-
tion not having been let, it could not be said that the
plaintiff was entitled to the sum of money sought to be
recovered, the agreement binding the vendor to pay over
the rents only, and not extending to the casual profits (q).
On the same principle, where the conditions of sale of saieof
growing timber did not state anything as to quantity, Warnmty#
parol evidence, that the auctioneer at the time of sale *c*
warranted a certain quantity, was held inadmissible (r).
And here we may observe that, as a general rule, what-
ever particular quality a party warrants, he shall be
bound to make good to the letter of the warranty,
whether such quality be otherwise material or not ; and
it is only necessary for the buyer to show that the article
sold is not according to the warranty. Where, however,
an article is sold by description merely, and the buyer
afterwards discovers a latent defect, in this case expressv/m,
facit cessare taciturn ; he must, therefore, go further, and
show that the description was false within the knowledge
of the seller. Thus, where a warranty of a horse was in
these terms — " Received of B. 101. for a grey four-year-
old colt, warranted sound," — it was held, that the warranty
was confined to soundness ; and that, without proving
fraud, it was no ground of action, that the colt was only
three years old (#). So, upon a sale of hops by sample,
(q) Earl of Hardwicke v. Lord (#) Budd y. Fairmaner, 8 Ring.
Sandys, 12 M. & W. 761. 48, 62. See per Parke, R., Mondel
(r) Powdly. Edmunds, 12 East, 6. r. Steel, 8 M. k W. 865 ; and the
616 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
with a warranty that the bulk of the commodity answered
the sample, although a fair merchantable price was given,
it was held, that the seller was not responsible for a latent
defect (which existed both in the sample and the bulk)
unknown to him, but arising from the fraud of the
grower from whom he purchased (t). In this case, the
general warranty, implied by law, that the goods were
merchantable was excluded by the express warranty of
the vendor,
implied • This distinction must, however, be taken, that, where
the warranty is one which the law implies (u), it is clearly
admissible in evidence, notwithstanding there is a written
contract, if such contract be entirely silent on the subject.
For instance, the defendant sold to the plaintiff a barge,
and there was a contract in writing between the parties ;
but it was held, that a warranty was implied by law that
the barge was reasonably fit for use, and that evidence
was admissible to show that, in consequence of the defec-
tive construction of the barge, certain cement, which the
plaintiff was conveying therein, was damaged, and that
the plaintiff incurred expense, in rendering her fit for the
purpose of his trade — a purpose to which the defendant
knew, at the time of the contract, that she was intended
to be applied (x). And where defendant undertook to
supply the plaintiffs with troop stores, "guaranteed to
pass survey of the East India Company's officers," this
cases cited under the maxim Caveat Prideaux v. Bunnett, 1 C. B. N. S.
emptor, pott. Chap. IX. 613, 617.
(t) Parkinson v. Lee, 2 East, 814, (u) As to implied warranties and
recognised, 8 Bing. 52. See, also, undertakings, see, under the maxim
Laing v. Fidgeon, 6 Taunt. 108 ; Caveat emptor, pott.
Chanter v. Hophin$, 4 If. &W. 399; (x) Shepherd v. Pybtus, 4 Scott,
recognised, Pacific Steam Nav. Co. N. R. 434 ; Gardiner v. Gray, 4
v. Lewis, 16 M. & W. 783 ; and in Camp. 144.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. «17
express guarantee was held not to exclude the warranty
implied by law, that the stores should be reasonably fit
for the purpose for which they were intended (y). And
where goods are to be supplied according to sample, the
selling by sample excludes the implied warranty that
the goods shall be of merchantable quality only with
respect to such matters as could be judged of by the
sample (z).
A marked distinction will at once be noticed between sale or
specific
cases falling within the class just noticed and those in ct*ttei.
which it has been held, that, where a warranty or contract
of sale has reference to a certain specified chattel, the pur-
chaser will be liable for the price agreed upoD, on proof
that the particular chattel specified has been duly sent
according to the order, and will not be permitted to
engraft any additional terms upon the contract. If, for
instance, a " two-colour printing-machine/' being a known
and ascertained article, has been ordered by the defen-
dant, he cannot excuse himself from liability to pay for
it, by showing that the article in question does not answer
his purpose, because the sole undertaking in this case on
the part of the vendor was to supply the particular article
ordered, and that undertaking has been performed by
him. If, on the other hand, the article ordered by the
defendant were not a known ascertained article ; as if he
had merely ordered, and plaintiff had agreed to supply, a
machine .for printing two colours, the defendant would
not be liable unless the instrument were reasonably fit
for the purpose for which it was ordered (a). As we shall,
{y) Bigge t. Parkinson, 7 H. & (a) OUiwtnt v. Bayley, 5 Q. B.
N. 955. 288 ; Prideaux t. Bunnett, ICE
(z) Mody v. Qregson, L. R. 4 Ex. N. S. 613 ; Parsons r. Sexton, 4 C.
49 ; 38 L J. Ex. 12. B. 899 ; Median v. Badloff, 17 C
618
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Evidence of
cuntomand
lUUgS.
in the ensuing chapter, have occasion to revert to the
subject of implied warranty, we may for the present
content ourselves with the single instance just given as
sufficiently showing the distinction to which allusion has
above been made.
But although the maxim, Expressio unius est excltmo
alteriu8, ordinarily operates to exclude evidence offered
with the view of annexing incidents to written contracts (6)
in matters with respect to which they are silent, yet it
has long been settled, that, in commercial transactions,
extrinsic evidence of custom and usage is admissible for
this purpose (c). The same rule has, moreover, been
applied to contracts in other transactions of life, especially
to those between landlord and tenant (d), in which known
usages have been established and prevailed ; and this has
been done upon the principle of presuming that in such
transactions the parties did not mean to express in writing
the whole of the contract by which they intended to be
bound, but a contract with reference to those known
usages (e). Whether such a relaxation of the strictness
of the common law was wisely applied where formal
B. N. S. 588 ; and cases cited, post.
Chap. IX., under the maxim Caveat
emptor.
(6) See Cutter v. Powell, 6 T. R.
320 ; Pcttitt v. Mitchell, 5 Scott, N.
R. 721 ; Moon r. Witney Union, S
Bing., N. C. 814, 818 ; cited and
distinguished in Moffatt v. Laurie,
15 C. B. 588, 592; and in Scrivener
▼. Path, 18 C. B. N. S. 785, 797 ;
Reg. v. Stoke-upon-Trent> 5 Q. B.
303. It is a general rule, that, upon
a mercantile instrument, evidence of
usage may be given in explanation of
an ambiguous expression : Bowman
r. Honey, 3 M. & By. 85. Generally
as to the admissibility of evidence of
usage to explain mercantile instru-
ments, see Broom's Com. Law, 5th ed.,
498.
(c) Syers v. Jonas, 2 Exch. Ill,
117 ; cited per Willes, J., Atimar v.
Catclla, L. R. 2 C. P. 439 ; and cases
collected under the maxim opHmus
interpret rerum u*us, pott, Chap. X.
(d) WiggletvDorth v. Dalison, 1
Dougl. 201.
(e) Per Parke, B., Smith v. Wtiwn
8 R & Ad. 728.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 619
instruments have been entered into, and particularly
leases under seal, may, it has been observed, well be
doubted ; but this relaxation has been established by such
authority, and the relations of landlord and tenant have
been so long regulated upon the supposition that all
customary obligations, not altered by the contract, are to
remain in force, that it is too late to pursue a contrary
course, since it would be productive of much incon-
venience if the practice were now to be disturbed (/),
As an instance of the admissibility of evidence respecting
any special custom, may be mentioned the ordinary case
in which an agreement to farm according to the custom
of the country is held to apply to a tenancy where the
contract to hold as tenant is in writing, but is altogether
silent as to the terms or mode of farming (g).
Every demise, indeed, between landlord and tenant in
respect of matters as to which the parties are silent, may
be fairly open to explanation by the general usage and
custom of the country, or of the district where the land
lies; for all persons, under such circumstances, are sup-
posed to be cognisant of the custom, and to contract with
a tacit reference to it (h).
It is, however, a settled rule, that, although in certain Jjjjjjgy
cases evidence of custom or usage is admissible to annex £j£7 con*
incidents to a written contract, it can in no case be given
in contravention thereof (i) ; and the principle of varying
written contracts by the custom of trade has been in
(/) Judgm., HutUm ▼. Warren, (h) Per Story, J., 2 Peters (U.S.),
1 M. k W. 475, 478 ; Wigglewortli R. 148.
t. Dalixm; 1 Smith's L.C., 8th ed., (i) Yeats v. Pym, 6 Taunt 446 ;
594, is the leading case upon the Clarke v. Roystone, 18 M. & W. 752 ;
subject above noticed. Suae v. Pompe, 8 C. B. N. S. 538.
(?) Judgm., 4 Scott, N. R. 446. See Palmer v. Blackburn, 1 Bing.
61.
620
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Application
of maxim to
many cases, of which some few are cited infra, distinctly
repudiated (k\
A statute, it has been said (t), is to be so construed, if
cf"tatuteOD P0^^, as to give sense and meaning to every part ; and
the maxim was never more applicable than when applied
to the interpretation of a statute, that expres&io unius est
exclusio alterius (m). The sages of the law, according to
Plowden, have ever been guided in the construction of
statutes by the intention of the legislature, which they
have always taken according to the necessity of the matter,
and according to that which is consonant to reason and
sound discretion (n).
(*) Spariali v. Benecke, 10 C. B.
212, 223 ; Dickenson v. Jardine,
L. & 3 C. P. 639 ; Johnstone v.
Usborne, 11 A. k E. 549,557 ; True-
man v. Loder, Id. 589 (as to which
case see Dale v. Humfreg, E. B. &
B. 1004 ; S. C., 7 B. A B. 266, 277
Brown v. Byrne, 3 R & B. 703)
Jones v. Littlcdale, 6 A. k R 486
Magte v. Atkinson, 2 M. & W. 440
See Graves v. Legg, 2 H. & N. 210
S. C., 11 Exch. 642, 9 Id. 709
Pym y. Campbell, 6 R & B. 370
cited in Rogers v. Hadley, 2 H. & C.
249 ; Stewart v. Aberdein, 4 M. k
W. 211. The law applicable to this
subject will be stated more at length
when we have to consider the mode
of dissolving contracts, and the ap-
plication of evidence to their inter-
pretation.
(I) Per Cur., 9 Johns. (U.S.) R.
349.
(m) See Gregory v. Dcs Anges, 3
Bing., N. 0. 85, 87; Atkinson v.
Pell, 5 M. k S. 240; Cotes v.
Knight, 3 T. R. 442, 444 ; cited,
Arg. Albon v. Pgke, 5 Scott, N. R.
245 ; ft. v. North Nildeg, 5 T. R.
21 ; per Ttndal, C. J., Newton v.
iTo^bfxf (in error), 6 Q. B. 926;
A.-G. y. tffrm, 10 H. L. Gas. 704.
The maxim, supra, is applied to a
statute in Beg. v. CbZerfofwim 22. C,
16 C. B. 31, and in Bdinburgh and
Glasgow B. C. v. Magistrates of Lin-
lithgow, 3 Macq. Sc. App. Gas. 717,
730. Watidns v. Great Northern
B. C.9 16 (I B. 961, also proceeded
on the above maxim ; per Lord Gamp-
bell, 0., Caledonian B. C. v. Colt, 3
Macq. Sc App. Gas. 839. See Law-
rence r. Great Northern 1L C, 16
Q.B.643.
In Bostoek v. North Staffordshire
B. C., 4 & k B. 832, Lord Campbell
says, with reference to certain sta-
tutes granting powers to a Navigation
and a Railway Company, " In con-
struing instruments so loosely drawn
as these local Acts, we can hardly
apply such maxims as that, ' the ex-
pression of one thing is the exclusion
of another,' or that, 'the exception
proves the rule.'"
(n) Plowd. 205 b.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 621
Thus it sometimes happens that in a statute, the
language of which may fairly comprehend many different
cases, some only are expressly mentioned by way of
example merely, and not as excluding others of a similar
nature. So, where the words used by the legislature are
general, and the statute is only declaratory of the common
law, it shall extend to other persons and things besides
those actually named, and, consequently, in such cases,
the ordinary rule of construction cannot properly apply.
Sometimes, on the contrary, the expressions used are
restrictive, and intended to exclude all things which are
not enumerated. Where, for example, certain specific
thing3 are taxed, or subjected to any charge, it seems
probable that it was intended to exclude everything else
even of a similar nature, and A fortiori, all things
different in genua and description from those which are
enumerated. Accordingly, where the statute 43 Eliz.
c. 2, sec. 1, enacted that every occupier of lands,
houses, coal mines, or saleable underwood, should be
rated for the relief of the poor, it was decided by the
House of Lords, that as coal mines alone were men-
tioned in the Act as rateable to the poor, iron mines
were not(o).
There is a class of cases where evidence of custom
is admitted, which apparently contradicts the language
of the contract, namely, where an agent, who enters into
a written contract, expressing himself on the face of it
to do so as agent, may be held liable as a principal in the
transaction, upon proof of a custom to that effect. In
Hutchinson v. Taiham (p), perhaps the strongest
(o) Morgan v. Crawshay, L. R. 6 rateable to the relief of tho poor
H. L. 304 ; DcnnUon y. Holliday, under 37 & 38 Vic. c. 54.
1H.4N. 631. Iron mines are now (p) L. R. 8 C. P. 432 ; 42 L. J.
C22 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
instance of this rule to be found in the books, the
defendant, acting as agent for one Lyons, with due
authority to do so, effected a charter-party which was
expressed in the body of it to be made between the
plaintiff, who was a shipowner, and the defendant, as
" agent to merchants ; " and the charter-party was signed
by the defendant, as " agent to merchants." The Court,
admitting that, but for the custom, the defendant would
not have been personally liable on the charter-party,
held that evidence was admissible of a usage to make
him so, if he did not disclose his principal's name within
a reasonable time. One of the learned judges thought
that evidence of the custom would not have been admis-
sible if it had made the agent liable as a principal in the
first instance, but that, as it only made the agent liable
as a principal if he failed to disclose the name of his
principals within a reasonable time, that was not, on the
whole, inconsistent with the contract. This would seem,
with respect, a subtle refinement of the maxim, ex-
pressio unius exclusio alterius, and the writer ventures
to suggest that the true ground of the liability of an
agent so signing, rests in a breach of warranty or im-
plied undertaking; because where an agent contracts
on behalf of an undisclosed principal he impliedly under-
takes to disclose the principal's name within a reason-
able time, and, if he fails to do so, an action it is
submitted will lie against him for the breach of this
implied undertaking or warranty, in which damages
may be recovered for the loss of the contract. The
agent in this manner would be held liable in respect of
C. P. 260 ; Humphrey ▼. Dale, 7 E. St. KatharinJi Docks Co., 5 Ch. Dir.
& B. 266 ; E. B. & E. 1004 ; and 195.
seo Imperial Bank v. London and
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 623
the contract he had made, as an agent, without the neces-
sity of introducing a custom which, but for the decided
cases, appears to contradict the written document.
Lastly, where a general Act of Parliament confers
immunities which expressly exempt certain persons from
the effect and operation of its provisions, it excludes all
exemptions to which the subject might have been before
entitled at common law ; for the introduction of the
exemption is necessarily exclusive of all other independent
extrinsic exceptions (q).
The following remarks of an eminent legal authority, Further re-
showing the importance of the maxim considered in the ,,lwdm-
preceding pages, when regarded as a rule of evidence
rather than of construction, are submitted as well de-
serving attention : —
"It is a sound rule of evidence, that you cannot alter
or substantially vary the effect of a written contract by
parol proof. This excellent rule is intended to guard
against fraud and perjuries ; and it cannot be too steadily
supported by courts of justice. Expression fadt cessare
taciturn — vox emissa volat — litera scripta manet, are law
axioms in support of the rule ; and law axioms are nothing
more than the conclusions of common sense, which have
been formed and approved by the wisdom of ages. This
rule prevails equally in a court of equity and a court of
law ; for, generally speaking, the rules of evidence are the
same in both courts. If the words of a contract be intel-
ligible, says Lord Chancellor Thv,rlow(r)9 there is no
instance where parol proof has been admitted to give
them a different sense. ' Where there is a deed in writing/
(q) Dwarr. State., 2nd ed., 605 ; (r) Slidbw-ne v. Inchiquin, 1 Bro.
R. v. Cunningham, 5 East, 478 ; 3 c. C. 341.
T. R. 442.
624 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
he observes in another place (*), ' it will admit of no
contract which is not part of the deed.' You can intro-
duce nothing on parol proof that adds to, or deducts from,
the writing. If, however, an agreement is by fraud or
mistake made to speak a different language from what was
intended, then, in those cases, parol proof is admissible
to show the fraud or mistake. These are cases excepted
from the general rule " (t).
We do not propose to dwell at length upon the maxim,
ISrpressum facU ceware taciturn ; a cursory glance even
at the contents of the preceding pages will show it to be
of important and extensive practical application, both in
the construction of written instruments and verbal con-
tracts, as also in determining the inferences which may
fairly be drawn from expressions used or declarations made
with regard to particular circumstances. It is, indeed, a
principle of logic and of common sense, and not merely
a technical rule of construction, and Inight, therefore, be
illustrated by decided cases, having reference probably to
every branch of the legal science. It, moreover, has an
important bearing upon the doctrine of our law as to
implied undertakings and obligations. If A. covenants or
engages by contract to buy an estate of B. at a given price,
although that contract may be silent as to any obligation
on the part of B. to sell ; yet, as A. cannot buy without B.
selling, the law will imply a corresponding obligation on
the part of B. to sell (u). So, if a man engages to work
and render services which necessitate great outlay of
money, time, and trouble, and he is only to be paid by
the measure of the work he has performed, the contract
($) Lord Irnham y. Child, 1 Bro. S.), R. 571, 572.
C. C. 93. (») Pordage t. Cole, 1 Win*.
(0 Per Kent, C. J., 1 Johns. (U. Saund. 319 1.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 625
necessarily presupposes and implies on the part of the
person who engages him, an obligation to supply the
work. So where there is an engagement to manufacture
some article, a corresponding obligation on the other
party is implied to take it, for otherwise it would be
impossible that the party bestowing his services could
claim any remuneration (x).
The maxim above commented on, is, however, it has Maxim is
. sometimes
been said (y), "by no means of universal conclusive ap- inapplicable.
plication. For example : it is a familiar doctrine that
though where a statute makes unlawful that which was
lawful before, and appoints a specific remedy, that remedy
must be pursued, and no other ; yet where an offence was
antecedently punishable by a common law proceeding, as
by indictment, and a statute prescribes a particular remedy
iti case of disobedience, that such particular remedy is
cumulative, and proceedings may be had either at common
law or under the statute " (z).
EXPRESSIO EORUM QU^E TACITE INSUNT NIHIL OPERATUR.
(2 hist 365.) — The expression of what is tacitly
implied is inoperative.
"The expression of a clause which the law implies Examples
works nothing n (a). For instance, if land be let to two
(as) Per Cockburn, C.J., Church- Max., p. 235 ; Finch, Law, 24 ; D.
ward t. Reg., L. R. 1 Q. B. 195. 50. 17. 81. In Hobart, R„ 170, it
(y) Per Williams, J., 2 E. & B. is said that this rale "is to be un-
879. derstood having respect to itself only,
(«) Reg. t. Gregory, 5 B. & Ad. and not having relation to other
555. clauses." The role supra ii applied
(a) 4 Rep. 73 ; 5 Rep. 11 ; Wing. in Wroughton v. Turtle, 11 M. &
8 8
626 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
•
persons for the term of their lives, this creates a joint
tenancy ; and if the words " and the survivor of them "
are added, they will be mere surplusage, because, by law,
the term would go to the survivor (b). So, upon a lease
reserving rent payable quarterly, with a proviso that, if
the rent were in arrear twenty-one days next after the
day of payment being lawfully demanded, the lessor might
re-enter, it was held, that five years' rent being in arrear,
and no sufficient distress on the premises, the lessor might
re-enter without a demand, and the above maxim was
held to apply ; for, previous to the stat. 4 Geo. 2, c. 28, a
demand was necessary as a consequence of law, whether
the lease contained the words " lawfully demanded " or
not. Then the statute says, that " in all cases where half
a year's rent shall be in arrear, and the landlord has a
right of entry," the remedy shall apply, provided there be
no sufficient distress ; that is, the statute has dispensed
with the demand which was required at the common law,
whether expressly provided for by the stipulation of the
parties or not (c).
Again, every interest which is limited to commence and
is capable of commencing on the regular determination of
the prior particular estate, at whatever time the particular
estate may determine, is, in point of law, a vested estate ;
and the universal criterion for distinguishing a contingent
interest from a vested estate is, that a contingent interest
W. 569, 570 ; and in Lawrance v, M.R., Seifferth v. Badkam, 9 Bear.
Boston, 7 Exch. 28, 35, in reference 374. The maxim supra is applied,
to the operation of the Stamp Acts. per Martin, B., in Scott v. Avery,
See, also, Ogdcn v. Graham, 1 B. & 5 H. L. Cas. 829.
8. 773. (c) Doe d. SehoUfidd v. Alcxan-
(6) Oo. Litt. 191. a., cited, Arg., der, 2 M. & & 525 ; Doe d. Marl of
4 B. & Aid. 306 ; 2 Frest. Abst. Tit. Shrewsbury r. Wilson, 5 B. & Aid.
63. See, also, per Lord Langdale, 364, 384.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 027
cannot take effect immediately, even though the former
estate were determined, while a vested estate may take
effect immediately, whenever the particular estate shalf
determine. Hence it often happens, that a limitation
expressed in words of contingency is in law treated as a
vested estate, according to the rule, Expressio eorum qucv
tacite insunt nihil operator. If, for instance, a limitation
be made to the use of A. for life, and if A. shall die in the
lifetime of B., to the use of B. for life, this limitation
gives to B. a vested estate, because the words expressive
of a contingency are necessarily implied by the law as
being in a limitation to A. for life and then to B. ;
and without those words a vested interest would clearly
be given (d).
In accordance with the same principle, where a person
makes a tender, he always means that the amount ten-
dered, though less than the plaintiff's demand, is all that
he is entitled to in respect of it. Where, therefore, the
person making the tender said to plaintiff, " I am come
with the amount of your bill," upon which plaintiff refused
the money, saying, * I shall not take that, it is not my
bill/' and nothing more passed, the tender was held suffi-
cient; and in answer to the argument, that a tender
made in such terms would give to its acceptance the effect
of an admission, and was consequently bad, it was observed,
that the plaintiff could not preclude himself from recover-
ing more by accepting an offer of part, accompanied by
expressions which are implied in every tender (e).
The above instances, taken in connection with the
remarks appended to the maxim, Expressio uniws est
(d) See, per Willes, G.J., 3 Atk. 409, 411 ; recognised in Bowen v.
138 ; 1 Profit. Abst. Tit. 108, 109. Oiocn, 11 Q. B. 130, 1S5.
(e) Uenxoood v. Oliver, 1 Q. B.
8 s 2
<>28 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
exclusio (dterius, will serve to show that an expression,
which merely embodies that which would in its absence
have been by law implied, is altogether inoperative ; snch
an expression, when occurring in a written instrument,
i:\aumia is denominated by Lord Bacon, clausula inutilis; and,
according to him, clausula vel dispositio inutilis per
prcesumptionem vel causam remotam ex post facto iwn,
fulcitur ; a rule which he thus explains, — clausula vd
dispositio inutilis is " when the act or the words do work
or express no more than the law by intendment would
have supplied ;" and such a clause or disposition is not
supported by any subsequent matter "which may induce
an operation of those idle words or acts " (/).
Verba relata hoc maxime operantur per Refeben-
TIAM UT IN EIS INESSE VIDENTUR. (Co. Litt. 159. a.)
— Words to which reference is mads in an instru-
ment have the same effect and operation as if ikey
were inserted in the clause referring to them (g).
It is important to bear in mind, when reading any
particular portion of a deed or written instrument, that
regard must be paid not only to the language of the
clause in question, but to that also of any other clause
or covenant which may by reference be incorporated with
it ; and, since the application of this rule, so simple in
(/) Bac. Max., reg. 21. taining the terms of the one referred
(g) The rule is that, " by referring to : " per C romp ton, JM Fitimaurict
in a document signed by the party to v. Bay ley, 9 H. L. Gas. 99, where the
another document, tho person so sign* question arose on the 4th section of
ing in effect signs a document con- the Statute of Frauds.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
629
its terms, is occasionally attended with difficulty (k), it •
has been thought desirable in this place briefly to
examine it (i).
Where, by articles under seal, the defendant bound Examples,
himself under a penalty to deliver to the plaintiff by a 8ch2ute?j£
certain day " the whole of his mechanical pieces as per i»i*n.
schedule annexed ; " the schedule was held to form part
of the deed, for the deed without it would be insensible
and inoperative (k). And if a contract of sale refer to
an inventory, the entire contents thereof will become
incorporated with the contract (I).
In like manner, if a contract, or an Act of Parliament,
refer to a plan, such plan will form a part of the contract
or Act, for the purpose for which the reference is made (m).
And a deed of conveyance, made under the authority of
an Act of Parliament, and in the form prescribed thereby,
must be read as if the sections of the Act applicable to
the subject-matter of the grant and its incidents were
inserted in it (n).
In a modern case, a deed recited a contract for the sale
(h) See Reg. t. Registrar of Mid-
dlesex, 15 Q. B. 976 ; Fishmongers'
Co. v. JHmsdale, 12 C. B. 557;
BeOs t. Walker, 14 Q. B. 368 ;
Stewart r. Anglo-Californian Gold-
Mining Co., 18 Q. B. 736.
(t) BoydeU v. Drummond, 11
East, 141, 163, 156, 157 (distin-
guished in Crane r. Powell, L. R. 4
C. P. 123, 129), and Wilkinson t.
Evans, L R. 1 C. P. 407, may be
consulted in connection with the
above maxim. See, also, Ridgway v.
Wharton, 6 H. L. Cas. 238 ; cited
Jndgm., Barker v. Allan, 5 H. & N.
72 ; SUlem v. TJiornton, 3 E. & B.
868, 880.
(*) Weeks v. MaiUardet, 14 East,
568, 574 ; cited and distinguished,
Dyer r. Oreen, 1 Bxch. 71 ; and in
Daine* v. Heath, 3 C. B. 938, 945.
(Q Taylor v. Bullen, 5 Exch. 779.
See Wood t. Bowcliffe, 6 Exch. 407.
(m) North British R. C. v. Tod,
12 CL & Fin. 722, 731 ; Reg. v.
Regents Canal Co., 28 L. J. Chanc.
153. See Oalway v. Baker, 5 CI. &
Fin. 157 ; Brain v. Harris, 10 Exch.
908 ; Reg. v. Caledonian R. C, 16
Q. B. 197.
(«) Eliot ▼. North Eastern A C,
10 H. L. Gas. 333, 353.
630
INTERPRETATION OF DEEDS AXD WRITTEN INSTRUMENTS.
Memoran-
dum.
Statute of
Fraud*.
Affidavit.
of certain lands, by a description corresponding with that
subsequently contained in the deed, and then proceeded
to convey them, with a reference for that description to
three schedules. The portion of the particular schedule
relating to the piece of land in question stated, in one
column, the number which this piece was marked on a
certain plan, and, in another column, under the heading
" description of premises," it was stated to be " a small
piece, marked on the plan ; " and by applying the maxim,
Verba illata iniese ridentur, the Court of Exchequer
considered, on the above state of facts, that it was the
fame thing as if the map or plan referred to in the
schedule had been actually inserted in the deed, since
it was, by operation of the above principle, incorporated
with it (o).
If A. writes to B. that he will give £1000 for B.s
estate, and at the same time states the terms in detail,
and B. simply writes back in return, "I accept your offer,"
it may be shown, by parol evidence of the circumstances
under which B.'s letter was written, that the word,
offer, refers to A/s letter, and thereupon the two letters
may be read as though incorporated the one with the
other, so as to constitute a sufficient memorandum of the
contract signed by B. to satisfy the Statute of Frauds (p).
Where a question arose respecting the sufficiency of
an affidavit, Heath, J., observed, "The Court generally
requires, and it is a proper rule, that the affidavit shall
(o) LUwtUyn v. Earl of Jeney,
11 M. k W. 183, 188 ; Lylt v.
Richards, LR.1H.L 222 ; Barton
v. Davx$, 10 C. B. 261, 263, 266.
See, also, as to the admissibility of
parol evidence to identify a plan re-
ferred to in an agreement for a lease,
Hodges v. HonfaU, 1 Buss. k. My
116.
(p) Long y. Millar, 4 C. P. D. 450;
48 L. J.Q.B.596; Cavt r. Hastings,
7 Q. B. D. 125 ; 50 L. J. Q. B. 575.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 631
be intituled in the cause, that it may be sufficiently
certain in what cause it is to admit of an indictment for
perjury; but this affidavit refers to the annexed plea,
and the annexed plea is in the cause, and Verba relata
ines8e videntur; therefore it amounts to the same thing
as if the affidavit were intituled ; and the plaintiff could
prosecute for perjury on this affidavit " (q).
So, with reference to an indictment, it has been ob- indictment
served, that "there are many authorities to show that one
count thereof may refer to another, and that under such
circumstances the maxim applies, Verba relata inesse
videntur " (r).
The above rule is also applied to the interpretation of win.
wills ($), although the Courts will not construe a will with
the same critical precision which would be prescribed to
a grammarian ; for instance, where the words, " the said
estates," occurring in a will, seemed in strictness to refer
to certain freehold land, messuages, and tenements,
before devised, on which construction the devisee would
only have taken an estate for life, according to the strict
rule which existed prior to the stat. 1 Vict. c. 26 ; yet it
was observed by Lord Ellenborough, that, in cases of this
sort, unless the testator uses expressions of absolute
restriction, it may in general be taken for granted that he
intends to dispose of the whole interest ; and, in further-
ance of this intention, Courts of justice have laid hold of
the word " estate " as passing a fee, wherever it is not so
(q) Per Heath, J., Prince v. (*) See Doe d. Earl of Cholmon-
NichoUon, 5 Taunt. 337. See, in deley r. Maxey, 12 East, 589 ;
connection with the maxim above Wheatley v. Thomas, Sir T. Baym. 54.
noticed, Duke of Brunswick v. Slow- The maxim may apply where a
ntan, 8 C. B. 617. power of appointment by will is ex-
(r) Judgm., Reg. v. Waverton, 17 ercised. See, for instance, Re Barker,
Q. B. 570. 7H.&N. 109
632 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
connected with mere local description as to be cut down
to a more restrained signification (t).
Another important application of the maxim before us
occurs where reference is made in a will to an extrinsic
document, in order to elucidate or explain the testator's
intention, in which case such document will be received
as part of the will, from the fact of its adoption thereby,
provided it be clearly identified as the instrument to
which the will points (u). But parol evidence is in-
admissible to show an intention to connect two instru-
ments together, where there is no reference to a foreign
instrument, or where the description of it is insuffi-
cient (x). A further illustration, moreover, of the general
principle presents itself, where a question arises as to
whether the execution of a will is intended to apply to
the several papers in which the will is contained, or is
confined to that with whifch it is more immediately asso-
ciated, and whether an attested codicil communicates the
efficacy of its attestation to an unattested will or prior
codicil, so as to render effectual any devise or bequest
which may be contained in such prior unattested instru-
ment (y).
Sd pro?M Without adducing further instances of the application
viso 8.
(t) Roe d. AUport v. Bacon, 4 M. 4th ed., 89. As to incorporating in
& 8. 366, 368. See stat. 1 Vict. the probate of wills of personalty
c. 26, as. 26, 28. In Doe d. Woodall papers referred to thereby, bat not
v. Woodall, 8 C. B. 349, the question per se testamentary, see Sheldon ▼.
was as to the meaning of the words Sheldon, 1 Robert 81 ; Allen v.
" in manner aforesaid" occurring in Maddock, 11 Moo. P. C. C. 427.
a will. And see the cases on this (*) See Clayton v. Lord Sugtnt, .
subject, cited 1 Jarman on Wills, 13 M. & W. 200.
4th ed, 746 (o). (y) 1 Jarman on WUIb, 4th ed.,
(u) MoUneux v. Molincux, Cro. 114 ; Alien v. Maddock, 11 Moo. P*
Jac. 144 ; DicHnnn v. Stiddph, 11 C. C. 427 ;.Jn the good* of Gt% L-
C. B. N. S. 341; 1 Jarman on Wills, R. 2 P. & D. 6.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
633
of the maxim, Verba illata inesse videntur — it will be
proper to notice a difficulty which sometimes arises where
an exception (z), or proviso (a) either occurs in, or is by
reference imported into a general clause in a written
instrument; the difficulty (6) being in determining
whether the party who relies upon the general clause
should aver that the particular case does not fall within
the exceptive provision, or whether it should be left
to the party who relies upon that provision to avail
himself of it.
Now the rule usually laid down upon this subject is,
that where matter is introduced by way of exception into
a general clause, the plaintiff must show that the par-
ticular case does not fall within such exception, whereas
a proviso need not be noticed by the plaintiff, but must
be pleaded by the opposite party (c). " The difference is,
where an exception is incorporated in the body of the
clause, he who pleads the clause ought also to plead the
exception ; but when there is a clause for the benefit of
the pleader, and afterwards follows a proviso which is
(z) Logically speaking an exception
ought to be of that which would
otherwise be included in the category
from which it is excepted, but there
are a great many examples to the
contrary : per Lord Campbell, Gurly
v. Gurly, 6 CI. & Fin. 764.
(a) The office of a proviso in an
Act of Parliament is either to except
something from the enacting clause,
or to qualify or restrain its gene-
rality, or to exclude some possible
ground of misinterpretation of it as
extending to cases not intended by
the legislature to be brought within
its purview: per Story, J., deliver-
ing judgment, 15 Feters (U. S.), R.
445.
(b) An analogous difficulty may
also arise with reference to the repeal
or modification of a prior by a subse-
quent statute (see Bowyer v. Cook,
4 C. B. 236) ; and with reference to
the restriction of general by special
words, see lloicell v. Richards, 11
East, 633.
(c) Spieres v. Parker, 1 T. R. 141 ;
R. v. Jukes, 8 T. R. 542 ; per Lord
Mansfield, C.J., R, v. Jarvis, cited
1 East, 646, note ; Stevens v. Stevens,
5 Exch. 306.
634
INTERPRETATION OF DEEDS AND HRlTim nrSTRCHEXTS.
against him, he shall plead the clause, and leave it to the
adversary to show the proviso " (Jh
Hence, if an Act of Parliament or a private instrument
contain in it, first, a general clause, and afterwards a
separate and distinct clause, which has the effect of
taking out of the general clause something which would
otherwise be included in it, a party relying upon the
general clause in pleading may set out that clause only,
without noticing the separate and distinct clause which
operates as an exception. If, on the other hand, the
exception itself be incorporated in the general clause,
then the party relying upon the general clause must, in
pleading, state it with the exception, and if he state it
as containing an absolute unconditional stipulation, with-
out noticing the exception, it will be a variance (e).
In accordance with the first of the above rules, where
one section of a penal statute creates an offence, and a
subsequent section specifies certain exceptions thereto,
the exceptions need not be negatived by the party prose-
cuting (/). So, where the exception is created by a
distinct subsequent Act of Parliament, as well as where
it occurs in a subsequent section of the same Act, the
above remark applies (g) ; and this rule has likewise been
held applicable where an exception was introduced by
way of proviso in a subsequent part of a section of a
(d) Per Treby, C.J., 1 Lord Rsym.
120 ; cited 7 T. B. 31 ; RumeU r.
Zedmm, 14 M. * V. 574. See Crow
t. Fait, 8 Q. B. 467.
(e) Vavasour v. Ormrod, 6 B. k
C. 430 ; cited, Aig., Tucker r. Web-
tier, 10 M. k W. 373 ; per Lord
Abinger, C.B., Grand Junction B. C.
▼. White, 8M. 4W. 221 ; ThibauU
t. Gibson, 12 M. k W. 94 ; cited per
Lord Denman, CJ., Patih r. Force,
12 Q. B. 672. See Foe t. Bacon,
4 M. k 8. 366, 368 ; Paddock r.
Forrester, 3 Scott, N. R. 715; 1
Wins. Stands. 262 b. <]); IL v.
Jttket, 8 T. B. 542.
(/) Van Bonus cam, 9 Q. B.
669. See 15 M. k W. 318.
(g) See per Lord Abinger, C.B.,
ThibauU t. Gibson, 12 1L k W. 94.
INTERPBETATION OF DEEDS AND WRITTEN INSTRUMENTS.
C35
statute which imposed a penalty, and on a former part of
which, section the plaintiff suing for the penalty relied (h).
" There is," remarked Alderson, B., in the case referred to,
a manifest distinction between a proviso and an exception.
Therefore, if an exception occurs in the description of
the offence in the statute, the burden of proof rests with
the complainant to show that the accused does not come
within it (i) ; but, if the exception comes by way of pro-
viso, and does not alter the offence, but merely states
what persons are to take advantage of it, then the defence
must be specially pleaded, or may be given in evidence
under the general issue, according to circumstances " (&).
The latter of the two rules above mentioned may be
thus illustrated: — Where an exception was introduced
into the reservation of rent in a demise, not in express
terms, but by reference only to some subsequent matter in
the instrument, viz., by the words, " except as hereinafter
mentioned," and the plaintiff in his declaration stated the
reservation without the exception, referring to a sub-
sequent proviso, this was held, according to the above
rule, to be a variance (I).
(h) Simpson v. Ready, 12 M. &W.
736 (as to which case see, per Alder-
son, B., Mayor of Salford v. Ackers,
16 M. & W. 92) ; per Parke, B.,
ThibauU t. Gibson, 12 M. & W. 96.
(i) Davis v. Scrace, L. R. 4 C. P.
172 ; 38 L. J. (M. C.) 79 ; Taylor v.
Humphries, 17 C. B. N. S. 539 ; 34
L. J. (M.C.)l.
[k) Per Aldereon, B., Simpson v.
Ready, 12 M. & W. 740 ; S. C, 11
Id. 344 ; per Lord Mansfield, C.J.,
Spieres v. Parker, 1T.E. 144, and
in R. v. Jarvis, 1 East, 644 (d) ;
Bousfield v. Wilson, 16 M. k W. 185.
See Tennant, app., Cumberland,
reap., 1 E. & B. 4G1.
(I) Vavasour ▼. Ormrod, 6 B. &
C. 430.
636
INTERPRETATION OP DEEDS AND WRITTEN
Ad PRoxiMrx Antecedens fiat Relatio, NISI impe-
diatur Sententia. (Xojf. Max., 9th ed />. 4.) —
Relative words refer to the next antecedent, unless
by sucJt a construction the meaning of the sentence
would be impaired.
Rale admiu Relative words must ordinarily be referred to the next
Uou- antecedent, where the intent upon the whole deed or
instrument does not appear to the contrary (m), and where
the matter itself does not hinder it (n). The " last ante-
cedent " being the last word which can be made an ante-
cedent so as to have a meaning (o).
But, although the above general proposition is true in
strict grammatical construction, yet there are numerous
examples in the best writers to show that the context may
often require a deviation from this rule, and that the
relative may be connected with nouns which go before the
last antecedent, and either take from it or give to it some
qualification (p).
(m) Com. Dig. " Parol*," (A. 14,
15) ; Jenk. Cent. 180 ; Dyer, 46 b ;
Wing. Max., p. 19. See Bryant t.
Warddl, 2 Bxch. 479; Piatt t.
Ashley, 1 Exch. 257 ; Electric Tele-
graph Co. *. Brett, 10 C. B. 838 ;
Reg. t. Brown, 17 Q. B. 833, with
which compare In re Jones, 7 Exch.
586 ; Eastern Counties R. C. v.
Marriage, 9 H. L. Caa. 32 ; S. C,
2 H. & N. 625 ; cited per Channell,
K, Tetley v. Wanless, L R. 2 Ex.
29 ; S. C, Id. 275 ; and in Latham
r. Lafone, Id. 123 ; Bristol and
Exeter R. C. v. Garton, 8 H. L. Caa.
477.
(») Finch, Law, 8.
(o) Per Tindal, C.J., 114R
445. See Esdaile v. Maclean, 15 JC
&W. 277; WQliams v. SewUm, 14
X. * W. 747 ; Peake ▼. Screeds,
7 a B. 603 ; Reg. t. Inhahs. of St.
Margaret, Westminster, Id. 569 ;
Ledsam r. Russell (in error), 16 M.
& W. 663 ; S. a. 1 H. L. Caa. 687.
{p) Judgm., Slaniland v. Hop-
kius, 9 M. & W. 192 ; in which case
a difficulty arose as to the proper
mode of construing a statute. See,
also, A.-G. v. ShiUibeer, 3 Kxch. 71 ;
Beer, app., Santer, resp., 10 C E
N. S. 435; Beckh v. Page, 7 Id.
861 ; Earl of Kintort y. Lord Inve-
rurjf, 4 Macq. Sc. App. Gas. 520.
INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS. 637
For instance, an order of magistrates was directed to
the parish of W., in the county of R, and also to the
parish of M., in the county of L., and the words " county
of R." were then written in the margin, and the magis-
trates were, in a subsequent part of the order, described
as justices of the peace for the county aforesaid : it was
held, that it thereby sufficiently appeared that they were
justices for the county of R (q).
The above rule of grammar is, of course, applicable to win».
wills as well as to other written instruments; for in-
stance : — A testator devised the whole of his property
situated in P., and also his farm called S., to his adopted
child M. He left to his nephew, W., all his other lands,
situated in H. and M. ; and the will contained this sub-
sequent clause; "And should M. have lawful issue, the
said property to be equally divided between her lawful
issue." It was held, that these words, "the said pro-
perty/' did not comprise the lands in H. and M. devised
to the nephew, although it was argued that they must,
according to the true grammatical construction of the
will, either comprise all the property before spoken of,
or must refer to the next antecedent (r).
. {q) R. v. St. Mary's, Leicester, 1 691 ; Chtyncy's cote, 5 Rep. 68 ;
B. & Aid. 327 ; Reg. v. Inhabs. of and the cases collected in R. v.
Casterton, 6 Q. B. 507 ; Baring v. Richards, 1 M. & Rob. 177 ; Owen
Christie, 5 East, 898 ; R. v. Ckilvti- v. Smith, 2 H. Bla. 594 ; Galley t.
scoUm, 8 T. R. 178. Barrington, 2 Bing. 887 ; Doe d.
(r) Peppercorn v. Peacock, 3 Beech y. Nail, 6 Exch. 102 ; Pea-
Scott, N. R. 651 ; Hall v. Warren, cock v. Stoctyord, 3 De G., M. & G.
9 H. L. Cas. 420. See, also, Doe d. 73, 79.
Gore v. LangUm, 2 B. & Ad. 680,
638
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
Ancient
grants, 6c.
CONTEMPORANEA EXPOSITIO EST OPTIMA ET FORTLSSMA
in Lege. (2 Inst. 11.) — The best and surest mode of
expounding an instrument is by referring to the
time when, and circumstances under whicli, it was
made (*).
There is no better way of interpreting ancient words,
or of construing ancient grants, deeds, and charters, than
by usage it) ; and the uniform coarse of modern autho-
rities fully establishes the rule, that, however general the
words of an ancient grant may be, it is to be construed
by evidence of the manner in which the thing grauted
has always been possessed and used ; for so the parties
thereto must be supposed to have intended (u). Thus,
if it be doubtful on the face of an instrument whether a
present demise or future letting was meant, the intention
of the parties may be elucidated by the conduct they
have pursued (x) ; and where the words of the instrument
are ambiguous, the Court will call in aid acts done under
it as a clue to the intention (y). K Contemporaneous
usage," observed Lord Cottenham, C, in Drummond v.
(<) The Courts, however, have fre-
quently repudiated the idea of being
influenced in their interpretation of a
statute by knowledge of what oc-
curred in Parliament during the
passing of the bill : see, for instance,
per Pollock, C.B., 7 Exch. 617 ; per
Alderson, B., 5 Rxch. 667.
{t) Per Lard Hardwicke, C, A.-
O. t. Parker, 3 Atk. 576 ; and 2
Inst. 282 ; cited 4 T. R. 810 ; per
Parke, B., Clift y. Schwabe, 3 C. B.
469 ; and in Jettison t. Dyton, 9 M.
& W. 556 ; JL r. MatkUer, 6A.&
E. 153; JL v. Davie, Id. 874 ; Sen-
house v. Earle, Amb. 288 ; Go. Iitt
8. b. ; Lockwood r. Wood, 6 Q. B.
31 ; per Lord Bldon, C, A.-G. t.
Former, 10 Yes., jun. 338 ; Reg. t.
Dalwick College* 17 Q. B. 600.
(») Weld t. Hornby, 7 East, 199 ;
12. t. Osbourne, 4 Bast, 327.
(x) Chapman t. Bluet, 4 Bing.,
N. C. 187, 195.
(y) Per Tindal, C. J.f Doe d. Pear-
son t. Ries, 3 Bing. 181.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
639
Tlie Attorney-General (z), "is a strong ground for the
interpretation of doubtful words or expressions, but time
affords no sanction to established breaches of trust."
Upon the same principle, also, depends the great statutes.
authority which, in construing a statute, is attributed to
the construction put upon it by judges who lived at the
time when the statute was made, or soon after, as being
best able to determine the intention of the legislature,
not only by the ordinary rules of construction, but espe-
cially from knowing the circumstances to which it had
relation (a) ; and where the words of an Act are obscure
or doubtful, and .where the sense of the legislature
cannot, with certainty, be collected by interpreting the
language of the statute according to reason and gram-
matical correctness, considerable stress is laid upon the
light in which it was received and held by the contem-
porary members of the Profession. u Great regard," says
Sir E. Coke, " ought, in construing a statute, to be paid
to the construction which the sages of the law, who
lived about the time or soon after it was made, put upon
it ; because they were best able to judge of the intention
of the makers at the time when the law was made " (6).
And, " it is by no means an inconvenient mode of con-
struing statutes to presume that the legislature was aware
(z) 2 H. L. Cas. 861 ; et vide, per
Lord Campbell, Id. 863.
(a) 2 Phill. Evid., 10th «L, 420;
Bank of England v. Anderson, 3
Bing., N. C. 666. See the resolu-
tions in HeydoiCs case, 3 Rep. 7;
as to which vide per Pollock, C.B ,
A.-G. r. SiUern, 2 H. & C. 481;
Lord Camden's Judgment in Entick
v. Carrinjton, 19 How. St. Trials,
1043 et seq. ; per Coleridge, J., Reg.
y. Archb. of Canterbury, 11 Q. B.
595, 596 ; per Crompton, J., Sharpley
v. Overseers of Mablethorpe, 3 E. k
B. 917 ; per Bylee, J., 6 C. B. N. S.
213.
(b) Cited Dwarr. Stats., 2nd ed.,
562, 703 ; 2 Inst. 11, 136, 181 ; per
Holt, C.J., Comb. R. 210 ; Corpora-
tion, of Newcastle v. A.-G,, 12 CI. &
Fin. 419.
640 INThHPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
of the state of the law at the time they passed " (c). This
presumption may of course be rebutted, and a declaration
of law in a statute shown to be erroneous is inope-
rative (d).
Conformably to what has been above said, stress was
laid by several of the judges delivering their opinions
in the Fermoy Peerage case (e), upon the usage observed
in the creation of Irish Peerages, since the passing of
the Act of Union. And in Salkeld v. Johnson (/), the
Court of Exchequer, referring to the stat. 2 & 3 Will. 4,
c. 100, intituled "An Act for shortening the time re-
quired in claims of modus decimaiidh, or exemption from
or discharge of tithes/' observe, that they propose to
construe it " according to the legal rules for the inter-
pretation of statutes, principally by the words of the
statute itself, which we are to read in their ordinary sense,
and only modify or alter so far as it may be necessary to
avoid some manifest absurdity or incongruity, but no
further {g). It is proper also to consider the state of the
law which it proposes or purports to alter, the mischiefs
which existed and which it was intended to remedy, and
the nature of the remedy provided, and to look at the
statutes in pari materid (h), as a means of explaining this
statute." These are the proper modes of ascertaining
the intention of the legislature.
Usage, however, it has been observed (/;, can be bind-
ing and operative upon parties only as it is the interpreter
(c) Per Pollock, C.B., Jones y. (h) See Ex parte Copeland, 2 De
Brown, 2 Exch. 332. G., M. k GK 914.
(d) Mollwo, dfcc, v. Court of (t) Per Lord Brougham, MacfU-
Wards, L. R. 4 P. C. 419. troths of Dunbar v. Duckets of Rox-
(c) 5 H. L. Cas. 747, 785. hurglie, 3 fcl. & Fin. 354 ; cited,
(/) 2 Exch. 278. Arg., 13 M. & W. 411.
iff) Ante, pp. 526, et seq.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
G4I
of a doubtful law ; for, as against a plain statutory law, no
usage is of any avail (k). Where, indeed, the statute,
speaking on some points, is silent as to others, usage may
well supply the defect, especially if it is not inconsistent
with the statutory directions, where any are given ; and,
in like manner, where the statute uses a language of
doubtful import, the acting under it for a long course of
years may well give an interpretation to that obscure
meaning, and reduce that uncertainty to a fixed rule ; in
such a case the maxim hereafter illustrated is applicable,
— 'Optirnvs legis inteiyprea consuetiulo (I).
Similar in effect to an unbroken usage is a long current Judical «w.
° ° CIHIOIIH.
of judicial decisions (m), and where the authorities are
consistent the Court is bound by them even if it does not
approve the principles on which they have acted (??). .
Qui hjbret in Lttera h*:ret in Oortice. (Co. Lift.
283. 6.) — He ivho considers merely the letter of an
instrument goes but skin-deep into its meaning.
The law of England respects the effect and substance
(A) Hence, speaking with reference
to the above maxim, Pollock, C. II.,
in Pockin v. Buncombe, 1 H. & N.
856, 857, observe*, "The rule
amounts to no more than this, that
if the Act be susceptible of the inter-
pretation which has been put upon
it by long usage, the Courts will not
disturb that construction ; " citing
The Fermoy Peerage caw, 5 H. L.
Cas. 716 ; and see the remarks of
the same learned judge in Gvcyn v.
Hardwiche, 1 H. & N. 53 ; per Lord
Campbell, O.J., Gorham v. Binliop
of Exeter, 15 Q. B. 73, 74.
{I) Pott, Chap. X., where the ad-
missibility of usage to explain an in-
strument is considered, and additional
authorities are cited.
(m) Windham v. Chetwynd, 1
llurr. 419.
(n) Newton v. Cowie, 4 Bingli.
234, 241. For some general ob-
servations on the construction of
statutes, sec Wilberforcc Statute Law,
143 tt seq.
T T
042
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
False
grammar.
of the matter, and not every nicety of form or circum-
stance (o). The reason and spirit of cases make law, and
not the letter of particular precedents (p). Hence it is, as
we have already seen, a general and comprehensive rule
connected with the interpretation of deeds and written
instruments, that, where the intention is clear, too minute
a stress should not be laid on the strict and precise
signification of words (q). For instance, by the grant of a
remainder, a reversion may pass, and e converao (r) ; and
if a lessee covenants to leave all the timber which was
growing on the land when he took it, the covenant will be
broken, if, at the end of the term, he cuts it down, but
leaves it there ; for this would be defeating the intent of
the covenant, although a literal performance of it («).
In accordance with this principle, it is a further rule,
that mala grammatica non vitiat chartami (t) — the
grammatical construction is not always, in judgment of
law, to be followed ; and neither false English nor bad
Latin will make void a deed when the meaning of the
party is apparent (u). Thus, the word "and" has, as
already intimated, in many cases, been read " or/' and
vice versd, when this change was rendered necessary by
the context (or). Where, however, a proviso in a lease
(o) Co. Litt. 283 ; Wing. Max.,
p. 19. Seeder Coltman, J., 2 Scott,
N. R. 300.
(p) Per Lord Mansfield, C.J., 3
Bur. 1364.
(q) Ante, p. 523.
(r) Hobart, 27.
{$) Woolf., L. k T., 12th ed., 592.
(t) 9 Rep. 48 ; 6 Rep. 40 ; Wing.
Max., p. 18 ; Vin. Abr., " Gram-
mar11 (A.) ; Loft, 441*
"It may as properly be said in
Scotch as in English law that falsa
grammatica non vitiat chartam : "
per Lord Chelmsford, OoUan r.
Gollan, 4 Macq. Sc. App. Cas.
591.
(u) Co. Litt. 223. b. ; Osborns
ra*r, 10 Rep. 133 ; 2 Show. 334.
See Reg. v. Inhaba. of WooldaU, 6
Q. B. 565.
(jr) Chapman v. JkUton, Plowd.
289 ; Harris y. Davis, I CoU.
416.
INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.
643
was altogether ungramrnatical and insensible, the Court
declared that they did not consider themselves bound to
find out a meaning for it (y).
In interpreting an Act of Parliament, likewise, it is not,
in general, a true line of construction to decide according
to the strict letter of the Act ; but the Courts will rather
(subject to the remarks already made upon this matter (z))
consider what is its fair meaning (a), and will expound it
differently from the letter, in order to preserve the
intent (&). The meaning of particular words, indeed, in
statutes, as well as in other instruments, is to be found
not so much in a strict etymological propriety of language,
nor even in popular use, as in the subject or occasion on
which they are used, and the object that is intended to
be attained (o).
The maxim applies also to the interpretation of con- contract*.
tracts so as to place the construer in the same position
as the party who made the contract, to view the cir-
cumstances as he viewed them, and so judge of the mean-
ing of the words, and of the correct application of the
language to the things described (d), and extrinsic evi-
dence for these purposes is admissible (e).
{y) Doe d. Wyndham v. Careic,
2 Q. B. 817 ; Berdoe v. Spittle, 1
Exch* 175. See Moverly y. Lee, 2
Ld. Raym. 1223, 1224.
(z) Ante, pp. 525, et seq.
(a) Per Lord Kenyon, C.J., 7 T.
R. 196 ; Fowler v. Padget, Id. 509 ;
11 Rep. 73 ; Litt., s. 67, with Sir ft
Coke's Commentary thereon, cited, 3
Bing., N. C. 525 ; Co. Iitt. 831. b.
See Vincent r. Slaymaker, 12 East,
372 ; Arg. Bignold v. Springfield,
7 CI. & Fin. 109, and cases there
cited.
{b) 3 Rep. 27. According to the
Roman law, semper in obscuris quod
minimum est sequimur, D. 50. 17. 9,
which is a safe maxim for guidance
in oar own ; see per Maule, J.,
Williams r. Crosling, 3 C. B. 962.
(c) Judgm., R. v. Ball, 1 B. & C.
123 ; cited 2 C. B. 66.
(d) Addison on Contracts, 8th ed.„
182, and the cases there cited.
(e) Hudson v. Stewart, Stewart v.
Eddowes, L. R. 9C. P. 311 ; 43 L J.
C. P. 204 ; Broicn v. Fletcher, 35 L.
T. 165.
T T 2
G44.
CHAPTER IX.
THE LAW OF CONTRACTS.
A very cursory glance at the contents of the pre-
ceding pages will show that we have not iinfreqaently
had occasion to refer to the Law of Contracts, in illus-
tration of maxims heretofore submitted to the reader.
Many, indeed, of our leading principles of law have
necessarily a direct and important bearing upon the law
merchant, and must, therefore, be constantly borne in
mind when the attention is directed to that subject. The
following pages have been devoted to a review of such
maxims as are peculiarly, though by no means exclusively,
applicable to contracts ; and an attempt has been made,
by the arrangement adopted, to show, as far as practi-
cable, the connection which exists between them, and
the relation in which they stand to each other. The first
of these maxims sets forth the general principle, that
parties may, by express agreement inter se, and subject,
to certain restrictions, acquire rights or incur liabilities
which the law would not otherwise have conceded to.
or imposed upon them. The maxims subsequently con-
sidered show that a man may renounce a privilege or
right which the law has conferred upon him; that one
who enjoys the benefit, must likewise bear the incon-
venience or loss resulting from his contract ; that, where
the right or where the delinquency on each side is equal
THE I*AW OF CONTRACTS. f>45
in degree, the title of the party in actual possessioA shall
prevail. Having thus stated the preliminary rules appli-
cable to the conduct and position of the contracting
parties, we have* proceeded to examine the nature of the
consideration essential to a valid contract — the liabilities
attaching respectively to vendor and purchaser — the
various modes of payment and receipt of money — and
the effect of contracting, or, in general, of doing any act
through the intervention of a third party as agent,
together with the legal consequences which flow from the
subsequent ratification of a prior act. Lastly, we have
stated in what manner a contract may be revoked or
dissolved, and how a vested right of action may be
affected by the Statute of Limitations, or by the negli-
gence or death of the party possessing it. It will be
evident, from the above brief outline of the principles set
forth in this Chapter, that some of them apply to actions
of tort, as well as to those founded in contract ; and when
such has been the case, the remarks and illustrations
appended have not been in any way confined to actions of
the latter description. The general object, however, has
been to exhibit the most important elementary rules
relative to contracts, and to show in what manner the law
may, through their medium, be applied to regulate and
adjust the infinitely varied and complicated transactions
of a mercantile community.
Modus et Conventio vincunt Legem. (2 Rep. 73.)—
The form of agreement and the convention of par-
ties override the law.
The above mny be regarded as the most elementary General
° * principle.".
646
THE LAW OF CONTRACTS.
principle of law relative to contracts (a), and may be thus
stated in a somewhat more comprehensive form: The
conditions annexed to a grant or devise, the covenants
inserted in a conveyance or lease, and the agreements
whether written or verbal, entered into between parties,
have, when duly executed and perfected, and subject
to certain restrictions, the force of law over those who
are parties to such instruments or agreements (6).
"Parties to contracts," remarks Erie, J., in a modern
case (c), " are to be allowed to regulate their rights
and liabilities themselves," and " the Court will only give
effect to the intention of the parties as it is expressed by
the contract n (d).
Where the tenant of a house covenanted in his lease
to pay a reasonable share and proportion of the expenses
of supporting, repairing, and amending all party-walls,
&c., and to pay all taxes, duties, assessments, and imposi-
tions, parliamentary and parochial, — "it being the in-
tention of the parties that the landlord should receive the
clear yearly rent of 601. in net money, without any de-
fa) In illustration of it, see Walslt
v. Secretary of State for India, 10
H. L. Cm. 867 ; Savin v. Hoylake
R. C.,L. R. lBx.9.
(b) A "contract" is defined to be
" line convention par laqtteUc Us
deux parties, ou settlement Vune dee
deux, promettent et s'engagent envers
V autre a lui donner qudque chase ou
a /aire ou a ne pat faire quelque
chose : " Pothier, Oblig., pt 1, chap.
1, art 1, s. 1. Omne jus aut con-
sensus fecit, out necessitas constituU,
aut Jtrmavit consuetudo : D. 1. 3.
40. " It is the essence of a contract
that there should be a concurrence of
intention between the parties as to
the terms. It is an agreement be-
cause they agree upon the terms,
upon the subject-matter, the con-
sideration, and the promise, " L. R.
4 Ex. 881.
(c) GoU y. Gandy, 23 L. J., Q. B.
1,3; S. C, 2 B. k B. 847 ; per
Erie, J., 4 H. k N. 343.
(d) Judgm., Stadkard ▼. Let, 8
B. & S. 372; per Bramwell, R,
Rogers v. Hadley, 2 H. k C. 249 ;
and see Manchester, Sheffield, it-
Lincolnshire Railway Co. r. Brown,
8 App. Cases, 703 ; 52 I*. J. 182.
THE LAW OF CONTKACTS. . 647
duction whatever,"— and during the lease the proprietor
of the adjoining house built a party-wall between his own
house and the house demised, under the provisions of the
stat. 14 Geo. 3, c. 78 : it was held, that the tenant, and
not the landlord, was bound to pay the moiety of the
expense of the party- wall ; " for," observed Lord Kenyon,
" the covenants in the lease render it unnecessary to con-
sider which of the parties would have been liable under
the Act of Parliament; Modus et conventio vincunt
legem " (e).
So, in Roivbotham v. Wilson (/), Martin, B„ observes,
" I think the owner of land may grant the surface, subject
to the quality or incident that he shall be at liberty to
work the mines underneath, and not be responsible for any
subsidence of the surface. If the law of itself, under
certain circumstances, protects from the consequences of
an act, I think a man may contract for such protection in
a case where the law of itself would not apply, Modus et
conventio vmcunt legem."
In an action on the case for not carrying away tithe
corn, the plaintiff alleged, that it was " lawfully and in
due manner" set out : it was held, that this allegation was
satisfied by proof that the tithe was set out according to
an agreement between the parties, although the mode
thereby agreed to varied from that prescribed by the
common law, the tithe having been set out in shocks, and
not in sheaves, as the law directs (g).
The same comprehensive principle applies, also, to Mercantile
agreements having immediate reference to mercantile tions.
(<-) Barrett v. Duke of Bedford, (g) Faeey v. Hurdom, 3 B. & C.
8 T. R. 602, 605. 213. 8ee IfaUiweU t. Trappee, 1
(/) 8 B. & 15. 150 ; S. C, 8H.L Taunt. 55.
Om. 348.
<»4N THE LAW OF CONTRACTS.
transactions: thus, the stipulations contained in articles
of partnership may be enforced, and must be acted on
as far as they go, their terms being explained, and their
deficiencies supplied, by reference to the general principles
of law. Although, therefore, a new partner cannot at
law be introduced without the consent of every individual
member of the firm, yet the executors of a deceased
partner will be allowed to occupy his place, if there be an
express stipulation to that effect in the agreement of
partnership. Again, the lien which a factor has upon the
goods of his principal (h), arises from a tacit agreement
between the parties, which the law implies ; but, where
there is an express stipulation to the contrary, it puts an
end to the general rule of law (i\ The general lien of a
banker, also, is part of the law merchant, and will be
upheld by Courts of justice, unless there be some agree-
ment between the banker and the depositor, either express
or implied, inconsistent with such right (k). So, it has
been remarked that, in the ordinary case of a sale of
chattels, time is not of the exnencc of the contract, wide**
it be made so by express agreement, and this may be
effected with facility by introducing conditional words
into the bargain ; the sale of a specific chattel on credit,
therefore, although that credit may lie limited to a definite
period, transfers the property in the goods to the vendee,
giving the vendor a right of action for the price, and a
(A) See Dixon v. Stansfeld, 10 0. (*) Brandth v. Burnett, 12 CI. &
11. 398. Fin. 787 ; S. C, 3 C. R 519.
(i) Per Lord Kenyon, C.J. , Walker As to the lien of a shipowner on
r. Birch, 6 T. R. 262. the cargo for freight, see Haw v.
As to the general lien of a wharf- Kirvhner, 11 Moo., P. C. C. , 21 ;
inger at common law, see Drtner v. Kirchter v. Venus, 12 Id. 301.
Botanquet, 4 B. & 8. 460, 486.
THE LAW OF CONTRACTS. " C49
Hen upon the goods if they ten mi n in his possession till
that price be paid (I).
The doctrine relative to specific performance may here D^tnneor
simply be mentioned, as showing that Courts of equity specino ]»« i-
furmancc.
fully acknowledge the efficacy of contracts, where bona fide
entered into in accordance with those formalities, if any,
required by the statute law. Formerly equity, indeed, from
its peculiar jurisdiction, had power for enforcing the ful*
filment of contracts which a Court of law did not pos-
sess (m) ; and in exercising this power, it acted upon the
principle that express stipulations prescribe the law quoad
the contracting parties. For instance, money was devised
to be laid out in land to the use of B. in tail, remainder
to the use of C. in fee. B., having no issue, agreed with
C. to divide the money; but before the agreement was
executed B. died, whereupon C. becoming, as he supposed,
entitled to the whole fund, refused to complete the agree-
ment. The Court, however, upon bill filed by B.'s per-
sonal representatives, decreed a specific performance (n) ;
acting thereby in strict accordance with the above maxim,
Modus et conventio vinvunt legem (o).
Without venturing further into the wide field which is
here opening upon us, we may add, that it does sometimes
happen, notwithstanding an express agreement between
parties, that peculiar circumstances present themselves
•
(/) MartindaU r. Smith, 1 Q. R and Burmah fiteam Xac. Co. v. Dr
3iK>, cited in Page v. Eduljte, h. R. Mattos. 32 L. J., Q. B. 323.
1 P. C. 145. In Spartali v. Beneckc, (m) See Benton v. Patdl, 6 E. k
10 C. B. 216, Wilde, C.J., observes, B. 273.
" If a vendor agrees to Bell for a de- (r?) Carter v. Carter, Can; temp,
f erred payment, the property pas*»e*, Talb. 271.
and the vendee is entitled to call for (o) See, also, Frank v. Frank; 1
a present delivery without payment. " Chanc. Cas. 84.
Sec also, per Blackburn, J., Calcutta
C50 THE LAW OF CONTRACTS.
which afford grounds for the interference of a Court of
equity, in order that the contract entered into may be so
modified as to meet the justice of the case. For instance,
where an attorney, whilst he lay ill, received the sum of
120 guineas by way of premium or apprentice fee with a
clerk who was placed with him, and died three weeks
afterwards, the Court decreed a return of 100 guineas,
although the articles provided that if the attorney should
die within the year, £60 only should be returned (j)).
With respect to this case, Lord Kenyan, indeed,
observed (?•), that in it the jurisdiction of a Court of
equity had been carried "as far as could be;" but the
decision seems, from the facts stated in the pleadings (s),
to be supportable upon a plain ground of equity, viz.
that of mutual mistake, misrepresentation, or uncon-
scientious advantage (t), and, consequently, not really
opposed to the spirit of the maxim, Modus et convent i<>
vincunt legem.
Limitation The rule under consideration, however, is subject to
restriction and limitation, and does not apply where the
express provisions of any law are violated by the con-
tract, nor, in general, where the interests of the public,
or of third parties, would be injuriously affected by its
fulfilment : — Pacta, quce contra leges constUutionesque
vel contra bonos mores Jiunt, nullam vim habere,
indubitati juris est (a) ; and privatorum conrentio
juri publico non derogat (x). " If the thing stipulated
(p) Newton v. Howse, 1 Vera., (t) 1 Story, Eq. Jurisp., 12th al.9
3rd ecL, 460. Seo Re Thompson, 1 p. 460.
Exch. S64. (u) C. 2. 3. 6.
(r) Bale v. Webb, 2 Bre. Chan. (x) D. 50. 17. 45. § 1 ; D. 2. 14.
Rep. 80. 38 ; 9 Rep. 141.
(«) See 1 Vera., 3rd ed., 460 (2).
of rale.
THE LAW OF CONTRACTS. 651
for is in itself contrary to law, the paction by which
the execution of the illegal act is stipulated must be held
as intrinsically null, pactis privatorwm juri publico
non derogatur. Accordingly illegality may be pleaded
as a defence to an action on a deed. Thus, where the
defendant and the other obligors on a bond had agreed
to execute a bond in favour of the plaintiff as security
for a sum of money paid by him to another person as a
bribe not to prosecute the other obligors for wilful and
corrupt perjury, the defendant was permitted to set up
the agreement and thereby avoid the payment of the
bond on the ground of illegality (y). Also all contracts
prohibiting parties from bringing an action, and all
agreements purporting to oust the Courts of their juris-
diction, are altogether void(z). Thus, an agreement
between the parties to a contract that all disputes arising
out of it shall be referred to arbitration, does not prevent
either party bringing an action on the contract, subject to
the right of the other party to apply for a reference in
the terms of the agreement under the Common Law
Procedure Act, 1854 (a), unless the agreement to refer
amounts to a condition precedent to the right to sue on
the contract, in which case an action cannot be main-
tained until the condition has been complied with (b).
Not only is the consent or private agreement of
individuals ineffectual in rendering valid any direct
contravention of the law, but it will altogether fail to
make just, sufficient, or effectual that which is unjust or
(y) Collins t. Blantern, 1 Smith's 648 ; 29 L. J. Ex. 28.
L, (X, 8th< ed., and infra, p. 687, (a) Elliott v. Royal Exchange As*.
and the authorities cited in the note Co., L. R. 2 Ex. 237.
thereto. (b) Scott v. Avery, 5 H. I* Cas.
(z) Horton v. Sayer, 4 H. & N. 811 ; 25 L. J. Ex. 308.
032 THE LAW OF CONTRACTS.
deficient in respect to any matter which the law declares
to be indispensable and not circumstantial merely (c).
Therefore an agreement by a married woman, that sbc
will not avail herself of her coverture as a ground of
defence to an action on a personal obligation which she
lias incurred, would not be valid or effective in support
of the plaintiff's claim and by way of answer to a plea of
coverture; for a married woman is under a total dis-
ability, and her contract is absolutely void, unless where
it can l>e viewed as a contract on behalf of the husband
through her agency (</) ; or is within the Married
Woman's Property Act, 1882.
So, with reference to a provision in a foreign policy of
insurance against all perils of the sea, " nvlli* ejcceptis"
it was observed, that, although there was an express
exclusion of any exception by the terras of the policy, yet
the reason of the thing engrafts an implied exception
even upon words so general as the above; as, for ex-
ample, in the case of damage occasioned by the fault of
the assured ; it being a general rule that the insurers
shall not be liable when the loss or damage happens by
the fraud or fraudulent conduct of the assured, from
which rule it is not allowed to derogate by any pact to
the contrary ; for nulhl pactione efficl potest at doln*
pm'stetur — I cannot effectually contract with any one
that he shall charge himself with the faults which I
shall commit (>) ; a man cannot validly contract that he
shall be responsible for fraud. Neither will the lav
{<■) Hell, Diet, ami Dig. of Scotch 258 ; Cannm* v. Farmery 3 Kxclr.
Law, (594. 698 ; Bartlett v. Wdh, 1 B. * S.
(d) See Liverpool Adelphi Loan 836.
Am. v. JPaMkunt, 9 Exch. 422 ; (<•) Judgm., 5 M. & S. 466; D. 2.
U'rhjht v. Leonard, 11 C. B. N. S. 14. 27. 3.
THE LAW OP COXTBACTS. . (533
permit a person who enters into a binding contract, to
say> by a subsequent clause, that he will not be liable to
be sued for a breach of it (/ ).
It is equally clear that an agreement entered into Agreement
* J ° m cannot affect
between two persons cannot, in general, affect the rights Jjyjj}1'*
of a third party, who is altogether a stranger to it ; thug, Part,t!*-
if it be agreed between A. and B. that B. shall discharge
a particular debt due from A. to C, such an agreement
can in no way prejudice C.'s right to sue A. for its
recovery ; debitomm pactionibu* creditovmn petitio nee
tolli ne>e minui jwteet (g) ; and, according to the rule of
the Roman law — privat-is pactionihus non ditbium est
nan Icedi jits ccetevorum (h).
In the above and similar cases, then, as well as in
some others relative to the disposition of property,
which have been noticed in the preceding Chapter (/),
another maxim emphatically applies : Fortior et potm-
tior est dinpositio Ugis qadm hominis (k) — the law in
some cases overrides the will of the individual, and
renders ineffective and futile his expressed intention or
contract {I).
For instance, " surrender " is the term applied in law surrender
bv operation
of law.
(/) Per Martin, B., Kelsall v. irrevocable, which, in its own nature
Tyler, 11 Exch. 534. and according to established rules of
(ff) 1 Pothier, Oblig., 108, 109. law, is revocable, as in the case of a
(h) D. 2. 15. 3, pr. will. So, "the rule which prohibits
(*) See, also, per Lord Kenyon, the assignment of a right to sue on a
C.J., Dot d. Mitchinton v. Carter, covenant, is not one which can be dis-
8 T. R. 61 ; 8. C, Id, 300 : Arg., pensed with by the agreement of the
15 East, 178. parties, and it applies to covenants
(k) Co. Litt. 234. a., cited, 15 expressed to be with assignees, as
East, l/8. The maxim supra is well as to othera," Judgm., 1 Exch.
illustrated per Williams, J., Hybart 645. And see Judgin., flibUc white
v. Parker, 4 0. B. N. S. 213-14. v. M'Morine, 6 M. & W. 216 ;
(/) For instance, a man cannot, by Broom's Com., 4th ed., 439.
his own acts or words, render that
054
THE LAW OF CONTRACTS.
to " an act done by or to the owner of a particular estate,
the validity of which he is estopped from disputing, and
which could not have been done if the particular estate
continued to exist ; " as in the case of a lessee taking a
second lease from the lessor, or a tenant for life accepting
a# feoffment from the party in remainder, or a lessee*
accepting a rent-charge from his lessor. In such case
the surrender is not the result of intention ; for, if there
was no intention to surrender the particular estate, or
even if there was an express intention to keep it un-
surrendered, the surrender would be the act of the law,
and would prevail in spite of the intention of the par-
ties (m) : Fortior et potentior est dispositio legis qudm
hominis (n).
Subject to the above, however, and similar exceptions,
the general rule of the civil law holds equally in our
own : Pacta conventa quce neque contra leges neque dclo
inalo hwta sunt omnimodo observanda sunt (o)— com-
pacts which are not illegal, and do not originate in fraud,
must in all respects be observed.
(m) Lyon v. JUea\ IS M. k W.
285, 306 ; commented on, Nickellt v.
jWientone, 10 Q. B. 944. A* to a
surrender by operation of law, see
alto, Davison v. Gent, 1 H. & N.
744 ; Doe d. Hull v. Wood, 14 M.
& W. 682 ; Morrison r. Chadwick,
7C.B. 266 ; Tanner v. Hartley, 9
C. 8. 634 ; Judgm., Doe d. Biddulph
v. Poole, 11 Q. B. 716 ; Phtni r.
roppleweU, 12 C. B. N. 8. 334.
(n) Similarly applied in 8 Johns.
(XT. S.) R. 401 ; Co. Iitt. 338. a.
It may possibly happen, too, thai the
direction of a particular legal tribunal
will hare to be disregarded by a
judge, as opposed to the common
law ; see per Coleridge, J., 15 Q. B.
192. And see other instances, in
connection with illegal contracts, pott.
Et vide per Lord Truro, C, EUcock
t. Mapp, 3 H. L. Cas. 607; per
Parke, B., Hallett r. DowdaUt 18
Q. B. 87.
(o);C. 2. 3. 29.
THE LAW OF CONTRACTS.
655
QUILIBET POTEST RENUNCIABE JURI PRO SE INTRODUCTO.
(Wing. Max., p. 483.) — Any one may, at his plea-
sure, renounce the benefit of a stipulation or other
right introduced entirely in his otvn favour (p).
According to the well-known principle expressed in the General
7 r r r application
above maxim, any person may decline to avail himself of the rule,
of a defence which would be at law a valid and sufficient
answer to the plaintiff's demand, as of infancy, or the
Statute of Limitations (q) ; and he may, in either of the
two latter cases, waive his right to insist upon the
specific defence. Formerly an infant, on attaining his
majority, could ratify a contract he had made during his
minority, so as to be liable upon it (r), but since a recent
statute no action can be brought to charge any person
upon any promise made after full age to pay any debt
contracted during infancy, or upon any ratification made
after full age of any promise or contract made during
infancy, whether there shall or shall not be any new
consideration for such promise or ratification (s). A
man may also not merely relinquish a particular line of
defence, but he may also renounce a claim which might
(p) Bell, Diet, and Dig. of Scotch
Law, 545 ; 1 Inst. 99 a. ; 2 Inst
183 ; 10 Rep. 101.
The words pro se " have been in-
troduced into the above maxim to
show that no man can renounce a
right, which the claims of society
forbid the renunciation of ;" per
Lord Westburr, C, Hunt t. Hunt,
31 L. J., Chanc 175.
(q) Sec Tanner v. Smart, 6 B. &
C. 608; per Parke, B., Hart v.
Prendergatt, 14 M. & W. 743.
(r) See per Bayley, J., 2 M. & S.
26 ; per Abbott, C.J., 5 B. & Aid.
686. Graham v. lngleby, 1 Kxch.
661 , 656, shows that a plaintiff may
waive the benefit of the stat. 4 Ann.
c. 16, s. 11, which requires that a
plea in abatement should be verified
by affidavit.
(#) 37 & 38 Vict. c. 62, s. 2.
<>.><>
THE LAW OF CONTRACTS.
have been substantiated, or release a debt which might
have lieen recovered by ordinary legal process; or he
may, by bis express contract or stipulation, exclude some
more extensive right, which the law would otherwise
have impliedly conferred. In all these cases, the rule
holds, 0 runes lice nt iam hxibert his, quae pro se indtdta
stint rcnunciaw (£)— every man may renounce a benefit
or waive a privilege which the law has conferred upon
him (it). For instance, whoever contracts for the pur-
chase of an estate in fee-simple without any exception or
stipulation to vary the general right, is entitled to call
for a conveyance of the fee, and to have a good title to
the legal estate made out. But, upon the principle
under consideration, a man may, by express stipulation,
or by contract, or even by consent testified by acquies-
cence or otherwise, bind himself to accept a title merely
equitable, or a title subject to some incumbrance ; and
whatever defect there may be, which is covered by this
stipulation, must be disregarded by the conveyancer to
whom the abstract of title is submitted, as not affording
a valid ground of objection (#).
Again, the right to estovers is incident to the estate of
every tenant for life or years (though not to the estate of
a strict tenant at will), unless he be restrained by special
covenant to the contrary, which is usually the case ; so
(t) C. 1. 3. 51 ; C. 2. 3. 29 ;
Invito beneficium non datwr, D. 50.
17. 69.
See, as illustrating the maxim
cited in the text, MarUtam v. Stan-
ford, 14 C. B. N. S. 376, 383 ; dis-
tinguished in Morten v. Marshall, 2
H. ft C. 305.
(it) Per Erie, C.J., Rumsey v.
North Eadern A C, 14 C. B. K.
S. 649 ; Caledonian JL C. v. Loci
hart, 3 Macq. Sc App. Cas. 80S,
822 ; per Martin, B., 8 B. It B. 151 ;
per Pollock, C.B., and Bramwcll. 11.,
2 H. & C. 308, 309. See Enohm v.
WylU, 10 R L. Gas. 1, 15. •
(x) 3 Prest Abe. TH. 221.
THE LAW OF CONTRACTS, 657
that here the above maxim, or that relating to modics et
conventio, may be applied (y).
Another familiar instance of the application of the same waiver of
principle occurs in connection with the law of bills of dishonour.
exchange. The general rule is, that, in order to charge
the drawer or indorser of a bill, payment must be de-
manded of the acceptor in the first instance on the day
when the bill becomes due; and, in case of refusal or
default, due notice of such demand and refusal or default
must be given to the drawer within a reasonable time
afterwards ; the reason being, that the acceptor of a bill
is presumed to have in his hands effects of the drawer for
the purpose of discharging the bill ; and, therefore, notice
to the drawer is requisite, 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 on non-payment of the
bill ; and 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. So, where
a bill has been indorsed, and the holder intends to sue any
of the indorsers, it is incumbent on him first to demand
payment from the acceptor on the day when the bill
becomes due, and, in case of refusal, to give due notice
thereof within a reasonable time to the indorser ; the
reason being, that the indorser is in the nature of a surety
only, and his undertaking to pay the bill is not an absolute,
but a conditional undertaking, that is, in the event of a
demand made on the acceptor, (who is primarily liable) at
the time when the bill becomes due, and refusal on his
part, or neglect to pay (z). Ajs, however, the rule requir-
(y) Co. Litt 41. b. drawee's hands no effects, or effects
(z) Where the drawer has in the insufficient for payment of the draft
U u
658
THE LAW OP CONTRACTS.
Qualifica-
tion of rule.
Principal
and surety.
ing notice was introduced for the benefit of the party to
whom such notice must be given, it may, in accordance
with the above maxim, be waived by that party (a). But
though a party may thus waive the consequences of laches
in respect of himself, he cannot do so in respect of antece-
dent parties; for that would be in violation of another
legal principle presently to be mentioned, which limits
the application of the maxim now under consideration to
those cases in which no injury is inflicted, by the renunci-
ation of a legal right, upon a third party.
It will be seen from some of the preceding instances,
that the rule which enables a man to renounce a right
which he might otherwise have enforced, must be applied
with this qualification, that, in general, a private compact
or agreement cannot be permitted to derogate from the
rights of third parties (6), or, in other words, although
a party may renounce a right or benefit pro se introduc-
tion, he cannot renounce that which has been intro-
duced for the benefit of another party; thus, the
rule that a child within the age of nurture cannot be
separated from the mother by order of removal, has been
established for the benefit and protection of the child,
and therefore cannot be dispensed with by the mothers
consent (c).
One case may, however, be mentioned to which the
(Carew ▼. Duckworth, L. R. 4 Ex.
318), he is not in general entitled to
notice : Bickerdike r. BoUman, 1 T.
R. 405 ; Carter v. Flower, 16 M. &
W. 748; BaUeyy. Porter, 14 M. k
W. 44 ; Thomas v. Fenton, 16 L. J.,
Q. B. 362.
(a) See Steele v. Hammer, 14 M.
& W. 831 ; Mill* t. Gibton, 16 L.
J., C. P. 249 ; Burgh v. Legge, 5
M. & W. 418 ; Allen v. Edmundson,
2 Bxch. 719.
(b) 7 Rep. 23. See Brinedon v.
AUard, 2 B. & E. 19 ; Slater v.
Mayor , <fcc., of Sunderland, 83 L. J.,
Q. B. 37.
(e) Reg. v. Birmingham, 5Q.B.
210. See Reg. v. Combs, 5 B. & B.
892.
THE LAW OF CONTRACTS.
659
Tule applies, without the qualification — that, viz., of a
release by one of several joint creditors, which, in the
absence of fraud and collusion, will operate as a release
of the claims of the other creditors, and may be pleaded
accordingly. On the other lfend, the debtee's discharge
of one joint or joint and several debtor is a discharge of
all (d) ; and a release of the principal debtor will discharge
the sureties, unless, indeed, there be an express reserva-
tion of remedies as against them (e).
It is also a well-known principle of law that, where a
creditor gives time to the principal debtor (/), there being
a surety to secure payment of the debt, and does so with-
out consent of or communication with the surety, he dis-
charges the surety from liability, as he thereby places him
in a new situation (g), and exposes him to a risk and con-
tingency to which he would not otherwise be liable (h) ;
(d) Nicholson v. Revill, 4 A. & B.
675, 683, recognising Chatham, v.
Ward, 1 B. ft P. 630 ; and cited in
Keardey v. Cole, infra, and Thomp-
son v. Lack, 8 0. B. 540 ; Co. Litt,
232. a. ; Judgm., Price v. Barker, 4
E. ft B. 777 ; Clayton v. Kynaston,
2 Salk. 573 ; 2 Boll. Abr. 410, D. 1 ;
412, GK, pi. 4.
(e) Kearsley v. Cole, 16 M. ft W.
128; Thompson v. Lack, 3 C. B.
640 ; Jndgm., Price v. Barker, 4 B.
ft B. 779 ; (hoen v. ffoman, 4 H. L.
Cas. 997, 1037.
(/) "The general rule of law
where a person is surety for the debt
of another is this — that though the
creditor may be entitled, after a cer-
tain period, to make a demand and
enforce payment of the debt, he is
not bound to do so ; and provided he
Joes not preclude himself from pro-
ceeding against the principal, he may
abstain from enforcing any right
which he possesses. If the creditor
has voluntarily placed himself in
such a position that he cannot sue
the principal, he thereby discharges
the surety. But mere delay on the
part of the creditor, unaccompanied
by any valid contract with the prin-
cipal, will not discharge the surety : "
per Pollock, C.B., Price v. Kirkham,
3 H. k C. 441.
(gr) See Harrison v. Seymour, L.
B. 1 C. P. 518 ; Union Bank of
Manchester v. Beech, 3 H. ft C. 672 ;
SWeU v. Fletcher, L. R. 2 C. P.
469, and cases there cited.
(h) Per Lord Lyndhurst, Oakeley
v. PasheUer, 4 CL ft Fin. 233. See
further as to the rule above stated,
per Lord Brougham, Mactaggart v.
Watson, 3 CL ft Fin. 541 ; per Lord
uu2
660
THE LAW OF CONTRACTS.
Provision
potitivi
juris*
and this seems to afford a further illustration of the
remark already offered, that a renunciation of a right
cannot in general (i) be made to the injury of a third
party.
Where, however, a husband, whose wife was entitled to
a fund in court, signed a memorandum after marriage,
agreeing to secure half her property on herself, it was
held, that it was competent for the wife to waive this
agreement, and that any benefit which her children might
have taken under it was defeated by her waiver (k).
Lastly, it is clear that the maxim, Quilibet potest renun-
dare juri pro se introducto, is inapplicable where an
express statutory direction enjoins compliance with the
forms which it prescribes ; for instance, a testator cannot
dispense with the observance of those formalities which
are essential to the validity of a testamentary instrument ;
for the provisions of the Statute of Frauds, or of the
modern Wills Act, were introduced with a view to the
public benefit, not that of the individual, and, therefore,
must be regarded as positive ordinances of the legislature,
binding upon all (Z). Nor can an individual waive a
matter in which the public have an interest (m), and the
Eldon, C, Samuell v. Howorth, 3
Mer. 278, adopted per Lord Cotten-
ham, C, Ordghton v. Rankin, 7 CL
6 Fin. 346; Manley v. Boycot, 2
E. & B. 46 ; Pooley r. ffarradine,
7 B. & B. 431 ; Lawrence t. Wains-
ley, 12 G. B. N. S. 799, 808 : see
Bonar v. dfaedonald, 3 H. L. Cas.
226 ; General Steam Nav. Co. ▼.
RoU, 6 C. B. N. S. 650 ; Way y.
Hearn, 11 C. B. N. 8. 774 ; 13 Id.
292 ; Frazer v. Jordan, 8 E. & B.
303 ; Taylor v. Burgess, 5 H. & N.
1 ; Bailey v. Edwards, 4 B. & S.
761.
(i) See Langley v. Headland, 19"
C. B. N. a 42.
(jfc) Fenner v. Taylor, 2 Russ. &
My. 190 ; Macq. H. & W. 85.
(J) See per Wilson, J„ Haberg-
ham ▼. Vincent, 2 Ves., jun., 227 ;
cited Countess of ZicJiy Ferraris v.
Marquis of Hertford, 3 Curt. 493,
498 ; S. C, affirmed 4 Moore, P. C.
C. 339.
(m) Per Alderaon, B., Graham v.
Inglehy, 1 Exch. 657.
THE LAW OF CONTRACTS. 661
maxim seems also inapplicable where a defendant enters
into an agreement by which he is to be deprived of that
right to protection to which by law he is entitled (n).
Qui sentit Commodum sentire debet et Onus.
(2 Inst 489.) — He who derives the advantage ought
to sustain the burthen.
The above rule (o) applies as well in the case where an covenant
implied covenant runs with the land, as where the present with the
owner or occupier of land is bound by the express cove-
nant of a prior occupant ; whenever, indeed, the ancient
maxim, Transit terra cum onere, holds true (p). The
burthen of repairs has, we may observe, always been
thrown as much as possible, by the spirit of the common
law, upon *the occupier or tenant, not only in accordance
with the principle contained in the above maxim, but
also because it would be contrary to all justice, that the
expense of accumulated dilapidation should, at the end of
the period of tenancy, fall upon the landlord, when a small
outlay of money on the part of the tenant in the first
instance would have prevented any such expense becom-
ing necessary ; to which we may add, that, generally, the
tenant alone has the opportunity of observing, from time
to time, when repairs become necessary. In one of the
leading cases on this subject, the facts were, that a man
demised a house by indenture for years, and the lessee,
(n) Let t. Ueady 5 Beav. 381. (p) Co. Litt. 231. a. See Movie
(o) In exemplification whereof Bee v. OarreU, L. R. 5 Ex. 18, and cases
ffayward r, Duff, 12 C. B. N. S. there cited.
864.
662 THE LAW OF CONTRACTS.
for him and his executors, covenanted with the lessor to
repair the house at all times necessary ; the lessee after-
wards assigned it over to another party, who suffered it to
decay ; it was adjudged that covenant lay at suit of the
lessor against the assignee, although the lessee had not
covenanted for him and his assigns ; for the covenant to
repair, which extends to the support of the thing demised,
is quodammodo appurtenant to it, and goes with it ; and,
inasmuch as the lessee had taken upon himself to bear
the charges of the reparations, the yearly rent was the
less, which was to the benefit of the assignee, and Qm
sentit commodvm sentire debet et onu8(r).
The following case may also serve to illustrate the same
principle. An action was brought by the devisee in fee c£
the premises against the executor of a devisee for life
of the same premises for permissive waste, the devise pro-
viding that the tenant for life should keep the premises in
repair. The Court pronounced judgment in favour of the
plaintiff on the ground that, however doubtful might be
the liability of a tenant for life, in respect of permissive
waste, upon whom no express duty to repair was impost
by the instrument creating the estate, yet where such a
duty was imposed the liability passed with the enjoyment
of the thing thus demised (s).
Liability A liability to repair a public highway may attach to
ratione • C
unune. Corporations and to individuals by reason of the tenure 01
lands held by such Corporations or individuals ; and in
former days it was common for testators to leave portions
(r) Dean and Chapter of Wind- N. S. 116, 124.
jor't cote, 5 Rep. 25 ; cited per («) Woodkouse ▼. Walker, 5 Q. R
Tindal, C. J., Tremeere v. Morriton, D. 404 ; 49 L. J. Q. B. 609 ; A*?***
1 Bing. N. C. 98 ; which case is fol- v. Seddon, 1 Ex. D. 496 ; 46 L J*
lowed in Sleap v. Newman, 12 C. B. Ex. 358.
r
THE LAW OF CONTRACT& 66S
of their estate charged with this liability (t) ; and owners
adjoining, abutting, or fronting a new street, may now be
called upon to contribute to its repair under the provi-
sions of a statute noticed below (u).
So, it has been designated a principle of "universal
application " that " where a contract has been entered into
by one man as agent for another, the person on whose
behalf it has been made, cannot take the benefit of it
without bearing its burthen. The contract must be per-
formed in its integrity " (x).
A further important illustration of the rule occurs, Principal
where a party adopts a contract which was entered into
without his authority, in which case he must adopt it
altogether. He cannot ratify that part which is beneficial
to himself, and reject the remainder; he must take the
benefit to be derived from the transaction own onere (y).
Where, therefore, the owner of goods who was undisclosed
at the time of the contract for their sale, subsequently
interferes and sues upon the contract, justice requires
that, if the defendant has credited and acquired a set-off
against the agent before the principal interposed, the
latter should be bound by the set-off, in the same way
that the agent would have been had he been the plaintiff
on the record ; and that the defendant should be placed
in the same situation at the time of the disclosure of
the real principal, as if the agent had been in truth the
principal (z).
(0 Glen on Highways, 107 et xg. to the application of the principal
(u) 88 & 89 Vict c 55, s, 150 ; maxim, see per Lord Wenaleydale,
and see cases collected in (Thirty's Id. 406) ; cited in The Feronia, L.
Statutes, 4th ed., voL v., 658. R. 2 A. & B. 75, 77, 85.
(z) Per Lord Cran worth and Lord (y) Per Lord Ellenborough, C.J.,
Kingsdown, Brutow v. Whitman, 6 7 East, 166.
H. L. Gas. 891, 404, 418 (where W.See text to Thompton r. Daven-
there was a difference of opinion as port, Smith'sKC. 8th ed.roL 2, p. 377.
664
THE LAW OF CONTRACTS.
Asirignet.
Analogous
rule in
equity,
Again, it is a very general and comprehensive rule, to
which we have already adverted, and which likewise falls
within the scope of the maxim now under consideration,
that the assignee of a chose in action takes it subject to
all the equities to which it was liable in the hands of the
assignor ; and the reason and justice of this rule, it has
been observed, are obvious, since the holder of property
can only alienate or transfer to another that beneficial
interest in it which he himself possesses (a). If, more-
over, a person accepts anything which he knows to be
subject to a duty or charge, it is rational to conclude that
he means to take such duty or charge upon himself, and
the law may very well imply a promise to perform what
he has so taken upon himself (b).
In administering equity the maxim, Qui sentit com-
modum eentire debet et onus, may properly be said to
merge in the yet more comprehensive rule — equality is
equity — upon the consideration of which it is not within
the scope of our present plan to enter. The following
instances of the application in equity of the maxim more
immediately under our notice must suffice. The legatee
of a house, held by the testator on lease at a reserved
rent, higher than it could be let for after his death,
cannot reject the gift of the lease and obtain an annuity
under the will, but must take the benefit cum (mere (c).
A testator gives a specific bequest to A., and directs that
in consideration of the bequest, A. shall pay his debts,
and makes A. his residuary legatee and executor, the
payment of the debts is, in this case, a condition annexed
(a) 1 Johns. (U.S.) R. 552, 558 ;
11 Id. 80 ; Brandon v. Brandon,
25 L. J., Chanc. 896.
(6) See Lucas v. Nockells, 1 CI. &
Pin. 457, citing a passage in Abbott,
Shipp., 5th ed. 286.
(c) Talbot t. EaH of Radnor, 3
My. k K. 252.
THE LAW OF CONTRACTS, 665
to the specific bequest, and if A. accept the bequest, he is
bound to pay the debts, though they should far exceed
the amount of the property bequeathed to him (d).
We may observe also, that the Scotch doctrine of »n<i in
J ' Scotch law.
"approbate and reprobate," is strictly analogous to that
of election in our own law, and may, consequently, be
properly referred to the maxim now under consideration.
The principle on which this doctrine depends is, that a
person shall not be allowed at once to benefit by and to
repudiate an instrument, but that, if he chooses to take
the benefit which it confers, he shall likewise discharge
the obligation or bear the onus which it imposes. "It
is," as was remarked in an important case upon this sub-
ject, " equally settled in the law of Scotland as of Eng-
land, that no person can accept and reject the same
instrument If a testator give his estate to A., and give
A/s estate to B., courts of equity hold it to be against
conscience that A. should take the estate bequeathed to
him, and at the same time refuse to give effect to the
implied condition contained in the will of the testator.
The Court will not permit him to take that which cannot
be his but by virtue of the disposition of the will, and at
the same time to keep what, by the same will, is given
or intended to be given to another person. It is contrary
to the established principles of equity that he should
enjoy the benefit, while he rejects the condition of the
gift" (e). Where, therefore, an express condition is
annexed to a bequest, the legatee cannot accept and
reject, approbate and reprobate the will containing it.
If, for example, the testator possessing a landed estate of
(d) Messenger v. Andrews, 4£n&s. (c) Kerr v. Wauchope, 1 Bligh.
478 ; and see Armstrong v. Burnett, 21.
20 Beav. 424.
holds.
666 THE LAW OF CONTRACTS.
small value, and a large personal estate, bequeaths by his
will the personal estate to the heir, who was not other-
wise entitled to it, upon condition that he shall give the
land to another, the heir must either comply with the
condition, or forego the benefit intended for him (/). We
may add, that the above rule as expressed by the maxim
— Quod approbo non reprobo — likewise holds where the
condition is implied merely, provided there be clear evi-
dence of an intention to make the bequest conditional;
and in this case, likewise, the heir will be required to
perform the condition, or to renounce the benefit (g) — Q»*
8entit commodum dentire debet et onus.
roe eon. The converse of the above maxim also holds, and is
SSfm occasionally cited and applied ; for instance, inasmuch as
the principal is bound by the acts of his authorised agent,
so he may take advantage of them (A), Qui sentit orw*
wntire debet et commodum (i).
In like manner, it has been observed (&), that wherever
a grant is made for a valuable consideration, which
involves public duties and charges, the grant shall be
construed so as to make the indemnity co-extensive with
the burthen— Qui sentit onus sentire debet et commodum
Grant of In the case, for instance, of a ferry, there is a public
charge and duty. The owner must keep the ferry in
good repair, upon the peril of an indictment. He must
keep sufficient accommodation for all travellers, at all
reasonable times* He must content himself with a
reasonable toll — such is the jus publicum (I). In return,
(/ ) Shaw, on Obligations, s. 184. (i) 1 Rep. 99.
{g) Id,, b. 187. (h) Per Story, J., 11 Peters (TJ.
(k) Seignior ▼• W diner, Godb. B.),R. 630, 631.
360 ; Judgm., Higgin* v. Senior, 8 (I) Paine v. Patrick, 3 Mod.
M. & W. 844. 294.
ferry, he.
THE LAW OF CONTRACTS.
667
he will have a cause of action against every intruder
who carries on the line of the ferry, whether it is done
directly or indirectly, but the area for the monopoly of
a ferry depends on the need of the public for a new
passage (m).
Although, moreover, the maxim Qui sentit com/modwnv
sentire debet et onus, to which we have above mainly
adverted, applies to throw the burthen of partnership
debts upon the partnership estate (%), which is alone liable
to them in the first instance, yet the converse of this
maxim .holds with regard to the partnership creditor (o).
In ^iquali Jure melior est Conditio Possidentis.
(Plmvd. 296.) — Where the right is equal, the claim
of the party in actual possession shall prevail.
The general rule is, that possession constitutes a suffi- £*^{"*
cient title against every person not having a better title. »fd«nrt*
"He that hath possession of lands, though it be by
disseisin, hath a right against all men but against him
that hath right (p) ; for, "till some act be done by the
(m) Addison on Torts, 5th ed.
495 ; and see Newton v. Cubitt,
12 C. R N. S. 82 ; 31 L. J. C. P.
246.
(n) " Perhaps the maxim that * he*
who partakes the advantage ought to
bear the loss ' * * is only the conse-
quence not the cause why a man is
made liable as a partner : " per
Blackburn, J., BuUtn v. Sharp, L.
R. 1 0. P. 111.
(o) The maxim Qui sentit onus
aentbre debet et commodum is applied
also in equity. See, for example,
PUt v. Pitt, 1 T. A, R. 180 ; Francis,
Max. 5.
(p ) Doct. & Stud. 9. " I take it
to be a sound and uncontroyerted
maxim of law, that every plaintiff or
demandant in a court of justice must
recover upon the strength of his own
title, and not because of the weak-
ness of that of his adversary ; that is,
he shall not recover without showing
668
THE LAW OF CONTRACTS.
rightful owner to divest this possession and assert his
title, such actual possession is primd facie evidence of a
legal title in the possessor, so that, speaking generally, the
burthen of proof of title is thrown upon any one who
claims to oust him : this possessory title, moreover, may,
by length of time and negligence of him who had the
right, by degrees ripen into a perfect and indefeasible
title " (g).
Hjoctment Hence it is a familiar rule, that, in ejectment, the party
controverting my title must recover by his own strength,
and not by my weakness (r) ; and that, " when you will
recover anything from me, it is not enough for you to
destroy my title, but you must prove your own better
than mine ; for without a better right, Melior est con-
ditio possidentis " (a).
So mere possession will support trespass qu. cl. fr.
against any one who cannot show a better title (t) ; there-
fore he who commits a trespass upon the possession of
another, being himself a wrong-doer, has no right to put
the other party to proof of his title (w). And to the
like effect are the rules of the civil law — Non possessori
Trespass
qu.. a, fr.
a right, although the advene party
may be unable to show any. It U
enough for the latter that he is in
possession of the thing demanded
until the right owner calls for it.
This is a maxim of common justice
as well as of law : " per Parker, G. J.,
Goodwin v. Hubbard, 15 Tyng. (U.S.),
B. 204.
(q) 2 Com. by Broom & Hadley,
36S.
(r) Hobart, 103, 104; Jenk. Cent
118; per Lee, C.J., Martin v.
Strackan, 5 T. R. 110, tu See Feret
v. Hill, 15 C. B. 207 (cited and ex-
plained per Maule, J., Oanham v.
Barry, Id. 611) ; Davison v. font,
1 H. & N. 744.
(•) Vaughan, R.,58, 60; Hobart,
103. See Aaher y. Whillock, L. R.
•1 Q. B. 1.
(t) Every v. Smith, 26 L. J., Ex.
344; Jones v. Chapman, 2 Kxch.
803, and cases there cited.
(tc) Addison on Torts, 5th ed. 572,
citing Ather v. WhUlock, L.R.1Q.
B. 1 ; 35 L. J. Q. B. 17.
THE LAW OF CONTRACTS. 669
incumbit necessitas probandi possessionem ad se pertinere
(x)f and in pari causd possessor potior haberi debet (y).
In like manner it is a rule laid down in the Digest,
that the condition of the defendant shall be favoured
rather than that of the plaintiff, favorahiliores rei potius
quam adores habentur (z), a maxim which admits of
very simple illustration in the ordinary practice of our
own courts ; for, if, on moving in arrest of judgment, it
shall appear from the whole record that the plaintiff had
no cause of action, the Court will never give judgment for
him, for Melior est conditio defendentis (a).
So, if a loss must fall upon one of two innocent persons, 2™^*
both parties being free from blame, and justice being thus SErtwlSr*
in equilibrio, the application of the same principle will
turn the scale (&).
"We may lay it down," says Ashhurst, J. (c), "as a
broad, general principle, that wherever one of two inno-
cent persons must suffer by the acts of a third, he who
has enabled such third person to occasion the loss must
sustain it.1'
The application of the principle above stated must,
however, be made with great caution ; for instance, it
frequently happens, that where money has been paid
and received, without fault on either side, it may, not-
withstanding the above maxim, be recovered back, either
as paid under a mistake of fact (d), or on the ground of
(x) C. 4. 10. 2. 2 C. B. N. S. 528 ; Holland v.
(y) D. 50. 17. 128, § 1. RusseU, 32 L. J., Q. B. 297, which
(z) D. 50. 17. 125. As to which illustrates the maxim supra with
maxim, videArg., 8Wheaton (TJ. S.)» reference to the law of marine in-
R. 195, 196. surance.
(a) See Hobart, 199. (c) 2 T. R. 70.
(6) Per Bayley, J., East India Co. (d) Shand v. Grant, 15 C. B.
v. Tritton, 3 B. k C. 289 ; Arg., 3 N. S. 824.
Bing. 408. See Simmons v. Taylor,
C70 THE LAW OF CONTRACTS.
a failure of consideration (e), or in consequence of the
express or implied terms of the contract. Thus, in Cox
v. Prentice, the defendant received from his principal
abroad a bar of silver, and took it to the plaintiffs, who
melted it, and sent a piece to an assayer to be assayed at
defendant's expense. They subsequently purchased the
bar, paying for a certain number of ounces of silver,
which by the assay it was calculated to contain, and
which was afterwards discovered to exceed the true
number : it was held, that the plaintiffs, having offered
to return the bar of silver, were entitled to recover the
difference in value between the supposed and true weight
as money had and received to their use, for this was a
case of mutual innocence and equal error, — the mistake
having been occasioned by the assay-master, who was
properly to be considered as the agent for both parties (/)•
Negligence. It is seldom the case, however, that the scale of justice
is exactly in equilibria; it usually happens, that some
degree of laches (g), negligence, or want of caution, causes
it to preponderate in favour of either of the plaintiff or
defendant In illustration of which remark, we may
refer to the doctrine which formerly existed with re-
ference to bills of exchange and promissory notes, when
received, not fraudulently, but under circumstances indi-
cating negligence in the holder. For instance, the de-
fendants* who were bankers in a small town, gave notes
of their own to a stranger, of whom they asked no ques-
tions, in exchange for a 500J. Bank of England note :—
(e) See Jonet ▼. Hyde, 6 Twint 189.
488, 495, Devaux y. Conolly, 8 C. [g) This test was applied p#
B. 640. Tindal, C.J., Kede y. Whaler, 8
(/) Cox t. Prentice, 3 M. & a Scott, N. R. 333. And see the
344 ; cited 8 C. B. 658-9. See maxim, Caveat emptor, post.
Freeman y. Jeffries, L. R. 4 Ex.
THE LAW OF CONTRACTO. 671
and it was held, that the plaintiffs, from whom the 500Z.
note had been stolen, and who had duly advertised their
loss, might recover the note from the defendants ; and it
was observed, that, even if the loss of the note had not
been duly advertised, yet, if it had been received under
circumstances inducing a belief that the receiver knew
that the holder had become possessed of it dishonestly,
the true owner would be entitled to recover its value from
the receiver, the negligence of the owner being no excuse
for the dishonesty of the receiver; but it was further
remarked, that cases might occur in which the negligence
of the one party would be an excuse for the negligence of
the other, and might authorise the receiver to defend him-
self according to the above maxim (h).
The rule, however, upon this subject, as above in-
timated, has, by several more recent decisions, been
materially altered, and now is, that where a party has
given consideration for a bill or note, gross negligence
alone will not be sufficient to disentitle him to recover
upon it; "gross negligence," it has been observed,
"may be evidence of mala fides, but is not the same
thing" (i).
And in a recent case (&), the law bearing on the sub-
ject before us, is thus stated — that " a person who takes
a negotiable instrument bond fide for value has un-
doubtedly a good title, and is not affected by the want of
title of the party from whom he takes it. His having
the means of knowing that the security has been lost
or stolen, and neglecting to avail himself thereof, may
(k) Snow v. Peacock, 3 Bing. 406 ; B. S76 ; Uther v. Rich, 10 A. & E.
commented on Foster y. Pearson, 1 790.
C. M. & R. 856. (h) Raphael v. Bank of England,
(») Goodman v. Harvey, 4 A. & 17 C. B. 161, 171.
G72 THE LAW OF CONTRACTS.
amount to negligence ; and Lord Tenterden at one time
thought negligence was an answer to the action. But
the doctrine of Oill v. Cubitt (I) is not now approved
of." A stolen note could not be said to be taken bond
fide by one who had notice or knowledge of the theft,
or who, having a suspicion thereof in his mind, and the
means of knowledge in his power, wilfully disregarded
them (m).
" The object of the law merchant/' it has been judi-
cially observed (n), as to bills and notes made or become
payable to bearer, is to secure their circulation as money ;
therefore, honest acquisition confers title. To this despotic
but necessary principle, the ordinary rules of the common
law are made to bend. The misapplication of a genuine
signature written across a slip of stamped paper (which
transaction being a forgery would, in ordinary cases,
convey no title), may give a good title to any sum
fraudulently inscribed within the limits of the stamp*
* * * Negligence in the maker of an instrument
payable to bearer makes no difference in his liability to
an honest holder for value ; the instrument may be lost
by the maker without his negligence, or stolen from him ;
still he must pay. The negligence of the holder, on the
other hand, makes no difference in his title. However
gross the holder's negligence, if it stop short of fraud, he
has a title." Thus, in the case of a bill of exchange or
promissory note, " the law respects the nature and uses of
the instrument more than its own ordinary rules."
(D 3 B. & C. 466. Maiddone, 18 C. B. 273, cited HaU
(i») Per Willes, J., 17 C. B. 174, v. FeathenUme, 3 H. & N. 288.
citing May v. Chapman, 16 M. & W. (n) Per Byles, J., 2 H. & C. 184-5,
355. See, also, in connection with and in Foster y. MacHnnon, L. R. 4
the above subject, Berry r. Alder- C. P. 712.
man, 13 G. B. 674 ; Mather v. Lord
THE LAW OF CONTRACTS. 673
Likewise, in the Court of Chancery, where two persons Rule in
having an equal equity, have been equally innocent and
equally diligent, the rule generally applicable is, Melior
est conditio possidentis or defendentis. Thus, equity
constantly refuses to interfere, either for relief or dis-
covery against a bond fide purchaser of the legal estate
for a valuable consideration, and without notice of the
adverse title, provided he chooses to avail himself of
the defence at the proper time and in the proper
mode (o).
Not only in cequcdijiire, but likewise in pari delicto, Part-
is it true that Potior est conditio possidentis ; where each
party is equally in fault, the law favours him who is
actually in possession (p)t — a well-known rule, which is,
in fact, included in that more comprehensive maxim to
which the present remarks are appended.
" If," said Buller, J., " a party come into a court of
justice to enforce an illegal contract, two answers may
be given to his demand: the one, that he must draw
justice from a pure fountain, and the other, that Potior
est conditio possidentis'* (q). Agreeably to this rule,
where money is paid by one of two parties to such a
contract to the other, in a case where both may be con-
sidered as participzs criminis, an action will not lie
after the contract is executed to recover the money. If
A. agree to give B. money for doing an illegal act, B.
cannot, although he do the act, recover the money by
(o) See Sugden, V. & P., 14th ed. 1 T. R. 153 ; observed upon by
741, 742. Tindal, C.J., 7 Ring. 98 ; Arg., 10
(p) The rule as to par delictum B. & C. 684 ; 2 A. & E. 18 ; per
was much considered in Atkinson v. Lord Mansfield, C.J., 2 Burr. 926.
Denby, 6 H. & N. 778 ; 7 Id. 934. See, also, Gordon v. Howden, 12 CI.
(q) Munt t. Stokes, 4 T. B. 564 ; & Fin. 241, note, and cases there
2 Inst. 391. See Fitzroy v. Gwittim, cited.
x x
674
THE LAW OF CONTRACTS.
an action : yet, if the money be paid, A. cannot recover
it baok (r). So the premium paid on an illegal insurance,
to cover a trading with an enemy, cannot be recovered
back, though the underwriter cannot be compelled to
make good the loss (a). In the above and similar cases,
the party actually in possession has the advantage, — Cum
par delictum est duorum seviper aneratur petitor et
melior luxbetur possessoris causa (t).
Prior to the recent stat. 8 & 9 Vict. c. 109, the maxim
as to par delictum was frequently applied in determining
the right to recover back money deposited with a stake-
holder to abide the result of a wager between two
parties ; and although, by the 1 8th section of that Act,
all wagers are now rendered absolutely void, and money
deposited under the circumstances stated cannot after
the event has been decided be recovered back (u), yet
some of the decisions alluded to as well as others not
affected by the statute, may properly be cited in support
of the proposition, that if an illegal contract be execu-
tory, and if the plaintiff dissent from or disavow the
contract before its completion, he may, on disaffirmance
(r) Webb v. Bishop, cited 1 Sclw.,
N. P., 10th ed. 92, n. (42) ; Brown-
ing v. Morris, Cowp. 792 ; per Park,
J., Richardson v. Mellish, 2 Bing.
250.
(*) Vandyck v. Hewkt, 1 East,
00 ; Lowry v. Bourdieu, Dongl. 468 ;
Andrec v. Fletcher, 3 T. R. 266;
Lubbock v. Potts, 7 East, 449 ; Pa-
lyart v. Leckie, 6 M. & 8. 290 ;
Cowie v. Barber, 4 M. & S. 16. See
Edgar v. Fowler, 3 East, 222 ; This-
Uewood v. Cracraft, 1 M. & S. 500.
(I) D. 50. 17. 1£4.
(w) The statute " prohibits the
recoYery of money which has been
icon in such a transaction, or has
been deposited to abide the event of
a wager, but it does not apply to the
case where a party seeks to recover
his stake upon a repudiation of the
wagering contract :" per Parke, B.,
10 Exch. 738 ; Batty v. Marriott,
5 C. B. 818 ; cited in Coombes v.
Dibble, L. B. 1 Ex. 248, 251, or
where the event has not in fact been
decided, Sadler v. Smkh, L. R. 5
Q. B. 40.
See stat. 16 & 17 Vict c. 119,
s. 5.
THE LAW OF CONTRACTS. 675
thereof, recover back money whilst in transitu to the
other contracting party, there being in this case a locus
m
pcenitentce, and the delictum being incomplete (x),
similarly where goods have been delivered to another
for a fraudulent purpose they can be recovered back if
that purpose has not been carried out (y).
Where, however, money has been actually paid- over in
pursuance of an illegal contract, it cannot, subject to the
remarks hereafter made, be recovered back, for the Court
will not assist such a transaction in any way (z). So,
where property has been placed by one party in the hands
of another for illegal purposes, as for smuggling, if the
latter refuses to account for the proceeds, and fraudulently
or unjustly withholds them, the party aggrieved must
abide by his loss, for In pari delicto mdior est conditio
possidentis; which, it has been said, is a maxim of public
policy, equally respected in courts of law and courts of
equity (a).
In a case recently decided (6), the facts were as under :
— The plaintiff deposited with the defendant the half of
a £50 bank note, by way of pledge to secure the payment
of money due from the plaintiff to the defendant, such
debt having been contracted for wine and suppers sup-
plied to the plaintiff by the defendant, in a brothel kept
by her, to be there consumed in a debauch. An action
(x) Martin ▼. Hewson, 10 Exch. Judgm., M'CaUan v. Mortimer , 9
737 ; Varney v. Hickman, 5 C. B. M. & W. 642 ; Qoodall v. Lowndes,
271 ; Hampden v. Walsli, 1 Q. B. 6Q.B. 464. See Keir v. Leeman
D. 189 ; 45 L. J. Q. B. 238 ; Trimble (in error), 6Q.B. 308 ; per Oibbs,
v. HOI, 5 App. Caa. P. C. 342. C.J., 8 Taunt. 497.
{y) Taylor v. Bowers, 1 Q. B. D. (a) 1 Story, Bq. Jurisp., 12th ed.,
291; 45 L. J. Q. B. 163. p. 52.
(*) Per Lord Ellenborough, C.J., {b) Taylor v. Chester, L.R.4Q.
Edgar v. Fowler, 3 East, 225 ; Ex B. 309 ; 38 L. J. Q. B. 225.
jwrfc Bell, 1 1L & S. 751, cited,
x x 2
G76 THE LAW OF CONTRACTS.
brought to recover the half note so deposited failed on
application of the principal maxim, which, observed the
Court, "is as thoroughly settled as any proposition of
law can be. It is a maxim of law, established, not for
the benefit of plaintiffs or defendants, but is founded on
the principles of public policy, which will not assist a
plaintiff who has paid over money or handed over pro-
perty in pursuance of an illegal or immoral contract, to
recover it back " (o). The same principle was recently
applied to the case of a bill of sale given to secure a sum
of money advanced by the grantee to the grantor to take
up a certain acceptance in the name of the grantee which
had been forged by the grantor. The property had been
seized by the grantee under his bill, and his title was
held good against the trustee in bankruptcy of the grantor,
on the ground that even assuming a legal misdemeanour
had been committed by the grantee in securing the
grantor from discovery and conviction the grantor was a
party to it, and the goods having been seized the maxim
applied (d).
Test tppii- As well from the case of Taylor v. Clwsler (e\ as from
cable an to m m * .
prior authorities, it seems that the true test for determining
whether or not the objection that plaintiff and defendant
were in pari delicto can be sustained, is by considering
whether the plaintiff can make out his case otherwise
than through the medium and by the aid of the illegal
transaction to which he was himself a party. For instance,
A. laid an illegal wager with B., in which C. agreed with
A. to take a share ; B. lost the wager, and A., in expecta-
tion that B. would pay the amount on a certaiu day,
(c) Citing per Lord Ellen borough, 46 L. J. Bk. 14.
C.J., Edgar v. Fowler, 3 East, 225. (c) See Jodgm., L. R. 4 Q B.
(<*) RcMapUbach, 4 Ch. Dir. 150; 314, ante, p. 675.
jnir tlelic
tutu.
THE LAW OF CONTRACTS. C77
advanced to C. bis share of the winnings. B. died insol-
vent before the day, and the bet was never paid ; it was
held, that A. could not recover from C. the sum thus
advanced. "The plaintiff," observed Oibbs, C. J., "says
the payment was on a condition which has failed, but
that condition was that B., who was concerned with the
plaintiff and defendant in this illegal transaction, should
make good his part by paying the whole bet to the
plaintiff, and it is impossible to prove the failure of this
condition, without going into the illegal contract, in which
all the parties were equally concerned. We think, there-
fore, that the plaintiff's claim is so mixed with the illegal
transaction, in which he and the defendant, and B., were
jointly engaged, that it cannot be established without
going into proof of that transaction, and, therefore, cannot
be enforced in a court of law " (/). So, in a modern case,
it was held, that one of two parties to an agreement to
suppress a prosecution for felony, cannot maintain an
action against the other for an injury arising out of the
transaction in which they had thus been illegally engaged;
and this case was decided on the short ground, that the
plaintiff could not establish his claim, as stated upon the
record, without relying upon the illegal agreement origi-
nally entered into between himself and the defendant (g).
Thus far we have considered the effect of par delictum RUie. how
as between the immediate parties to the illegal transac- qu
tion ; we must add that the maxim respecting it does
not seem to apply where an action is brought by one of
such parties for the recovery of money received by a
(/) Simpson y. Blow, 7 Taunt. ley, 12 C. B. 468.
246, 250 (recognised and followed in (g) Fivaz v. NichoUt, supra. See,
Fioaz v. NiehoUt, 2 C. B. 501, 513), also, William* v. Bayley, L. B. 1 H.
with which compare Johnson v. Lant- L. 200,
078
THE LAW OF CONTRACTS.
third party in respect of the illegal contract. Where, for
instance, A. received money to the use of B. on an illegal
contract between B. and G, it was held, that A. could
not set up the illegality of the contract as a defence in
an action brought by B. for money had and received (h).
It seems, however, clear that if A enter into an illegal
agreement with B., and money is received by the latter
party in pursuance thereof, inasmuch as A. could not sue
for its recovery, so, neither could those who may subse-
quently have succeeded to A.'s rights maintain an action
for the same (i).
It is, in the next place, material to observe, that the
maxim which we are considering does not apply unless
both the litigating parties are in delicto — it cannot be
insisted upon as a defence, either by or against an
innocent party (k). Where, for instance, there were two
plaintiffs in an action for money had and received, and
the defendant set up a receipt, which had been fraudu-
lently obtained by him, with the privity of one of the
plaintiffs, the Court observed, that the maxim now under
consideration was inapplicable; for, one of the plaintiffs
not being in delicto, the defendant ought not, as against
him, to be allowed to set up his own fraud (I). Where,
also, money was paid by an underwriter to a broker for
(/t) Tenant y. BllioU, 1 B. & P. 3 ;
Farmer y. Russell, Id. 296 ; Bout-
field v. Wilson, 16 M. & W. 185 ;
and see, particularly, Nicholson v.
Gooch, 5K&B. 999.
(t) See Belcher v. Sambourne, 6
Q. B. 4H ; cited, Ellis v. Russell,
10 Q. B. 952, 956.
(*) Williams v. Hedley, 8 East,
378. An express statutory provision
may enable one party to an illegal
contract to sue the other, although
both parties to it bad knowledge of
the facts constituting the illegality.
See Lewis y. Bright, 4 B. & B. 917.
(I) Skatfe v. Jackson, 3 B. k C.
421 ; Farrar v. Hutchinson, 9 A. &
K. 641 ; which cases are cited and
explained per Parke, B., Wallace v.
KclsaU, 7 M. & W. 273. See Trc-
goning y. AUenborough, 7 Bing 97.
THE LAW OF CONTRACTS. 679
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 that the money
was received by him to the use of the plaintiff, which
created a promise in law to pay (m).
The decision of the Court of Error in Fisher v.
Bridges (n) is important with reference to the subject
above adverted to. There, to a declaration in covenant
for the payment of a certain sum of money, the defendant
pleaded that, before the making of the deed declared
upon, it was unlawfully agreed between the plaintiff and
defendant that the former should sell and the latter
purchase of him a conveyance of land for a term of years,
in consideration of a sum of money to be paid by the
defendant to the plaintiff, " to the intent and in order and
for the purpose, as the plaintiff at the time of the making
the said agreement well knew/' that the land should be
sold by lottery, contrary to the form of the statutes in such
case made and provided ; that afterwards, " in pursuance
of the said illegal agreement," the land was assigned for
the term, and a part of the purchase-money remaining
unpaid, the defendant, to secure the payment thereof,
made the deed and covenant in the declaration mentioned.
Upon these pleadings, the Court of Queen's Bench held,
that the contract in question appeared to have been made
after the illegal transaction between the plaintiff and
(m) Tenant v. Elliott, 1 B. & P. ment in 8. C, 2 E. & B. 118), fol-
3 ; BoKwarne v. Biding, 33 L. J., lowed in Geere y. Mare, 2 H. & C.
C. P. 55 ; Smith v. Lindt, 5 C. B. 339. See A.-Q. v. UoUingworth,
N. S. 587. See M'Gregor v. Low, 2 H. & N. 416 ; O'Connor y. Brad-
By. & M. 57. *hav>, 5 Bxch. 882.
(n) 3 E. & B. 642 (reversing judg-
680 THE LAW OF CONTRACTS.
defendant had terminated ; that it formed no part of such
transaction, and was consequently unaffected by it The
judgment thus given was, however, reversed in error upon
reasoning of the following kind, which seems conclusive ; —
the original agreement was clearly tainted with illegality,
inasmuch as all lotteries are prohibited by the stat 10 &
11 Will. 3, c. 17, s. 1 ; and by the 12 Geo. 2, c. 28, s. 4, all
sales of houses, lands, &c, by lottery are declared to he
void to all intents and purposes. The agreement being
illegal, then, no action could have been brought to recover
the purchase-money of the land which was the subject-
matter thereof; and the covenant accordingly, being
connected with an illegal agreement, could not be en-
forced (o). And, further, even if the plea above abstracted
were not to be understood as alleging that the cove-
nant declared upon was given in pursuance of an illegal
agreement, it would, remarked the Court of Exchequer
Chamber, still show a good defence to the action, for " the
covenant was given for the payment of the purchase-
money. It springs from and is the creature of that
illegal agreement ; and if the law would not enforce the
illegal contract, so neither will it allow parties to enforce
a security for purchase-money which, by the original
bargain, was tainted with illegality."
The decisions come to in Fisher v. Bridges (p), and
Simpson v. Bloss, already cited (q), establish conclusively
this rule, that when a demand connected with an illegal
transaction can be sued on without the necessity of
(o) Paxton t. Popham, 9 East, lingsworth, 2 H. & N. 416 ; Flight
408 ; The Gat Light Co. v. Turner, t. Peed, 1 H. & C. 70S ; 32 L. J.
6 Bing. N. C. 324 ; 5 Id. 666. Ex. 265 ; and Smith's L. C, 8th ed.,
(p) Followed in Oeere v. Mare, 2 vol. i. 410-411.
H. & 0. 839 ; see Att.-Qen. v. HoU (q) Ante, p. 677, n. (/).
THE LAW OF CONTRACTS.
681
having recourse to the illegal transaction, the plaintiff
may maintain an action ; but, wherever it is necessary to
resort to the illegal transaction to make out a case, the
plaintiff will fail to enforce his claim in a court of
law (r).
But although, in the cases latterly considered, the
maxim, In pari delicto potior est conditio possidentis,
forcibly applies, the doctrine expressed thereby must
needs be accepted with qualification. For instance, where
an instrument between two parties has been entered into
for a purpose which may be considered fraudulent as
against some third person, it may yet be binding accord-
ing to the true construction of its language as between
themselves («). Likewise, by statute an instrument may
be avoided for certain purposes, and yet remain valid and
effectual quoad alia ; a conveyance fraudulently and col-
lusively made for the mere purpose of conferring a vote,
and with an understanding that it should not operate
beneficially to the grantee, although it fail by virtue of
the stats. 7 & 8 Will. 3, c. 25, s. 7|ftnd 10 Ann. c. 28,
s. 1, to give the right of voting, will, nevertheless, as be-
tween the parties to it, pass the interest (t). In any such
case the intention of the legislature, and the mischief to be
repressed, must carefully be ascertained ; and we should
remember, that " the policy of the law always is not to
(r) See per Watson, B., A.-G. v.
Hollingworth, 2H.&N. 423.
(*) Shaw v. Jeffery, 13 Moo., P.
C. C. 432, 454^5.
(0 Phillpotto v. PhiUpoUs, 10 C.
B. 85 ; Doe d. Roberto v. Roberto,
2 B. k Aid. 367 ; Bessey v. Wind,
ham, 6 Q. B. 166. See Marshall,
app., Bown, reap., 7 M. & Gr. 188 ;
Doe d. Williams v. Lloyd, 5 Bing.
N. C. 741 (in connection with which
seePhilpott v. St. George's Hospital,
6 H. L. Cas. 338) ; CaUaghan v.
CaUaghan, 8 CI. & Fin. 374 ; Rows
v. Foster, 2 H. & N. 779 ; Doe d.
Richards v. Lewis, 11 C. B. 1035 ;
White v. Morris, Id. 1015.
682
THE LAW OF CONTRACTS.
Joint tort-
feasors.
Contribu-
tion.
make contracts void to a greater extent than the mischief
to be remedied renders necessary (u).
It is also to be observed, that when a contract is made
for the performance of an illegal act, knowledge that the
act is illegal, is not material, and the contract is void;
but where the contract is capable of being legally per-
formed, it can only be avoided by showing a wicked
intention to break the law, and for this purpose knowledge
of what the law is becomes material (x).
To the above maxim respecting par delictum may
properly be referred the general rule, that an action for
contribution cannot be maintained by one of several
joint wrong-doers against another, although the one who
claims contribution may have been compelled to pay the
entire damages recovered as compensation for the tor-
tious act (y). It has, however, been laid down, that this
rule does not extend to cases of indemnity, where one
man employs another to do acts, not unlawful in them-
selves, for the purpose of asserting a right (z) ; therefore
where an act has been done by the plaintiff under the
express instructions of the defendant which occasions an
injury to the rights of third persons, yet if such act is not
apparently illegal in itself, but is done honestly and
bond fide in compliance with the defendant's directions,
the latter shall be bound to indemnify the former against
(u) Per Maule, J., 10 C. B. 99,
100. And see per Lord Cranworth, G,
Ex parte NeiUon, 3 De G. M. & G.
616 ; Young v. BillUer, 8 H. L. Ca*.
682.
x) Waugh v. Morris, L. B. 8 Q.
B. 202 ; 42 L. J. Q. B. 57.
(y) Merryweather ▼. Nipcan, 8 T.
B. 186. See per Lord Lyndhorst,
C.B., Colburn v. Patmore, 1 C. M.
& B. 83; Farebrothcr v. Andcy,
1 Camp. 342; cited Shaekell ▼.
Rower, 2 Bing., N. C. i647. See,
also, Campbdl r. Campbell, 7 CI. *
Fin. 166 ; BUteheU v. Weir, 5B.&
C. 887.
(z) Per Lord Kenyon, C.J., 8 T.
B. 186 ; cited, 8 Bing. 72.
THE LAW OF CONTRACTS. 683
the consequences thereof (a). Moreover, the rule as to
non-contribution between wrong-doers must be further
qualified in this manner, that where one party induces
another to do an act which is not legally supportable,
and yet is not clearly in itself a breach of law, the
party so inducing shall be answerable to the other for the
consequences (6).
In equity, as at law, the general rule undoubtedly is, Rule in
that relief will not be granted where both parties are in
pari delicto, unless in cases where public policy requires
the interference of the Court (c). Before proceeding,
however, to apply this maxim, it is very necessary to
ascertain whether, under the given circumstances, the
delinquency attaching to each of the principal parties
is really equal in degree. Equity, for instance, has
refused to treat as in pari delicto the parties to a private
agreement, entered into between father and son, which
was illegal, as being a fraud upon the Post-office ; and
in this case Sir W. Grant, after observing that the ques-
tion was, whether the general rule, In pari delicto melior
est conditio possidentis, should prevail, and the Court
should refuse relief, — both parties to the agreement,
which was impeached by the bill, having been guilty of
a violation of the law, — remarked, that " Courts both
of law and equity have held, that two parties may concur
in an illegal act without being deemed to be in all
respects in pari delicto;" and his Honour thought, under
the circumstances before him, that the par delictum
(a) Toplis t. Grave, 5 Bing. N. C. v. Gibbins, 2 A. & £ 73,
650 ; Betts v. Gibbins, 2 A. & E. (c) Rcyncll t. Sprye, 1 De G. M.
75 ; Dugdale ▼. levering, L. B. 10 & Q. 660 ; 1 Stoiy, Eq. Juriap., 12th
C. P. 196 ; 44 L. J. C. P. 197. ed. 288.
(b) Per Lord Denman, C.J., Belts
684 THE LAW OP CONTRACTS.
between the parties had not been in fact establishes
the agreement being substantially the mere act of the
father (c).
Ex Dolo malo non oritur Actio. (Cowp. 343).— A
right of action cannot arise out of fraud.
connection it has been thought convenient to place the above
twtween thin ° *
fn^Km." max*m *n immediate proximity to that which precedes
it, because these two important rules of law are inti-
mately related to each other, and the cases which have
already been cited in illustration of the rule as to par
delictum may be referred to generally as establishing
and justifying the position, that an action cannot be
maintained which is founded in fraud, or which springs
ex turpi causd. The connection which exists between
these maxims may, indeed, be satisfactorily shown by
reference to a case already cited. In Fivaz v. Xickolls (d),
an action was brought for an alleged conspiracy between
B., the defendant, and a third party, C, to obtain pay-
ment of a bill of exchange accepted by the plaintiff in
consideration that B. would abstain from prosecuting C.
for embezzlement (?) ; and it was held that the action
would not lie, inasmuch as it sprung out of an illegal
transaction, in which both plaintiff and defendant had
been engaged, and of which proof was essential in order
to establish the plaintiff's claim as stated upon the
record. In this case, therefore, the maxim, Ex dolo malo
(r) Osborne v. WtiCiam*, 18 Yes. 12th ed., pp. 291-2.
879 ; see Arg., Clowjh v. Ratcliffc, (d) 2 C. B. 501, 512, 515.
16 L. J., Chanc. 477 ; S. C, 1 De (e) See the cases cited, post, p.
Q. k S. 164 ; 1 Story, Eq. Jurisp., 687.
THE LAW OF CONTRACTS. 685
non oHtur actio, was evidently applicable ; and not less
so with regard either to the original corrupt agreement
or to the subsequent alleged conspiracy, was the general
principle of law, In pari delicto potior est conditio defen-
dentis (/). To the. class of cases also which establish
that contribution cannot be enforced amongst wrong-doers,
and that a person who has committed an act declared by
the law to be criminal, will not be permitted to recover
compensation from one who has knowingly participated
with him in the commission of the crime (g), a similar
remark seems equally to apply. Bearing in mind, then,
this connection between the two kindred maxims afore-
said, we shall in the ensuing pages proceed to consider
briefly the important and very comprehensive principle,
Ex dolo mcUo, or, more generally, Ex turpi causd, non
oritur actio (h).
In the first place, then, we may observe, that the word Jw« in the
. . . Roman law.
dolus, when used in its more comprehensive sense, was
understood by the Roman jurists to include "every in-
tentional misrepresentation of the truth made to induce
another to perform an act which he would not else have
undertaken" (t), and a marked distinction accordingly
existed in the civil law between dolus bonus and dolus
nvcdus : the former signifying that degree of artifice or
dexterity which a person might lawfully employ to ad-
vance his own interest, in self-defence against an enemy
(/) See, also, Stevens v. GourUy, after-acquired property of a married
7 C. B. N. S. 99, 108. woman deserted by her husband is
(g) Per Lord Lyndhurst, Colburn confined to property of which she
v. Palmare, 1 Cr. M. & R. 83 ; per may become possessed or " which she
Maule, J., 2 C. B. 509. may acquire by her own lawful in-
(h) The principle embodied in the dustry." See Mason v. Mitchell, 3
above maxim is widely applicable ; H. & C. 528.
ex. <jr., an order under the stat. 20 & (i) Mackeld. Civ. Law, 165.
21 Vict., c. 85, s. 21, protecting the
686
THE LAW OF CONTRACTS.
or for some other justifiable purpose (i); and the latter
including every kind of craft, guile, or machination, inten-
tionally employed for the purpose of deception, cheating,
or circumvention (/). As to the latter species of dolus
(with which alone we are now concerned), it was a
general and fundamental rule, that dolo malo pactum
Rule in our se ?um sei^vaturum (m) ; and, in our own law, it is a
familiar principle, that no valid contract can arise out of
a fraud; and that any action brought upon a supposed
contract, which is shown to have arisen from fraud, may
be successfully resisted (n).
It is, moreover, a general proposition, that an agree-
ment to do an unlawful act cannot be supported at law,
— that no right of action can spring out of an illegal
contract (o) ; and this rule, which applies not only where
(*) MackelcL Civ. Law, 165 ; Bell,
Diet and Dig. of Scotch Law, 319 ;
D. 4. 3. 3 ; Brisson, ad verb.
"Dolus;" Tayl. Civ. Law, 4th ed.
118.
(I) D. 4. 3. 1, § 2 ; Id. 50. 17.
79 ; Id. 2. 14. 7, § 9.
(m) D. 2. 14. 7, § 9.
(n) Per Patteson, J., 1 A. & E.
42 ; per Holroyd, J., 4 B. & Aid.
34 ; per Lord Mansfield, C. J., 4
Burr. 2300 ; Evans v. Edmonds, 13
C. B. 777 ; Canham v. Barry, 15
C. B. 597 ; with which compare Feret
v. Bill, Id. 207 ; Reynell r. Sprye,
1 De G. M. & G. 660 ; Curzon v.
Belwrthy, 3 H. L. Cas. 742. The
effect of fraud in nullifying a contract,
the right to rescind a contract of sale
on the gronnd of fraud, and the dis-
tinction between legal and moral
fraud, are discussed under the maxim,
Caveat emptor, pott, p. 723, ct scq.
See Earl of Bristol v. Wilsmort, 1 B.
k G. 514 ; Qreen v. Baverstock, 14
C. B. N. S. 204 ; Clarke v. Dietso*,
& B. &E. 146; HorsfaU t. Thomas,
1 H. & C. 90.
As to the meaning of the word
" fraud," compare, per Lord Bomilly,
diss., Spackman v. Evans, L. B.
3 H. L. 239; per Lord Cairns,
Reese River SQrer Mining Co. v.
Smith, L. R. 4 H. L. 79-30 ; Ken-
nedy v. Panama, <fcc, Mail Co., L
R. 2 Q. B. 588 ; Lee v. Jones, 17
C. B. N. S. 482.
(o) Per Lord Abinger, C.B., 4 M.
& W. 657 ; per Ashurst, J., 8 T.
R. 93. See Jones v. Waits, 5 Scott,
N. R. 951 ; S. C, 5 Bing., N. C.
341 ; and 1 Bing., N. C, 656 ;
Ritchie v. Smith, 6 C. B. 462 ; Cun-
dell v. Dawson, 4 C. B. 376 ; Sar-
gent v. Wedlalce, 11 C. B. 732.
THE LAW OF CONTRACTS. 687
the contract is especially illegal, but whenever it is
opposed to public policy, or founded on an immoral con-
sideration (p), is expressed by the well-known maxim,
Ex turpi causd non oritur actio (q), and is in accordance
with the doctrine of the civil law, Pacta quce turpem
causam contiiaent non sunt observanda (r), "wherever
the consideration, which is the ground of the promise, or
the promise which is the consequence or effect of the
consideration, is unlawful, the whole contract is void " (s).
A court of law will not, then, lend its aid to enforce the
performance of a contract which appears to have been
entered into by both the contracting parties for the
express purpose of carrying into effect that which is pro-
hibited by the law of the land ; and this objection to the
validity of a contract must, from authority and reason,
be allowed in all cases to prevail. No legal distinction
can be supported between the application of this ob-
jection to parol contracts and to contracts under seal;
it would be inconsistent with reason and principle to
hold, that, by the mere ceremony of putting a seal to an
instrument, that is, by the voluntary act of the parties
themselves, a contract, which was void in itself, as being
in. violation of the law of the land, should be deemed
valid, and an action maintainable thereou in a court of
justice (t).
In Collins v. Blantem (it), which is a leading case to coiiinsy.
Blantern.
(p) Allen v. JUscaus, 2 Lev. 174; (*) 1 Bulstr. 38; Hobart, 72;
Walker v. Perkins, 3 Barr. 1568 ; Dyer, 356.
Wetherell v. Janes, 3 B. k Ad. 225, (t) Judgm., 5 Bing, N. C. 675.
226 ; Egerton v. Earl Brovmlow, 4 («) 2 Wils. 341 ; Williams v.
H. L. Cm. 1. Bayley, L. R. 1 H. L. 200. See
{q) Judgm., Bank of United States Ward v. Lloyd, 7 Scott, N. K. 499 ;
y. Owens, 2 Peters (U. S.), R. 589. Ex parte Oritchley, 15 L. J., Q. B.
(r) D. 2. 14, 27, § 4. 124 ; Keir v. Lecman, 6 Q. B. 308 ;
688 THE LAW OF CONTRACTS.
show that illegality may well be pleaded as a defence to
an action on a bond, the bond was alleged to have been
given to the obligee as an indemnity for a note entered
into by him for the purpose of inducing the prosecutor
of an indictment for perjury to withhold his evidence;
for the plaintiff, it was contended that the bond was good
and lawful, the condition being singly for the payment of
a sum of money, and that no averment should be admitted
that the bond was given upon an unlawful consideration
not appearing upon the face of it ; but it was held, that
the bond was void ab initio, and that the facts might be
specially pleaded ; and it was observed by Wilmot, C.J.,
delivering the judgment of the Court, that " the manner
of the transaction was to gild over and conceal the truth ;
and whenever courts of law see such attempts made to
conceal such wicked deeds, they will brush away the
cobweb varnish and show the transactions in their true
light." And again, " this is a contract to tempt a man
to transgress the law, to do that which is injurious to
the community : it is void by the common law ; and the
reason whjT the common law says such contracts are void
is for the public good : yon shall not stipulate for
iniquity. All writers upon our law agree in this — no
polluted hand shall touch the pure fountains of jus-
tice (a:).
It is, obviously, to the interest of the public that " the
S. C. (in error), 9 Q. B. 371 (where (x) See, aim, Prole t. Wiggins, 3
the compromise of a misdemeanour Bing., N. C. 230 ; Paxton v. Pop-
was held to be illegal) ; Masters t. Jiam, 9 East, 408 ; PoU ▼. ffarrobin\
Ibberwon, 8 C. B. 100 ; Beg. v. Id. 417, n. ; Gas Light and Cotx
Hardey, 14 Q. B. 529 ; Reg. v. Co. v. Turner, 5 Bing., N. C. 666 ;
Blakemort, Id. 544 ; Peg. v. Alley ne, S. C, 6 Id. 324 ; Cvthbcrt r. Haley,
4 B. k B. 186. 8 T. R. 390.
THE LAW OF CONTRACTS.
G89
suppression of a prosecution should not be made matter
of private bargain;" and it was accordingly held in a
recent case (y), that a promissory note given in considera-
tion of the payee's forbearing to prosecute against the •
maker a charge of obtaining money by false pretences
was illegal, and could not be enforced (z).
As a general rule, then, a contract or an agreement contrary
cannot be made the subject of an action if it be impeach- vulld*
able on the ground of dishonesty, or as being opposed to
public policy, — if it be either contra bono8 mores, or for-
bidden by the law (a). In answer to an action founded on
such an agreement, the maxim may be urged, Ex maleficio
non oritur contractus (b) — a contract cannot arise out of
an act radically vicious and illegal ; those who come into
a court of justice to seek redress must come with clean
hands, and must disclose a transaction warranted by
law (c) ; and " it is quite clear, that a court of justice can
give no assistance to the enforcement of contracts which
the law of the land has interdicted " (d).
(y) Clubb v. ffutson, 18 C. B. N.
S. 414, 417, following Keir v. Lee-
man, 9 Q. B. 371.
(s) See Fisher v. ApoUlnaris Co.,
L. B. 10 Ch. App. 297 ; 44 L. J. Ch.
500, where criminal proceedings were
compromised and the compromise up-
held.
(a) Per Lord Kenyon, CJ., 6 T.
R. 16 ; Stevens ▼. Goudey, 7 C. B.
N. & 99 ; Cunard v. Hyde, 2 E. &
£.1. See, per Holroyd, J., 2 B. &
Aid. 103 ; per Martin, B., fforton v.
Westminster Improvement Commis-
sioners, 7 Ezch. 791.
As to contracts void on the ground
of maintenance or champerty, see
Marie v. Hopwood, 9 C. B. N. 8.
567 ; Simpson v. Lamb, 7 0. B. N.
S. 84; Sprye t. Porter, Id. 58;
Anderson v. MadcUfe, E. B. & E.
806 ; OreU y. Levy, 16 C. B. N. S.
78.
(6) Judgm., IT. R. 784 ; Parsons
v. Thompson, 1 H. Bla. 322; 8
Wheaton (U. S.), R. 152. Sec
Nicholson v. Gooch, 5 E. & B. 999,
1015, which forcibly illustrates the
above maxim.
(c) Per Lord Kenyon, C.J., PeUrie
y. Hannay, 3 T. R. 422.
((f) Per Lord fildon, C, 2 Rose,
851.
Y T
690
THE LAW OF CONTRACTS.
«»f rule.
BoimI— fur
unUwfol
ptir]Hjfle.
It does not fall within the plan of this work to enume-
rate, much less to consider at length, the different
grounds on which a contract may be invalidated for
illegality (e). We shall merely cite some few cases in
illustration of the above remarks. In strict accordance
with them, it has been held, that no action could be main-
tained on a bond given to a person in consideration of his
doing, and inducing others to do, something contrary to
the terms of letters patent; and that the obligee was
equally incapable of recovering, whether he knew or did
not know the terms of the letters patent—the ignorance,
if in fact it existed, resulting from his own fault (/ ). " The
question," said Lord Tenterden, in the case here alluded
to, " comes to this : can a man have the benefit of a bond
by the condition of which he undertakes to violate the
law ? It seems to me that it would not be according to the
principles of the law of England, which is a law of reason
and justice, to allow a man to maintain an action under
such circumstances ; it would be to hold out an encourage*
ment to any man to induce others to become dupes, and
to pay their money for that from which they could derive
no advantage."
(e) The following cases may, bow-
ever, be mentioned with reference to
this subject, in addition to those al-
ready cited : Simpeon v. Lord How-
den, 9 CI. & Fin. 61 ; cited per Lord
Campbell, C.J., Hall v. Dymm, 17
Q. B. 791 (as to which see HiOt v.
MiUon, 8 Exch. 751) ; and per Lord
St. Leonards, C, Hawke* v. Eastern
Counties R. C, 1 De G. M. fc G.
753 ; S. C, affirmed 5 H. L. Cas.
331 ; Preston v. Liverpool, Man-
Chester, <f*. , A. £., 5 H. L. Cas. 605 ;
Jones y. JFaite, 9 CI. k Fin. 101 ;
MiUelhoUer v. Puliation, 6 Q. B,
982, 1022 ; Santos v. midge, 8 C.
B. N. S. 861 ; 8. C, 6 Id. 841 ;
Boutfield v. Wilton, 16 M. AW.
185. In the great case of AUwood r.
Small, 6 CL k Fin. 232, the effect of
fraud on a contract of sale was much
considered; but this case properly
falls under the maxim, Caveat emptor,
to which, therefore, the reader is
referred.
(/) Duvergier y. FeUoves, 1 CL &
Fin. 89.
THE LAW OF CONTRACTS. 691
In scire facias against the defendant as member of a JSSKfhy
certain steam-packet company, the plea stated that the
original action was for a demand in respect of which
neither the defendant in the sci.fa., the packet company,
nor the defendant in the original action (the public officer
of the company), was by law liable, as plaintiff at the
commencement of the action well knew ; and that, such
registered officer and the plaintiff well knowing the
premises, the said officer fraudulently and deceitfully,
and by connivance with plaintiff, suffered the judgment
in order to charge the defendant in sd. fa. The Court
held the plea to be good, and further observed, that fraud
no doubt vitiates everything (g) ; and that, upon being
satisfied of such fraud, they possessed power to vacate,
and would vacate, their own judgment (h).
To take another illustration of the maxim before us, Agreement
to 'Mist
wholly different from the preceding. fuXiietion
The distinction above set forth may be thus exemplified :
if the contract in question be a policy of insurance against
fire, and is in such terms that a reference to a third person
or to a board of directors is a condition precedent to the
right of the assured, in case of loss, to maintain an actiou,
then he is not entitled to maintain it until that condition
is complied with ; but if, on the other hand, the contract
is to pay for the loss, with a subsequent contract to refer
(g) See, for instance, Foster v. by a fraudulent concealment of their
Maekinnon, L. R. 4 C. P. 704, real value.
711 ; 38 L. J. C. P. 310. (h) Philipsony. Earlof Egremont,
A copyright may be defeated on 6 Q. B. 587, 605 ; Dodgsov, v. ScoUr
the ground of fraud ; WrigM v. 2 Exch. 457, and cases cited ante,
Tallis, 1 C. B. 893. p. 688. Et vide, per Pollock, C.B.,
In The Carron Co. v. Hunter, Rogers v. Hartley, 32 L. J. Ex.
JL. R. 1 Sc. App. Cas. 362, a bequest 248.
of shares was held not to be nullified
T y ?
692 THE LAW OP CONTRACTS.
the question to arbitration, contained in a distinct clause
collateral to the other, then that contract for reference
shall not oust the jurisdiction of the courts, or deprive the
party of his action (i).
Doutisft Further, it is an indisputable proposition, that as
7u?'pUmh? against an innocent party, " no man shall set up his own
iniquity as a defence any more than as a cause of
action " (£). Where, however, a contract or deed is made
for an illegal purpose, a defendant against whom it is
sought to be enforced may show the turpitude of both
himself and the plaintiff, and a court of justice will
decline its aid to enforce a contract thus wrongfully
entered into. For instance, money cannot be recovered
which has been paid ex turpi causd, qwum, dantis cegue
et acdpientis twpitudo versutur (I). An unlawful agree-
ment, it has been said, can convey no rights in any court
to either party; and will not be enforced at law or in
equity in favour of one against the other of two persons
equally culpable (m). A person who contributes to the
performance of an illegal act by supplying a thing with
the knowledge that it is to be used for that purpose is
precluded from recovering the price of the thing so supplied
" Nor can any distinction be made between an illegal and
an immoral purpose ; the rule which is applicable to the
matter is, ex turpi causd non oi*itur actio, and whether
it is an immoral or an illegal purpose in which the plaintiff
has participated it comes equally within the terms of that
(*) Elliott v. Royal Etch. Ass. Ob., & Aid. 868. It is a maxim, that Jus
L. R. 2 Ex. 237, 243 ; And supra, pp. ex injurid non oritur; see Axg., 4
695-6. Bing. 639.
(*) Per Lord Mansfield, C.J., (I) 1 Pothier, Trait* de Vente, 186.
Montefiori v. Montefiori, 1 W. Bla. (m) Per Lord Brougham, C, Arm-
ZGi ; cited, per Abbott, C. J., 2 B. strong r. Armstrong, 8 My. t K. 64.
THE LAW OF CONTRACTS. 69&\
maxim, and the effect is the same ; no cause of action can
arise out of either the one or the other " (ri).
The principle on which the rule above laid down principle of
depends is, as stated by Chief Justice Wilmot, the public*
good. "The objection," says Lord Mansfield (o), "that
a contract is immoral or illegal as between plaintiff
and defendant, sounds at all times very ill in the mouth
of the defendant. It is not for his sake, however, that the
objection is ever allowed, but it is founded in general
principles of policy, which the defendant has the advantage
of, contrary to the real justice as between him and the
plaintiff-Jby accident, if I may so say. The principle of
public policy is this : ex dolo raalo non oritur actio. No
court will lend its aid to a man who founds his cause of
action upon an immoral or an illegal act. If, from the
plaintiff's own stating or otherwise, the cause of action
appear to arise ex turpi causd or the transgression of a
positive law of this country, there the Court says he has
no right to be assisted. It is upon that ground the* Court
goes, not for the sake of the defendant, but because they
will not lend their aid to such a plaintiff. So, if the
plaintiff and defendant were to change sides, and the
defendant were to bring his action against the plaintiff,
the latter would then have the advantage of it, for
where both are equally in fault, Potior est conditio
defewdentis " (p).
(n) Pearct v. Brooks, L. R. 1 Ex. an unlawful act should be done, and
213, 218 ; Cowan v. MUbourn, L a participation in tbe unlawful trans-
R. 2 Ex. 280. action itself." Jackson v. Duchaire,
(o) Holman v. Johnson, Cowp. 3 T. R. 551, 553 ; cited, Spencer v.
843 ; and Lightfoot v. Tenant, 1 B. Handley, 5 Scott, N. R. 558.
& P. 554 ; which eases are cited in (p) See, also, Arg., 15 Peters (U.
Jlobbs ▼. Henning, 17 0. B. N. S. 8.), R. 471 ; i*r Tindal, C.J., 2 0.
819, as showing " the distinction B. 512.
between a mere mental purpose that
694
THE LAW OF CONTRACTS.
Rale, how
qualified.
It may here be proper to observe, that, although a
Court will not assist in giving effect to a contract which is
" expressly or by implication forbidden by the statute or
common law/' or which is " contrary to justice, morality,
and sound policy ; " yet where the consideration and the
matter to be performed are both legal, a plaintiff will not
be precluded from recovering by an infringement of the
law in the performance of something to be done on his
part ; such infringement not having been contemplated by
the contracting parties (q).
In determining, moreover, the effect of a penal
statute (r) upon the validity of a contract entered into
by one who has failed in some respects to comply with its
provisions, it is necessary to consider whether the object
of the statute was merely to inflict a penalty on the
offending party for the benefit of the reveuue, or whether
the legislature intended to prohibit the contract itself for
the protection of the public In the former case, an action
may lie upon the contract ; but in the latter case the
maxim under consideration will apply, and even if the
contract be prohibited for revenue purposes only, it will
be altogether illegal and void, and no action will be main-
tainable upon it («).
(?) Wetherett v. Jones, 3 B. & Ad.
225, 226. See Redmond v. Smith,
8 Scott, N. R. 250.
(r) With reference to a breach of
the Revenue Laws Lord Stowell ob-
serves, " It is sufficient if there is a
contravention of the law — if there is
a fraus in legem. Whether that ma y
have arisen from mistaken apprehen-
sion, from carelessness, or from any
other cause, it is not material to in-
quire. In these cases it is not
necessary to prove actual and per-
sonal fraud." The Reward, 2 Bods.
Adm. R. 271.
(«) ITAUcx v. Jones (Exch.), 2
Jur. N. 8. 972 ; Taylor v. Cropland
Gas and Coke Co., 10 Exch. 293,
296 ; Bailey y. Harris, 12 Q. B.
905 ; Smith v. Mawhood, 14 M. fc
W. 462 ; Cope v. Rowland*, 2M.&
W. 149 ; CundeU v. Dawson, 4 C. B.
376; Pidgeon v. Burden^ 3 Exch.
465 ; Quid* t. Harrison, 10 Exch.
THE LAW OF CONTRACTS.
695
It must be observed, however, that a contract, although Divuibie
illegal and void as to part, will not necessarily be void in
toto. Thus, if there be a bond, with condition to do
several things, some of which are agreeable to law and
some against the common law, the bond shall be good as
to the former, and void as to the latter only (t) ; and this
rule is generally true with respect to a contract void and
illegal in part as against public policy, and yet good as
to the residue. Where, for instance, the defendant
covenanted that he would not, during his life, carry on
the trade of a perfumer *' within the cities of London and
Westminster, or within the distance of GOO miles from the
same respectively," the Court held that the covenant was
divisible, and was good so far as it related to the cities of
London and Westminster, though void as to the residue (u).
As previously stated a contract prohibiting the parties to
it from bringing an action, and all agreements purporting
to oust the courts of their jurisdiction, are void (x) ; but if
the contract or agreement is in such terms that a reference
to a third person is a condition precedent to bringing
572 ; Jcssopp y. Lutwyehe, Id. 614 ;
Rostwarne v. Billing, 33 L. J. C. P.
55, 56 ; Johnson v. Hudson, 11
East, 180. See, per Holt, C.J.,
Bartlett v. Viner, Carth. 252 ; cited,
Judgm., Be Begnis v. Armistead,
10 Bing. 110 ; and in Fergusson v.
Norman, 5 Bing., N. C. 85. See
another instance illustrating the text,
per Parke, B., Bodger v. Arch, 10
Bxch. 337 ; cited, Amos t. SmitJi% 1
H. k C. 241. And see Jones v.
Gilts, 10 Exch. 119, 144 ; S. C.,
affirmed in error, 11 Exch. 393 ;
Ritchie t. Smith, 6 C. B. 462.
(t) Chesman v. Nainby, 2 Ld.
Baym. 1456, 1459 ; Bigot's case, 1
Rep. 27.
(u) Price v. Green (in error), 16
M. & W. 346 ; S. 0.t 13 Id. 695;
following Median v. May, 11 M. A
W. 653, and Chesman v. Nainby,
supra. See further, as to contracts
in restraint of trade, Broom's Com.,
5th ed. 357 et *eq. ; Farrer v. Close,
L. B. 4 Q. B. 632 ; Beg. v. Stainer,
L. B. 1 C. C. 230.
(x) Morton v. Sayer, 4 H. & N.
643 ; Edwards v. Aberayon Ins. Soc,
1 Q. B. D. 563 ; 34 L. T. 457, and
ante, p. 691.
696
THE LAW OF CONTRACTS.
an action, then an action cannot be maintained until
the condition has been complied with (y) ; assuming
on the other hand that the agreement to refer is collateral,
in other words a collateral covenant in or part of a con-
tract divisible from the rest, in such a case an action is
maintainable although there has been no arbitration (z).
It seems, then, upon the whole, a true proposition, that,
if any part of a contract is valid, it will avail pro tav£o,
although another part of it may be prohibited by statute,
provided the statute does not expressly or by necessary
implication render the whole void, and provided also that
the sound part can be separated from the unsound.
Where, however, a particular proceeding, though not in
itself illegal, is inseparably connected with another which
is so, in such a manner that both form parcels of one
transaction — ex. gr., of one trading adventure — such
transaction becomes altogether illegal, because bottomed
in and originating out of that which was in itself illegal ;
and in this wide and comprehensive sense must therefore
be understood the rule, Ex pacto illidto non oritur
actio (a). And if a contract be made on several con-
siderations, one of which is illegal, the whole promise
will be void. The difference is that every part of the
contract is induced and affected by the illegal con-
sideration; whereab if the consideration is tainted
(y) Scott v. Avery, 5 H. L. Cas.
Sll ; 25 L J. El 808 ; London
Guarantee Co. v. Fearnlty, 5 App.
Cas. 911 ; 43 L. T. 390.
(2) Dawson v. Fitzgerald, 1 Ex.
D. 257 ; 45 L. J. Ex. 893.
(a) See Stewart v. Gibson, 7 CI. &
Fin. 729.
" The general rule is that where
you cannot sever the illegal from the
legal part of a covenant, the contract
is altogether void ; but where yon
can sever them, whether the illegality
be created by statute or by the com-
mon law, you may reject the bad
part and retain the good." Per
Willes, J., Pickering v. HJraeomle
J?. C, L. B. 3 P. C. 250.
THE LAW OF CONTRACTS.
697
by no illegality, but some of the conditions (if it be
a bond) or promises (if it be a contract of any other
description) are illegal, the illegality of those which are
bad does not communicate itself to or contaminate those
which are good, except where in consequence of some
peculiarity in the contract its parts are inseparable or
dependent upon one another (b).
The effect of fraud is not absolutely to avoid a con- Non-repudi-
* ation 01
tract induced by it, but to render it voidable at the fraudulent
J ' contract.
option of the party defrauded ; and the contract continues
valid until the party defrauded has elected to avoid
it (c). Thus if a party be induced to purchase an article
by fraudulent misrepresentations of the seller respecting
it, and, after discovering the fraud, continue to deal with
the article as his own, he cannot recover back the money
paid from the seller ; nor does there seem any authority
for saying that a party must, in such a case, know all
the incidents of a fraud before he deprives himself of
the right of rescinding : the proper and safe course is to
repudiate the whole transaction at the time of discovering
the fraud (d). *" Where an agreement has been procured
by fraud," observes Maule, J. (e), "the party defrauded
( (o) Smith's L. C, 8th ed., vol. i.
405.
(c) Betse Silver Mining Co. v.
Smith, L, R. 4 H. L. 64 ; 39 L. J.
Ch. 8, 49 ; Addison on Contracts,
8th ed. 1177.
(d) Campbell r. Fleming, 1 A. &
R 40 ; Clarke v. Dickson, B. B. k
K 148 ; HorsfaU v. Thomas, 1 H.
k C. 90 ; White v. Garden, 10 C. B.
919 ; cited, BUliter v. Young, 6 E.
& B. 25 ; Harnor v. Groves, 15 C.
B. 667. See Kingsford v. Merry,
1 H. k N. 503 ; S. C, 11 Exch.
577 ; Higgons v. Burton, 26 L. J.
Ex. 342.
(e) East A nglian R. (7. v. Eastern
Counties Jt. C, 11 C. B. 803 ;
citing Campbell v. Fleming, supra.
Judgm. , Bwlch-y-Plwm Lead Mining
Co. y. Baynes, L. B. 2 Ex. 326;
Oahes r. Turquand, L. R. 2 H. L.
325. In Pttbrow v. Pilbrow's At-
mospheric J?. C, 6 C. B. 453,
Maule, J., observes, "It is not true
that a deed that is obtained by fraud
is {therefore void. The rule is that
the party defrauded may, at his
election, treat it as void.'
»t
698 THE LAW OF CONTRACTS.
may at his election treat it as void, but be most make
his election within a reasonable time. The party guilty
of the fraud has no such election."
rmmmp. Lastly, when the act which is the subject of the contract
illegality. may, according to the circumstances, be lawful or un-
lawful, it will not be presumed that the contract was to do
the unlawful act ; the contrary is the proper inference (/).
Thus, where an act is required to be done by a person, the
omission of which would make him guilty of a criminal
neglect of duty, the law presumes that he has duly per-
formed it, and throws the burden of proving the negative
on the party who may be interested in doing so (g). And
the presumption of law is clearly against fraud (h).
Having in the preceding pages directed attention to
some leading points connected with the illegality of the
consideration for a promise or agreement, and having
selected from very many cases some only which seemed
peculiarly adapted to throw light upon the maxim, Ex
dolo rnalo non oritur actio, we may further pray jn aid of
the above very cursory remarks respecting it, the observa-
tions already made upon the yet more general principle,
that a man sltall not I>e permitted to take advantage of
his own wrong (i), and shall at once proceed to offer some
remarks as to the rule that a consideration is needed to
support a promise, and as to the sufficiency and essential
requisites thereof.
(/) Lewis v. Davison, 4 M. & W. (h) See, per Parke, B., 8 Bxch.
654 ; 1 B. & Aid. 463 ; Judgm., 400; per Lord Kenyon, C.J., JL ▼.
Garrard v. Hardey, 6 Scott, N. R Fillongley, 2 T. R. 711 ; adopted
477. See, per Parke, B., Jackson v. per Patteson, J., Reg. v. Si. MaryU-
Cobbin, 8 M. & W. 797 ; Harrison bone, 16 Q. B. 305. Duke v. Forbes,
v. Heathorn, 6 Scott, N. B. 735 ; 1 Exch. 356, 368, shows that ille-
10 Bep. 56 ; C. 2. 21. 6. gality will not be presumed. And
(g) Williams v. East India Co., 3 see the maxim Omnia pnesumwntur
East, 192 ; cited, per Lord Ellen- riti esse acta, post, Chap. X.
borough, C.J., 2M.&S. 561. {i) Ante, p. 273.
THE LAW OF CONTRACTS. 699
Ex kudo Pacto non oritur Actio. (Noy, Max., 24.)
— 2?o cause of action arises from a bare promise.
This is an instance of a maxim which has found its nudum
way to frequent use by writers on the Law of Contracts Roman law.
as observed in England with a meaning widely different
from that which appertained to it as employed in Roman
Jurisprudence. Nudum pactum is defined by Ulpian,
vhi nulla subest causa propter conventionem (k).
By causa were meant the formal requisites which were tv<««.
necessary to obtain for an engagement legal recognition,
i.e., that is, the ceremonial conditions which constituted
stipvlatio, nexum, &c. (I). The cause dou naisse Uobli-
gation of the French Civil Code is nearer in meaning
to our consideration, but is more extensive, and may
denote a mere moral duty, or a fancied duty based upon
feelings of honour, and even the motive which may
actuate a person in making a promise (m), to which the
English word does not extend.
The force of the maxim we are discussing as used in x,„ium
English Jurisprudence may be thus rendered in the words P"¥lisJl1
of Blackstone. " A consideration of some sort or other de,,ce-
is so necessary to the forming of a contract, that a nudum
pactum,, or agreement to do or pay something on one side,
without any compensation on the other, will not at law
support an action ; and a man cannot be compelled to
perform it" (n). The nakedness of a promise in our
(*) D. 2. 14. 7, 1 4 ; Plowd. 309, 1 FonbL Eq., 5th ed. 335 (a),
n. ; Vin. Abr., " Nudum Pactum" (Q Pollock on Contr., Chap. III.
(A.). See 1 Powell, Contr., 830 et (to) Ibid., Chap. IV.
seq. As to the doctrine of nudum (») 3 Com. 159 ; Noy, Max., 9th
pactum in the civil law, see Pillans ed., p. 348.
v. Van Miervp, 3 Burr. 1670 et teq.;
tftOB.
700 THE LAW OF CONTRACTS.
system coosists in the absence of consideration, and not
in the want of formal conditions, as, e.g., writing or
registration. Thus, our notion of a bare promise bears
no analogy to the nudum pactum of the digest. The
law, it has been observed (o), M supplies no means nor
affords any remedy to compel the performance of an
agreement made without sufficient consideration. Such
agreement is nudum pactum ex quo non orittir actio;
and whatsoever may be the sense of this maxim in the
civil law, it is in the last-mentioned sense only that it is
to be understood in our law/'
conrtiera- The modern English doctrine of consideration has been
one of gradual development, and its history is obscure.
In the time of Henry VI., the word does not seem to
have been in vogue, the equivalent found in cases of that
period, which are extant, is quid pro quo (p), and that
phrase may be said to convey an accurate idea of the
connotation of the modern word, except indeed as
used by conveyancers in conjunction with good (q).
Consideration could not be better defined than it is in
the Indian Contract Act, " when at the desire of the
promisor, the promisee or any other person, has done or
abstained from doing, or does or abstains from doing, or
promises to do or abstain from doing something, such
act or abstinence or promise is called a consideration
for the promise " (r). Accordingly, if I promise to pay a
man 1001. for nothing, he neither doing nor promising
anything in return or to compensate me for my money,
(o) Per Skynner, C.B., Rann v. (jp) Pollock, Contr., Chap. III.
Hughe*, 7 T. B. 850, n. (a). See, (9) As to which see pottea under
per Lord Kenyon, C.J., 3 T. R. 421; this maxim.
Judgm. , Bank of Ireland t. Archer, (r) Indian Contract Act, sec. 2.
11 M. & W. 889. See Mc Mania* v. All the definitions in this section
Bark, L. K.5 Ex. 65; 89 L. J. Ex. 65. should be carefully studied.
THE LAW OF CONTRACTS. 701
my promise is nudum pactum, and has no force in law
(0). A gratuitous promise or undertaking may indeed
form the subject of a moral obligation, and may be
Grinding in honour, but it does not create a legal
responsibility (£).
Where indeed a promise is made under seal, the contact
under sea
solemnity of that mode of delivery is held to import, at
law, that there was a sufficient consideration for the
promise, so that the plaintiff is not in this case required
to prove such consideration ; nor can the deed be im-
peached by merely showing that it was made without
consideration, unless proof be given that it originated in
fraud (u). Neither is a consideration necessary for the
validity of a deed operating at Common Law. Never-
theless if A. made a feoffment in fee to another without con-
sideration, equity would presume that he meant it to
the use of himself, and would therefore raise an implied
resulting use in his favour (x). Even if he should by
express limitation of uses prevent the estate from result-
ing at law, there would still in equity result a
trust for his benefit Even in the case of a deed, more- "Good "ami
"valuable"
over, it is necessary to observe the distinction between '\o"»wera-
& good and a valuable consideration ; the former is such
as that of blood, or of natural love and affection, as
when a man grants an estate to a near relative, being
influenced by motives of generosity, prudence, and natural
duty. Deeds made upon this consideration are looked
upon by the law as merely voluntary, and, although good
(t) 3 Black. Com. 159 ; Vin. Abr., (u) 2 Bla. Com., 16th ed.t 446,
44 Contract " (K). n. (4). Per Parke, B., Wallis v.
(t) Judgm., 1 H. Bla. 327. See Day, 2M.&W. 277.
Balfe v. Wat, 13 G. B. 466 ; EUee (*) 1 Sand. Uses, 68.
v. Gatward, 5 T. R. 143, 149.
'02
THE LAW OP CONTRACTS.
t:<ii in
»iiij|»Ur coti-
im-:.
as between the parties, are frequently set aside in favour
of creditors and bond fide purchasers \y\ On the other
hand, a valuable consideration is such as money, marriage,
or the like ; and this is esteemed by the law as an equiva-
lent given for the grant (•).
When, therefore, a question arises between one who
has paid a valuable consideration for an estate, and one
who has given nothing, it is a just provision of law,
that such voluntary conveyance, founded only on con-
siderations of affection and regard, should not be allowed
to defeat the rights of those who may afterwards become
purchasers for a valuable consideration, it being, upon the
whole, more fit that a voluntary grantee should be disap-
pointed than that a fair purchaser should be defrauded (a).
It is of the greatest importance to the student of
English law to start with an accurate comprehension of
the meaning of consideration in simple contracts. Wo
will therefore add to what has already been said the
definition of Parke, B., — "any act of the plaintiff from
which the defendant derives a benefit or advantage, or
any labour, detriment, or inconvenience sustained by the
plaintiff, however small the benefit or inconvenience may
be, is a sufficient consideration, if such act is performed
or such inconvenience suffered, by the plaintiff with the
consent, either express or implied, of the defendant** (6).
<» 2 Black. Com. 479, 4S0, 3 Id.
153 ; per Lord Tentorial, C.J.,
GmUy r. Buhop of ExrUr, 10 B. &
C. 606. See Bac. Max., reg. IS,
See ex parte Ru**dly 51 L. J.
Q. B. 521, as to when a voluntary
deed will be set aside in favour of
creditors.
(z) 2 Black. Com. 480. 3 Id. 15S ;
10 B. k C. 606.
a) Jodgm., Doe d. OUey r. Man-
nhy. 9 East, 66. See 2 Q. B. 860.
(6) 1 Selw., X. P., 10th ed. 41 ;
Jndgm*, 2 E. k B. 487-8 ; per Parke,
B., J/bct r. Hall, 5 Rich. 49;
BracewtU t. WOiiawu, L.B.2C. P.
196 ; Crowiker t. Farrtr, 15 Q. BL
677, 680 ; HuUe r. ffmbe, 17 C. B.
711. See, also, Aaafc r. Arwutromg,
10 C. B. N. S. 259 ; Skadwttt r.
THE LAW OF CONTRACTS.
703
The consideration for a promise must have some consMem-
•11 i«i f>ii/\oi i • *'on mu*fc
tangible value in the eye of the law (r). So, where m !»«>-•* «*i«e
an action of assumpsit the consideration for the defen-
dant's promise was stated to be the release and conveyance
by the plaintiff of his interest in certain premises, at the
defendant's request, but the declaration did not show
that the plaintiff had any interest in the premises except
a lien upon them, which was expressly reserved by him,
the declaration was held bad, as disclosing no legal con-
sideration for the alleged promise (d).
It is now well settled that, as lone as the consideration Adequacy
° not material.
for a promise has some value its adequacy is not
material (e). The value of all things contracted for " is
measured by the appetite of the contractors, and there*
fore the just value is that which they be content to
give" (/), moreover, the consideration may be contingent, value may
Ihj contin-
gtMlt
Shadwdl, 9 C. B. N. S. 159 ; Davis
v. Msbett, 10 C. B. N. S. 752
Sirtees r. Lister, 7 H. & N. 1
ScoUon v. Pegg, 6 H. & N. 295
Westlake v. Adams, 5 C. B. N. S.
248 ; Hartley r. Ponsonby, 7 E. &
B. 872.
(c) Per Patteson, J., Thomas v.
Thomas, 2 Q. B. 859 ; Price v.
Boston, 4 B. ft Ad. 433 ; Tweddle v.
Atkinson, 1 B. & 8. 393 ; Edwards
t. Baugh, 11 M. & W. 641 ; Bridg-
man v. Dean, 7 Exch. 199 ; Wade
v. Simeon, 2 0. B. 548 ; UeweUyn
v. Llewellyn, 15 L. J., Q. B. 4 ; Crow
v. Sogers, 1 Stra. 592 ; Lilly v.
Hays, 5 A. & E. 548 ; approved in
Noble v. National Discount Co., 5 H.
k N. 22?, 228 ; GaUoioay v. Jackson,
3 Scott, N. R. 753, 763 ; Thornton v.
Jenyns, 1 Scott, N. R. 52 ; Jackson
t. Cobbin, 8 M. k W. 790 ; Cowper
v. Green, 7 M. k W. 633 ; 1 Roll.
Abr. 23, pi. 29 ; Fishery. Waltham,
4 Q. B. 889 ; Wilson r Wilson, 1 H.
L. Gas. 538 ; Hart v. Miles, 4 C. B.
N. S. 371, and cases infra.
(d) Kaye v. Dutton, 7 M. k Gr.
807 ; recognising Edwards v. Baugh,
11 M. & W. 641 ; Lyth v. AuU, 7
Exch. 669 ; Strickland v. Turner,
Id. 208 ; Fremlin t. Hamilton, 8
Exch. 308 ; see Cooper v. Parker, 1 4
0. B. 118 ; MiUward v. LittUxcood,
5 Exch. 775 ; TFtta v. iTorrw, 7 C.
B. 999 ; Holmes v. Penney, 9 Exch.
584, 589 j Jker v. Jfato, 11 Q. B.
D. 221.
(e) Wesilake v. Adams, 5 C. B.
N. S. 248, 265 ; 24 L. J. C. P. 271 ;
per Byles, J.
(/) HoLhes, Leviathan, pt. 1, Ch.
XV.
704 THE LAW OF CONTRACTS
It may consist of something which a party does not under-
take, and consequently is not bound to perform, but which
being done renders the promise on the other side binding
in law. Thus, if a tradesman agrees to supply on certain
terms such goods as a customer may order during a future
period, he cannot sue the customer for not ordering any
goods, but if the customer does order any goods, the con-
sideration becomes effectual, and a contract binding upon
the tradesman immediately arises (g).
maSSS!e" Moreover, a consideration may be good in law, although
there may be merely a chance, and that a remote one,
of any benefit arising to one party or detriment to the
other. Thus it is a good consideration for a promise to
refrain from legal proceedings which one has contemplated
taking in good faith, although such proceedings have not
been commenced (A), and it should ultimately appear that
the claim to be enforced was wholly unfounded (i).
consider*- The consideration for a contract, although its adequacy,
be real, as we have seen, will not be examined by courts of justice,
inustnot * must not be colourable merely nor illusory (k), and it is
fail through " w
tile ^f °Pen *° *^e promisor to shew if he can that the chance of
niiaee. ^a de^ng benefit from that which is put forward as the
consideration for his promise has been defeated by the
act of the promisee. In such a case there is said to be a
failure of consideration.
In debt for money had and received, &c, the defendant
pleaded the execution and delivery to the plaintiff of a
(g) OretU Northern Ry. Co. v. 497 ; 44 L. J. C. P. 254 ; 82 L. T.
\Vitkam, L. R. 9 C. P. 16 ; 43 L. J. 310.
C. P. 1. (*) J?*** ▼- BlutU, 23 L. J.
(h) CaUUher v. Buchoffheim, L. Exch. 36. See Govgh v. Findon, 7
R. 5 Q. B. 449 ; 89 L. J. Q. B. 181 ; Exch. 48 ; Frazer v. HaUon, 2 C. B.
18 W. R. 1127. N. S. 512 ; Gorgier v. Morris, 7 C.
(t) Willy y. Elgee, L. R. 10 C. P. B. N. S. 588.
THE LAW OF CONTRACTS. 705
deed securing to the plaintiff a certain annuity, and
acceptance of the same by the plaintiff in full satisfaction
and discharge of the debt ; replication, that no memorial
of the annuity deed had been enrolled pursuant to the
statute ; that, the annuity being in arrear, the plaintiff"
brought an action to recover the amount of the arrears ;
that defendant pleaded in bar the non-enrolment of the
memorial ; and that plaintiff thereupon elected and
agreed that the indenture should be null and void, and
discontinued the action. The replication was held to be
a good answer to the plea, since it showed that the
accord and satisfaction thereby set up had been ren-
dered nugatory and unavailing by the defendant's own
act (I).
The definitions of consideration which have here already considers.
i • i i m • iii tionnottobe
been given are in themselves sufficient to preclude the confounded
° * with motive.
possibility of its being confounded with the motive of a
promise (ra). Consideration may no doubt furnish the
inducement for a promise, and. that inducement may be a
motive, but the motive is a mental fact subjective to the
promisor, the consideration is objective and extraneous to
his mind. A not uncommon expression, and one which
involves a leading principle of the law of contracts, is that
the consideration must 'move from the plaintiff. By this con»idem-
. . . . . tion must
is meant not only that the consideration must be some- move from
" t m the plaint
thing external to the mind of the promisor, and therefore
not a mere motive, but also, that there must have been what
is called priority of contract between the promisor and the
person who seeks to compel performance of the promise.
In common parlance, the principle may be thus stated, he
(l) Turner v. Browne, 3 C. B. (m) Per Lord Denman, C.J., and
157 ; Thomas v. Thomas, 2 Q. B- Patteson, J., 859 ; Id. 861 (a).
851.
z z
706
THE LAW OF CONTRACTS.
alone can exact performance of a promise, who has
furnished or contributed to furnish the consideration (n).
So where plaintiff stipulated to discbarge A. from a
portion of a debt due to himself, and to permit B. to stand
in his place as to that portion, defendant stipulating, in
return, that B. should give plaintiff a promissory note ;
the consideration moving from plaintiff, and being an
undertaking detrimental to him, was held sufficient to
sustain the promise by defendant (o). Where, however,
A. being indebted to plaintiff in a certain amount, and B.
being indebted to A. in another amount, the defendant,
in consideration of being permitted by A. to sue B. in his
name, promised to pay A/s debt to the plaintiff, and A
gave such permission, whereupon defendant recovered
from B., judgment was arrested, on the ground that plaintiff
was a mere stranger to the consideration for the promise
made by defendant, having done nothing of trouble to
himself or of benefit to the defendant (p).
The question of privity of contract has been much dis-
cussed in connection with the relationship of a county
solicitor with his client and town agent respectively. It
has been more than once subject of inquiry whether such
privity exists in the case of the two last-mentioned
as would entitle one to sue the other. Where B., the
country attorney of A., sent a sum of money to the de-
(n) See Playford v. United King-
dom Telegraph Co., L. R. 4 Q. B.
705; Becker t. Great Eastern R. C9
L. R. 5 Q. B. 241 ; Jennings v. Great
Northern JL C.t L. R. 1 Q. B. 7 ;
Alton y. Midland R. C., 19 C. B.
N. S. 213 ; Watson v. Russell, 5 B.
AS. 968: & C., S/<£ 34.
(o) Peate v. Dicken, 1 Cr. M. &
B. 422 ; Tipper v. BkhneU, 3 Bin*.,
N. C. 710 ; Ifarper t. Williams, 4
Q. B. 219 ; and Dashwood ▼. Jermgn,
12 Cb. D. 776 : 27 W. B. 868.
(p) Bourne r. Mown, 1 Ventr. 6 ;
Liversidge v. Broadbent, 4 H. & N.
603, 610, and Tvxddle r. Atkinson,
1 B. & S. 393, also illnsfaate the
maxim supra.
THE LAW OF CONTRACTS.
707
fendants, who were his London agents, to be paid to C,
on account of A., and the defendants promised B. to pay
the money according to his directions, but afterwards,
being applied to by C, refused to pay it, claiming a
balance due to themselves from B. on a general account
between them, it was held that an action for money had
and received would not lie against the defendants at the
suit of A. (q). " The general rule," observed Lord Dewman,
C. J., " undoubtedly is, that there is no privity between
the agent in town and the client in the country ; and the
former cannot maintain an action against the latter for his
fees, nor the latter against the former for negligence/' (r).
A. employs B., an attorney, to do an act for the benefit
of G, A. having to pay B., and there being no intercourse
of any sort between B. and C. If, through the gross
negligence or ignorance of B. in transacting the business,
C. loses the benefit intended for him by A., C. cannot
maintain an action against B. to recover damages for the
loss sustained. If the law were otherwise, a disappointed
legatee might sue the solicitor employed by a testator to
make a will in favour of a stranger, whom the solicitor
never saw or before heard of, if the will were void for not
being properly signed and attested (*)•
(q) Cobb v. Btckt, 6 Q. B. 930 ;
Bobbins v. FenncU, 11 Q. B. 24S ;
Bluek v. Siddaway, 15 L. J., Q. B.
359; Hooper v. Treffiry, 1 Exch.
17. See Litt v. Martindale, IS C.
B. 314, where there seems to have
been very slight (if any) evidence of
privity ; Johnson v. Royal Mail
Steam Packet Co., L. R. 3 C. P. 38
Moore v. Bushell, 27 L. J., Exch. 8
Gerhard v. Bates, 2 E. & B. 476
Brewer v. Jones, 10 Exch. 655
Barkworth y. EUerman, 6 H. & N.
605 ; Painter v. Abel, 2 H. & C.
118 ; Collins v. Brook, 5 E & N.
700; S. C.,4 7d 270.
(r) For recent eases on this subject
see Lawrence v. Fletcher, 12 Ch. D.
858 : 27 W. R. 987; Vy$e v. Foeter,
32 L. T. 219 : 28 W. R. 413 ; Be
Edward*, 7 Q. B. D. 155 : 50 L. J.,
Q. B. 541: 45 L. T. 211 : 80 W. R.
14 (0. A.) : 45 L. T. 578.
O) Per Lord Campbell, C, Robert-
ton y. Fleming, 4 Macq. Se. App.
Cas. 177.
z z 2
708
THE LAW OF CONTRACTS.
Moral ot>li-
grttou «!«*•»
iMit rutnuti-
*nt* (tmftkle
f«t*«n.
As will shortly be seen nothing which has been done
or suffered by the promisee antecedently to the promise
will constitute a good consideration for the promise unless
it has been done or suffered at the request of the pro-
misor. In certain cases it was once thought that where
the plaintiff voluntarily did that which the defendant was
morally bound to do, and the defendant afterwards ex?
pressly promised to repay him, a previous request would
be implied, so that the moral duty attaching to the
defendant would be a valid consideration for his pro-
mise (t). It never was considered that every moral con-
sideration was sufficient for this purpose (it). After con-
siderable controversy it was finally settled in the case of
Eastwood v. Kenyon(x), that a mere moral obligation
arising from a past benefit not confened at the request of
the defendant is not a good consideration, and that the
class of consideration derived from moral obligation in-
cludes only those cases in which there has been a legal
right deprived of legal remedy. In such cases, as will be
seen, the defendant may be held liable, without putting
moral duty on a par with legal consideration (y). It is
now past controversy that mere moral feeling is not enough
to affect the legal rights of parties (z) ; nor can a subsequent
As to privity in connection with
the relation of attorney and client,
see PUk v. KeUy, 17 C. R N. a
194 Bdpt t. Clayton, Id. 558.
(0 Lee v. Muggeridge, 5 Taunt.
36 ; WaUon v. Turner, B. N. P.
129, 147, 281 ; Trueman r. Fenton,
Cowp. 544 ; Atkins v. JBanweU, 2
Bast, 505.
(u) Per Lord Tenterden, C.J.,
LiUlefiM v. Shee, 2 B. ft Ad. 811.
(r) 11 A. ft E. 438, 446.
(y) See postea, pp. 750, et teq.
(a) Per Lord Dentnan, CJ., Beau-
mont v. Reeve, 8 Q. B. 488 ; cited
and recognised, Fuker v. Bridget, %
B. ft B. 642: S. C., 2 Id. 118;
Eastwood v. Kenyan, 11 A. ft B.
488; WennaU v. Adney, 3 B. ft
P. 247, 249, (a). In Jenningt r.
Brown, 9 M. ft W. 501, Parke, R,
observes, in reference to Btnnington
r. WaUi$ (4 B. ft Aid. 650), that
the giving up the annuity was "a
mere moral consideration, which is
nothing.1
n
THE LAW OF CONTRACTS. 709
express promise convert into a debt that which of itself
was not a legal debt (a) ; and although the mere fact of
giving a promise creates a moral obligation to perform it,
yet the enforcement of such promises by law, however
plausibly justified by the desire to effect all conscientious
engagements, might be attended with mischievous conse-
quences to society ; one of which would be the frequent
preference of voluntary undertakings to claims for just
debts. Suits would thereby be multiplied, and voluntary
undertakings would also be multiplied, to the prejudice of
real creditors (6).
As regards bills of exchange and promissory notes the «u*of«x-
rule is, that either of these instruments is presumed to be ' ,^™i,wory
made upon, and primd fade imports, consideration (c).
And the words " value received " express only what the
law will imply from the nature of the instrument, and the
relation of the parties apparent upon it (d), and then the
maxim Expressio eorwm quae taciie insunt nihil ope-
ratwr, is applicable (e). In an action upon a bill or note
between the immediate parties thereto, the consideration
may be inquired into ; and if it be proved that the plain-
tiff gave, and the defendant received, no value, the action
will fail(/). Or it may fail only in part where the con-
sideration is divisible and has failed in part. Where,
observes Cres&weU, J. (g), there is a promise to pay a cer-
(a) Per Tindal, C. J., Kaye v. Grant v. Da Casta, 8 M. & S. 352.
Dutton, 7 M. & Or. 811-12. (c) Ante, p. 625.
(b) Jndgm., 11 A. & E. 450, 451. (/) Soutkall v. Rigg, and Forman
See Robert* v. Smith, 4 H. & N. v. Wright, 11 C. B. 481, 492; Crofts
815. ▼. Beale, 11 C. B. 172 ; Reams v.
(c) Per Martin, B., 1 H. & C. JDurtU, 6 Id. 596 ; and cases cited
710 ; Watson v. Russell, 3 B. & S. infra.
84. (?) 11 0. B. 494 ; see Warwick v.
(d) Hatch v. Trayes, 11 A. & B. Nairn, 10 Exch. 762.
702 ; per Lord Ellenborough, C. J.t
710
THE LAW OF CONTRACTS.
Different
ktodsof
considera-
tion.
tain sum, all being supposed to be due, " each part of the
money expressed to be due is the consideration for each
part of the promise ; aud the consideration as to any part
failing, the promise is pro tanto nudum pactum?
In actions not between immediate parties to a bill or
note, the established rule is, that some suspicion must be
cast upon the plaintiff's title before he can be compelled
to prove what consideration he has. given for it If, for
instance, a promissory note were proved to have been
obtained by fraud, or affected by illegality, such proof
affords a presumption that the person guilty of the ille-
gality would dispose of it, and would place it in the hands
of another person to sue upon it, and consequently casts
upon the plaintiff the burden of showing that he was a
band fide indorsee for value (Ai.
Having thus briefly shown the nature of the consider-
ation and of the privity which are necessary t* a valid
contract-, we may proceed to specify the impr.tant dis-
tinctions which exist between consideration <» executed,
concurrent, continuing, and executory. These terms as
used to qualify consideration are relative in point of time
to the promise. The following example will serve as an
introductory illustration :
A declaration in assumpsit stated that in consideration
of the plaintiff's agreeing to stay proceedings in an
action against B., the defendant promised to pay the
(A) Per Parke, B., Bailey r. Bid-
well, 13 M. & W. 73; Boden v.
Wright, 12 C. B. 445; Smith ▼.
Braine, 16 Q. B. 244, 250-1 ; Bar-
vey r. Towers, 6 Exch. 656 ; Mather
v. Lord Maidstone, 1C.B. N. 8.
273 : S. C, 18 C. B. 273 ; Ball v.
Featherstone, 3 H. ft N. 284 ; Berry
r. Alderman, 14 C. B. 95 ; Dobie v.
Larkan, 10 Exch. 776. The propo-
sition stated in the text is more folly
set forth, per Lord Campbell, C.J.,
Fitch y. Jones, 5 & ft B. 238. See
also Munroe t. Bordier, 8 C. B.
862; Jadgm., May r. Seybr, 2
Exch. 566 ; Robinson v. Reynolds
(in error), 2 Q. K. 196.
THE LAW OF CONTRACTS. 711
amount upon a certain event ; at the trial, the following
agreement was proved : " In consideration of the plaintiff's
having agreed to stay proceedings against B., &c.;" it
was held that the contract was an executory contract, and
a continuing agreement to stay proceedings, and that
there was therefore no variance (i).
In this case having agreed before the date of the pro-
mise would indicate an executed consideration, agreeing
might constitute a concurrent consideration (i.e. coin-
cident in point of time with the promise), or executory (i.e.
to be performed after the promise).
It will appear from the definitions of consideration conaiden-
above cited (k), that it is necessary that the service which moved by
is advanced as the consideration for a promise shodld be
undertaken at the instance or request of the promisor.
This is the meaning of the decision in the leading case of
Lampleigk v. Braithwaite (I), that a mere voluntary
courtesy will not support an assumpsit, but a courtesy
moved by a previous request will. In the case of a
service which is not past or executed at the date of the
time of the promise, it is obvious that a request on the
part of the promisor is a logical necessity. To promise
something in consideration that another will in the future
do or suffer something (executory consideration), or will
continue to do or suffer something (continuing) or will
hie et nunc do or suffer something (concurrent) is itself a
request.
Where, however, the service is past or executed at the in cm* of
... past service,
date of the promise, it is, as a rule, necessary to show JJJ}™^
that the service was undertaken at the request of the Proye(U
(*) Tanner v. Moore, 9 Q. B. 9. Hob. R. 106 ; per Parke, J., Reason
\k) Ante, pp. 700, 702. t. Wirdnam, 1 C. &P. 434 : 1 Wms.
(/) 1 Sm. L. C, 8th ed., p. 151: Saund. 264 (1).
712
THE LAW OF CONTRACTS.
Oirtcis of
•ixccuted
when* it in
not n*»<*e«-
sary t« prove
rwpiost.
Hcqueat iin*
piled in cer-
tain case*.
promisor. For, to take a simple illustration, if a man
disburse money about the affairs of another, without
request, and then afterwards the latter promise to repay
him (m), you have wanting an essential element of valid
legal consideration.
Although generally speaking in the case of executed
considerations it is necessary that request should be
laid and proved, there are cases of past consideration,
where, as in the case of executory service, the nature of
the consideration itself imports a request (n). Thus, in an
action of assumpsit for money lent, it was held unneces-
sary to allege that the money was lent at the defendant's
request ; for there cannot be a claim for money lent unless
there be a loan, and a loan implies an obligation to
pay (o). In the case of money paid, however, the above
doctrine will not apply, because a gratuitous payment
would not create a legal obligation ; and " no man can
be a debtor for money paid unless it was paid at his
request " ( p ).
Moreover there are circumstances under which the law
will itself imply by a fiction that the service has been
{m) Per Tindal, C. J., Thornton v.
Jenyns, 1 Scott, N. R. 74, citing
Hunt t. Bate, Dyer, 272, and 1 Roll.
Abr. 11. See particularly Roscorla
v. Thomas, 8 Q. B. 284.
(n) See 1 M. & Gr. 265, note ;
cited per Parke, B. 12 M. k W.
759.
(o) Victor* v. Davits, 12 M. k W.
758 ; per Pollock, C.B., 1 H. k C.
716 ; M'Qregor v. Grave*, 8 Ezch.
34.
(p) Per Parke, B., 12 M. & W.
760 ; BrUtain v. Lloyd, 14 M. k W.
762 ; cited in Lews y. Campbell, S
0. B. 541, 547 ; and jwr Parke, R,
Hutchinson r. Sydney, 10 Ezch. 489.
See the Forms, 15 & 16 Vict. c. 76,
Sched. (B.), Nob. 8, 4.
Hayes y. Warren, 2 Stra. 938,
cited 1 Wins. Saund. 264 (1). See,
in farther illustration of the subject
above touched upon, JDistricksm t.
Orvbtlei, 14 M. & W. 845; per
Parke, B., King v. Sears, 2 Cr.
M. & R. 53 ; Etnmens v. Elderion,
4 H. L. Gas. 624.
THE LAW OF CONTRACTS.
713
undertaken by request of the promissor. Such request is
"mplied in the following cases : —
I. Where the defendant has adopted and enjoyed the
bonefit of the consideration, for in that case the maxim
applies which will be hereafter considered, Omnis rati-
habitio retrotrahitur et mandate priori (zqwvparatwr (q).
II. When the service consists in the plaintiff having
been compelled to do that which the defendant was
legally compellable (r). But it would seem that this
proposition must be limited to cases in which some
privity existed between the plaintiff and the defendant
at the time of the compulsion. Where, for instance, a
stranger's goods have been distrained for rent due from a
tenant, and the stranger having ransomed the goods, seeks
to recover the sum he has paid, from the tenant, he must
show that the goods were on the premises at the request,
expressed or implied, of the tenant (s). On the above
principle depends the right of a surety, who has been
damnified, to recover an indemnity from his principal (t),
or contribution from a co-surety or joint contractor (u).
(q) PawU r. Ownn, 4 B. N. C.
448 ; Barber v. Brown, 1 C. B. N.
S. 121. See, also, 1 Wms. Saund.
264 (1) ; Simpson y. Eggington, 10
Exch. 845 ; Streeter v. Horiock, 1
Bing. 84.
(r) Jeffreys v. Gwrr, 2 B. & Aid.
833 ; Pownall v. Ferrand, 6 B. & C.
439; Exalt v. Partridge, 8 T. R.
308 ; Oreadl y. Robinson, 3 Bing.
N. C. 13; Cornell v. McQorUsh,
12 Ir. C. L. 153; Bradthaw v.
Beard, 12 C. B. N. S. 844.
(«) As to what amounts to compul-
sion, see Johnson v. R. Mail S.
Packet Co., L. R. 3 C. P. 38; 87
L. J. C. P. 38.
(t) Tomsaint v. Martinnant, 2
T. R. 100 ; Done y. WaUey, 2 Exch.
198.
(«) Per Lord Kenyon, C.J., 8 T.
R. 186; Batard v. Hatoxs, 3 E. &
B. 287, 296 ; Earl of Mountcashell
v. Barber, 14 C. B. 53 ; Holmes v.
Williamson, 6 M. & S. 158 ; Kemp
v. Finden, 12 M. & W. 421 ; Edger
t. Knapp, 6 Scott, N. R. 707 ;
Davits v. Humphreys, 6 M. & W.
153, 168 ; Browne v. Lee, 6 B. & C.
689 ; Cowell y. Edwards, 2 B. & P.
268. See Reynolds v. Wheeler, 10
C. B. N. S. 561.
714 THE LAW OF CONTRACTS.
III. When the plaintiff voluntarily does that which
the defendant might have been legally compelled to do,
and the defendant afterwards in consideration of the
service expressly promises (x). It is to be noticed that in
the case of voluntary service, a subsequent express
promise is necessary to support an action, whereas in the
cases under the two former heads, the promise is implied
as well as the request (y).
Wh€Te,!?8L* A distinction will be noted between cases like the
pended right
revitt4nby above, and those in which it has been held that an
ex£re» pro- eXpten promise may effectually revive a precedent good
consideration, which might have afforded grounds for an
action upon a promise implied from such consideration,
were it not for the interference of some positive rule of
law, which has suspended the action or remedy without
destroying the right. Thus a debt barred by the Statute
of Limitations is still a good consideration for a promise
in writing to pay (z), for the Statute of Limitations admits
the cause or consideration of the action still existing, and
merely discharges the defendant from the remedy (a).
"The cases," says Lord Dewman, C.J. (6), "in which
it has been held, that, under certain circumstances, a
consideration insufficient to raise an implied promise will
nevertheless support an express one, will be found col-
lected and reviewed in the note to Wennatt v. Adney (c),
{x) WennaU t. Adney, 3 B. & P. L. R. 1 Bx. 364 ; Bush r. Martin,
250 ; in notis, Wing v. Mitt, 1 B. & 2 H. & C. 311.
A. 104 ; PayrUer v. Williams, 1 C. (a) Wins. Saunders, 163 ; Scar-
to. M. 818. pillini v. Atcheson, 7 Q. B. at p.
{y) Atkins t. BanwdL, 2 East, 878.
505. (6) Botcorla r. Thomas, 3 Q. B.
(z) La Touche t. La Touche, 3 H. 237 ; Jadgm., 1 C. B. 870.
k C. 576-588. 8* Lee r. Wilmot, (c) 3 B. & P. 249.
THE LAW OF CONTRACTS. 715
and in the case of Eastwood v. Kenyon (d). They are
cases of voidable contracts subsequently ratified, 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 sufficient to raise
an implied promise."
At one time there was an inclination to explain the
rule stated as above by Lord Denman, and previously laid
down by Lord Mansfield (e) as depending upon the moral
obligation arising from the previous agreement (/).
It is not easy to conceive how such a theory was recon-
ciled with the fact, that an express promise was ineffectual
where the original contract to which it had reference was
not merely suspended for a time or voidable at the option
of the defendant, but absolutely void at law. While, on
the other hand, it was always understood that where the
validity of an agreement is not affected by statute,
but the remedy of one party is suspended, an express
promise subsequently made will have relation back to the
previous consideration, and will not be treated as Nudum
pactum (g).
Promises to pay a debt simply, or by instalments, or niustra-
when the party is able, are all equally supported by the
past consideration, and, when the debts have become pay-
able instanter, may be given in evidence in support of
the ordinary indebitatus counts. So when the debt is
not already barred by the statute, a promise to pay the
creditor will revive it and make it a new debt, arid a
promise to an executor to pay a debt due to a testator
creates a new debt to him. But it does not follow that
{<£) 11 A. & E. 438. (/) Leake, Law of Contracts, 615.
{e) Hawkes v. Sanders, Oowp. (g) See Pollock, Contr. Chap. XII.
290 ; Atkins v. Bill, Id. 288. Judgm., EarU v. Oliver, 2 Exch. 90
716
THE LAW OF CONTRACTS.
Intent*.
Marrtal
woinon.
Debts di«-
charged by
YmuknipU'y.
though a promise revives the debt in such cases, any of
those debts will be a sufficient consideration to support a
promise to do a collateral thing, as to supply goods or
perform work and labour (k). In such case it is but an
accord unexecuted, and no action will lie for not executing
it (i).
Formerly many contracts entered into by infants were
not void, but merely voidable at the option of the infant
Accordingly an express promise made by him after full
age would revive the previous consideration so as to
remove the subsequent promise from the category of nuda
pacta (Jc) ; but as we have seen, since the Infant Belief
Act, 1874 (I), this is no longer so, for sec. 2 of that statute
expressly enacts that no action shall be brought to charge
any one upon any such promise (m). The contract of a
married woman was at one time absolutely void (n) ; and,
therefore, if the record stated that goods were supplied to
a married woman, who, after her husband's death, promised
to pay, this would not be sufficient, because the debt was
never owing from her (o).
Another illustration, which would suffice, if it were
necessary, to refute the theory of moral obligation, is
afforded by the case of a person who promises to repay a
(A) Citing Reeve* v. Hearne, 1 M.
& W. 323.
(i) Judgm., 2 Kxch. 90 ; per
Parke, B., Smith v. Tkorne, 18 Q.
B. 139.
(jfc) Per Patteson, J., 8 A. & B.
470. See the note (a) to Wenncdl v.
Adney, 3 B. & P. 249.
(I) 37 & 38 Vict, c 62,anfe, p. 655.
(m) For the effect of this St, see
Pollock, Contr. Ch. II., pt. 1.
(n) See Neve v. Holland*, 18 Q.
B. 262.
(o) Meyer v. ffawortk, 8 A. & E.
467, 469. In Traver v. , 1 Sid.
57, a woman, after her husband's
death, promised the plaintiff, a cre-
ditor, that, if he would prove that
her husband had owed him £20, she
would pay the money. This was
held a good consideration, " because
it was a trouble and charge to the
creditor to prove his debt" See
Cope v. Albiwon, 8 Exch. 185.
THE LAW OF CONTRACTS. 717
debt from 'which he has been discharged by a bankruptcy.
The 12 & 13 Vict. c. 106 (Bankruptcy Law Consolidation
Act, 1849), expressly annulled the efficacy of such promise
which previously might have been enforced. A similar
provision was contained in the Act of 1861, but not in
that of 1869, and, consequently, the question was more
than once raised under the last-mentioned statute, whether
the Common Law was revived in consequence of the
omission. It was, however, decided that the policy of the
Bankruptcy Laws was sufficient without express statutory
enactment to render ineffectual any attempt to resuscitate
a debt from which a person had been discharged by bank-
ruptcy (p).
Again there are cases of agreements coming within the statute or
purview of the 4th section of the Statute of Frauds, in
which no action cam be brought on account of the
absence of a written memorandum, but in which a subse-
quent promise may nevertheless furnish a ground of
action.
A verbal agreement was entered into between the
plaintiff and defendants respecting the transfer of an
interest in land. The transfer was effected, and nothing
remained to be done but to pay the consideration ; it was
held, that the agreement not being in writing, as required
by the Statute of Frauds, could not be enforced by action,
but that, the transferee, after the transfer, having admitted
to the transferor that be owed him the stipulated price,
the amount might be recovered upon the count upon an
account stated in the declaration (q). Also bills of
{p ) Heather v. Webb, 2 C. P. D. H. k N. 656 ; Smart v. Harding,
1 ; 46 L. J. C. P. 89. 15 C. B. 652, 659 ; Cfreen t. Sad-
(q) Cocking v. Ward, 1 C. B. dington, 7 E. k B. 503.
858, 870. See Lemere v. Elliott, 6 As to the condition under which
718 THE LAW OF CONTRACTS.
umry lain, exchange given after the repeal of the usury law by 17 &
18 Vict. c. 90, in renewal of bills given while that law was
in force to secure payment of money lent at usurious
interest, have been held valid, the receipt of the money
being a sufficient consideration to support a new promise
to pay it. In the case referred to, this qualified proposi-
tion was sanctioned by the majority of the court : " That
a man by express promise may render himself liable to
pay back money which he has received as a loan, though
some positive rule of law or statute intervened at the
time to prevent the transaction from constituting a legal
debtM(r).
rmmiMex- \ye must, in the next place, observe that the subee-
implied. quent promise, like the antecedent request, may, in many
cases, be implied. ' For instance, the very name of a loan
imports that it was the understanding and intention of
both parties that the money should be repaid (s), a
promise to pay interest will be implied by law from the
forbearance of money at the defendant's request (t) ; and
from money being found due on accounts stated, the law
implies a promise to pay it (u) ; but where the considera-
tion has been executed, and a promise would, under the
circumstances, be implied by law, it is clearly established
that no express promise made in respect of that prior
consideration, differing from that which by law would be
implied, can be enforced (w) : for, were it otherwise, there
part performance will take a case out (t) Nordenttrom t. Pitt, 13 M. &
of the Statute, see Maddieon v. W. 723.
Mdenon, 8 App. Cas. 466 ; 52 L. J. {u) Per Crompton, J., Fogg v.
Q. B. 787. Humphreys r. Green, 10 Nudd, 3 B. & B. 652.
Q. B. D. 148 ; 52 L. J. Q. B. 140. (w) Jndgm., Kayt v. DutUm, 7
(r) Flight y. Reed, 1 H. &C. 703, M. & Or. 815, and cases there
716. cited.
(«) J>«r Pollock, C.B.,1H.4C. 716.
THE LAW OF CONTRACTS. 719
would be two co-existing promises on one considera-
tion (x). It has, however, been said that the cases esta-
blishing this proposition may have proceeded on another
principle, viz., that the consideration was exhausted by
the promise implied by law from the very execution of
it, and that, consequently, any promise made afterwards
must be nudvm pactum, there remaining no considera-
tion to support it (y). " But the case may perhaps be
different where there is a consideration from which no
promise would be implied by law, that is, where the party
suing has sustained a detriment to himself, or conferred
a benefit on the defendant, at his request, under circum-
stances which would not raise any implied promise. In
such cases it appears to have been held, in some instances,
that the act done at the request of the party charged, is a
sufficient consideration to render binding a promise after-
wards made by him in respect of the act so done (z).
But, however this may be, it is, as previously stated, Mature or
. J implied pro-
quite clear, that, where the. consideration is past, the pro- mta«-
mise alleged, even if express, must be identical with that
which would have been implied by law from the particular
transaction; in other words, "a past and executed con-
sideration will support no other promise than such as
may be implied by law " (a) ; thus, in assumpsit, the
declaration stated, that, in consideration that plaintiff, at
the request of defendant, had bought a horse of defendant
at a certain price, defendant promised that the horse was
free from vice, but deceived the plaintiff in this, to wit,
(as) P«r Maule, R, Hopbine v. (a) Per Paike, B., Atkinson r.
Logan, 5 M. & W. 249. Stephen*, 7 Exch. 672 ; Judgm.,
(y) Sea Deacon r. Gridley, 15 C. Earle v. Oliver, 2 Exch. 89 ; Latti-
B. 295. more y. Garrard, 1 Exch. 809, 811.
(2) Judgm., 7 M. k Gr. 816.
720 THE LAW OF CONTRACTS.
that the said horse was vicious. On motion in arrest of
judgment, this declaration was held bad ; for the executed
consideration, though laid with a request, neither raised
by implication of law the promise charged in the declara-
tion, nor would support such promise if express; the
Court in this case observing, that the only promise which
would result from the consideration, as stated, and be
co-extensive with it, would t>e to deliver the horse upon
request (6).
In an action against the public officer of an insurance
and loan company, the second count of the declaration
stated, that it was agreed between the company and the
plaintiff, that, from the 1st of January then next, the
plaintiff, as the attorney *>f the said company, should
receive a salary of 1001. per annum, in lieu of rendering
an aiinual bill of costs for general business ; and in con-
sideration that the plaintiff had promised to fulfil the
agreement on his part, the company promised to fulfil the
same on their part, and to retain and employ the plain-
tiff as such attorney (c) ; the verdict being in favour of
the plaintiff, the judgment was afterwards arrested by the
Court of Common Fleas, upon this ground, that there was
no sufficient consideration to sustain that part of the
count above referred to, which alleged a promise to
retain and employ the plaintiff, the Court holding that
the language of the agreement, as stated, imported an
obligation to furnish actual employment to the plaintiff in
his profession of an attorney, and that inasmuch as the
consideration set forth was in the past, that the plaintiff
(b) Jtoscorla v. Thomas, 8 Q. B. 160 ; 4 Id. 479 ; cited Payne t.
234, 237. New South Wain, <&c., Steam Nov.
(c) Emmens v. Elderton, 4 H. L Co., 10 Ezch. 283, 290.
Oas. 624 ; S. C, 13 C. B. 495 ; 6 Id.
THE LAW OF CONTRACTS. 721
had promised to perform his part of the agreement, such
consideration being a past or executed promise, was
exhausted by the like promise of the company to perform
the agreement, and did not enure as a consideration for
the additional part of the promise alleged to retain and
employ the plaintiff in the sense before mentioned, as
also to perform the agreement The view thus taken,
however, was pronounced erroneous by the Court of
Exchequer Chamber, and afterwards by the House of
Lords, who held that the averment as to retaining and
employing the plaintiff was not to be understood as im-
porting a contract beyond the strict legal effect of the
agreement, whence it followed that the mutual promises
to perform such agreement laid" in the count of the decla-
ration objected to, Were a sufficient legal consideration to
sustain the defendant's promise (d).
A concurrent consideration is where the act of the concurrent
plaintiff and the promise of the defendant take place at tion.
the same time ; and here the law does not, as in the case
of a bygone transaction, require that, in order to make
the promise binding, the plaintiff should have acted at
the request of the defendant (e) ; as, where it appeared
from the whole declaration taken together, that, at the
same moment, by a simultaneous act, a promise was
made, that, on the plaintiff's accepting bills drawn by
one of the parties then present, the defendants should
deliver certain deeds to the plaintiff when the bills were
paid, it was held, that a good consideration was disclosed
for the defendant's promise (jf). So, where the promise
of the plaintiff and that of the defendant are simul-
(d) Emment v. Elderton, supra. (/) Tipper v. Bickndl, Id. 710 ;
(e) Per Tindal, C.J., 8 Bing., N. West v. Jackson, 16 Q. B. 280.
C. 715.
3 A
722
THE LAW OF CONTRACTS.
Continuing
considera-
tion.
taneous, the one may be a good and sufficient considera-
tion for the other (g); as where two parties, upon the
same occasion, and at the same time, mutually promise to
perform a certain agreement not then actually entered
into, the consideration moving from the one party is suffi-
cient to support the promise by the other (h).
Again, where by one and the same instrument, a sum
of money is agreed to be paid by one of the contracting
parties, and a conveyance of an estate to be at the same
time executed by the other, the payment of the money
and the execution of the conveyance may very properly
be considered concurrent acts ; and, in this case, no action
can be maintained by the vendor to recover the money
until he executes, or offers to execute a conveyance (i).
It may, indeed, be stated, generally, that neither party
can sue on such an entire contract without showing a
performance of, or an offer, or, at least, a readiness and
willingness to perform his part of the agreement, or a
wrongful discharge or prevention of such performance by
the other party ; in which latter case the party guilty of
the wrongful act shall not, in accordance with a maxim
already considered, be allowed to take advantage of it, and
thereby to relieve himself from liability for breach of
contract (j). Whether or not, in any given case, one
{g) As to mutuality in contracts,
see Broom's Com., 5th ed., 307 et
»cq. ; Beaky v. Stuart, 31 L. J., Ex.
281 ; IVrsthead t. Sprown, 6 H. k
N. 726 ; Whittle, app., Frankland,
reep., 2 B. k S. 49.
[h) Thornton v. Jenyns, 1 M. &
Gr. 166. See King t. GiUett, 7 M.
& W. 55 ; Harrison v. Cage, 1 Ld.
Baym. 386 ; cited Smith v. Wood-
fine, 1 C. B. N. S. 667.
(t) Per Lord Tenterden, C.J.,
Spiller t. WettlaJte, 2 B. & Ad. 157 ;
Banhart ▼. Botoen, L. R. 1 C. P.
484.
(j) Ante, p. 273, et seq. "If a
party does all be can to perform the
act which he has stipulated to do,
but is prevented by the wrongful act
of the other party, he is in the same
situation as if the performance had
been perfected :" per Holroyd, J-,
THE LAW OF CONTRACTS.
723
promise be the consideration of another, or whether the
performance, and not the mere promise, be the considera-
tion, must be gathered from, and depends entirely upon,
the words and nature of the agreement, and the intention
of the contracting parties (k).
In addition to cases in which the consideration is con- <^Sjf»,lll«
current, or is altogether past and executed, others occur tion
wherein the consideration is coTriinumg at the time of
making the promise; thus, it has been held, that the
mere relation of landlord and tenant is a sufficient con-
sideration for the tenant's promise to manage a farm in a
husbandlike manner (I).
Caveat Emptor. (Hob. 99.) — Let a purchaser beware.
It seems clear, that, according to the civil law, a war- Ruieofthe
ranty- of title was, as a general rule, implied on the part
of the vendor of land, so that in case of eviction an action
for damages lay against him at the suit of the vendee,
sive tota res evincatv/r, sive pours, habet regresmm emptor
in venditorem (m) ; and again, non d/ubitatuv, etsi sped-
aliter venditor evictionem non promiserit, re evictd, ex
empto competere actionem (n). With us, however, the ami of our
abovQ proposition does not hold, and it is laid down, that,
Studdy v. Sanders, 5 B. & C. 639 ; C. B. N. 8. 667.
see, also, Caines v. Smith, 15 M. & (Q PowUy v. Walker, 5 T. R.
W. 189. See notes to Cutter v. 378 ; recognised Beale v. Sander*, 3
Powell, 2 Sm. L. C. Bing., N. C. 850 ; Masscy y. Good-
(k) Thorpe v. Thorpe, 1 Ld. Baym. all, 17 Q. B. 310.
662 ; 1 Salk. 171 ; per Cur., Staveri (m) D. 21. 2. 1.
/. Curling, 3 Scott, 750, 754 ; per (n) C. 8. 45. 6.
Williams, J., Christie v. Boulby, 7
3 a 2
724 THE LAW OF CONTRACTS.
" if a man buy lands whereunto another hath title, which
the buyer knoweth not, yet ignorance shall not excuse
him " (o). By the civil law, as observed by Sir E. Coke,
every man is bound to warrant the thing that he sells
or conveys, albeit there be no express warranty ; but the
common law binds him not, unless there be a warranty,
either in deed (p), or in law; for Caveat emptor (q)
qui ignorare non debuit quod jus alienum emit (r) —
let a purchaser, who ought not to be ignorant of the
amount and nature of the interest which he is about to
buy, exercise proper caution.
Sale of land. — As the maxim Caveat emptor applies
with certain specific restrictions not only to the quality of,
but also to the title to land which is sold, the purchaser
is bound to see it, and to inspect the title-deeds at his
peril. He does not use common prudence, if he relies
on any other security (s). The ordinary course, indeed,
which is adopted on the sale of real estates is this:
the seller submits his title to the inspection of the
purchaser, who exercises his own or such other judgment
as he confides in, on the goodness of the title (t) ; and if
it should turn out to be defective, the purchaser has no
remedy, unless he take special covenant or warranty,
provided there be no fraud practised on him to induce
him to purchase (u). Thus, if a regular conveyance is
(o) Dock and 8tud.,bk. 2, ch. 47. («) 8 T. R. 56, 65 ; JioswU v.
(p) See WorthingUm v. Warring- Vaughan, Gro. Jac. 196 ; per Holt,
ton, 6 C.B. 635. C. J., 1 Salk. 211.
(q) Co. Lit*. 102. a. "I have (*) 37 & 38 Vict, c 78, a. 1, sub-
always understood that in purchases stitutes 40 for 60 years as a sufficient
of land the rule is Caveat emptor :" root of title, and see s. 3 of Conver-
ter Lawrence, J., Gmthin ▼. Stone, ancing Act, 1881, 44 & 45 Vict.
£ Taunt. 439. c. 41.
(r) Hobart, 99. («) Per Lawrence, J., 2 East, 323;
THE LAW OF CONTRACTS. 725
made, containing the usual covenants for securing the
buyer against the acts of the seller and his ancestors
only, and his title is actually conveyed to the buyer, the
rule of Ca/veat emptor applies against the latter, so that
he must, at his peril, perfect all that is requisite to his
assurance ; and, as he might protect his purchase by
proper covenants, none can be added (#). An admi-
nistrator found, among the papers of his intestate, a
mortgage deed, purporting to convey premises to bim,
and without arrears of interest. Not knowing it to be
a forgery, he assigned it, covenanting, not for good title
in the mortgagor, but only that nothing had been done
by himself or the deceased mortgagee to encumber the
property ; and, as this precluded all presumption of any
further security, the assignee was held bound to look to
the goodness of the title, and failed to recover the
purchase-money (y). The case of an ordinary mort-
gage, however, differs from that of a conveyance, be-
cause the mortgagor covenants that, at all events, he
has a good title (z).
In cases respecting the demise of land, any question Demise
as to the conditions of the demise must, in the absence
of fraud, be determined by considering both the express
contract, and likewise the warranty, which may, accord-
ing to circumstances, either arise by implication of law,
or be inferred from the conduct of the parties. Bearing
upon this part of our subject, the following cases may
Judgm., Stephen* v. De Medina, 4 (y) Bree v. Holbech, Dougl. 655 ;
Q. B. 428 ; per Erie, C. J., Thackeray cited 6. T. R. 606 ; per Gibbe, 0. J.,
v. Wood, 6 B. & S. 778 ; per Martin, 1 Marsh. B. 163 ; Thackeray v.
B., Id. 775, Wood, 6 B. k S. 766.
(x) See Judgm., Johnson v. John- (z) Per Lord Kenyon, C. J., Cripps
son, 3 B. & P. 170 ; Arg., 3 East, ▼. Reade, 6 T. R. 607.
446 ; 4 Rep. 26 ; 5 Rep. 84.
726 THE LAW OF CONTRACTS*.
be mentioned: — In SvMon v. Temple (a), A. agreed, in
writing, to take eatage (that is, the use of the herbage
to be eaten by cattle) of twenty-four acres of land from
B. for seven months, at a rent of 401., and stocked the
land with beasts, several of which died a few days after-
wards from the effects of a poisonous substance, which
had accidentally been spread over the field without B.'s
knowledge. It was held by the Court of Exchequer,
that A., nevertheless, continued liable for the whole rent,
and was not entitled to throw up the land. In this case
it was not suggested that the plaintiff B. had the least
knowledge of that which caused the injury when the
land was let ; but it was contended, that under the above
circumstances, there was an implied warranty on the
part of the plaintiff that the eatage was wholesome food
for cattle ; the rule of law was, however, stated to be,
that, if a person contract for the use and occupation
of land for a specific time, and at a specific rent, he will
be bound by his bargain, even though he take it for a
particular purpose, and that purpose be not attained
The word " demise/' it was observed, certainly does not
carry with it any such implied undertaking as that above
mentioned; the law merely annexes to it a condition
that the party demising has a good title to the premises,
and that the lessee shall not be evicted during the
term (b).
(a) 12 M. & W. 52. A covenant for quiet enjoyment during
(6) 12 M. & W. 62, 64. In Kin- the term, is implied by law from a
trea v. Perston, 1 H. & N. 357, it demise by parol, but not a covenant
was held that upon a contract for the for good title ; Bandy v. Cartwrigkt,
sale of an agreement for a lease, it is 8 Exch. 913 ; followed in Ball v.
not an implied condition that the London Brewery Co., 2 B. & S.
lessor has power to grant the lease. 742.
See Jinks t. Edwards, 11 Exch. 775.
THE LAW OF CONTRACTS. 727
In the subsequent case of Hart v. Windsor (c), the fiSJJ^
Court also held it. to be clear, upon the old authorities,
that there is no implied warranty on a lease of a house
or of land that it is, or shall be, reasonably fit for habi-
tation or cultivation; and still less is there a condition
implied by law on the demise of real property only, that
it is fit for the purpose for which it is let. "The
principles of the common law do not warrant such a
position ; and though, in the case of a dwelling-house
taken for habitation, there is no apparent injustice in
inferring a contract of this nature, the same rule must
apply to land taken for other purposes, — for building
upon, or for cultivation, — and there would be no limit
to the inconvenience which would ensue. It is much
better to leave the parties in every case to protect their
interests themselves by proper stipulations ; and, if they
really mean a lease to be void by reason of any unfitness
in the subject for the purpose intended, they should
express that meaning" (d). A distinction is, moreover, smith v.
Marrable.
to be drawn between the preceding cases and Smith v.
Marrable (c), where it was held, that in letting a ready-
furnished house, there is an implied condition or obliga-
tion that the house is in a fit state to be inhabited, so
that a tenant may quit without notice if the premises are
unfit for habitation.
We may add, that the principle laid down in Hart v.
Windsor, above cited, viz., that there is no implied
(c) 12 M. & W. 68. and that the defendant accordingly
(d) Judgm., 12 M. & W. 86, 87, quitted before any part of the rent
88. This was an action of debt for became due.
rent due under an agreement to let a (e) 11 M. k W. 5. As to this
house and garden-ground with certain case, see 12 M. & W. 60, 87 ; and per
fixtures ; and the plea alleged that Coltman, J., 7 M. & Or. 585, and the
the house was infested with bugs, and recent decision in Wilson v. Finch-
was consequently unfit for habitation, Hatton, 46 L. J. Q. B. 489.
728 THE LAW OP CONTRACTS.
warranty on the demise of a house, that it is, or shall
be, reasonably fit for habitation, was fully confirmed and
acted upon in Surplice v. Farnxwvrih (/), where it was
held, that assumpsit for use and occupation would lie
against a tenant who held under a parol agreement, by
which the landlord was to do the necessary repairs, and
who quitted, because the premises, owing to the land-
lord's default, were in an untenantable state, although there
had not been a*d could not be any actual beneficial occu-
pation during the period for which the rent was claimed.
Fraud and The question of warranty is quite distinct from that
iniisre]>re- m .
sentatiou. 0f fraud and misrepresentation. It were impossible
within the limits of this work to treat fully of these
matters. Some remarks connected with them are to be
found in another part of this section. For the present
we must content ourselves with noticing some of the
leading principles to be gathered from the cases relating
to the sale of real property, and will refer the student who
wishes to exhaust the subject to the leading text-books (</).
2aud!tion of The fr^d used by one who desires to induce another to
purchase from him, may consist of a statement false to
his knowledge, or of one which he makes recklessly, and
of the truth or falsehood of which he is not informed,
but which is false in fact, and as to which he is bound in
duty to inform himself before he misleads another (h).
Remedy for Equity will rescind a contract for the sale of land
fraud in i ^
equity. when the purchaser has been misled by the fraudulent
misrepresentation of the vendor or his agents. The con-
(/) 7 M. & Gr. 576 ; recognising chasers, Chape. III. and A V ILL; Sug-
Izon y. Gortom, 5 Bing., N. G.t 501. den, Vendors and Purchaser*, 14th
See Kcatci v. Earl qf Cadogan, 10 ed.
C. B. 591, cited, post. (k) Story, Eq. Jur., 193 ; PuU-
(g) Story, Equity Jurisprudence, ford v. Richard*, 17 B. 94 ; Ran-
§ 189 et stq. ; Dart, Vendors and Pur- lin* v. Wickham, Giff. 355.
THE LAW OF CONTRACTS.
729
tract, however, is not void, but voidable, and if the mis-
representation may be made good, the Court will compel
satisfaction, on the petition of the purchaser, without
a rescission of the agreement (i). In order to entitle the
purchaser to such relief, the misrepresentation must, lstly,
be a /raw* dans locum contractui, i.e., it must relate to
a material fact and operate upon the purchaser's mind as
a motive or inducement to enter into the contract (&)•
2ndly, it must have reference to a subject in respect of
which the purchaser is or ought to be regarded by the seller
as trusting to the latter. For if the purchaser, choosing
to judge for himself, does not avail himself of the know-
ledge open to him or his agents, he cannot be heard to say,
that he was deceived by the vendor's misrepresentation, or
induced thereby to enter into the contract, for the rule in
such a case is Caveat emptor (I). 3rdly, the purchaser must
have been misled to his prejudice or injury, for courts of
equity will not, any more than courts of law, sit for the pur-
pose of enforcing moral obligations, or correcting uncon-
scientious acts, which are followed by no loss or damage (m).
A purchaser will be entitled to similar relief where the
fraud in the vendor has consisted not of mggestio falsi,
(i) Ibid.
(k) Story, 195 ; Pidsford v.
Richards, ubi supra; see Redgrave
v. Surd, 20 Ch. D. 1; 51 L. J. Ch.
113, and Smith v. Chadwyck, 20 Ch.
D. 27; 51 L. J. Ch. 597, both of which
well illustrate the whole doctrine of
fraud as affecting the contract of sale.
(I) Story, 197, 200 ; AUtoood ▼.
Small, 6 CI. & Fin. 282, 233 ; see
Wilde v. Gibson, 1 H. L. Cas. 605 ;
commented on, Sugd., V. & P., 14th
ed., 328-380. It has been said that
equity will not " interpose in favour
of a man who wilfully was ignorant of
that which he ought to have known,
— a man who, without exercising that
diligence which the law would expect
of a reasonable and careful person,
committed amistake, in consequence of
which alone the proceedings in court
have arisen : " per Lord Campbell,
Duke of Beaufort y. Nedd, 12 CL &
Fin. 248, 286, 522 ; see, however,
Redgrave v. Hurd, supra,
(m) St. 208 ; Slim v. Oroueher,
1 De G. P. & G. 518 ; Fcllotoes v.
Gwydyr, 1 Sim. 63.
780
THE LAW OF CONTRACTS.
Misrepre-
sentation
in law in
equity.
Compensa-
tion for
errors and
bat suppressio veri. The conditions which have just
been noticed must exist also where the fraud has taken
the form of concealment, and, moreover, the concealment
must be of facts which the seller is bound in conscience
and duty to disclose, and in respect of which he cannot
be innocently silent, and which the purchaser has a right,
not merely in foro conscientice, but in foro juridico, to
know (ri).
Not only could the purchaser who had been induced to
enter into a contract by fraudulent misrepresentation
obtain the relief which has been mentioned in equity,
but he might if he chose recover damages in an action
for deceit at Common Law. The latter tribunal, how-
ever, took no cognizance of an innocent misrepresentation
as to the' subject-matter of the contract Courts of
Equity, on the other hand, at least since the time of
Lord Eldon, have refused to compel specific performance
of contracts so tainted, without allowing compensation
to the purchaser (o). Property may be misdescribed in
so material and substantial a manner that there is no
place for specific performance. Thus the Court has
refused to compel a person who had contracted to pur-
chase copyhold lands, to accept lands which were partly
freehold (p), nor will a man be forced to accept an under-
lease instead of an original one (g).
It is not uncommon in agreements for the sale of real
property to include a stipulation that if any error or mis-
(n) Story, 204, 207 ; Fox v. Mack*
reth, 1 Wh. ic Tud. L. C. ; Turner v.
Harvey \ Jac 178.
(0) Knatekbvtt ▼. Grueher, 3 Mer.
140 ; Barker v. Cox, 4 Ch. D. 464 ;
46 L. J. Ch. 62 ; Powell v. Elliott,
L. R., 10 Ch. App. 424 ; McKenzie
v. Hedxth, 7 Ch. D. 675 ; 47 L. J.
Ch. 231.
(p) AyUa v. Cox, 16 Bear. 23.
{q) Maddcy t. Booth, 2 De G. &
8. 718 ; and see Peers v. Lambert,
7 Bear. 546 ; Perkin* v. JSde, 16
Bear. 193.
THE LAW OF CONTRACTS. 731
statement should appear in the particulars of the subject- misstate-
matter, such error or mis-statement shall not annul the
sale or entitle the intending purchaser to be discharged
from his purchase, but compensation shall be made him
in respect of it. Whether compensation must not be
claimed in such a case before the execution of the con-
veyance and the completion of the contract has recently
been the subject of much controversy. The point was
argued before Jessel, M.R., in In re Turner and Skel-
ton (r), and it was contended at the Bar that the condi-
tion contemplates the case of a misdescription discovered
before conveyance, and that after conveyance, the condi-
tion is merged in the conveyance. The M.R, however,
held that there was no reason why a right admitted
to exist up to the time of conveyance, should then cease,
and in this followed the judgment of the Exchequer in
Bob v. Helsham («). He went much further, however,
in saying that this right to compensation exists inde-
pendently of any special condition. In Manson v.
Thacker (t), MaUns, V.-C, had refused to follow Bos v.
Helsham, and decided that the condition for compensation
is inoperative after conveyance ; and when the question
again came before him in Allen v. Richardson (u), he
expressed his dissent from the judgment in Be Turner
and SkeUon, and declined to follow it. It would appear
that the principal ground upon which the Vice-chancellor
based his judgment on this question was the necessity
of preventing the flood of litigation which in his opinion
would result from any other view being adopted by the
(r) 13 Ch. D. 130 ; 49 L. J. Ch. (0 7 Ch. D. 620 ; 47 L. J. Ch.
114; 41 L. T. 668 ; 28 W. R. 312; 38 L. T. 209; 26 W. R. 604.
312. («) 13 Ch. D. 524 ; 49 L. J. Ch.
(«) I*. R. 2 Ex. 72. 137 ; 41 L. T. 614 ; 28 W. R. 813.
32 THE LAW OF CONTRACTS.
Court The case of Hart v. Swaine (x), decided by
Fry, J., has been treated as supporting the view of
Jesael, M.R, but it is conceived that it cannot properly
be so considered, for in that case Fry, J., held that the
plaintiff had made out a case of so-called legal fraud.
The authorities on this subject are all collated and
reviewed, in the case of JoUiffe v. Baker (y), by Watkyn
Williams, J., who expressed his agreement with the view
of Matins, V.-C, and held that after completion of the
contract compensation could not be recovered unless there
had been fraud or the breach of some contract or
warranty contained in the conveyance. In this last case
there was not a special condition providing for compensa-
tation as there was in the subsequent case of Palmer
v. Johnson (z), in which the decisions of Jessd, M.R,
and the Court of Exchequer above" noticed were followed,
and those of Malins, V.-C, and Watkyn Williams, J.,
dissented from, although it was stated that in JoUiffe v.
Baker the plaintiff was not entitled to recover, as his
action sounded in damages for misrepresentation, and
he had no contract under which he was entitled to
compensation. We may here point out that in Courts
of Equity as of law wilful deceit must accompany a mis-
representation in order to entitle a person to relief in
the nature of damages (a). The doctrine of Jessd, M.R.,
that independently of special conditions, a purchaser who
has been misled by an innocent misrepresentation may
before or after conveyance recover compensation, might at
first sight seem to conflict with this last-mentioned
principle. It is conceived, however, that the theory of
(x) 7 Ch. D. 42 ; 47 L. J. Ch. 5. (a) Redgrave v. Hurd, 20 Ch. D.
(y) 11 Q. B. D. 255; 52L. J. Q. B. 27 ; Western Bank of Scotland r.
609. Addle, L. R. 1 H. L. Sc 145.
(z) 12 Q. B. D. 32.
THE LAW OF CONTBACTS.
733
goods.
such compensation is rather of a rebate of purchase-money
accorded to one who has not got all that he contracted to
buy. Regarded in that light, the doctrine of the late
M.R. is not only consonant to justice, but also to well*
known principles of the Common Law.
Where goods are bought and sold, it has generally been sale or
received as the doctrine of English law that the maxim
Caveat emptor applies as respects both title and quality,
and that the purchaser takes all risk of defect in either
of these respects upon himself (b), unless there are some
circumstances beyond the mere fact of sale from which a
warranty may be implied (c). It will be seen hereafter
that this proposition as regards warranty of title in the
sale of personal chattels has been questioned by a modern
writer of great authority (d). We shall, before con-
cluding this section, deal with the question of title. The
following remarks have reference principally to the
question of warranty in respect of the quality of goods.
It is beyond all doubt that, by the general rules of law,
there is no warranty of quality arising from the bare
contract of sale of goods (e). As we shall shortly see, many
of the sales effected in every-day life are accompanied by
circumstances which in law give rise to implied warranty.
Before considering, however, the limitation of the rule
(b) Morley v. Attenborough, 8 Ex.
600, where the authorities are re-
viewed by Parke, B., and see Chitty
on Contr. 413 (11th ed.) ; Leake, Dig.
of Contr. 402; 2 Taylor on Evi-
dence, 984 ; Bnllen and Leake, Prec.
342 (ed. 1882).
(c) Jndgm. , Hatt v. Conder, 2 C. B.
N. S. 40, recognising Morley v.
Attenborough, 3 Bzch. 500.
(d) Mr. Benjamin : see his work,
pp. 620-31, etpottea, p. 759.
(e) Springwell v. CalUn, AUeyn
91, and 2 Bast, 448 n. ; Parkinson v.
Lee, 2 Bast, 314 ; WiUiamwn v.
Allinson, 2 East, 446 ; Early v.
Garrett, 9 B. & C. 902 ; Morley v.
Attenborough, 8 Ex. 500 ; Ormrod v.
Huth, 14 H. & W. 664 ; Hall y.
Conder, 2 C. B. N. S. 22 ; Horfcin*
y. Tanqueray, 15 C. B. 130.
734 THE LAW OF CONTRACTS.
Caveat emptor effected by implied warranty, it will be
well to deal briefly with the other cases in which the
application of the maxim is excluded, which are — 1st,
sales by description ; 2nd, sales by sample ; 3rd, sales
accompanied with an express warranty.
Descjimion. jg^ -^^ere goods, whether specific or unspecific, are sold
with a particular description, it is a condition precedent to
the vendee's liability upon the contract that the descrip-
tion should be fulfilled. There has been much confusion
between description and warranty. They are clearly
distinguished by Lord Abinger in Chanter v. Hopkins(J)
" A warranty is an express or implied statement of some-
thing which a party undertakes shall be part of a contract,
and though part of the contract, collateral to the express
object of it. But in many of the cases the circumstance
of a party selling a particular thing by its proper descrip-
tion has been called a warranty, and the breach of such
a contract a breach of warranty ; but it would be better
to distinguish such cases as a non-compliance with a
contract which a party has engaged to fulfil, as if a man
offers to buy peas of another and he sends him beans, he
does not perform his contract ; but that is not a warranty ;
there is no warranty that he should sell him peas ; the
contract is to sell peas, and if he sell him anything else in
their stead, it is a non-performance of the contract" The
importance of this distinction will be recognised when it
is borne in mind that if the description is not satisfied,
goods may be entirely rejected, and the purchase money
(/) 4 M. & W. 399. See Bowes 32 L. J. Q. B. 204, Ex.
r. Shand, 2 App. Gas. 480. At p. The judgment of Parke, B., in
571 Lord Blackburn usee the word Barr t. Qibxm, 8 M. & W. 390, is
warranty in conjunction with con- the leading authority on description.
dition. See judgment of Williams, J. , in the case of a specific chattel,
in Behn v. Burnen, SB. ft S. 751;
THE LAW OF CONTRACTS.
735
Hnlc by
sample.
recovered if already paid (g). As we shall see, a purchaser
is not put in so favourable a position by a mere breach of
warranty.
2nd. In a sale by sample it is an implied condition that the
buyer shall have an opportunity of comparing the bulk with
the sample, and if this is not complied with he is entitled
to reject the goods (h). If the bulk does not correspond
with the sample, the buyer is not bound to accept the
goods, nor is he bound to return them, but he must give
notice to the seller within a reasonable time that he refuses
to accept (i). If the time of inspection as agreed on be
subsequent to the delivery, the buyer may reject after
delivery (k). Notwithstanding this right to inspect and
reject, the property in the goods, however inferior to
sample, passes by the contract, which may be completed
by delivery and acceptance ; and if the buyer neglect to
give notice of his intention to reject within a reasonable
time, that course is no longer open to him, and his only
remedy is to seek compensation, as upon a breach of
warranty (I).
3rd. A warranty is well defined by Lord Abinger in the warranty.
passage cited a little while back (m). It is a collateral
undertaking, forming part of the contract by the agreement
of the parties (n).
{g) Benj. Sales, 3rd ed.f 596.
(h) Lorymer ▼. Hickson, IE &
€. 1.
As to what constitutes a sale by
sample, see Benj., 3rd ed., 636-8.
(t) Couston v. Chapman, L. R.
2 Sc. App. 250 ; per Lord Chelms-
ford.
(A) Per Brett, J., HtUhutt v.
Hickson, L. R. 7 C. P. 438, at p.
456; GHmtMbyy. Wells, L. R. 10
C. P. 891, at p. 395 ; 44 L. J. C. P.
203; 32 L. T. 490 ; 41 L. J. C. P.
228 ; 27 L. T. 386 ; 20 W. R.
1005.
(I) HetUmttr. Hickson, per Bovill,
C.J.
(m) Ante, p. 734.
(n) Foster v. Smith, 18 C. B. 156 ;
Mondd v. Steel, 8 M. ft W.858 ; Street
v. Elay, 2 B. k Ad. 456 ; Chanter
v. Hopkins, 4 M. & W. 399.
736
THE LAW OF CONTRACTS,
Express or
implied.
Express
warranty.
A warranty may arise either from an express under-
taking on the part of the seller, or it may be implied by
law from the circumstances attending the contract of sale.
No special form of words is required to constitute a
warranty. A representation made -by way of inducement
to the buyer to enter into the contract is not a warranty,
but any statement relating to the subject-matter of the
contract, and made during the course of dealing may
be(o). Butter, J., in defining warranty in the leading
case of Padey v. Freeman said, " It was rightly laid down
by Holt, C.J., and has been uniformly adopted ever since,
that an affirmation at the time of sale is a warranty,
provided it appears in evidence to have been so in-
tended " (p). Where the vendor assumes to assert a fact
of which the buyer is ignorant, he will be taken to have
intended a warranty ; not so if he only gives an opinion
or judgment upon a matter of which he has no special
knowledge, and on which the buyer may be expected also
to have an opinion and to exercise his judgment (<?).
A vendor is not fixed with a warranty because he
affirms that the thing sold has not a defect, which is a
visible one, and obvious to the senses, the rule, Caveat
emptor, is without doubt applicable — Ea quce comrnenr
dandi causd in venditionibus dicwrtfur, «i palam
appareant, venditorem lion obligant(r). It is, indeed,
laid down by the older authorities, that defects, apparent
at the time of a bargain, are not included in a warranty (s),
(o) Benj., 3rd cd., 605, where
many illustrations are given.
(j>) 3 T. R., at p. 57 ; 2 Sm. L. C.
p. 66 (ed. 1879).
{q) Per Buller, J., in Padey y.
Freeman, 3 T. R. 51 ; Powell v.
Barham, 4 A. & E. 473 ; Jendwine
v. Slade, 2 Esp. 572 ; Stuclley v.
Bailey, 1 H. & C. 405 ; Carter t.
Crick, 4 H. & N. 412 ; Carmae r.
Warriner, 1 C. B. 356.
(r) D. 18. 1. 43. pr.
(») See, as to warranty, Bartholo-
mew v. Bushnell, 20 Day (U. S.), R-
271 ; pott.
THE LAW OF CONTRACTS.
737
however general, because they can form no subject of deceit
or fraud ; and, originally, the mode of proceeding for
breach of warranty was by an action of deceit, grounded
on a supposed fraud ; and it may be presumed that there
can be no deceit where a defect is so manifest that both
parties discuss it at the time of the bargain. A party,
therefore, who should buy a horse, knowing it to be blind
in both eyes, could not sue on a general warranty of
soundness (t). However, if without such knowledge on
the part of the purchaser, a horse is warranted sound,
which, in reality, wants the sight of an eye, though this
seems to be the object of one's senses, yet, as the discern*
ment of such defects is frequently matter of skill, it has
been held, that an action lies to recover damages for this
imposition (u).
Moreover, it is to be remarked that a warranty will not
necessarily result from a simple commendation of the quality
of goods by the vendor ; for in this case the rule of the civil
law — Simplex commendatio non obligat(x) — has been
adopted by our own, and such simplex commendatio will,
in most cases be regarded merely as an invitation to
custom, since every vendor will naturally affirm that his
own wares are good (y), unless it appear on the evidence,
or from the words used, that the affirmation at the time
(t) Per Tindal, C. J., MargeUon y.
Wright, 7 Bing. 605. See Liddard
t. Kain, 2 Bing. 183 ; HoUiday v.
Morgan, 1 E. & £. 1.
(«) BuUerfeilds v. Burroughs, 1
Salk 211 ; HoUiday v. Morgan, 1
E. & E. 1.
(z) D. 4. 8. 87 ; per Byles, J., 17
C. B. N. S. 597.
(y) See, per Sir Jas. Mansfield,
C.J., Vernon v. Keyes, 4 Taunt. 488,
403 ; Arg., West v. Jackson, 16 Q.
B. 282, 283 ; Chandelor y. Lopus,
Cro. Jac. 4. A. bought a waggon at
sight of B., which B. affirmed to be
worth much more than its real ralue ;
Held that no action would lie against
B. for the false affirmation, there
being no express warranty nor any
evidence of frand : DavU r. Meeker>
5 Johns. (U. S.) R. 354,
738
THE LAW OF CONTRACTS.
Implied
warranty of
<)UAlity.
of sale was intended to be a warranty, or that such must
be its necessary meaning (z) : it is, therefore, laid down,
that in a purchase without warranty, a man's eyes, tastes,
and senses must be his protection (a) ; and that where the
subject of the affirmation is mere matter of opinion (b),
and the vendee may himself institute inquiries into the
truth of the assertion, the affirmation must be con-
sidered a " nude assertion," and it is the vendee's fault
from his own laches that he is deceived (c). Either party
may, therefore, be innocently silent as to grounds open
to both to exercise their judgment upon ; and in this
case, Aliud est celare, aliud tacere — silence is by no
means equivalent to concealment (d).
With regard to implied warranty of quality, the
following general rule was laid down by Tindal, C.J. :
" If a man purchase goods of a tradesman, without, in any
way, relying upon the skill and judgment of the vendor,
(z) Per Bailer, J., 3 T. R. 57 ;
Allan v. Lake, 18 Q. B. 560 ; Jonu
y. Clark, 27 L. J., Rx., 165 ; Ver-
nede v. Weber, 1 H. fc N. 311 ;
Simond v. Braddon, 2 C. B. N. S.
321 ; Shepherd v. Kain, 5 B. ft Aid.
240 ; Freeman v. Baker, 6 B. & Ad.
797 ; Budd v. Fairmaner, 8 Bing.
52; Coverlet/ y. BurreU, 5 B. &
Aid. 257.
(a) Fife, Nat. Brev., 94 ; 1 Roll.
Abr. 96.
(6) See Power v. Barham, 4 A. &
R. 478 ; Jendwine v. Blade, 2 Sep.,
N. P. C, 572.
(c) Per Grose, J., 8 T. R. 54, 55 ;
Bayley v. Merrel, Cro. Jac. 886 ; S.
C, 3 Balstr. 94 ; cited and distin-
guished in Bras* y. MaiUand, 6 R
& B. 470 ; Rieney v. Setby, 1 Salk.
211 ; S. C, 2 Ld. Raym. 1118 ; re-
cognised Dobell y. Steven*, 3 B. k C.
625 ; per Tindal, C. J., Shrewebwy
v. BUmrU, 2 Scott, N. R.( 594. See
Price y. Macaulay, 2 De G., M. k
G. 389.
(d) Per Lord Mansfield, C.J., 3
Burr. 1910 ; cited, per Best, C. J., 8
Bing. 77 ; Arg., Jonet y. Bowden, 4
Taunt. 851. See LaicUaw y. Organ,
2 Wheaton (U. S.), R. 178 ; Arg., 9
Id. 631, 632; per Abbott, C.J.,
Bowring y. Sterent, 2 C. & P. 341.
As to what will constitute fraudu-
lent concealment in the yiew of a
court of equity, see Central R. C. of
Venezuela v. Kiseh, LR. 2E L
99. By such court the maxim, Qui
vuU decipi decipiatur, is recognised ;
see Reynell v. Sprye, 1 De G., M. &
G. 687, 710.
J
THE LAW OF CONTRACTS.
73»
the latter is not responsible for their turning out con-
trary to his expectations ; but, if the tradesman be
informed at the time the order is given of the purpose
for which the article is wanted, the buyer relying upon
the seller's judgment, the latter impliedly warrants that
the thing furnished shall be reasonably fit and proper for
the purpose for which it is required " (e). Accordingly,
where an agreement is for a specific chattel in its then
state, there is no implied warranty of its fitness or mer-
chantable quality (/); but if 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(gr). And upon a sale not by sample,
and without warranty, of merchandise, which the buyer
has no opportunity of inspecting, a condition that the
article shall fairly and reasonably answer the description
in the contract is implied (A), and it has been held, that
(e) Brown t. Edgington, 2 Scott,
N. R., 504 ; recognised per Parke,
B., 12 M. ft W. 64 ; J one* v. Bright,
5 Bing. 583 ; recogniaed 4M.&W,
406 ; per Abbott, C. J., Gray v. Cox,
4 B. & C. 108, 115 ; Wright v.
Crookes, 1 Scott, N. R., 685.
(J) Parkinson v Lee, 2 East, 314 ;
recognised 8 Bing. 52, and 12 M. ft
W. 64 ; Chanter v. Hopkins, 4 M. ft
W. 399 ; Laing v. Pidgeon, 6 Taunt.
108 ; Power v. Barham, 4 A. ft E.
473.
(g) Shepherd v. Pybus, 3 M. ft Gr.
868 ; Canute v. Warriner, 1 C. B.
356 ; Street ▼. Blay, 2 B. ft Ad. 456 ;
Kennedy ▼. Panama, dee., MaU Co.,
L&.2Q.B. 587, 588; KeeU v.
Wheeler, 7 M. k Gr. 663.
(h) Miles v. SchUuzi, 17 0. B.
619. See Bull t. Robinson, 10 Kxcfa.
342, 345 ; Judgm., Bigge v. Par-
kinson, 7 H. ft N. 961 ; Judgm.,
Emmerton ▼. Mathews, Id. 593 ;
Lamer* v. Heath, 15 M. ft W.
486 (in connection with which case
see Westropp v. Solomon, 8 C. B.
345) ; HaU v. Conder, 2 C. B. N. S.
22, 40, 42 ; Smith v. NeaU, Id. 67,
89 ; Smith v. Scott, 6 C. B. N. S.
771, 780, 782 ; Hopkins v. JKfcfc-
coe*, 14 0. B. N. 8. 65 ; Joding v.
Kingsford, 13 C. B. N. S. 447 ;
Zawet r. Purser, 6 E. & B. 930.
See JfitefteK v. NewhaU, 15 M. ft W.
308 ; Chanter v. Dtwhurtt, 12 M. &
W. 828 ; Taylor v. Sfray, 2 C. B>
N. S. 175, cited in Cropper t. Cook,
L. R. 8 C. P. 198, and Whitehead v.
Izod, L. JL 2 C. P. 238.
3 B 2
740 THE LAW OF CONTRACTS,
the vendor of the bill of exchange impliedly warrants
that it is of the kind and description which on the face
of it it purports to be (/).
The circumstances which give rise to an implied
warranty of quality, and exclude the principle of Caveat
emptor are considered, and all the authorities bearing
on the subject classified in the case of Jones v. Just
(k), and the cases bearing upon the subject were there
classified as under :—
1st. — Where goods are in esse and may be inspected by
the buyer, and there is no fraud on the part of the seller,
the maxim Caveat emptor applies, even though the defect
which exists in them is latent and not discoverable on
examination, at least where the seller is neither the grower
nor the manufacturer (I). The buyer in such a case has
the opportunity of exercising his judgment upon the
matter ;, and if the result of the inspection be unsatis-
factory, or if he distrusts his own judgment, he may if he
chooses require a warranty. In such a case it is not an
implied term of the contract of sale that the goods are
of any particular quality or are merchantable.
2ndly. — Where there is a sale of a definite existing
chattel specifically described, the actual condition of which
is capable of being ascertained by either party, there is no
implied warranty (m).
3rdly. — Where a known described and defined article
is ordered of a manufacturer, although it is stated to be
required by the purchaser for a particular purpose, still
(i) Gampertz v. BarHHt, 2 & ft (*) L. R. 8 Q. B. 197.
B. 849 (recognising Jones t. Ryde, (I) Parkinson v. Lee, 2 Bast, 814,
5 Taunt 488 ; and Young r. Cole, 3 cited, Judgm., Mody v. Oregson, L.
Bing., N. 0., 724) ; Pooleyv. Brown 9 R. 4 Ex. 54.
11 C. B. N. a 566 ; Gurney r. Wo- (m) Barr v. Gib*my 3 H. k W.
mersiey, 4 E. fc B. 133. 390.
THE LAW OF CONTRACTS. 741
if the known, described, and defined thing be actually
supplied, there is no warranty that it shall answer the
particular purpose intended by the buyer (n).
4thly. — Where a manufacturer or a dealer contracts to
supply an article which he manufactures or produces, or
in which he deals, to be applied to a particular purpose, so
that the buyer necessarily trusts to the judgment or skill
of the manufacturer or dealer, there is in that case an
implied term or warranty that it shall be reasonably fit for
the purpose to which it is to be applied (o). In such a
case the buyer trusts to the manufacturer or dealer, and
relies upon his judgment.
othly. — Where a manufacturer undertakes to supply
goods manufactured by himself, or in which he deals, but
which the vendee has not had the opportunity of inspect-
ing, it is an implied term in the contract that he shall
supply a merchantable article (p).
6thly. — If, therefore, it must be taken as established that
on the sale of goods by a manufacturer or dealer to be
applied to a particular purpose, it is a term in the contract
that they shall reasonably answer that purpose, and on
the sale of an article by a manufacturer to a vendee
who has not had the opportunity of inspecting it during
the manufacture that it shall be reasonably fit for use, or
shall be merchantable as the case may be, it seems to
follow that a similar term is to be implied on a sale by a
(n) Chanter v. Hopkins, 4 M. & <?., L. R 2 Q. B. 418, 419, 428 ;
W. 899 ; OUivant v. BayUy, 5 Q. B. 9. C, 4 Id. 379 (distinguished in
288. See MaUan v. Radlof, 17 C. Francis v. CodrreU, L B. 5 Q. B.
B. N. S. 588. 184) ; Macfarlane v. Taylor, L. B.
(o) Brown v. Edgvngton, 2SU 1 8c App. Cas. 245.
Or. 279 ; and Jones v. Bright, 5 (jp) Laing v. Fidgeon, 4 Camp.
Bing. 533 ; as to which cases seeder 169 ; 6 Taunt. 108 ; Shepherd v.
Lush, J., JUadhead v. Midland R. Pybvs, 3 M. & Or. 868.
742
THE LAW OF CONTRACTS.
merchant to a merchant or dealer who has had no oppor-
tunity of inspection (q) ; and in the judgment from which
the foregoing remarks have been extracted the proposition
is thus stated that " in every contract to supply goods of a
specified description which the buyer has had no oppor-
tunity to inspect, the goods must not only in fact answer
the specific description, but must also be saleable or
merchantable under that description " (r) ; and the maxim
Caveat emptor consequently does not apply.
It seems established law that victuallers, brewers, and
other common dealers in victuals, who, in the ordinary
course of their trade, sell provisions unfit to be the food
of man, are civilly liable to the vendee, without proof of
fraud on their part, and in the absence of any express
warranty of the soundness of the thing sold; though
such liability would not attach to a private person, not
following any of the above trades, who sells an unwhole-
some article for food (s). And a salesman offering for
sale a carcase with a defect of which he is not only
ignorant but has not any means of knowledge (the defect
being latent), does not as a matter of law impliedly war-
rant that the carcase is fit for human food, and is not
bound to refund the price should it turn out not to be
so (t).
It will be collected, from what has been already stated,ttat
[q) Bigge v. Parkinton, 7 H. &
N. 955.
(r) Judgm., Jones t. Jutt, L. R.
3 Q. B. 205 ; approved in judgm.,
Mody v. Qregson, L. R. 4 Bx. 52.
(«) Burnby v. Bollctt, 16 M. & W.
644, and authorities there cited.
[t) Emmerton v. Maihews, 7 H. &
N. 586 ; cited, judgm., Jonet v.
Jiut> L. R. 8 Q. B. 202. See 23 &
24 Vict o. 84 ; Smith v. Baker, 40
L. T. 261 ; Ward v. ffobbs, 4 App.
Gas. 13 ; 48 L. J. Q. B. 281 ; 40 L.
T. 73 ; 27 W. R. 114. But there is
a warranty that meat will keep until
reaching the journey's end. Bear t.
Walter, 46 L. J. C. P. 677,
THE LAW OF CONTRACTS. 743
the vendor of a chattel may in all cases expressly limit his
esponsibility in respect of the quality of the thing sold,
or, in other words, he may, by express stipulation, exclude
that contract which the law would otherwise have implied ;
and, referring the reader to the remarks heretofore made
and authorities cited as to this point (u).
We have already, in noticing the maxim as to dolus Effect of
malu8 (x), had occasion to observe generally the effect of
fraud in vitiating every kind of contract, and, certainly,
the remarks then made apply with peculiar force to the
contract of sale ; for not only may such contract, before
its completion, be repudiated on the ground of fraud, but,
if the price of the goods sold has been actually paid, an
action on the case will lie at suit of the purchaser to
recover damages from the vendor. " If/' it has been said False wpre-
in a case already cited (y), "two parties enter into a
contract, and if one of them, for the purpose of inducing
the other to contract with him, shall state that which is
not true in point of fact, which he knew at the time he
stated it not to be true, and if, upon that statement of
what is not true, and what is known by the party making
it to be false, this contract is entered into by the other
party, then, generally speaking, and unless there is more
than that in the case, there will be at law an action
open to the party entering into such contract, an action of
damages grounded upon the deceit ; and there will be a
relief in equity to the same party to escape from the
contract which he has so been inveigled into making by
the false representation of the other contracting party."
(«) See Sharp v. The Great West* 444 ; per Lord Chelmsford, C, Cen-
ern R. C, 9 M. & W. 7. tral R. C. of Venezuela r. Kiech,
(x) Ante, p. 684. LE.2H.L. 121.
(?) Attwood t. Small, 6 CL & Fin.
744
THE LAW OF CONTRACTS.
* Fraud gives a cause of action if it leads to any sort
of damage ; it avoids contracts only where it is the ground
of the contract, and where, unless it had been employed,
the contract would never have been made n (?).
In the common law reports, accordingly, many cases are
to be found, of which Padey v. Freeman (a) is usually
cited as the leading decision, which sufficiently establish
that a false affirmation made by the defendant, with intent
to defraud the plaintiff, whereby the plaintiff receives
damage, will lay the ground of an action upon the case in
the nature of deceit ; and this proposition may, in fact, be
considered as included in one yet more general, viz., that
where there is fraud, or breach of duty and damage, the
result of such fraud or breach of duty, not from an act
remote and consequential, but one contemplated by the
defendant at the time as one of its results, the party guilty
of that fraud or negligence is responsible to the party
injured (&)• Therefore, where A. sold a gun, with a
fraudulent warranty to B. for the use of C. to whom such
warranty was either directly or indirectly communicated,
and who was injured by the bursting of the gun ; it was
held, that A. was liable to B. on the warranty, by reason
of the privity of contract, and to C. for the injury result-
ing from the false representation (c). And a chemist
(z) Per Lord Wen&leydale, Smith
t. Kay, 7 H. L. Caa. 775-6 ; citing
Small v. AUwood, 6 a. A F. 2S2.
" Contemporaneous fraudulent
statement* aroid the contract ;* per
By lee, J., Hotton v. Browne, 9 C. B.
N. 8. 445.
(a) 3 T. R. 51 ; Com. Dig., "Ac-
tion upon the Cote for a Deceit,"
(A. 1) ; Moen* v. Heywortk, 10 M.
& W. 147 ; Murray v. Mann, 2
Ezch. 538. See Pontifex v. Bignold,
3 Scott, N. R,390.
(6) Jndgm., Langridge v. Levy, 2
M. & W. 532; 8. C. (affirmed in
error), 4 M. & W. 837 ; George v.
Skivinglon, L. R. 5 Ex. 1 ; Pilmorc
r. Hood, 5 Bing., N. C, 97 ; Taylor
t. Ashton, 11 M. k W. (401. See
Mummery v. Paul, ICE 316.
(c) Langridge v. Levy, 2 M. k
W. 519, 529, 532; S. 0., 4 Id. 337
THE LAW OF CONTRACTS.
745
compounding an article sold for a particular purpose, and
knowing of the purpose for which it is bought, will be
liable to an action on the case for unskilfulness and negli-
gence in the manufacture of it causing damage to the
person using it, and for whose use the chemist knew that
it was meant (d).
In order, however, to entitle a person to recover for
damage sustained in consequence of misrepresentation, it
must appear that the communication, or false affirmation,
which occasioned the damage, was made wilfully. Where
a party, who is applied to for his opinion, gives an honest,
although mistaken, one, it is all that can be expected : it
is not enough to show that the representation is false, and
that it turned out to be altogether unfounded, if the party
making it acted upon a fair and reasonably well-grounded
belief that it was true (e).
It must, however, be observed, that there may be a Tacit assent,
fraudulent representation sufficient to avoid a contract, or
to form the ground of an action, without actual active
declaration from the party contracting: there may be
a sort of tacit acquiescence in a representation fraudulent
within the party's knowledge, or in the communication of
a falsehood by a third person, originally flowing from him-
(explained per Maule, J. , Howard v.
Slupherd, 9 C. B. 812 ; and per
Willes, J., Colli* v. Seidell, L. R. 3
C. P. 498, and approved in Alton v.
Midland R. C. 19 C. B. N. S. 239,
245) ; Eastwood v. Bain, 3 H. &N.
738 ; Farrant v. Borne*, 11 C. B.
N. S. 553 ; Winterbottomr. Wright,
10 M. k W. 109 ; Priestley y. Fow-
ler, 3 M. k W. 1 ; Blakemore v.
Bristol and Exeter & £., 8 E. k B,
1035, and cases cited post.
(d) George v. Skivington, L. R. 5
Ex.1.
(e) Haycraft v. Creasy, 2 East,
92 ; cited, A damson v. Jarvis, 4
Bing. 73, 74 ; Shreicsbury v. Blount,
2 Scott, N. R., 588 ; per Parke, B.,
11 M. k W. 413. In connection with
this subject, see, also, Longmeid v.
HoUiday, 6 Excb. 761, 766 ; cited
in Francis v. CockreU, L. R. 5 Q. B.
194 ; Gerhard v. Bates, 2 E. k B.
476.
746 THE LAW OF CONTRACTS.
self (/). In cases belonging to this class, a maxim applies,
which is well known and admitted to be correct in many
of the ordinary occurrences of life — Qui facet con&entirc
tndetur (g)— silence implies consent (h) ; and such consent
may be inferred from the party's subsequent conduct (t),
For instance, defendant, being about to sell a public-house,
falsely represented to B., who had agreed to purchase, that
the receipts were £180 per month, and B., to the know-
ledge of defendant, communicated this representation to
plaintiff, who became the purchaser instead of B. ; it was
held, that an action lay against defendant at suit of the
plaintiff, who had sustained damage in consequence of
having acted on the representation (£).
There is, however, no implied duty cast on the owner
of a house being in a ruinous and unsafe condition to
inform a proposed tenant that it is unfit for habitation,
nor will an action of deceit lie against him for omitting
to disclose the fact (I).
wstinctioii The distinction between a warranty and a representa-
SESJJi. tion which has already been adverted to (m), may be stated
as follows ; a warranty forms a part of the contract, but a
(/) See jKrColtman, J., 5 Bing. ; (») Jenk. Cent. 82, 68, 226 ;
N. C. 109 ; Wright r. Crooke*, 1 HunmUn t. Cheney, 2 Yen. 150,
Scott, N. £., 685. often an illustration of this maxim.
(?) Jenk. Cent. 32. See, in Mas- See, also, 2 Inst. 305 ; Richardson
tration of this maxim, Morrith ▼. v. Dunn, 2 Q. B. 218 ; Wright ▼.
Murrey, 13 M. ft W. 52 ; Lucy v. Crook*, 1 Scott, N. &., 685.
Moujlet, 5 H. ft N. 229 ; Cooper ▼. (£) Pilmore y. Bood, 5 Bing..
Law, 6- C. B. N. a 502, 508 ; N. C. 97. See DobeU ▼. Stevens, 3
Morgan t. Evan*, 3 CL ft Fin. 205 ; B. ft C. 623.
Marq. of Salisbury r. Great Northern (l) Keates r. Earl of Oadogany
R, C, 5 a B. N. a 174. 10 a B. 591 ; distinguishing ffiW r.
(A) For instance, " where there is Gray, 1 Stark. N. P. C. 484, as oon-
a duty to speak, and the party does taining the element of "aggressive
not, an assent may be inferred from deceit."
his silence : " per Bramwell, B., 4 H. (m) Ante, pp. 784, 5, 6.
ft N. 798.
testation.
«pi
tioi
THE LAW OF CONTRACTS.
747
representation may be altogether collateral to the contract,
and not incorporated with it (n). If, indeed, the representa-
tion be of a fact, without which the other party would
not have entered into the contract at all (o), or at least
on the same terms, it may, if untrue, avoid the contract,
or give a right to sue for damages on the ground of
fraud (p).
It is further material to observe, with reference to the
distinction between an action upon the case for a false
representation and one purely ex contractu upon a
warranty, that, to support the former, three circumstances
must combine : 1st, it must appear that the representa-
tion was contrary to the fact ; 2ndly, that the party
making it knew it to be contrary to the fact ; and, 3rdly,
that it was the false representation which gave rise to the
contracting of the other party (q).
In the latter case above specified, viz., that of an action
ex contractu for breach of warranty, it is not necessary
that all those three circumstances should concur, in order
(n) Hence the main question in the
cause may be — what was the real
contract between the parties 1 See,
for instance, Fatter v. Smith, 1 H.
& N. 156. And if verbal stipulations
are afterwards embodied in a written
contract, the parties will of course be
bound by that alone, subject to be
interpreted by the usages of trade :
ffarnar v. Orovee, 15 C. B. 667, 674.
As illustrating the difference between
a warranty and a description, colla-
teral representation or mere expres-
sion of an opinion or intention, see
Cranston v. MarehaU, 5 Bxch. 395 ;
Taylor v. BuUen, Id. 779 ; Hopkins
▼. Tanqueray, 15 C. B. ISO ; with
which compare Pcrcival r. Oldacre,
18 C. B. N. S. 898; Stueley v.
Body, 1 H. & C. 405 ; Benham ▼.
United Guarantee, <Lc, Co., 7 Bxch.
744 ; Barker v. Windle, 6E.O.
675 ; Gorriuen r. Pmrin, 2 C. B.
N. S. 681, and cases there cited.
(o) Bannerman v. White, IOC. B.
N. S. 844.
(p ) See, per Lord Abinger, C.B.,
6 M. & W. 378 ; per Parke, B., Id.,
373 ; Pickering v. Dowson, 4 Taunt.
779, 786 ; cited Kami. Old, 2B. &C.
634 ; Mummery v. Paul, 1 C B. 316 ;
Pilmore r. Hood, 5 Bing., N.C., 97.
(q) Per Lord Brougham, Attwood
v. Small, 6 CI. A; Fin. 444, 445 ;
Milne v. Marwood, 15 C. B. 778 ;
Behn v. KemUe, 7 C. B. N. S. 260.
748
THE LAW OF CONTRACTS.
Case for
deceit.
to ground an action for damages at law or a claim for
relief in a court of equity : for where a warranty is given,
by which the party undertakes that the article sold shall,
in point of fact, be such as it is described, no question
can be raised upon the scienter, upon the fraud or wilful
misrepresentation (r).
With respect to an action upon the case for false repre-
sentation, although fraud and an intent to deceive the
plaintiff are imputed in the declaration to the defen-
dant, and although it is expressly laid down, that " fraud
and falsehood must concur to sustain this action " («), yet
the law will infer an improper motive, if what the defen-
dant says is false within his own knowledge and is the
occasion of damage to the plaintiff (£). In PolhiU v.
Walter (u), a bill was presented for acceptance at the
office of the drawee, who was absent. A., who lived ia
the same house with the drawee, being assured by one of
the payees that the bill was perfectly regular, was induced
to write on the bill an acceptance, as by the procuration
of the drawee, believing that the acceptance would be
sanctioned, and the bill paid by the latter. The bill was
dishonoured when due, and the indorsee having, on proof
of the above facts, been non-suited in an action against
the drawee, sued A. for falsely, fraudulently, and deceit-
(r) 6 CI. & Fin. 444, 445.
(«) Per Gibbft, C.J., Ashlin v.
Whitet Holt, N. P. C. 387.
(*) Per Tindal, C.J., Potter v.
Charles, 6 Bing. 483 ; 8. C, 7 Bing.
105 ; Murray v. Mann, 2 Excb.
538 ; Gerhard v. Boies, 2 E. & B.
476, 491 ; TaUon v. Wade, 18G. B.
371 ; Thom v. Bigland, 8 Exch.
725 ; RandeU v. Trimen, 18 C. B.
786 ; per Lord Campbell, G.J.,
WUde v. Gibson, lH.L.CaB. 638;
see Cratoihay v. Thompson, 5 Scott*
N. R., 562 ; Rodger* v. NowUl, 5
C. B. 109.
(«) 3 B. ft Ad. 114 ; cided Smomt
v. Hbery, 10 M. & W. 10 : and 5
Soott, N. R, 596, 599; and per
Parke, B., 2 Exch. 541 ; Eastwood
v. Bain, 3H.&N. 738.
THE LAW OP CONTRACTS. 749
folly representing that he was authorised to accept by
procuration ; the jury, on the trial, negatived all fraud in
fact, yet the defendant was held to be liable, because he
had made a representation untrue to his own knowledge ;
and the plaintiff, acting upon the faith of that represen-
tation, and giving credit to the acceptance, which, in the
ordinary course of business, was its natural and necessary
result, had in consequence thereof sustained damage. It
was observed in this case, that the defendant must be taken
to have intended that oil persons should give credit to the
acceptance to whom the bill might be offered in the course
of circulation, and that the plaintiff was one of those
persons (x). .
The case just cited will suffice to show that there
may be cases in which a party will be held liable
as for fraud, without proof of any morally fraudulent
motive for the particular act, from which it is inferred ;
and we may observe, generally, that it is fraud in law
if a party makes representations which he knows to be
false, and from which injury ensues, although the motive
from which the representations proceeded may not have
been bad ; and that the person making them will never-
theless be responsible for the consequences (y). Fraud
may, as we have seen, consist as well in the mppressio veri —
the suppression of what is true, as in the suggestio fahi
— the representation or suggestion of what is false (z),
of which one familiar instance presents itself in the
case of a sea policy of insurance, which is made upon
an implied contract between the parties, that everything
(x) See KUton v. West London 8. 959, 960.
Bk., 12 Q. B. D. 137. (z) Per Chainbre, J., Tapp v. Lee,
(y) Per Tindal, C. J., 7 Bing. 107; 8 B. k P. 371 ; cited 6 Bing. 403.
cited, Jndgm., Rawlings r. BeU, 1 C.
750
THE LAW OP CONTRACTS.
Cam* m to
moral fraud
t-t>n»kletai.
i V rvfnnt v.
known to the assured shall be disclosed by
and which instrument will be invalidated if any material
fact will be withheld. "When a policy of insurance," as
observed by Lord Abinger (a), " is said to be a contract
uberrima Jhdei, this only means that the good faith
which is the basis of all contracts, is more especially
required in that species of contract, in which one of the
parties is necessarily less acquainted with the details of
the subject of the contract than the other. Now, nothing
is more certain, than that the concealment or misrepre-
sentation, whether by principal or agent, by design or by
mistake, of a material fact, however innocently made,
avoids the contract on the ground of a legal fraud " (6).
The rule, however, here stated, does not extend to guaran-
ties— the concealment which will vitiate such an instru-
ment must be fraudulent (c).
The necessity of showing u moral fraud" and of
proving the scienter in an action on the case for mis-
representation, has been much discussed.
In Cornfoot v. Forvke (d), the plaintiff declared in
(a) 6 If. ft W. 879 ; Carter v.
Boehm, 3 Bair. 1905 ; Borrower t.
Butdkinsu*, It R 4 Q. R 523, 536*
and cases there cited. Lmienau r.
Deshorough, 8 R ft C 686 ; Carr t.
Montefiorc, 5 R ft 8. 408. A fact
known to the underwriter need not
be mentioned by the assured, for
Scientia utrinque par pares contra-
hentesfacii : 8 Burr. 1910 ; Bates r.
Hewitt, It R 2 Q. R 609. See
Mackintosh r. Marshall, 11 1L ft
W. 116 ; SUike* t. Car, 1 H. ft N.
633 ; 8. C., Id. 320; and cases there
cited.
Whedton r. Hard*** 8 R ft R
232, 286, k important as regards the
effect of fraud upon a life policy.
(6) Ace. Anderson r. Thornton, 8
Bitch. 425 ; BmsseU y. Thornton, 6
H. ft N. 140 ; S. C, 4 Id. 788 ;
Holland v. JUisseU, 4 R ft 6. 14.
(e) North British Insur. Co, t.
Lloyd, lOBxch. 523.
(rf) 6 It ft W. 358. Compare
with Cornfoot t. Fowke, supra, the
Judgment in Smomt t. Hberw, 10 M.
ft W. 1 ; and Collen v. Wright, 7R
ft R 301; S. a, 8 Id. 647 ; Sped-
dingy. NeoeU, LL4C. P. 212.
See, also, WUde r. Gibson, 1EL
Gas. 605.
THE LAW OF CONTRACTS. 751
assumpsit for the non-performance of an agreement to
take a ready-furnished bouse. The defendant pleaded
that he had been induced to enter into the contract by
the fraud and covin of the plaintiff; and on this plea
issue was joined. It appeared on the trial, that the
plaintiff, being the owner of the house in question,
employed an agent to let it, and the defendant, being
in treaty with such agent for hiring, asked him, if
there was " anything objectionable about the house t "
upon which the agent replied, "nothing whatever." On
the day after signing the agreement, the defendant dis-
covered that the adjoining house was a brothel, and on
that ground declined to fulfil the contract. It further
appeared that the plaintiff was fully aware of the ex-
istence of the brothel, but that the agent was not. It
was held by the majority of the Court of Exchequer
(dissentiente Lord Abmger, C. B.), 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 ; whereas, the principal, though he knew the fact,
was not cognisant of the representation being made,
and never directed the agent to make it. The agent,
though he made a misrepresentation, yet did not know
it to be one at the time he made it, but gave his answer
bond fide. It is obvious that the decision in this case,
which has been much canvassed (e), in no degree con-
flicts with the proposition which seems consistent with
reason and authority (/), that "if an agent is guilty
(e) In Wkedton t. ffarduty, 8 E. dissentient Chief Baron."
& B. 270, Lord Campbell, C. J., inti- (/) In Udell v. Atkerton, 7 H. Jfc
mates that "the- voice of Weetmin- N. 172 (where the authorities are
ster Hall was rather in favour of the collected), the Judges of the Court of
752 THE LAW OF CONTRACTS.
of fraud in transacting his principal's business, the
principal is responsible" (g) — that "the fraud of the
agent who makes the contract is the fraud of the prin-
cipal"^). And "with respect to the question whether
a principal is answerable for the act of his agent in the
course of his master's business and for his master's
benefit, no sensible distinction/9 it has been observed (i),
" can be drawn between the case of fraud and the case of
any other wrong. The general rule is, that the master is
answerable for every such wrong of the servant or agent
as is committed in the course of the service, and for the
master's benefit, though no express command or privity of
the master be proved."
jfSw,T" In Fuller v. Wilson, which was an action on the case
for a fraudulent misrepresentation of the value of a
house, the facts were as follows : — The defendant, being
the owner of a house in the City, employed her attorney
to put it in a course of being sold by auction; he described
it to the auctioneer as being free from rates and taxes ,
and it was bought by the plaintiff on that representation,
for £600. It was, in fact, subject to rates and taxes,
amounting to about £16 on a rent of £100, and would
have been sold for no more than £470, if that repre-
sentation had not been made. The plaintiff brought his
action for this difference of price. It appeared that the
defendant had, in fact, made no representation at all, and
Exchequer were equally dirided in Mann, 2 Exch. 540, and in Ccrnfoot
opinion as to the mode of applying v. Fowke, 6M.4W. 373,
the proposition tupra, to the facts (h) Judgm., Whedtonr, ffardithfn
before them. See Judgm., Harwich 8 E. k B. 260.
r. Engluh Joint Stock Bank, L. R. 2 (*) Judgm., Berwick t. Englitk
Ex. 265. Joint Stock Bank, I* B. 2 fix. 265,
iff) Per Parke, B., Murray t.
THE LAW OF CONTRACTS.
753
that her attorney, who made the representation, did not
know it to be false. The action was, nevertheless, held
to be maintainable, on this express ground, that, whether
there was moral fraud or not, if the purchaser was
actually deceived in his bargain, the law would relieve
him from it; that the principal and his agent were, for
this purpose, completely identified : and that the question
to be considered was, not what was passing in the mind of
either, but whether the purchaser was, in fact, deceived
by them, or either of them (k).
It seems, however, clear that the principle on which the
judgment given by the Court of Queen's Bench in the
above case was founded, is at variance with that which
must now be considered as established: for, in the sub-
sequent case of Collins v. Evans (I), it is expressly laid
down that "a mere representation, untrue in fact, but
honestly made," will not suffice to form the groundwork
of an action on the case for misrepresentation ; and in
(k) Fuller v. Wilson, 3 Q. B. 58.
The facts of this case were afterwards
turned into a special verdict ; and on
the facts so stated the judgment of
the Court of Queen's Bench was re-
versed in the Exchequer Chamber ;
S. C, 3 Q. B. 68 and 1009. The
court of error did not, however, enter
into the principle on which the deci-
sion below was founded, nor into the
question discussed in Cornfoot v.
Fowlce, supra. See, also, Humphry*
v. Pratt, 5 Bligh, N. S , 154, which
may be supported on another ground,
as pointed out by Tindal, C. J., 5 Q.
B. 829 ; Bailton v. Matthews, 10 CI.
& Fin. 934*; cited Nortfi British
Jnsur Co. v. Lloyd, 10 Bxch. 529,
533. As to statements by an agent
under a misconception of facts, see,
particularly, Smout v. Ilbery, 10 M.
& W. 1 ; Collen v. Wright, 7 E. &
B. 301 ; S. C, 8 Id. 647 ; Speddiny
v. NeveU, L. B. 4 C. P. 212.
Adverting to Cornfoot v. Fowhe,
and Fuller v. Wilson, supra, Wilde,
B., observes : " The artificial identi-
fication of the agent and principal by
bringing the words of the one side by
side with the knowledge of the other,
induced the apparent logical conse-
quence of fraud. On the other ham!,
the real innocence of both agent and
principal repelled the notion of a
constructive fraud in either ; " Udell
v. Atherton, 7 H. k N. 184.
(/) In error, 5 Q. B. 820, reversing
judgm. in S. C, Id. 804.
3 c
754 THE LAW OF CONTRACTS.
Ormrod v. Ruth (m), where the question as to " moral
fraud " was much discussed, case for a false and fraudulent
representation respecting the quality of goods sold by
sample, was held not maintainable without showing that
such representation was false to the knowledge of the
seller, or that he acted fraudulently or against good faith
in making it. " The rule," said Tindal, C. J., delivering
judgment, "which is to be derived from all the cases,
appears to us to be, that where, upon the sale of goods,
the purchaser is satisfied, without requiring a warranty
(which is a matter for his own consideration), he cannot
recover upon a mere representation of the quality by the
seller, unless he can show that the representation was
bottomed in fraud. If, indeed, the representation was
false to the knowledge of the party making it, this would
in general be conclusive evidence of fraud; but if the
representation was honestly made, and believed at the
time to be true by the party making it, though not true
in point of fact, we think this does not amount to fraud in
law, but that the rule of Caveat emptor applies and the
representation itself does not furnish a ground of action."
Further, the correctness of the principle laid down in
C0IU718 v. EvaTis, above cited, was recognised by the
Court of Queen's Bench in Barley v. Walford (n), which
shows, that, if A. knowingly utter a falsehood to B., with
intent to defraud B., and with a view to his own profit,
and B., giving credit to the falsehood, is injured thereby,
he may maintain an action against A. for the false repre-
sentation; though, as there observed by Lord DenTnan,
C. J., " if every untrue statement which produces damage
to another would found an action at law, a man might sue
(m) 14 M. & W. 651. (») 9 Q. B. 197, 207, 208.
THE LAW OP CONTRACTS.
7oa
his neighbour for any mode of communicating erroneous
information, such (for example) as having a conspicuous
clock too slow, since plaintiff might be thereby prevented
from attending to some duty or acquiring some benefit"
So, in another case, bearing on the law of principal and
agent, Parke, B., observed, that, to make out fraud, some
wilful misrepresentation must be shown, and that a mere
untruth innocently told is not sufficient (o).
Nor does it seem at variance with the proposition just
stated to affirm — in accordance with some high authori-
ties— that if a man having the means of knowledge in
regard to a certain fact, but neglecting to avail himself
of them, undertakes to publish as true, that which he does
not know to be true, he will be responsible if it should
turn out to be false (p). " If," says Maule, J. (q), " a man,
having no knowledge whatever on the subject, takes upon
himself to represent a certain state of facts to exist, he
does so at his peril ; and if it be done either with a view
to secure some benefit to himself, or to deceive a third
person, he is in law guilty of a fraud ; for he takes upon
himself to warrant his own belief of the truth of that
which he so asserts. Although the person making the
representation may have no knowledge of its falsehood,
the representation may still have been fraudulently made."
And again — " I apprehend it to be the rule of law," says
(o) Atkinson v. Pocock, 12 Jut.
60 ; S. C, 1 Bxch. 796 ; referring to
Chanddor v. Lopus, Cro. Jac. 4, and
Cornfoot v. Fowke, 6 M. & W.358.
"It seems to us that a statement
false in fact, but not false to the
knowledge of the party making it, as
in Polhill v. Walter, nor made with
any intention to deceive, will not sap-
port an action, unless from the nature
of the dealing between the parties a
contract to indemnify can be im-
plied : " Judgm., Rawlings v. BeU, 1
C. B. 959, 960.
(p) See per Cresswell, J., Jarrett
v. Kennedy, 6 C. B. 322 ; per Lord
Mansfield, G. J., Pawson v. Watson,
Cowp. 785.
(q) Evans v. Edmonds, 13 C. B.
786.
3 c 2
756 THE LAW OF CONTRACTS.
Lord Cairns (r), " that if persons take upon themselves to
make assertions as to which they are ignorant, whether
they are true or untrue, they must, in a civil point of
view, be held as responsible as if they had asserted that
which they knew to be untrue." In the case here put,
an element or admixture of moral fraud is quite apparent
Indeed, an examination of the cases would seem to show
that, wherever the conduct of a person is treated by the
Courts as fraudulent, he has, whether with or without
selfish motive, by word or action, made representations
which were not true, to the actual or possible detriment of
another, whether that other is a person dealing with
him, or an entire stranger. In everyday life men con-
sider a selfish motive an essential element of fraud,
because it generally co-exists with it The Law takes a
higher standard, and punishes a man who has spoken
falsely, without a distinct intention to benefit himself at
the expense of others, if detriment to others results from
his falsehood.
The expression legal fraud, which is said to have owed
its origin to Lord Kenyon in 1801, has in more recent
times been severely criticized, and indeed condemned as
useless and misleading. "I do not understand legal
fraud," said BramiveU, B., in Weir v. Bell (s). " To ray
mind, it has no more meaning than legal heat, or legal
cold, legal light or legal shade. There never can be a
well-founded complaint of legal fraud except where some
duty is shown and correlative right, and some violation of
that duty and right. Fraud has the 8ame meaning
when used in Courts of Law as 'in ordinary par-
(r) Reese River SUver Mining Co. aee Joliffe ▼. Raker, 11 Q. B. D.
t. Smith, LR.4H.L 79— SO. 255; 52 L. J. Q. B. 609.
(«) 3 Ex. D. 238, at p. 243 ; and
THE LAW OF CONTRACTS.
757
lance, and implies deceit, base conduct, and moral turpi-
tude."
The remarks immediately preceding may suffice to indi- ^^ of
J r o j vendor.
cate some of the more important qualifications of the rule
Caveat emptor, as applied to the quality and description
of goods sold. It is now proposed to consider briefly how
far this maxim holds with reference to the title of the
vendor to goods which form the subject-matter of a sale
or contract. According to the civil law, it is clear that a
warranty of title was implied on every sale of a chattel (t) ;
and this doctrine of the civil law seems to have been
partially adopted by the American courts of judicature (u) ;
where a distinction is observed, which many of the
leading authorities in this country have discountenanced,
between goods in the possession of the vendor and goods
not in his possession, the rule in America is, that as to
the former there is an implied warranty of title, but not
so in the case of the latter (x) . It is, however, now
established that there is "by the law of England, no
warranty of title in the actual contract of sale, any more
than there is of quality. The rule of Caveat emptw
applies to both ; but if the vendor knew that he had no
title, and concealed that fact, he was always held re-
sponsible to the purchaser as for a fraud, in the same way
that he is if he knew of the defective quality " (y). But
(t) D. 21. 2. 1. Voet. ad Pand.,
6th ed., vol. i. pi 922. According
to our law, if at the time of the con-
tract the vendor was not aware of any
defect in the estate, the purchaser
takes it with all its faults. 1 Sugd.,
V. &I\, 13th ed., p. 1.
(it) Kent, Com., 13th ed., vol. 2,
pp. 478-9. See Defreeze v. Trumper,
1 Johns. (U. S.), R. 274; Hew
v. Barber, 3 Cowen (U. S.), R.
272.
(x) Benj. Sales, 3rd ed. 631.
(y) Jndgm., Motley y. AUenbo-
rough, 8 Excb. 510 ; cited per Pol-
lock, C.B., Bandy v. Cartwright, 8
Exch. 916 ; and commented on per
Lord Campbell, C. J., Sim* v. Mar-
738
THE LAW OF CONTRACTS.
although such is the general rule of our law, the circum-
stances attending the sale of a chattel may necessarily
import a warranty of title. Thus, if articles are bought
in a shop professedly carried on for the sale of goods, the
shop-keeper would, doubtless, be considered as warranting
" that those who purchase will have a good title to keep
the goods purchased. In such a case the vendor sells 'as
his own/ and that is what is equivalent to a warranty of
title "(z).
As between vendor and purchaser, indeed, the result of
the older authorities seems to be, that, where a person
sells goods to which in fact he has no title, he will not he
responsible to the purchaser if the latter be subsequently
disturbed in his possession by the true owner, unless there
be either a warranty or a fraudulent misrepresentation as
to the property in the goods by the vendor (a). This
doctrine has, however, been much restricted in its practical
operation by holding that a simple assertion of title is
equivalent to a warranty (6), and generally that any repre-
ryatt, 17 Q. B. 290-1 ; per Bovill,
C.J.; Bagueley v. HawUy, L. R. 2
0, P. 625, 628 ; Chapman v. Speller,
14 Q. B. 621 ; per Martin, R, Aiken
v. Short, 1H.&N. 213.
(*) Judgui., 3 Exch. 513 ; Etih-
holz v. Bannister, 17 C. B. N. S.
708.
(a) See Peto v. Blades, 5 Taunt.
657; Jones v. Bowden, 4 Taunt
847 ; SprigweU ▼. Allen, Aleyn., B.
91 ; and Paget v. Wilkinson, cited
2 East, 448, n. (a). In Early v.
Qarrett, 9 B. & C. 932, Littledale,
J., observes, " It has been held, that
where a man sells a horse as his own
(SprigweU ▼. Allen, supra) t when in
troth it is the horse of another, the
purchaser cannot maintain an action
against the seller, unless he can show
that the seller knew it to be the horse
of the other at the lime of sale ;
the scienter, or fraud, being the gist
of the action, where there ia no war*
ranty ; for there the party takes upon
himself the knowledge of the title to
the horse, and of his qualities." Seje
Robinson r. Anderton, Peake, N. P.
C, 94 ; Street v. Blay, 2 B. & Ad.
456 ; cited, Dawson v. Collis, 10 G.
B. 527, 582 ; and in Kennedy r.
Panama, <fce., Mail Co., L. R. 2 Q.
K587.
(6) See Collen v. Wr^ht, 7K.A
B. 801 ; S. C, 8 Id. 647.
THE LAW OF CONTRACTS.
759
sentation may be tantamount thereto, if the party making
it appear from the circumstances under which it was made
to have had an intention to warrant, or to have meant
that the representation should be understood as a war-
ranty (c).
Upon the whole, then, we may safely conclude, that
with regard to the sale of ascertained chattels, " there is
not any implied warranty of either title or quality (d),
unless there are some circumstances beyond the mere fact
of a sale, from which it may be implied " (e).
It is right to inform the reader that, in the opinion of
so great an authority as Mr. Benjamin, the case of Eichholz
v. Bannister has had the effect of materially altering the
rule of law upon this subject The old rule he considers
to have become the exception, and he thus states the
effect of the recent decisions. A sale of personal chattels
implies an affirmation by the vendor that the cliattel is
his, and therefore he warrants the title, unless it be
shown by the facts and circumstances of the sale that the
vendor did not intend to assert ownership, but only to
(c) Crosse v. Gardner, Carth. 90 ;
Medina t. Stoughton, 1 Balk. 210 ;
cited per Fatteson, J., 17 Q- B. 298.
See Bartholomew v. BushneU, 20
Day (U. S.), R. 271; Furnit v.
Leicester, Cro. Jac 474; Jndgm.,
Adamson v. JervU, 4 Bing. 73. See,
per Buller, J., 3 T. R. 57, 58 ; &m-
dert v. Powell, 1 Ley. 129. As to
an express warranty, see per Lord
Ellenborough, C.J., Williamson v.
Allison, 2 Hast, 451, which was an
action on the case for breach of war-
ranty of goods ; GresJiam v. Postan,
C. k P. 540 ; Denison v. RalpKson,
1 Ventr. 365.
(d) In support of this proposition
as regards quality ', Bee the cases ante,
pp. 733 et seq. In HiU v. Balls, 2
H. & N. 304, Martin, B., remarks,
" In my view of the law, where there
is no warranty, the rule Caveat emptor
applies to sales, and except there be
deceit, either by a fraudulent conceal-
ment or fraudulent misrepresentation,
no action for unsoundness lies by the
vendee against the vendor upon the
sale of a horse or other animal.'*
(e) Judgm., Hall v. Conder, 2 C.
B. N. S. 40 ; recognising Morley v.
Attenborough, 3 Exch. 500.
760
THE LAW OF CONTRACTS.
transfer such interest as he might have in the thing
sold (/).
With respect " to executory contracts of purchase and
sale, wliere the subject is unascertained, and is afterwards
to be conveyed, it would probably be implied that both
parties meant that a good title to that subject should be
transferred, in the same manner as it would be implied,
under similar circumstances, that a merchantable article
was to be supplied. Unless goods, which the party could
enjoy as his own, and make full use of, were delivered,
the contract would not be performed. The purchaser
could not be bound to accept if he discovered the defect
of title before delivery ; and if he did, and the goods were
recovered from him, he would not be bound to pay, or,
having paid, he would be entitled to recover back the
price as on a consideration which had failed " (g).
We may add to the above brief resume of the law in
regard to the application of the maxim Caveat emptor on
a sale of goods, that it has been laid down as a general
proposition, that, " if goods be sold by a person who is not
the owner, and the owner be found out and be paid for
those goods, the person who sold them under pretended
authority has no right to call upon the defendant to pay
him also " (li). For example, though an auctioneer, inas-
much as he has a lien on the purchase-money, may bring
an action against the purchaser in his own name for the
(/") Benjamin, Sale, pp. 630-1.
(g) Judgm., 3 Exch., 509-10 ; per
Lord Campbell, C. J., Sims v. Mar-
rycM, 17 Q. B. 291.
As to implied warranty of title to
a thing pledged, see Cheesman v.
Excdl, 6 Exch. 341.
On a contract for the sale of goods
in the possession of a third person,
the vendor impliedly undertakes that
they shall be delivered, on appli-
cation, within a reasonable time;
Buddie r. Green, 27 L. J., Bx.. 33.
(h) Jndgm. {Alien v. Hopkins), 13
M. & W. 102 ; citing Dickenson, v.
Naul, 4 B. k Ad. 638. See Walker
v. Mellor, 11 Q. B. 478.
TBE LAW OF CONTRACTS.
761
price of goods sold, and the purchaser has no right to plead
payment to the employer of the auctioneer, still if the em-
ployer was not the true owner of the goods, the defendant
in such an action could plead payment to or a claim by such
true owner (i).
It may be stated that, as a general rule, no man can JJJjJ^^
acquire a title to chattels from a person who has himself by8ale
no title to them (k). The vendee of a chattel cannot, in
general, stand in a better situation than his vendor—
nemo dat quod non habet (I). For instance, if a master
entrust his servant with the care of plate or other
valuables, and the servant sells them, still, unless they
are sold in market overt, the master may recover them
from the purchaser {in). And we find it laid down that
" the owner of property wrongfully taken has a right to
follow it, and, subject to a change by sale in market
overt, treat it as his own, and adopt any act done to it "
(n). It has been said indeed, that if the real owner of Exceptions
to above rule:
goods suffer another to have possession of his property, or lKt- p*reo"
of those documents which are the indicia of property, ^®fwith
and thus enable him to hold himself out to the world as mUll™ ot
having not the possession only but the property, then,
perhaps, a sale by such a person would bind the true
owner (o). Though it seems that the proposition here
(i) Robinson v. Sutter, 4 £. & B.
954; Dickenson v. Naul, 4 B. & Ad.
638 ; and see Grice v. Ktndrik, L.R.
5 Q. B. 340 ; 39 L. J. Q. B. 175.
(It) Peer y. Humphrey, 2 A. <fc
K 495 ; per Abbott, C. J., Dyer v.
Pearson, 3 B. k C. 42.
(1) Per LitUedale, J., Dixon v.
Yates, 5 B. k Ad. 839 ; Lindsay v.
Candy, 3 App.Cas., per Ld. Cairns.
(m) Per Abbott, C. J., Baring v.
Corrie, 2 B. k Aid. 143 ; per Hol-
royd, J., Id.t 149 ; Cro. Jac. 197.
(») Per Pollock, C.B., Neate v.
Harding, 5 Exch. 350 ; citing Taylor
y. Plumer, 3 M. & S. 562.
(o) Per Abbott, C. J., 3 B. k C.
42 ; per Bayley, J., 6 M. & S. 23,
24 ; per Best, C. J., 3 Bing. 145.
See, also, Gordon v. Ellis, 8 Scott,
N. B., 290.
762 THE LAW OF CONTRACTS.
stated ought to be limited to cases where the person who
had possession of the goods was one who, from the nature
of his employment, might be taken primd fade to have
the right to sell (p). As for instance, the master of a
ship, where it is impossible to forward goods to their
destination, or necessary to raise money for the purposes
of a voyage (q). And where a transfer of goods was
obtained under a delivery order without authority and by
false pretences, it was held that mere possession of the
goods, with no further indicia of title than the delivery
order, would not suffice to entitle a bond fide pawnee of
the person fraudulently obtaining possession of the goods
from the true owner, to resist the claim of the latter in an
action of trover (?•).
S£d ™<Sd ^ *^e factors Act (6 Geo. IV. c. 94), s. 2, " persons en-
trusted with and in possession of any bill of lading, Indian
warrant, dock warrant, warehouse-keeper's certificate,
warrant or order for the delivery of goods, shall be deemed
to be the true owner of the goods so far as to give validity
to sales to persons who may be ignorant that such vendors
were not owners. By 8. 4, persons who purchase from an
agent entrusted with any goods, wares, or merchandise are
protected, notwithstanding notice that the vendors are
agents, provided the purchase and payment be made in the
usual and ordinary course of business, and the buyer has not
notice at the time of purchase and payment, of the absence
of authority iu the agent to make the sale or to receive the
payment By an Amending Act, 5 & 6 Vict. c. 39, the
(p) Per Martin, B., Higgom v. N. SOS; S. C, 11 Bxch. 577> as to
Burton, 26 L. J., Ex., 348, 344; which case see per Bramwell, B.,
citing Chitt. Contr., 6th ed., 344. Biggons v. Burton, 26 L. J., Ex.,
(q) Maude and Pollock on Shipping 834 ; per Willes, J., Fventtt v.
(ed. 1881), 580. Montis, L. R. 3 G. P. 282, 283.
(r) Kingtford v. Merry, 1 H. &
THE LAW OF CONTRACTS.
763
possession of the goods themselves is treated as having
the same effect as the possession of documents of title
relating to them. The expression " agent entrusted with
and in possession " has given rise to much discussion.
The words are vague, and must be accepted with the
limitation, "an agent entrusted as such and ordinarily
having as such agent a power of sale or pledge " («).
Cases from time to time came before the Courts which
revealed the imperfections of the acts which we have
noticed. For example — a vendor allowed by the purchaser
to retain possession of the documents of title to goods was
held not to be an agent entrusted under 5 & 6 Vict. c. 39,
s. 1 (t). Again, a purchaser obtaining possession of the
documents of title to goods was held not to come within
the section (u). And in another case it was held that a
pledgee of goods was not protected if the entrustment had
been withdrawn from the agent before the pledge was
given by him, even though the withdrawal of authority
was secret and possession remained (x). A purchaser, in
similar circumstances would also have been unprotected.
The deficiencies exposed by these cases have been rectified
by another Amendment Act, 40. & 41 Vict. c. 39 (y).
(s) Per Bramwell, B., in Cole t.
N. W. Bank, L. R. 10 C. P. 354
at p. 375 ; per Blackburn, J., p.
357. Hey man t. Flevker, 13 C. B.
N. S. 519 at p. 527, p«r Willes, J.
Fuentes v. Mantis, L. R. 3 C. P.
275, per eundem. See also Baines v.
Swainson, 4 B. & 8. 270 ; Vickers
v. Hertz, L. R. 2 Sc. App. 113 ; Hat-
field v. Philip*, 14 M. k W. 665 ; 12
CI. & F. 343.
(t) Johnson t. Credit Lyonnais Co,,
2 C. P. D. 224 ; 3 C. P. D. 82.
(u) Jenhyns v. Utborne, 7 M. & G.
678 ; Van Catted y. Booker, 2 Ex.
691.
(x) Fuente* v. Montis, L. R. 3 C.
P. 268.
(j/) It is unnecessary to remind the
student that the Factors Acts deal
also with the pledging of goods by
agents and factors, a subject not rele-
vant to this maxim. For a more
exhaustive treatment of these impor-
tant statutes the reader is referred to
Benj. Sales, Bk. I. Pt. 1, c. 2, and
Bk. V. pt. 1, c. 4.
764
THE LAW OF CONTRACTS.
20 rt8?1* to ^ sa'e °^ S00^8' even *>y a Party wn0 has himself only
oven. the possession, and not the property, as a thief or a
finder, will be valid against the rightful owner, provided
it be made in market overt during the usual market
hours, unless such goods were the property of the
king (z), or unless the buyer knew that the property
was not in the seller, or there was any other fraud in the
transaction (a) ; but such a sale does not protect an in-
nocent vendor against the true owner (6), and if the
original vendor who sold without title, come again into
possession after any number of intervening sales, the right
of the original owner revives (c).
Market overt, we may observe, is defined to be a fair
or market held at stated intervals in particular places, by
virtue of a charter or prescription (d) ; it has been cha-
racterised as "an open, public, and legally constituted
market " (e). The protection is not confined to ancient
but extends also to modern markets established under
power conferred by Act of Parliament (/).
In the city of London, however, the custom is, that
every shop is, except on Sunday, market overt, in regard
to the goods usually and publicly sold therein (g) ; and a
(g) Chitt Pre. Cr. 195, 285. The
doctrine of oar law as to the effect
of a sale in market overt, is stated
j)cr Cock burn, C. J., Crane v. London
Dock Co., 5 B. & S. 313, 318, where
a sale by sample was held not entitled
to the privileges of a sale in market
overt.
(a) 2 Bl. Com. 172 ; 2 Inst. 713 ;
Hilton t. Swan, 5 Bing. N. C. 413.
(h) Ganley v. Ledwidye, 10 Ir. R.
C. L. 33.
(c) 2 Bl. Com. 450 ; 2 Inst. 713.
Freeman v. E. India Co., 5 B. A A.
624.
{d) Jacob, Law Diet, tit "Mar-
ket : " 2 Inst. 713. Case of Maria
Overt, 5 Rep. 84.
(e) Per Jervis, C. J., 18 C. B. 601.
As to what is a legally constituted
market, see Benjamin v. Andrew*, 5
C. B. N. S. 299 ; 27 L. J. M. C.
310.
(/) Ganley v. Ledwidge, ubi
tupra.
{ff) Jacob, Law Diet, tit " Mar-
THE LAW OF CONTRACTS.
765
sale within the city of London, in an open shop, of goods
usually dealt in there, is a sale in market overt, though
the premises are described in evidence as a warehouse,
and are not sufficiently open to the street for a person on
the outside to see what passes within (fi). By stat 1 Jac.
1, c. 21, it is enacted, that the sale of any goods wrong-
fully taken to any pawnbroker in London, or within two
miles thereof, shall not alter the property ; for this being
usually a clandestine trade, is therefore made an exception
to the general rule (i).
With respect to stolen goods, the stat. 24 & 25 Vict. 24&25vict.
c. 96.
c. 96, s. 100, enacts, that, if any person, guilty of any such
felony or misdemeanor as therein mentioned, in stealing
taking, obtaining, extorting, embezzling, or converting, or
disposing of, or in knowingly receiving any chattel, money,
valuable security, or other property whatsoever, shall be
indicted by or on behalf of the owner, his executor, or
administrator, and convicted, in such case, the property
shall be restored to the owner or his representative, and
the Court shall have power to award writs of restitution
or to order restitution in a summary manner (k). Under
the statute even a purchaser in market overt may have to
Jcet : n Rani* v. Shaiv, Cas. temp,
Hardw. 849 ; and authorities cited
supra.
(h) Lyons v. De Pass, 11 A. k E.
326. Bat a sale by public auction at
a hone repository out of the City of
London is not a sale in market overt ;
Lee v. Bayes, 18 C. 6. 599. As to
the statutes respecting stolen horses
(2 P. & M. c 7, and 31 Eliz. c. 12),
see 2 Bla. Com., 21st ed., 450; Oli-
phant's Law of Horses, 2nd ed., p.
45.
(t) See, also, stat. 39 & 40 Geo. 3,
c. 99, ss. 12, 13. A metropolitan
police magistrate may order gcods
unlawfully pawned to be delivered up
to their owner ; 35 & 36 Vict. c. 93.
(&) The order of restitution under
the corresponding enactment previ-
ously in force (7 & 8 Geo. 4, c 29,
s. 57) was held to be *' cumulative to
the ordinary remedy by action/' and
"not a condition precedent to such
remedy ; " Scattergood v. Sylvester,
15 Q. B. 506, 511. See, also, 30 &
31 Vict, c 35, s. 9.
766 TBE LAW OF CONTRACTS.
restore goods to the owner, and his only hope of compen-
sation will depend upon the 80 & 31 Vict c. 35, 8. 9,
which enables a Court to order that any money taken
from a thief upon his apprehension may be applied to
reimbursing an innocent purchaser the price paid by
him.
It has been decided that a person who may have pur-
chased the goods in market overt after the felony, and
disposed of them again before the conviction, even with
notice of the theft from the true owner is not liable
in trover to him (I). Where, however, a purchase of
stolen property was made bond fide, but not in market
overt, and the plaintiff gave notice to the defendant,
who subsequently sold the goods in market overt, after
which the plaintiff prosecuted the felon to con-
viction, the plaintiff was held entitled to recover
from the defendant the value of the property in
trover (m).
In a recent case it has been held that where the owner
of goods parts with the property in them under a con-
tract, which he is induced to enter into by false pretences,
the statute does not revest the property in him as against
a person who acquires a good title in them before the
conviction of the wrongdoer (n). Here it was held, that
the statute was intended to apply to those cases only in
which possession has been obtained, without the property
passing. This is always the result of larceny, but may
occur also where the fraud practised upon the owner by
the wrongful possession has been such as to displace
(0 Jlorwood y. Smith, 2 T. R. stat 21 Hen. 8, c. 11, repealed by 7
750. & 8 Geo. 4, c. 27, s. 1.
(m) Peer v. Humphrey, 2 A. & E. (n) Moyu v. Narington, 4Q.B.
495. See, also, Packer v. Patrick, D. 82.
5 T. R. 175, which was decided tinder
THE LAW OF CONTRACTS. 767
the notion of contract (o). In Lindsay v. Cwndy,
the circumstances were of that nature, a person having
obtained goods from the plaintiff by assuming an
alias resembling that of a well-known firm, and in-
ducing the plaintiff to believe that he was dealing with
that firm.
It was once thought that where goods had been stolen,
and not sold in market overt, they could not be recovered
from an innocent purchaser until the owner had prosecuted
the thief. It is, however, now well established that the
obligation which the law imposes on a plaintiff to pro-
secute the party who has stolen his goods before proceed-
ing for their recovery, does not apply where the action is
against a third party, innocent of the felony (p).
Another exception to the general rule that title can srdiy. sale
only be derived from the true owner is afforded by the
;ca8e of sale of goods by one to whom they have been
pledged. A pawnee may sell goods pledged to him, if
the pawnor make default in payment at the stipulated
time ; this right he may exercise without having taken
proceedings to recover from the pawnee the sum due to
him (q).
Lastly, we may observe, that negotiable instruments 4thiy. Ne-
form the most important exception to the rule, that a Mtnuwnta.
valid sale cannot be made except in market overt of
property to which the vendor has no right. In the lead-
fo) Lindsay v. Cundy, 3 App. Cas. (q) Pothoneir v. Dawson, Holt,
459. 385 ; Tucker v. Wilson, 1 P. Wil-
(p) White y. SpeUigue, 13 M. & liams, 261 ; Lockwood v. Ewer, 9
W. 603 ; Lee v. Bayes, 18 C. B. Mod. 278 ; Martin v. Head, 11 C.
599 ; Wells v. Abrahams, L. R. 7 B. N. S. 730 ; Johnston y. Stear, 15
Q. B. 554; Ex pte. Ball, 10 C. B. N. 8. 330 ; Pigot v. Cubley, 15
Ch. D. 667. C A. and Midland C. B. N. S. 701 ; Haliiday v. Hoi-
Insur. Co. y. Smith, 6 Q. B. D. 561, gate, L. R. 3 Ex. 299.
768
THE LAW OF CONTRACTS.
ing case on this subject, it was decided, that property in
a bank-note passes, like that in cash, by delivery, and that
a party taking it bond fide (r), and for value, is entitled
to retain it as against a former owner from whom it has
been stolen («). It is, however, a general rule, that no
title can be obtained through a forgery, and hence a party
from whom a promissory note was stolen, and whose in-
dorsement on it was subsequently forged, was held entitled
to recover the amount of the note from an innocent holder
for value (t). And if a person obtains in good faith
change for a cheque which turns out to be worthless, the
loss must fall on him (u). It should further be observed,
that every negotiable instrument being in its nature pre-
cisely analogous to a bank-note, payable to bearer, is sub-
ject to the same rule of law ; — whoever is the holder of
(r) Hilton v. Swan, 5 Bing. N. C.
413 ; and Bee 24 ft 25 Vict c 96, 8.
100, which contains a protiso that
restitution shall not be awarded in
the case of any valuable security
which shall have been bond fide paid
or discharged by the party liable to
the payment thereof, or in that of a
negotiable instiument taken by
transfer or delivery for a just and
valuable consideration, without notice
or cause to suspect that the same had
been stolen.
The above section does not apply
to the case where a trustee, banker,
or agent entrusted with the possession
of goods, or documents of title to
goods, it prosecuted for any misde-
meanor under the Act.
0) Miller v. Race, 1 Burr. 452.
The reader is referred for full infor-
mation on this subject, and also on
that of bona fide* in the holder, to
the Note appended to the above v_r,
Smith, L. C, 8th ed. vol. L p. 515,
Judgm., Guardians of Lichfield Union
v. Greene, 1 H. & N. 884, 889.
(0 Johnson v. Windle, 3 Bing.,
N. C. 225, 229 ; Gurney v. Women-
ley, 4 K. & B. 133; Robarts v.
Tucker, 16 Q. B. 560 (distinguished
in Woods v. Thielemann, 1H.4C.
478, 491, 495); Simmons v. Taylor,
2 C. B. N. S. 528.
(«) Per Lord Campbell, C. J.,
Timmins v. Gibbins, 18 Q. B. 726 ;
Woodland v. Fear, 7 E. & B. 519,
521.
Where a banker pays a forged
cheque or letter of credit, the banker
most, in general, bear the low ;
British Linen Co. v. Caledonian
Insur. Co., 4 Kacq. Sc. App.
Cas. 107; Youny v. Grote, 4 Bins.
253.
THE LAW OF CONTRACTS. 7G9
such an instrument has power to give title to any person
honestly acquiring it (x).
One rather peculiar case may here properly be men-
tioned, which is not only illustrative of the general legal
doctrines regulating the rights of purchasers, but likewise
of another principle (y), which we have already considered
in connection with criminal law ; viz., where a man buys
a chattel which, unknown to himself and to the vendor*
contains valuable property. In a modern case (z) on this
subject, a person purchased, at a public auction, a bureau,
in a secret drawer of which he afterwards discovered a
purse containing money, which he appropriated to his
own use. It appeared that, at the time of the sale, no
person knew that the bureau contained anything what-
ever. The Court held, that, although there was a delivery
of the bureau, and a lawful property in it thereby vested
in the purchaser, yet that there was no delivery so as to
give him a lawful possession of the purse and money, for
the vendor had no intention to deliver it, nor the vendee
to receive it ; both were ignorant of its existence ; and
when the purchaser discovered that there was a secret
drawer containing the purse and money, it was a simple
case of finding (a), and then the law applicable to all
cases of finding would apply to this. It was further
observed, that the old rule (6), that " if one loose his goods
and another find them, though he convert them, animo
jurandi, to his own use, it is no larceny," has undergone
(x) Per Abbott, C.J., Gorgier v. Stra. 504 ; Bridges v. Hawkesworth,
MieviOe, 3 B. & C. 47. 21 L. J., Q. B., 75 (which is impor-
(y) Actus nonfacit reum nisi men* taut with reference to the above sub-
sit rta. ject) ; Buckley v. Grass, 32 L. J.,
(z) Merry v. Green, 7 M. & W. Q. B., 129.
623. (6) 3 Inst. 108.
(a) See Armory v. Delamirie, 1
3 D
770 THE LAW OF CONTRACTS.
in more recent times, some limitations (c). One is, that,
if the finder knows who the owner of the lost chattel is,
or if, from any mark upon it, or the circumstances under
which it is found, the owner could be reasonably ascer-
tained, then the taking of the chattel, with a guilty
intent, and the subsequent fraudulent conversion to the
taker s own use, may constitute a larceny. To this class
of decisions the case under consideration was held to
belong, unless the plaintiff had reason to believe that
he bought the contents of the bureau, if any, and conse-
quently had a colouraJrte right to the property in question.
In the preceding remarks upon the maxim Caveat
empto\\ we have confined our attention to those classes of
cases to which alone it appears to be stinctly applicable,
and in connection with which reference to it is, in prac-
tice, most frequently made. To consider all the applica-
tions of the maxim which is invoked so frequently in
discussions relating to the rights and duties of a pur-
chaser would not have been possible within the limit of
this treatise.
Qtjicquid solvitur, solvitur secundum modum Sol-
ventis — quicquid recipitur, recipitur secundum
modum Recipientis. (Halk. if. p. 149.) — Money
paid is to be applied according to the intention of
tlte pariy paying it ; and money received, accoi^ding
to that of the recipient (cZ).
Appropria- « According to the law of England, the debtor may, ia
money paid. ^e firat instance, appropriate the payment — solvitur in
modum solventis ; if he omit to do so, the creditor may
(c) See this rule with its qualifi- Com., 5th ed., el acq.
cations considered at length, Broom's (d) For more detailed information
THE LAW OF CONTRACTS. 771
make the appropriation (e) — recipitwr in modu,m recipi-
entis; but if neither make any appropriation, the law
appropriates the payment to the earlier debt" (/) ; "where
a creditor receives, without objection, what is offered by
his debtor, solvitur in modum solventis, and it must be
implied that the debtor paid it in satisfaction " (g) ; where
" the party to whom the money is offered does not agree
to apply it according to the expressed will of the party
offering it, he must refuse and stand upon the rights
which the law gives him " (h). And again — " Wherever
there is an intention expressed by the payer that the
money is paid upon a particular account, and the payee
receives it under a different intention, it is the duty of
the latter to give the former an opportunity to retract."
Such "was the rule of the civil law — Dum in re agendd
hoc juit : ut vel creditwi liberum sit non accipere vel
. debitori non dare, si alio nomine exsolutum quis eorum
velit ; cceterum posted, non permittitur. What is in-
tended must be said at the time " (i).
Thus, succinctly, in the above propositions, has the law
than can here be offered in regard to Taylor, 14 Sim. 522 ; Toulmin r.
this maxim, the reader is referred to Copland, 2 CI. & Fin. 681. See
a learned article by Lord Justice, then James x. Child, 2 Cr. & J. 678 ;
Mr. Lindley, in the Law Mag. for Newmarch v. Clay, 14 East, 239 ;
Aug. 1855, p. 21. Id. 243 (c).
(e) "Where a claim consists of (g) Per Tindal, C.J., Webb v.
several items, the party making the Weaiherby, 1 Bing., N. C, 505;
tender has a right of appropriation ; Croft v. Lumley, 6 H. L. Cas. 672,
but if he omits to make any appro- 694, 697, 714, 722, where the mode
priation, the right to appropriate is of applying the maxim supra was
transferred to the other party ; " per much discussed.
Wilde, C.J., Ilardingham x. Allen, {h) Judgm., Croft v. Lumley, 5 E.
5 C. B. 797 ; and in Wood x. The & B. 680 ; S. C, 6 H. L. Cas., 672,
Copper Miners1 Co., 7 Id. 935. 706. As to evidence of assent to an
(/) Per Tindal, C.J., Mills v. appropriation, see Beale v. Caddick,
Fowhes, 5 Bing., N. C, 461 ; per 2 H. & N. 326.
Bayley, J., 2 B. & C. 72 ; per Sir L (*) Per Byles, J., KUchinr. Eavh
Shad well, V. C. E., Greenwood x. kins, L. R. 2 C. P. 31.
3 D 2
772
THE LAW OF CONTRACTS.
relative to the principal maxim been explained, and, in
accordance with this explanation, it has been held, that,
where the defendant, being indebted to the plaintiff for
goods supplied to his wife diem sola, and to himself after
the marriage, made a payment without any specific
appropriation, the plaintiff might apply the money in
discharge of the debt contracted by the wife dura
sola (k) ; that where part of a debt was barred by the
Statute of Limitations, a payment of money made
generally might be applied in liquidation of that part (I) ;
but it is to be noticed, that it would not be such a
payment on account of the whole debt as to take the
remainder out of the operation of the Statute of Limita-
tions, supposing at the time of payment the whole to have
been statute barred ; unless it is made under such cir-
cumstances that a promise to pay the remainder may be
reasonably inferred (m).
A creditor receiving money without any specific appro-
priation by the debtor shall be permitted in a Court of
law to apply it to the discharge of a prior and purely
equitable debt (n). Moreover, it has been held, that the
creditor is not bound to state at the time when a payment
is made, to what debt he will apply it, but that he may
(it) Goddardv. Cox, 2Stra. 1194.
(1) Mills v. Fortes, 5 Bing., N.
C, 455 ; Williams v. Griffith, 5 M.
& W. 300. See Baildon v. Walton,
1 Erch. 617. In Walker v. Butler,
6 E. & B. 510, Erie, J., observes, " I
do not by any means assent to the
doctrine that where there are two
debts existing, and a payment is made
not specifically appropriated to either,
there is necessarily no sufficient evi-
dence of a payment on account of
either of those debts to take it out of
the Statute of Limitations. It must
depend on the special circumstances
of each case. In general there would
be evidence to go to the jury of a pay-
ment on account of both debts."
(m) Mills v. Fowkes, supra ; Mor-
gan r. Rowlands, L. R. 7 Q. B. 493 ;
41 L. J. Q. B. 187 ; Re Rainfortii,
Gwynne ▼. Gwynne, 49 L. J. Ch. 5.
(n) Bosanquet v. Wray, 6 Taunt.
597. In Goddard v. Hodges, 1 Cr.
& M. 38, it was held that a general
payment must be applied to a prior
legal, and not to a subsequent equit-
able demand.
THE LAW OF CONTRACTS. 773
make such application at any period before the matter
comes under the consideration of a jury (o).
A case further illustrating the practical operation of the
doctrine respecting the appropriation of payments may
here be presented from a modern judgment (p) : — Sup-
pose a contract under seal, whereby a builder contracts
to build a house, and the owner of the land covenants to
pay £1000 as the price of the work, and also to pay for
any extra work authorised in writing by the architect.
During the progress of the works the architect authorises
extra work to the amount of £500, which the builder
completes in a proper manner and to the satisfaction of
the owner of the land, but without any authority in
writing. Suppose, further, that the owner of the land
pays the builder from time to time £1200 on account
generally, and that more than six years after the whole
has been completed, the builder brings an action of
covenant against the owner for non-payment of the
balance, and the owner pleads payment Under such
circumstances, the owner of the land might be taken to
have entered into a new parol contract to pay for the
extras, independently of his liability under the deed.
There would, in the case here put, be two debts due
from the owner of the land, one a debt arising by deed,
the other a debt on simple contract, and the doctrine as
to the application of indefinite payments would apply.
The creditor being entitled to say to his debtor, " I have
applied 500Z. part of the 1200£. in discharge of the simple
contract debt, which would otherwise be barred by the
Statute of Limitations ; what I seek to recover is the
balance of the original contract sum of 1000L" This
•
(o) PhUpott v. Jones, 2 A. & E. (p) Judgm., 3 Exch. 306, 307.
41.
774
THE LAW OF CONTRACTS.
doctrine, however, never has been held "to authorise a
creditor receiving money on account, to apply it towards
the satisfaction of what does not, nor ever did, constitute
any legal or equitable demand against the party making
the payments."
But although it is true that, where there are distinct
accounts and a general payment, and no appropriation
made at the time of such payment by the debtor, the
creditor may apply it to which account he pleases ; yet
where the accounts are treated by the parties as one
entire account, this rule does not apply (q). For instance,
in the case of a banking account, where all the sums paid
in form one blended fund, the parts of which have no
longer any distinct existence, 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 the account. Presumably it is the first sum paid
in that is first drawn out. It is the first item on the debit
side of the account that is discharged or reduced by the
first item on the credit side. The appropriation is made
by the very act of setting the two items against each
other. Upon this principle all accounts current are
usually settled, and particularly cash accounts (r), and
in the absence of evidence to the contrary, such will be
(q) Per Bayley, J., Bodenham v.
Purchae, 2 B. & Aid. 45. See La-
bouchere v. Tupper, 11 Moo. P. C. C.
198.
(r) Per Sir Wm. Grant, M.R.,
Clayton's case, 1 Mer. 608 ; cited,
per Erie, C J„ 8 C. B. N. S. 786 ;
PenneU v. DeffeU, 4 De G. M. k G.
872 ; per Lord Lyndhurst, C, Pern-
berton v. Oakes, 4 Rims. 169 ; Bo-
denham v. Pureha$, 2 B. & Aid. 89 ;
Arg., Labouehere r. Tvpper, 11 Moo.
P. C. C. 212 ; Judgm., Etnnihtr r.
%, 4 Q. B. 794. As to Clayton's
ease, supra, see, also, the remarks in
the Law Mag. (Aug. 1855), p. 36.'
Ordinarily, "where two parties
settle an account of monies due to
each side, cross items allowed in such
account may be treated as pay-
ments : " Judgm., Robert* v. Shaw,
4 B. & S. 56.
THE LAW OF CONTRACTS. 775
presumed as a fact to have been the course of business
between the creditor and his debtor, but this presumption
of fact like others may be rebutted by the circumstances
of the case, showing that such could not have been the
intention of the parties (s). In like manner, where one of
several partners dies, and the partnership is in debt, and
the surviving partners continue their dealings with a par-
ticular creditor, and the latter joins the transactions of
the old and the new firm in one entire account, then the
payments made from time to time by the surviving part-
ners must be applied to the old debt. In that case it is
to be presumed that all the parties have consented that it
should be considered as one entire account, and that the
death of one of the partners has produced no alteration
whatever (t).
The following remarks made in a modern case, will
serve to show some additional important limitations of
the maxim under consideration: — "If, in the course of
dealing between A. and B., various debts are from time to
time incurred, and payments made by B. to A., and no
acknowledgment is made by A., nor inquiry by B. how
the payments are appropriated, the law will presume that
the priority of debt will draw after it priority of payment
and satisfaction, on the ground that the oldest debt is
entitled to be first satisfied. That doctrine is recognised
in Devaynes v. Noble (x) ; but the principle was never
applied to cases where the obligations were alio jure, nor
(s) The City Discount Co, v. Mc- As to evidence of adoption of the
lean, L. R. 9 C. P. 692 ; 43 L. J. C. liabilities of an old firm by the new
P. 344. copartnership, see Bolfe v. Flower,
(t) Per Bayley, J., Simaon v. L R. 1 P. C. 27.
Ingham, 2 B. & C. 72 ; Smith v. (x) 1 Meriv. 608.
WigUy, 3 Mo. k Sc 174.
776 THE LAW OF CONTRACTS.
to other cases, as for instance, where in dealings between
B. and G, the latter directs B. to receive monies due to
him, the law will not presume an appropriation, of these
monies to the payment of a debt due to A. and B. in the
absence of any specific directions " (y).
payment Where a bill of exchange or promissory note has been
given by a debtor to his creditor, it is not unfrequently a
matter of some difficulty to determine whether the giving
of such instrument should be considered as payment, and
as operating to extinguish the original debt ; or whether
it should be regarded merely as security for its payment,
and as postponing the period of payment until the bill
or note becomes due. Upon this subject, which is one
of great practical importance, the correct rule is thus
laid down by Lord Langdale, M. R. : — " The debt,"
says his Lordship, " may be considered as actually paid
if the creditor, at the time of receiving the note, has
agreed to take it in payment of the debt, and to take
upon himself the risk of the note being paid ; or if, from
the conduct of the creditor, or the special circumstances
of the case, such a payment is legally to be implied.
But in the absence of any special circumstances, throwing
the risk of the note upon the creditor, his receiving the
note in lieu of present payment of the debt, is no more
than giving extended credit, postponing the demand
for immediate payment, or giving time for payment on
a future day, in consideration of receiving this species
of security. Whilst the time runs, payment cannot
legally be enforced, but the debt continues till payment
is actually made; and if payment be not made when
the time has run out, payment of the debt may be
(?) Per Lord Brougham, C, Nottidgc v. Prichard, 2 CL & Fin. 393.
THE LAW OF CONTRACTS.
777
enforced as if the note had not been given. If payment
be made at or before the expiration of the extended
time allowed, it is then for the first time that the debt
is paid " (z).
Qui per alium facit per seipsum facere videtur.
(Co. Litt 258. a.) — He wlto does an act through the
medium of another party is in law considered as
doing it himself.
The above maxim enunciates the general doctrine on General
which the law relative to the rights and liabilities of prin-
cipal and agent depends. It can, however, in this volume
be but briefly and cursorily considered.
Where a contract is entered into with A., as agent for
B., it is deemed, in contemplation of law, to have been
entered into with B., and the principal is, in most cases,
the proper party to sue (a) or be sued for a breach of
such contract, — the agent being viewed simply as the
medium through which it was effected (b) : Qui facit per
alium facit per se.
(z) Sayer v. Wagttaff, 5 Beav.
415 ; In re London, Birmingham
and South Staffordshire Bank, Ld.,
34 L. J. Ch. 418; In re Harriet,
13 M. & W. 3 ; per Lord Kenyon,
C.J., Stedman v. Oooch, 1 Esp. 5;
Cited 6 Scott, N. &. 945. See,
also, as to what may amount to
or constitute payment, Turney v.
Dodwdly 3 E. & B. 136 ; Thomas r.
Cross, 7 Exch. 728, 732; Under-
wood v. NichoUs, 17 C B. 239 ; Pol-
lard v. Ogden, 2 E. & B. 459 ; per
Erie, C.J., Martin v. Beid, 11 C. B.
N. S. 735 : Wright r. ffickling, L.
R. 2 C. P. 199.
[a) To entitle a person to sue upon
a contract it must be shown that he
himself made it, or that the contract
was made on his behalf by an agent
authorised to act for him at the time,
or whose act has been subsequently
ratified and adopted by him : Watson
t. Swann, 11 C. B. N. S. 756.
(b) Thus, in Depperman v. Hub-
bersty, 17 Q. B. 766, Coleridge, J.,
observes : " Here an avowed agent of
a principal sues another avowed agent
778
THE LAW OF CONTRACTS.
Examples
of rule.
Payment
to agent
Payment by
a principal
to hia agent,
when good
against
creditor.
The following instances, which are of ordinary oc-
currence and practical importance, may be mentioned
as illustrative of the rule, which, for certain purposes,
identifies the agent with the principal : — Payment to
an authorized agent (c), as an auctioneer, in the regular
course of his employment (d), is payment to his prin-
cipal (e), and generally payment to an agent if made in
the ordinary course of business, will operate as payment
to the principal (/), but such payment in the absence of
any custom of trade to the contrary must be made in
cash (g) ; if made by a bill, cheque, or note, it may be
a good payment if such bill is subsequently honoured, or
the cheque or note paid (h).
As incidentally arising out of the subject under dis-
cussion may be considered the position of a principal
between whose agent and the creditor the contract or
of the same principal ; and the action
must fail for want of privity of con-
tract between the two parties to the
suit'1 See Lee v. Everett, 2 H. & N.
285, 291 ; Coombs v. Bristol and
Exeter R. C, 3 H. & N. 1.
(c) Bostock v. Hume, 8 Scott, N.
R. 590.
(d) See Mem v. Carr, 1 H. k N.
484.
(0 Sykcs v. Giles, 5 M. & W.
645 ; approved in Williams v.
Evans, L. It 1 Q. B. 352 (which
shows that an auctioneer has no
authority to receive payment by a
bill of exchange).
"The general role of law is, that
where a creditor's agent is bound to
pay the whole amount over to the
principal, he must receive it in cash
from the debtor ; and that a per-
son who pays such agent, and who
wishes to be safe, must see that the
mode of payment does enable the
agent to perform this his duty. Per
Bovill, C.J. Bridges v. Garrett, L.
R. 4 C. P. 587-8, and cases there
cited.
See CatteraU v. Hindle, L. R. 2
C. P. 368 ; Stephens v. Badcoek, 3
B. & Ad. 354; cited, Arg., WhyU
v. Base, 3. Q. B. 498; ParroU r.
Anderson, 7 Exch. 93.
(/) Williams v. Deacon, 4 Ex.
397 ; Underwood v. NichoUs, 17 C.
B. 239.
{g) Barker v. Greenwood, 2 Y. ft.
C. (Ex. R.) 414, 419 ; Sweeting ▼.
Pearee, 9 C. B. N. S. 534 ; 30 L.
J. C. P. 109 Exch. Ch.
(h) Bridges v. Garrett, L.R.5C.
P. 456 ; per Blackburn, J. ; Williams
v. Evans, LR.1Q. B. 352-4.
THE LAW OF CONTRACTS. 779
agreement has been made, out of which the debt arises. If
the creditor has given credit to the agent as a principal,
and he is ignorant of the existence of a principal behind
the agent, payment by the principal to his agent seems a
good answer to a claim by the creditor on the former (i).
If, on the other hand, the creditor knows that the
person with whom he makes the bargain is acting for a
principal, whether disclosed or undisclosed, payment by
the principal to his agent will not discharge him as regards
the creditor, unless before such payment the latter has by
his conduct induced the debtor to believe that he (the
creditor) has already been paid by the agent (k).
The receipt of money by an authorised agent will Tender.
charge the principal (I), and in like manner, a tender
made to an authorised agent will in law be regarded as
made to the principal ; — thus, where the evidence showed
that the plaintiff directed his clerk not to receive certain
money from his debtor if it should be offered to him,
that the money was offered to the clerk, and that he, in
pursuance of his master's orders, refused to receive it ;
upon the principle Qui facit per alium facit per 8e, the
tender to the servant was held to be a good tender to the
master (m) : Payment also by an agent as such is equiva- Payment by
Agent.
lent to payment by the principal. Where, for example, a
covenant was " to pay or cause to be paid," it was held,
that the breach was sufficiently assigned by stating that
the defendant had not paid, without saying, " or caused to
be paid ; " for had the defendant caused to be paid, he
had paid, and, in such a case, the payment might be
(») Armstrong r. Stokes, L. R. 7 v. Donaldson, 9 Q. B. D. 623.
Q. B. 598 ; 41 L. J. Q. B. 253. (/) See Thompson v. Bell, 10 Exch.
(i) Irvine v. Watson, 5 Q. B. D. 10.
414; 49 L. J. Q. B. 531; Davison (m) Mofat v. Parsons, 5 Taunt 307.
780
THE LAW OF CONTRACTS.
Delivery of
gOO<l8.
pleaded in discharge (n). So payment to an agent, if
made in the ordinary course of business, will operate as
payment to the principal (o). On the same principle, the
delivery of goods to a carrier's servant is a delivery of
them to the carrier (p), and the delivery of a cheque to the
agent of A- is a delivery to A. (q). Railway companies,
moreover, are not to be placed in a different condition
from all other carriers. They will be bound in the course
of their business as carriers by the contract of the agent
whom they put forward as having the management of that
branch of their business. So that, where it appeared
from the evidence, that certain goods were undoubtedly
received by a railway company, for transmission on some
contract or other, and that the only person spoken to
respecting such transmission was the party stationed to
receive and weigh the goods ; it was held that this party
must have an implied authority to contract for sending
the goods, and that the company were consequently bound
by that contract (?•). It has been held, that the station-
master of a railway company has not, though the general
manager of the company has («), implied authority to
(n) Gyst v. Ellis, 1 Stra. 228.
(©) See Williams v. Deacon, 4
Exch. 397 ; Kaye v. Brett, 5 Exch.
269 ; Parrott v. Anderson, 7 Exch.
93 ; and cases cited ante, p. 778.
(/)) Dawes v. Peck, 8 T. R. 330 ;
Brown v. Hodgson, 2 Camp. 36 ; per
Lord Ellen borough, C.J., Griffin v.
Langfield, 3 Camp. 254 ; Fragano v.
Long, 4 B. & C. 219 ; Great West-
ern R, C. v. Goodman, 12 C. B.
313. Moreover, a delivery to the
carrier may be in law a delivery
to the consignee; see the above
cases ; Duidop v. Lambert, 6 QL k
Fin. 600, and cases cited in 3 Com.
by Broom k Iladley, 161-3. But an
acceptance by the carrier is not an
acceptance by the consignee ; per
Parke, B., Johnson v. Dodgson, 2 M.
k W. 656.
(q) Samuel v. Green, 10 Q. B.
262.
(r) Pickford v. Grand Junction
B. C, 12 M. & W. 766 ; Heald v.
Carey, 11 C. B. 977.
(t) Walker v. Great Western R
C., L. R. 2 Ex. 228.
THE LAW OF CONTRACTS.
781
bind the company by a contract for surgical attendance on
an injured passenger (t).
When an agent for the sale of goods contracts in his Agent for
own name, and as a principal, the general rule is, that s00*1-
an action may be maintained, either in the name of the
party by whom the contract was made, and privy to it, or
of the party on whose behalf and for whose benefit it was
made (u). Even when the agent is a factor, receiving a
del credere commission, the principal may, at any period
after the contract of sale has been concluded, demand
payment of the sum agreed on to himself, unless such
payment had previously been made to the factor, in due
course, and according to the terms of the contract (x).
The following rules, respecting the liability of parties on a
contract for the purchase of goods, are likewise illustrative
of the doctrine under consideration, and are here briefly
stated on account of their general importance and applica-
bility : — 1st, an agent, contracting as principal, is liable in
that character ; and if the real principal be known to the
vendor at the time of the contract being entered into by
the agent, dealing in his own name, and credit be given to
such agent, the latter only can be sued on the contract (y).
(t) Cox v. Midland Counties R.
C.t 3 Exch. 268. See PouUon v.
London and South Western R. C.9
L. R. 2 Q. B. 534.
(a) Per Bayley, J., Sargent v.
Morris, 3 B. & Aid. 280 ; Sims v.
Bond, 5 B. & Ad. 393 ; Duke of
Norfolk v. Worthy, 1 Camp. 837;
Cothay ▼. Fennell, 10 B. & C. 672 ;
Bastable v. Poole, 1 Cr. M. & B.
413 ; per Lord Abinger, C.B., 5 M.
& W. 650 ; Qarrett v. Handley, 4
B. & C. 656 ; distinguished in
Agacio v. Forbes, 14 Moo., P. C. C,
160, 170, 171 ; see Jlamazotti v.
Bowring, 7 C. B. N. S. 851 ;
Ferrand v. Bischqffsheim, 4 Id,
710 ; Biggins v. Senwr, 8 M. & W.
844.
(x) Hornby v. Lacy, 6 M. & S.
172 ; Morris v. Cleasby, 4 M. & S.
566, 574 ; Sadler v. Leigh, 4 Camp.
195 ; Grove r. Dubois, 1 T. B. 112 ;
Scrimshire v. Alderton, 2 Stra. 1182.
(y) Pater son v. Gandasegui, 15
Bast, 62 ; Addison v. Gandasegui, 4
782
THE LAW OF CONTRACTS.
2ndly, if the principal be unknown at the time of con-
tracting, whether the agent represent himself as such or
not, the vendor may, within a reasonable time after disco-
vering the principal, debit either at his election (2).
But, 3rdly, if a person act as agent without authority, he
is personally and solely liable ; and if he exceed his
authority, the principal is not bound by acts done beyond
the scope of his legitimate authority (a). If A. employs
B. to work for C, without warrant from G, A. is liable to
pay for the work done (b) ; nor would it in this case make
any difference, if B. believed A. to be in truth the agent
of C. ; for, in order to charge the last-mentioned party,
the plaintiff must prove a contract with him, either
express or implied, and with him in the character of a
principal, directly, or through the intervention of an
agent (c).
The question, how far an agent is personally liable,
Taunt. 574 ; Franklyn v. Lamond,
4 C. B. 637. See Smitli r. Stop,
12 M. & W. 585, 588.
(?) Thomson v. Davenport, 9 B.
4 C. 78 ; cited per Martin, B.,
Barber v. Pott, 4 H. k N. 767 ;
Smcthurst v. Mitchell, 1 R & E.
622, 631 ; Iltald v. Kenworthy, 10
Exch. 734 ; Bistoury v. Bruckner,
3 C. B. N. S. 812; per Park, J.,
Robinson v. Gleadow, 2 Bing. N. C,
161, 162 ; Paterson v. Gandascqui,
15 East, 62 ; Wilson r. Hart, 7
Taunt. 295 ; Higginsv. Senior, 8 M.
& W. 834; Humfrey v. Bah, 7
R & B. 266 ; S. C, E. B. & E.,
1004.
(a) Woodin v. Burford, 2 Cr. k
M. 891 ; Wilson v. Barthroj), 2 M.
& W. 863 ; Fcnn v. Harrison, 3 T.
R. 757 ; Polhill v. Walta*, 3 B. k
Ad. 114 ; per Lord Abinger, C3.,
Acey v. Fernie, 7 M. & W. 154;
Davidson v. Stanley, 3 Scott* N. &
49; Harper v. Williams, 4 Q. R
219. See Downman r. Williams, 7
Q. B. 103 (where the question was
as l-o the construction of a written
undertaking) ; Cooke v. Wilson, 1
C. B. N. S. 153; GUleU v. Ofor,
18 C. B. 905 ; Green t. Kopke, Id.
549 ; Parker v. Winlow, 7 R k B.
942, 949 ; Wake v. Harrop, 1E&
C. 202; S. C, 6 H. & N. 768;
Oglesby v. Ygitsias, E. B. k E. 930 ;
Williamson v. Barton, 7 H. & N.
899.
(b) Per Lord Holt, C.J., Athlon
y. Sherman, Holt, R., 309 ; cited 2
M. k W. 218.
(c) Thomas v. Edwards, 2 M. k
W. 215.
THE LAW OF CONTRACTS. 783
who, having in fact no authority, professes to bind his
principal, has, on various occasions, been discussed.
There is no doubt, it was observed in a modern judg-
ment (d), that, in the case of a fraudulent misrepresenta-
tion of his authority, with an intention to deceive, the
agent would be personally responsible (e) ; but, indepen-
dently of this, which is perfectly free from doubt, there
seem to be still two other classes of cases, in which an
agent, who, without actual authority, makes a contract in
the name of his principal, is personally liable, even where
no proof of such fraudulent intention can be given. First,
where he has no authority, and knows it, but nevertheless,
makes the contract, as having such authority ; in which
case, on the plainest principles of justice, he is liable ; for
he induces the other party to enter into the contract on
what amounts to a misrepresentation of a fact peculiarly
within his own knowledge ; and it is but just, that he who
does so should be considered as holding himself out as one
having competent authority to contract, and as guarantee-
ing the consequences arising from any want of such
authority. There is also a second class in which the
Courts have held, that, where a party making the contract
as agent, bond fide believes that such authority is vested
in him, but has, in fact, no such authority, he is still
personally liable. In these cases the agent is not indeed
(<2) Smout v. Ilbtry, 10 M. & W. his death had been received.
1, 9. In this case, which was an ac- (e) " All persons directly concerned
tion of debt, a man, who has been in in the commission of a fraud are to
the habit of dealing with the plaintiff be treated as principals. No party
for meat supplied to his boose, went can be permitted to excuse himself
abroad, leaving his wife and family on the ground that he acted as the
resident in this country, and died agent or as the servant of another : "
abroad: — Held, that the wife was not per Lord Westbury, C, Cullen v.
liable for goods supplied to her after Thornton's Trustees, 4 Macq. Sc.
his death, but before information of App. Cas. 432-8.
784 THE LAW OF CONTRACTS.
actuated by any fraudulent motives, nor has he made any
statement which he knows to be untrue; but still, his
liability depends on the same principles as before. It is .
a wrong, differing only in degree, but not in its essence,
from the former case, to state as true, what the individual
making such statement does not know to be true, even
though he does not know it to be false, but believes, with-
out sufficient grounds, that the statement will ultimately
turn out to be correct, and, if that wrong produces
injury to a third person, who is wholly ignorant of the
grounds on which such belief of the supposed agent is
founded, and who has relied on the correctness of his
assertion, it is equally just that he who makes such
assertion should be personally liable for its consequences.
The true principle derivable from the cases is, that there
must be some wrong or omission of right on the part of
the agent, in order to make him personally liable on a
contract made in the name of his principal; in all of
them, it will be found that the agent has either been
guilty of some fraud, has made some statement which he
knew to be false, or has stated as true what he did not
know to be true, omitting at the same time to give such
information to the other contracting party as would enable
him, equally with himself, to judge as to the authority
under which he proposed to act. Polhill v. Walter (/),
which has been noticed in another page of this work, is an
instance of the first of the two classes of decisions just
alluded to ; and cases, in which the agent never had any
authority to contract at all, but believed that he had, as
where he acted on a forged warrant of attorney, which
(/) 3B.& Ad. 114 ; see also cietg, 6 Q. B. D. 696 ; 50 L. J. Q. K
Chapleo v. Brunswick Building So- 372.
THE LAW OF CONTRACTS.
785
he thought to be genuine, and the like, are instances of
the second class (g). To the various states of facts just
put, we may add that if a person contracts as agent
with another, he will in law be held to impliedly under-
take and promise that he is what he represents himself to
be, so that for any direct damage arising to the other
party from a breach of such promise, he will, without
proof of any fraudulent representation be responsible (h).
On the maxim, Qui facit per alium facit per se, de- Partnership,
pends also the liability of a co-partnership on a contract
entered into by an individual member of the firm; for
the law as to partnership, as has* been observed (i), is a
branch of the law of principal and agent ; a partner
embraces both characters, and his act or assurance if
made with reference to business transacted by the firm
(k), within the scope of his authority (I), and in the
absence of collusion between himself and the other con-
tracting party (m), will bind his co-partners.
The decision in Marsh v. Keating (n), is important jjf^v-
with reference to the question of the responsibility in-
to) Judgui., 10 M. &W. 10.
(h) CoUen v. Wright, 7B.&B.
301 ; S. C, 8 Id. 647 (with which
compare Randdl r. Trimen, 18 C.
B. 786). Spedding v. Nevcll, L. R.
4 C. P. 212 ; Simons ▼. Patchett, 7
E. k B. 568.
(i) Mollwo, MarcJi <fc Co. v. The
a. of Wards, L. R. 4 P. C. C. 419 ;
Poohy v. Driver, 5 Ch. Div. 560 ;
46 L. J. Ch. 466.
(k) Per Abbott, C.J., Sandilands
v. Marsh, 2 B. & Aid. 678 ; per
Lord Wenslcydale, Ernest v. Nicholls,
6H.L Cas. 417, 418 ; and in Cox
v. Hickman, 8 H. L. Cas. 268, 304,
312 ; Waugh v. Carver, 2 H. Bla.
235; Judgm., 1 My. & K. 76;
Bullen v. Sharp, L. R. 1 C. P. 86.
The stat 28 & 29 Vict. c. 86, has
materially limited partnership lia-
bility at common law.
(I) Forster v. Mackreth, L. R. 2
Ex. 168; Elision v. Deacon, L. R.
2 C. P. 20.
(m) Per Bayley, J., Vere v. Ashbij,
10 B. & C. 296 ; Wintle v. Crowther,
1 Cr. k J. 316 ; Bond r. Gibson, 1
Camp. 185 ; Lewis v. Rtilly, 1 Q* B.
349.
(») 2CL&F.250.
8 x
786 THE LAW OF CONTRACTa
curred by one partner for the act of his co-partner, by-
reason of the implied agency between parties thus situ-
ated, and affords a direct and forcible illustration of the
maxim, Qui fucit per alium facit per se : in the case
referred to the facts were, that F., a partner in a banking
firm, caused stock belonging to a customer to be sold out
under a forged power of attorney, the proceeds were paid
to the account of the bank at the house of the bank's
agent's, and were appropriated by F. to his own purposes.
F. was afterwards executed for other forgeries. It ap-
peared from the special verdict, that F.'s partners were
ignorant of the fraud, but might, with common diligence,
have known it ; and it was held by the House of Lordsr
in conformity with the unanimous opinion of the Judges,
that the customer could maintain an action against the
partners for money had and received. The general pro-
position, it was observed, was not disputed, that if the
goods of A. are wrongfully taken and sold, the owner
may bring trover against the wrong-doer, or may elect to
consider him as his agent — may adopt the sale and main-
tain an action for the price ; and this general rule was
held applicable to fix the innocent partners with liability
under the circumstances disclosed upon the special
verdict.
o«eni Without attempting to enter at length upon the sub-
to agency, ject of partnership liabilities, incurred through the act
of an individual member of the firm, we may observe,
that wherever a contract is alleged to have been entered
into through the medium of a third person, whether a
co-partner or not, the real and substantial question is,
with whom was the contract made ? and, in answering
this question, the jury will have to consider whether
the party through whose instrumentality the contract
\
THE LAW OF CONTRACTS.
787
is alleged to have been made, had in fact authority to
make it. " It would," moreover^ " be very dangerous to
hold," as matter of law, "that a person who allows an
agent to act as a principal in carrying on a business, and
invests him with an apparent authority to enter into
contracts incidental to it, could limit that authority by a
secret reservation " (o).
Assumpsit for work and labour, in writing certain
literary articles, was brought against the defendants,
whose names appeared as proprietors of a newspaper in
the declaration filed under 6 & 7 WilL 4, c. 76 ; they had
in fact ceased to be so before the contract was entered
into, at which time L. was the sole proprietor; the jury
found that the contract was made by L. on his own behalf,
without any authority from the defendants; and also,
that the plaintiff, when he supplied the articles in
question, did not know the defendants to be proprietors ;
it was held, that, although the declaration above men-
tioned was, under the provisions of the stat. (s. 8),
conclusive evidence of the fact that the defendants were
proprietors, yet the real question was with whom the con-
tract had been made, and that upon the finding of the
jury the defendants were not liable (p).
In like manner, in the case of an action brought at Application
° of maxim to-
suit of a creditor against a member of the managing or committee-
© © © men of rail-
provisional committee of a railway or other company, JXes!1
the question of liability ordinarily resolves itself into
the consideration, whether the defendant did or did not
authorise the particular contract for which he is sought
(o) Per Mellor, J., Edmunds v. P. 148 ; Balnea ▼. Evring, L. R. 1
Butheli, L. R. 1 C. P. 97, 100. Ex. 820.
As to the authority of an agent {p) Holcroft ▼. Hoggins, 2 C. B.
see Howard ▼. Sheward, L. R. 2 C. 488.
3 £ 2
com-
788 THE LAW OF CONTRACTS.
tomrtt v. to be made responsible ; in Barnett v. Lambert (q) the
defendant in answer to an application from the secretary
of a railway company, consented, by letter, that his name
should be placed on the list of its provisional committee.
His name was accordingly published in the newspapers
as a provisional committee-man, and it appeared that
on one occasion he attended and acted as chairman at
a meeting of the committee. It was held, that the
defendant was liable for the price of stationery supplied
by the plaintiff on the order of the secretary, and used
by the committee after the date of his letter to the
secretary, — the question for decision being one of fact,
and matter of inference for the jury, to be drawn from
the defendant's conduct, as showing that he had con-
stituted the secretary his agent to pledge his credit for
all such things as were necessary for the working of the
committee, and to enable it to go on. " Where," observed
Alderson, B., " a subscription has been made, and there
is a fund, it is not so; because if you give money to
a person to buy certain things with, the natural inference
is, that you do not mean him to pledge your credit for
them " (r).
jieyneii v. In Reynell v. Lewis and Wylde v. Hopkins (s), decided
shortly after Barnett v. LanibeH, supra, the Court of
Exchequer took occasion to lay down the principles appli-
cable to cases falling within the particular class under
(5) 15 M. & W. 4S9, where Todd (r) Higjins v. Jlopkin*, 3 Exch.
v. Emly, 8 M. & W. 505 ; Flemyng 163 ; Burtuide v. Dayrtll, Id. 224.
v. Hector, 2 M. & W. 172 ; and («) 15 M. & W. 517 ; CdUngwood
Tredicen v. Bourne, 6 M. & W. 461, v. Berkeley, 15 C. B. N. S. 145 ;
were cited per Cur. . As to the lia- Cross v. Williams, 7 H. & N. 675 ;
bility of a partner on a contract prior Barker ▼. Stead, 16 L. J. C. P.
to his joining the concern, see Bealt 160.
v. MouU, 10 Q. B. 976.
J. tic is.
THE LAW OF CONTRACTS. 780
consideration ; and it may probably be better to give the
substance of this judgment at some length, as it affords
throughout important practical illustrations of that
maxim, " which," in the words Of Tindal, C. J. (t), " is of
almost universal application;' — Qui facit per alium facit
perse.
" The question," observed the Court, " in all cases in with whom
which the plaintiff seeks to fix the defendant with lia- made™ rac
bility upon a contract, express or implied, is, whether such
contract was made by the defendant, by himself or his l
agent, with the plaintiff or his agent, and this is a question
of fact for the decision of the jury upon the evidence
before them. The plaintiff, on whom the burthen of jproof
lies in all these cases, must, in order to recover against
the defendant, show that he (the defendant) contracted
expressly or impliedly; expressly, by making a contract
with the plaintiff; impliedly, by giving an order to him
undeiTsuch circumstances as show that it was not to be
gratuitously executed : and, if the contract was not made
by the defendant personally, it must be proved that it was
made by an agent of the defendant properly authorised (u),
and that it was made as his contract. In these cases of
actions against provisional committee-men of railways, it
often happens that the contract is made by a third person,
and the point to be decided is, whether that third person
was an agent for the defendant for the purpose of making
it, and made the contract as such (z). The agency may Agency,
be constituted by an express limited authority to make tuted.
such a contract, or a larger authority to make all falling
(t) 8 Scott, N. R. 830. 2 C. P. 536 ; Maddlck v. Marshall,
(u) See Cooke v. Tonkin, 9 Q. B. 17 C. B. N. S. 829 ; S. C, 16 Id.
936. 387 ; Burbidge v. Morris, 3 H. St
(x) See Riley r. Packington, L. R. C. 664.
790 THE LAW OF CONTRACTS.
within the class or description to which it belongs, or a
general authority to make any ; or it may be proved by
showing that such a relation existed between the parties
as by law would create tne authority, as, for instance, that
of partners, by which relation, when complete, one becomes
by law the agent of the other for all purposes necessary
for carrying on their particular partnership, whether
general or special, or usually belonging to it ; or the
relation of husband and wife, in which the law, under
certain circumstances, considers the husband to make his
wife an agent. In all these cases, if the agent in making
the contract acts on that authority, the principal is bound
by the contract, and the agent's contract is his contract
but not otherwise. This agency may be created by the
immediate act of the party, that is, by really giving the
authority to the agent, or representing to him that he is
to have it, or by constituting that relation to which the
law attaches agency ; or it may be created by the repre-
sentation of the defendant to the plaintiff that the party
making the contract is the agent of the defendant, or that
such relation exists as to constitute him such ; and if the
plaintiff really makes the contract on the faith of the
defendant's representation, the defendant is bound, — be is
estopped from disputing the truth of it with respect to
that contract ; and the representation of an authority is,
qjwad hoc, precisely the same as a real authority given by
the defendant to the supposed agent. This representation
may be made directly to the plaintiff, or made publicly, so
that it may be inferred to have reached him : and may be
made by words and conduct. Upon none of these propo-
sitions is there, we apprehend, the slightest doubt, and the
proper decision of all these questions depends upon the
proper application of these principles to the facts of each
THE LAW OF CONTRACTS. 791
case, and the jury are to apply the rule with due assistance
from the judge." In the course of the judgment from
which we have already made so long an extract, the Court
further observed, that an agreement to be a provisional
committee-man is merely an agreement for carrying into
effect the preliminary arrangements for petitioning Parlia-
ment for a bill, and thus promoting the scheme, but con-
stitutes no agreement to share in profit or loas, which is
the characteristic of a partnership, although if the pro-
visional committee-man subsequently acts he will be
responsible for his acts. They likewise remarked, that
where the list of the provisional committee has appeared
in a prospectus, published with the defendant's consent,
knowledge, or sanction, the context of such prospectus
must be examined, to see whether or not it contains any
statement affecting his liability, as, for instance, the names
of a managing committee, in which case it will be a
question whether the meaning be that the acting com-
mittee shall take the whole management of the concern,
to the exclusion of the provisional committee, or that the
provisional committee-men have appointed the acting
committee, or the majority of it, on their behalf and as
their agents (y). In this latter case, moreover, it must
further be considered whether the managing and delegated
body is authorised to pledge the credit of the provisional
committee, or is merely empowered to apply the funds
subscribed to the liquidation of expenses incurred in the
formation and carrying out of the concern (z).
(y) SeeJudgm., 15 M. & W. 530, C. P., 240; JRennie v. Clarke, 5
531 ; JFiUon v. Viscount Curzon, Exch. 292. See, also, as to the
Id. 532 ; WUliam* v. Pigott, 2 Exch. liability of a provisional committee-
201. man, Patrick v. Iteynolds, 1 C. B
(z) Dawion ▼. Morrison, 16 L. J., N. S. 727 ; or member of a com-
792
THE LAW OF CONTRACTS.
Muter <*
•hip.
Agency ot
wife.
The authority of the master of a ship is very large.
Under the general authority which he has, he may make
contracts and do all things necessary for the due and
proper prosecution of the voyage in which the ship is
engaged. But this authority does not usually extend to
cases where the owner can himself personally interfere as
in the home port or the port in which he has beforehand
appointed an agent (a). He may make contracts to carry
goods on freight, but cannot bind his owners by a contract
to carry freight free. With regard also to goods put on
board the ship, the master may sign a bill of lading, and
acknowledge thereby the nature, quality, and condition
of the goods ; his authority, however, to give bills of
lading being limited to such goods as have been put on
board (b).
The authority of a wife to act as her husband's agent,
and as such to pledge his credit for articles supplied, is a
question of fact in all cases, but may be implied where the
husband and wife are living together (the latter managing
the house or establishment) and the wife has been in the
habit of purchasing articles which the husband has sub-
sequently paid for, provided the particular articles in
question may be considered necessaries either for house-
mittee of visitors, Moffatt v. Dickson,
13 C. B. 543 ; Kendall v. Kiny, 17
Id. 483, 508. As to the authority
of a resident agent, or the directors
of a mining company, to borrow
money on the credit of the company,
see Ricketts ▼. Bennett, 4 C. B. 6S6,
and cases there cited ; Burmester v.
Norris, 6 Excb. 796.
(a) Arthur v. Barton, 6 M. k W.
188 ; Gunn v. Roberts, 43 L. J. C. P.
233.
(6) Grant v. Norway, 10 C. l».
665, 687; Hubbersty v. Ward, S
Exch. 330 ; Jessel v. Bath, L. R. 2
Ex. 267 ; Valieri v. Boyland, L. R.
1 C. P. 382 ; Barker v. Highley, 15
C. ft N. S. 27. See, further, as to
the authority of the master, or ship's
husband, to pledge the owner's credit,
The Great Eastern, L.B.2A.&E.
88 ; The Karnak, L. R. 2 P. C.
505.
THE LAW OF CONTRACTS.
793
hold purposes or for the wife herself, having regard to the
station in life and style of living of the husband (c).
To the general principle under consideration may also sheriff.
be referred the numerous decisions which establish that
the sheriff is liable for an illegal or fraudulent act com-
mitted by his bailiff, even if he were not personally
cognisant of the transaction (J) ; and such decisions are
peculiarly illustrative of this principle, because there is a
distinction to be noticed between the ordinary cases and
those in which the illegal act is done under such circum-
stances as constitute the person committing it the special
bailiff of the party at whose suit process is executed ; as,
where the attorney of the plaintiff in a cause, requested of
the sheriff a particular officer, delivered the warrant to
that officer, took him in his carriage to the scene of action,
and there encouraged an illegal arrest ; it was held, that
the sheriff was not liable for a subsequent escape (e). Nor
will the sheriff be liable if the wrong complained of be
neither expressly sanctioned by him, nor impliedly com-
mitted by his authority ; as, where the bailiff derived his
authority, not from the sheriff, but from the plaintiff, at
whose instigation he acted (/) ; and it is not competent to
(c) Debenham v. Mellon, 6 App.
Cas. 24 ; 50 L. J. Q. B. 155.
(d) Per Ashhurst, J., Woodgater.
Knatchbull, 2 T. R. 154 ; Gregory
y. CoUereU, 5 E. & B. 571 ; Raphael
y. Goodman, 8 A. k E. 565 ; Stur-
my v. Smith, 11 East, 25 ; Price v.
Peek, 1 Bing., N. C, 880 ; Crowdcr
v. Long, 8 B. & C. 602; Smart v.
HuUon, 8 A. & E. 568, n. See
PetHiall v. Layton, 2 T. R. 712;
Thomas v. Pearse, 5 Price, 578 ;
Jarmain v. Hooper, 7 Scott, N. R.,
663.
(e) Doe v. Trye, 5 Bing., N. C,
573 ; Ford v. Leche, 6 A. & E. 699 ;
Wright v. Child, L. R. 1 Ex. 358 ;
Alder son v. Davenport, 13 M. & W.
42 ; per Buller, J., De Moranda v.
Dunkin, 4 T. R. 121 ; Botten v.
Tomlinson, 16 L. J., C. P., 138.
{f) Cook v. Palmer, 6 B. & C. 39
Crowdcr v. Long, 8 B. & C. 598
Tompkinson v. Rxmdl, 9 Price, 287
BotcdenY. Waithman, 5 Moore, 183
Stuart v. Whittakcr, R. & M. 310
Ilujcfin* v. MlAdam, 3 Y. & J. 1.
794
THE LAW OF CONTRACTS.
Kxrftition*
.o nil
'jitii
ilo.
authority.
one whose act produces the misconduct of the bailiff, to
say, that the act of the officer done in breach of his duty
to the sheriff, and which he has himself induced, Is the act
of the sheriff (g).
But, notwithstanding the almost universal applicability
of the legal maxim under consideration, cases may occur
in which, by reason of the express provisions of the statute
law, it will not apply ; for instance, it was formerly held
that, under the stat. 9 Geo. 4, c. 14, s. 1, an acknowledg-
ment signed by an agent of the debtor would not revive a
debt barred by the Statute of Limitations (h). But the
law upon this point has been altered by the stat. 19 & 20
Vict. c. 97, s. 13.
Before terminating our remarks as to the legal con-
sequences which flow from the relation of principal and
agent in transactors founded upon contract, it becomes
necessary to consider briefly a kindred principle of law
which limits the operation of the maxim Qui facit per
all am facit yer se, and will, therefore, most properly be
noticed in immediate connection with it : the principle to
which we allude is this, that a delegated autltority cannot
be redelegated — Delegata potestas non potest delegari (i) ;
or, as it is otherwise expressed, Vicarius von luibet
vicarium (k) — one agent cannot lawfully nominate or
appoint another to perform the subject-matter of his
agency (/). This rule applies wherever the authority
(g) Per Bayley, J., 8 B. & C. 603,
604.
(A) Hyde v. Johnson, 2Bing., N.
C. 776. See, also, Toms, app.,
Cuming, reap., 8 Scott, N. R., 910 ;
Cuming, app., Toms, resp., Id. 827;
Duties, app., Hopkins, reap., 3 C. B.
N. S. 376.
(•) 2 Inst 597 ; Arg., Fcctor v.
Beaton, 5 Bing., N. C. 310.
(k) Branch, Max., 5th ed., 380.
(I) Sec per Lord Denman, C. J.,
Cobb v. Becke, 6 Q. B. 936 ; Combes"
case, 9 Rep. 75. See Beg. v. Xafh
market B. C.t 15 Q. B. 702 ; Beg.
v. Dulwich College, 17 Q. B. 600,
THE LAW OF CONTRACTS.
795
involves a trust or discretion in the agent for the exercise
of which he is selected ; but does not apply if it involves
no matter of discretion, and it be immaterial whether the
act be done by one person or another, and the original
agent remains responsible to the principal (m). So, a
principal employs a broker from the opinion which he
entertains of his personal skill and integrity ; and the
broker has no right, without notice, to turn his principal,
over to another, of whom he knows nothing ; and, there-
fore, a broker cannot, without authority from his principal,
transfer consignments made to him, in his character of
broker, to another broker for sale (n). On the same prin-
ciple, where an Act of Parliament for building a bridge
required, that, when any notice was to be given by the
trustees appointed and acting under it, such notice should
be in writing or in print, signed by three or more of the
trustees; it was held, that a notice, signed with the
names of the clerks to the trustees, but signed, in fact, not
by such clerks, but by a clerk employed by them, was in-
sufficient, as being an attempt to substitute for a deputy
his deputy (o). But where the act is purely ministerial,
as for example, the signing of a name, the discretionary
part of the agency having been exercised by the proper
party to whom it was entrusted, it may in general be
615, where Lord Campbell, C. J.,
incidentally observes that "the Crown
cannot enable a man to appoint ma-
gistrates."
(m) See Leake on Contracts, pp.
482-3, and Hemming v. Sale, 7
C. B. N. S. 498 ; see as slightly bear-
ing on the question, Johnson v. BayU
ton, 7 Q. B. D. 438; 50 L. J., Q. B.
753.
(») Coclran v. Irlam, 2 M. & 8.
801, n. (a) ; Solly v. Rathbone, Id.
298 ; CaUin v. Bell, 4 Camp. 183 ;
Schmaling v. Thomlinson, 6 Taunt.
147 ; Coles v. Trecothick, 9 Ves. 251;
Henderson v. BamwaU, 1 Yo. & J.
387.
(o) Miles v. Bough, 8 Q. B. 845 ;
cited, Arg., Allan, app., Waterhouse,
resp., 8 Scott, N. B. 68, 76.
796
THE LAW OF CONTRACTS.
delegated to and performed by the band of another Q>) ;
and an agent can employ another in respect of such acts
as are usually and in the ordinary course of the business
for which the agent is employed, done by others (<?), or
which the agent must necessarily do through the agency
of other persons (r).
It may, likewise, be well to observe, that delegated
jurisdiction, as contradistinguished from proper juris-
diction, is that which is communicated by a judge to some
other person, who acts in his name, and is called a
deputy ; and this jurisdiction is, in law, held to be that of
the judge who appoints the substitute, or deputy, and not
of the latter party; and in this case the maxim holds,
Delegatus non potest delegare — the person to whom any
office or duty is delegated, — for example, an arbitrator, —
cannot lawfully devolve the duty on another, unless he be
expressly authorised so to do («). Nor can an individual,
clothed with judicial functions, delegate the discharge of
those functions to another, unless, as in the case of a
County Court judge, he be expressly empowered to do so
under specified circumstances (t). For the ordinary rule
is that although a ministerial officer may appoint a
deputy, sl judicial officer cannot (it).
(p) Leake on Contracts, p. 483 ;
Johnson v. Osenton, L. K., 4 Ex.
107; 33 L J., Ex. 76.
(q) Leake on Contracts, 483 ; Ex
parte Sutton, 2 Cox, Eq. Cas. 84.
(r) Homier v. The Trafalgar Life
Ass. Association, 27 Beav. 377.
(s) See Bell, Diet, and Dig. of
Scotch Law, 280, 281, 292 ; Whit-
more v. Smith, 7 H. & N. 509 ; cited
in Thorbum v. Barnes, L. B. 2 C.
P. 384, 404 ; Little v. Newton, 2
Scott, N. R. 509 ; Reg. v. Jones, 10
A. & E. 576 ; Hughes v. Jones, 1 B„
k Ad. 388 ; Wilson v. Thorpe, 6 M.
& W. 721 ; Argument, 5 Bing., X.
C. 310; White v. Sharpe, 12 M. &
W. 712 ; RtUter v. Chapman, 8M.&
W. 1. See The case of tJic Masters'
Clerics. 1 Phill. 650. Et ride Reg-
v. Perhin, 7 Q. B. 165; Smccton ^
Collier, 1 Exch. 457 ; Sharp *.
Novell, 6 C. B. 253 ; 17 & 18 Vict
c. 125, s. 14.
{t) See Broom, Pr. C. C. 2nd ed., 9.
(«) See per Parke, B., Walsh v.
THE LAW OF CONTRACTS. 797
A magistrate, as observed by Lord Camden, can have
no assistant nor deputy to execute any part of his em-
ployment. The right is personal to himself, and a trust
that he can no more delegate to another, than a justice of
the peace can transfer his commission to his clerk (x).
Although, however, a deputy cannot, according to the Rule, how
above rule, transfer his entire powers to another, yet $ qua l e *
•deputy possessing general powers may, in many cases,
constitute another person his servant or bailiff, for the
purpose of doing some particular act ; provided, of course,
that such act be within the scope of his own legitimate
authority.
For instance, the steward of a manor, with power to
-make a deputy, made B. his deputy, and B., by writing
under his hand and seal, made C. his deputy, to the
intent that he might take a surrender of G., of copyhold
lauds. It was held, that the surrender taken by C. was
^ good surrender (y) ; and Lord Holt, insisting upon the
.distinction above pointed out, compared the case before
him to that of an undersheriff, who has power to make
bailiffs and to send process all over the kingdom, and that
•only by virtue of his deputation (z).
The rule as to delegated functions must, moreover, be
understood with this necessary qualification, that, in the
particular case, no power to re-delegate such functions has
T>een given (a). Such an authority to employ a deputy
may be either express or implied by the recognised usa^e
of trade ; as in the case of an architect or builder, who
Souihworthy 6Exch. 150, 156; which (y) Parker v. Kett, 1 Ld. R&ym.
illustrates the former part of the rale 658, cited in Bridget v. Garrett, L.
stated supra. See Baker v. Cave, J R. 4 C. P. 591.
H. &N. 674. («) 1 Ld. Raym. 659; Leak ▼.
(x) Entiek v. Carrington, 19 Eowett, Cro. Bliz. 533.
Howell, St, Trials, 1063. (a) See 2 Prest. Abs. Tit 276.
798
THE LAW OF CONTRACTS.
employs a surveyor to make out the quantities of the
building proposed to be erected ; in which case the
maxim of the civil law applies, In contractu* tadth insunt
qua* sunt maris et coTisuettulinis (b) — terms which are in
accordance with and warranted by custom and usage may,
in some cases, be tacitly imported into contracts (c).
Renpectivi'
liability of
master and
servant.
Respondeat Superior. (4 Inst 114) — Let the prin-
cijxil be lield responsible.
The doctrine enunciated in this maxim has been carried
in English law very far, and in the opinion of a learned
judge, quite as far as it should be (d). It is more usually
and appropriately applied to actions ex delicto, than to
such as are founded in contract. Where, for instance, an
agent commits a tortious act, under the direction or with
the assent of his principal, each is liable at suit of the
party injured : the agent is liable, because the authority
of the principal cannot justify his wrongful act ; and the
person who directs the act to be done is likewise liable,
according to the maxim, Respondeat superior (e). "If
(b) 3Bing., N. C. 814,818.
(c) Be Bxmche v. Alt, 8 Oh. Div.
286, at p. 810.
(d) Per Jessel, M. R., Smith v.
Real, 9 Q. B. D. 340, at p. 861 ; 61
L J. Q. B. 487.
(e) 4 Inst. 114 ; Sands v. ChUd,
3 Lev. 352 ; Janet v. Hart, 1 Ld.
Kaym. 738 ; Britton v. Cole, 1 Salk.
408 ; Oauntlett v. King, 3 C. B. N.
S. 69 ; per Littledale, J., Laugher v.
Pointer, 5 B. & C. 559; Perkins v.
Smith, 1 Wils. 928 ; cited, 1 Bing..
N. C. 418; Stephens v. Rvoall, 4
M. ft S. 259; Com. Dig., "2¥e»-
passn (C. 1). See ColleU v. Poster,
2 H. ft N. 356 ; Bennett v. Bayes, 5
H. ft N. 391.
A person who deals with the goods
of a testator, as agent of the executor,
cannot be treated as executor de son
tort, whether the will has been
proved or not ; Sybes v. Sykts, L. B.
6 C. P. 113.
THE LAW OF CONTRACTS.
799
the servant commit a trespass by the command or encou-
ragement of his master, the master shall be guilty of it,
though the servant is not thereby excused, for he is only
to obey his master in matters tbait are honest and lawful "
(/); and "all persons directly concerned in the com-
mission of a fraud are to be treated as principals " (g)m
A railway company may be liable in trover for a
conversion by their agent (h) : the rule, indeed, so far
as regards the method of applying the maxim before us,
being the same between a private individual and a rail-
way company as it is where the same matter is in dispute
between two private individuals (i).
In the case of domestic servants, and such agents as
are selected by the master, and appointed to perform any
particular work, although, possibly, not in. his immediate
employ or under his direct or personal superintendence, the
maxim, Respondeat superior, is also very often applicable.
" Upon the principle that Qui facit per aliv/m, facit
per se" it was said, in a leading case upon this subject,
"the master is responsible for the acts of his servant,
and that person is undoubtedly liable who stood in the
(/) 1 Com., by Broom & Hadley,
518; el vide, per Piatt, B., Stevens v.
Midland Counties R. C, 10 Exch.
356 ; Eastern Counties R. C. v.
Broom, 6 Exch. 314.
(#) Ante, p. 783, n. (e).
Scrivener v. Pask, L. R. 1 C. P.
715, 719, shows that to charge a
principal for the misrepresentation of
his agent, three things most be
proved : (1) the agency ; (2) that the
agent was guilty of fraud or misrepre-
sentation ; and (3) that the principal
knew of and sanctioned it. {Sed query
as to (3) if the principal has in
fact benefited by the misrepresenta-
tion.)
The intentional concealment of
a material fact from the under-
writer by the agent of the shipowner,
though unknown to the last-mentioned
party, will vitiate the policy ; Proud-
foot v. Monteftore, L. B. 2 Q. B. 51 1.
(h) Taff Vale R. C. v. Giles, 2 E.
& B. 822. See Poulton v. London
and South Western R. C., L. R. 2 Q.
B. 534.
(i) Roe v. Birkenhead, Lanca-
shire and Cheshire R, C, 7 Exch.
36, 40.
800 THE LAW OF CONTRACTS.
relation of master to the wrongdoer — he who had se-
lected him as his servant, from the knowledge of, or
belief in, his skill and care, and who could remove
him for misconduct, and whose orders he was bound
to receive and obey, and whether such servant has been
appointed by the master directly, or intermediately
through the intervention of an agent authorised by
him to appoint servants for him, can make no differ-
ence " (k).
owner oi Where, for instance, a man is the owner of a ship, he
•hip. * '
himself appoints the master, and desires the master to
appoint and select the crew : the crew thus become
appointed by the owner, and are his servants for the
management and government of the ship, and if any
damage happens through their default, it is the same as
if it happened through the immediate default of the
owner himself (I). By a policy of insurance, however,
the assured makes no warranty to the underwriters that
the master and crew shall do their duty during the
voyage ; and their negligence or misconduct is no de-
fence to an action on the policy, where the loss has been
immediately occasioned by the perils insured against;
nor can any distinction be made in this respect between
the omission by the master and crew to do an act which
ought to be done, and the doing an act which ought not
to be done, in the course of the navigation (m). In the
case just supposed, however, if the ship be chartered
for the particular voyage, or for a definite period, it is
(*) Quarman v. Burnett, 6 M. & W. 529 ; Bland v. Hot*, 14 Moo.
W. 509 ; cited L R., 1 H. L. 114 ; P. C. C. 210.
Tobin v. Rcy. 16 C. B. N. S. 850. (wi) Judgra., Dixon v. Sadler, 5
(/) Per Littledftle, J., 6 B. & C. M. & W; 414 ; cited in The Duero,
554 ; Martin v. Temperley, 4 Q. B. L. R. 2 A. & EL 393 ; Biccard v.
298 ; Vunford t. TratUes, 12 M. & Shepherd, 14 Moo. P. C. C. 471.
THE LAW OF CONTRACTS.
801
always a question of fact under whose direction and
control the vessel was at the time of the occurrence
complained of; and this question must be solved by
ascertaining whose are the crew, and by considering whe-
ther the reasonable interpretation of the charter-party
is, that the owners meant to keep the control of the
vessel in their own hands, or to make the freighter the
responsible owner pro tempore (n) : and a state of facts
might perhaps occur in which the charterer would be
answerable as well as the owner (o).
"The principle upon which a master is in general Principle of
liable to answer for accidents resulting from the negli-
gence or unskilfulness of his servant, is, that the act of
his servant id in truth his own act {p). If the master is
himself driving his carriage, and from want of skill causes
injury to a passer-by, he is of course responsible for that
want of skill. If, instead of driving the carriage with his
own hands, he employs his servant to drive it, the servant
is but an instrument set in motion by the master. It was
(n) Fenton v. City of Dublin Steam
Packet Co., 8 A. & E. 835 ; Dalyell
v. Tyrer, B. B. & B. 899 ; Fletcher
v. Braddick, 2 N. B. 182 ; recog-
nised, 5 B. & C. 556 ; Newberry v.
Colvin, 7 Bing. 190 ; cited Judgm.
Schuster y. M'Kellar, 7E. & B. 724;
Trinity House v. Clark, 4 M. & S.
288 ; Sandeman v. Scwy, L. B. 2
Q. B. 86.
(o) Per Lord Denman, C. J., and
Patteson, J., 8 A. & E. 842, 843.
As to the owner's liability in trover
for the act of the master, see Ewbank
▼. Nutting, 7 G. B. 797.
As to the liability of the master for
damage done to goods in the loading
thereof, see Blaikie v. Stembridge,
6 C. B. N. S. 894 (distinguished in
Sack v. Ford, 18 C. B. N. S. 90) ;
Sandeman v. Scurr, L. B. 2 Q. B.
86.
(p) So in Lumley v. Oye, 22 L. J.,
Q. B. 478; S. C, 2 E. & B. 216,
Coleridge, J., observes, ' ' The maxims
Qui facit per alium facit per se, and
Respondeat superior, are unquestion-
able ; but where they apply, the
wrongful act is properly charged to
be the act of him who has procured
it to be done ; he is sued as a prin-
cipal trespasser, and the damage, if
proved, flows directly and immedi-
ately from his act, though it was the
hand of another — and he a free agent
— that was employed."
3 F
802
THE LAW OF CONTRACTS.
the master's will that the servant should drive, and what-
ever the servant does in order to give effect to his master's
will may be treated by others as the act of the master,
Qui facit per alium facit per ae " (q). The general
rule being that "a master is responsible for all acts
done by his servant in the course of his employment,
though without particular directions " (r) ; even whilst
engaged in private business of his own, provided he be
at the time engaged generally on that of his master (*).
Thus, where the defendant let out a horse and cab to
a driver upon general terms as to their management
in obtaining fares, and the driver when about to enter
the mews in which the horse and cab were kept,
drove back to a shop for the purpose of getting some
snuff for himself, and on his* return drove over the
plaintiff, the plaintiff was held entitled to recover as
against the defendant, it being held, first, that under the
provisions of certain Acts of Parliament (t) the relation-
ship of master and servant existed between the defendant
and the driver, and secondly, that the latter at the time
of the accident was acting within the scope of his general
employment in the sense that he was not doing anything
in contravention of the terms upon which the horse and
cab were entrusted to him (u).
(q) Judgm., HiUckiruon v. York,
tfewcaetle, and Berwick R. C, 5
Exch. 350. See Sharrod t. The
London and North Western R. C, 4
Exch. 580, 685 ; citing Gregory v.
Piper, 9 B. k C. 591.
(r) Per Lord Holt, C. J., Tuber-
ville v. Stampe, 1 Lord Raym.
266 ; Seymour v. Greenwood, 7 H.
& N. 355, 357-8; S. C, 6 Id.
359.
(«) Patten t. Ilea, 2 C. B. N. S.
606 ; Mitchell v. CratsweUer, 13 C.
B. 237 ; Storey v. Athlon, L. R. 4
Q. B. 476 ; Judgm., Tobin r. Beg.,
16 C. B. N. S. 350-352.
The same principle applies to fix a
corporation aggregate with liability ;
Green v. London General Omnibus
Co., 7C. B. N. S. 290.
(*) 6 & 7 Vict. c. 86.
(u) Venablee v. Smith, 2Q.B.D.
THE LAW OF CONTRACTS. SOS
The tests applicable for determining: the liability of the Teats «r
. ; , - liability.
master being — is the servant " in the employ of his
master at the time of committing the grievance ? " (#)—
and was he acting within the scope of his employment at
the time he did the act complained of? — where a servant
is acting within the scope of his employment, and in "
«o acting does something negligent or wrongful, the
employer is liable even though the acts done may be
the very reverse of that which the servant was actually
directed to do (y). Whether the act done was or was
not within the scope of the servant's employment is a
•question of fact, and if the case be tried by a jury should
be left for their determination (z). " The master," ob-
serves Haute, J. (a), " is liable even though the servant
in the performance of his duty is guilty of a deviation or
a failure to perform it in the strictest and most convenient
manner. But where the servant, instead of doing that
which he is employed to do, does something which he is
not employed to do at all, the master cannot be said to do
it by bis servant, and therefore is not responsible for the
negligence of the servant in doing it."
A master may also be civilly responsible for the fraud
of his servant acting in the course of his employment (6).
And " where a corporation is formed for the purpose of
carrying on a trading or other speculation for profit, such
as forming a railway, these objects can only be accom-
279 ; 46 L. J., Q. B. 470, 522 ; King Ouston^ 4 App. Cms. 270 ; 48 L. J.
r. Spurr, 80 W. R. 151. C. P. 25.
(x) Per Jcrvis, C.J., 13 C. B. 246 ; (a) 13 C. B. 247.
Storey v. Ashton, supra. (6) Baricick v. English Joint Stock
(y) Bayley v. Manchester, <£c, Bank; L. R. 2 Ex. 259 ; approved in
Railway Co., L. R. 8 C. P. 148; 42 Machay v. Commercial Bank of New
L J. C. P. 78. Brunswick, L. R., 5 P. C. C. 394 ;
{z) Bank of Ncio South Wales v. 43 L. J. P. C. 84.
3 F 2
804 THE LAW OF CONTRACTS.
plished through the agency of individuals ; and there can
bo no doubt that if the agents employed conduct them-
selves fraudulently, so that if they had been acting for
private employers, the persons for whom they were acting
would have been affected by their fraud, the same
principles must prevail where the principal under whom
the agent acts is a corporation " (c).
If A. employs B« to do an illegal act, or an act neces-
sarily to be done in an unlawful way, A. will be responsible
to C, who sustains damage consequential on the act thus
done, there being here the injuria et damnum, which
suffice to constitute a cause of action (d).
Kxc*|4k 41* it would seem that a master is not liable in trespass for
to nut*. r
the wilful act of his servant, if done for the servant's own
purposes, and not in furtherance of the interests of hi»
master; ; thus in AVManw v. Crickett (e), the defendant's
servant wilfully and without the direction or consent of
his master drove the master's carriage against the plain/
tiff's chaise, the Court held the master not liable on the
ground that the servant by his conduct gained a special
property in the chariot for the time, which for that
purpose became the servant's ; and in a later case the
Court laid down the principle, that if a servant in order
to effect some purpose of his own wilfully does the act
complained of, the master is not liable, but if in order to
carry out his master's orders (or as it is submitted in
{c) Per Lord Cranworth, C, Ran- Gray r. PulUn, 5 B. 4 S. 970 ;
Iter v. Great Western R. C, 5H.L Peachcy v. Rowland, 13 C. R 187 ;
Cas. 86, 87. Sadler v. Henlock, 4 K. & B. 570 ;
(d) Mis v. Sheffield Gas Con- Oayford y. Nicholh, 9 EzcL 702 ;
guwrs' Co., 2 E, & B. 767, andffoU Newton v. EUu, 5 E. & B. 115 ;
▼„ Sittinrjbourne and Sheer new R. C, Ward v. Lee, 7K4B. 426.
0 H. & N. 488 ; cited in Pickard v. (c) 1 East, 106.
Smith, 10 C. B. N. S. 470. See
THE LAW OF CONTRACTS. 805
furtherance of his master's interests) (/) he does the
same act the master will be liable (g) because the master
has put the servant in his own place, and the act is done
in pursuance of the servant's employment (h). Neither
does the rule apply where the relationship existing between
the parties has terminated before the commission of the
act complained of. Thus, the sheriff is not liable in trover
for a conversion by his bailiff of goods seized under process
of attachment issuing out of the county court after the
bailiff has had notice of a supersedeas. The ground of
the sheriff's liability for the acts of his bailiff is, that he '
is casting upon another a duty which the law imposes
upon him, and, consequently, that he is acting by a
servant ; but the effect of the supersedeas is to render the
writ inoperative from the moment it was delivered to the
sheriff, and not the writ only, but the warrant also ; and
the consequence is, that, though the sheriff was respon-
sible for everything that was done up to the time of the
supersedeas, yet that which was done afterwards was done
in defiance of his authority, and to hold him liable for
this would be holding him to be a wrong-doer for the
act of his servant after his authority had been deter-
mined (i). m
The liability of the master for the tort of the servant
when acting under his implied authority results, then, as
above stated, from the fact, that servants are hired and
(/) Limptu v. London General R. 350. The ground and extent of
Omnibus Co., 1 H. k C. 520; 32 L. the sheriff's liability are explained,
J. Ex. 34. per Jervis, C.J., Gregory v. Cotterell,
{g) Croft v. Alison, 4 B. & Aid. 5 E. & B. 584 ; per Maule, J.,
590. Smith y. Pritchard, 8 C. B. 588 ;
{h) Seymour v. Greenwood, 1 H. ft Woods v. Finnis, 7 Exch. 363 ;
N. 355 ; 30 L. J. Ex. 327. Hooper v. Lane, 6 H. L. Cas. 443.
(*) Broun v. Copley, 8 Scott, N.
806 THE LAW OF CONTRACTS.
selected by the master to do the business required of
them, and their acts consequently stand on the same
footing as his own (k) ; as in the case of coach proprietors,
who are answerable for an injury sustained by a pas-
senger through the driver's misconduct (I). A difficulty,
however, often arises in applying this general and funda-
mental rule to particular facts, and in determining be-
tween what parties the relationship of master and servant
actually subsists (m) ; for, although that party will usually
be liable with whom the act complained of ultimately
originates, yet the applicability of this test fails in one
ca3e ; for where he who does the injury (either in person
or by his servant) exercises an independent employment,
the party employing him is clearly not liable (n) : the
general rule appearing to be that one employing another
is not liable for his collateral negligence unless the
relation of roaster and servant exist between them, thus
in the instance of a butcher who employs a drover, whose
deputy does the mischief by his careless driving (o) ; or
of a builder who contracts to make certain alterations in a
club-house, together with the necessary gas-fittings, and
who employs a gas-fitter for the latter purpose under a
sub-contract, through the negligence of whom, or of whose
servants, the plaintiff sustains an injury (p). But to
(£) Per Littledale, J. , Laugher v. 472; per Lord Ellenborough, C.J.,
Painter, 5 B. & C. 553, 554. 15 East, 392 ; Whitfield t. Lord
(I) White t. Boulion, Peake, N. Detpenccr, Cowp. 754; cited per
P. C. 81 ; Jackson v. Tollett, 2 Stark. , Lord Wensleydale, L. R.1H.L. Ill*
N. P. C, 37. See the cases 2 Selw., 124.
N. P., 12th-ed., 446, 1119. (») Per Williams, J., and Cole-
(ro) As between pilot and owner of ridge, J., 12 A. & E. 742 ; Gray v.
ship, captain of ship and inferior Pvilen, 5 B. & S. 970.
officer, NicftoUon v. Afounccy, 15 (o) MiUigan v. Wedge, 12 A. k
East, 384, and cases there cited ; E. 737.
postmaster-general and clerk, Lane ( p) Rapson r. Cubitt, 9M.&W.
v. Cotton, 1 Salk. 17 ; S. C, 15 Mod. 710. See Wilson t. Peto, 6 Moore,
.THE LAW OF CONTRACTS. 807
this rule there is an exception which has been clearly
recognised in recent times, namely, that where a person
employs a contractor to do a particular thing, the doing
of which casts a duty on the employer, the latter
cannot escape from his responsibility by delegating the
doing of the thing to another. It is difficult to state
exhaustively the instances in which this duty arises. Tt is
clear on the one hand that if A. orders B. to do a
particular thing which may cause a nuisance to his
neighbour, a duty arises on B.'s part to see that the
nuisance is not created ; again, if A. contracts with B. that
B. shall do a thing dangerous or calculated to be dangerous
to A/s neighbour, a duty equally arises on A.*s part to see
that the danger is avoided. The test would seem to be :
Was the act which occasioned the injury one which the
contractor was employed to do, or was the contractor
intrusted with the performance of a duty incumbent upon
his employer ? in both instances the employer will be
liable for the acts or omissions of the contractor to the
same extent as though the latter had been his servant (q).
Thus, where an Act of Parliament authorized the cutting
of a trench by the defendants across a highway, but
attached to the exercise of the right the condition of
filling up the trench after the drain had been completed,
and the defendant employed a contractor to do the work
who was negligent in its performance by improperly filling
up the trench, whereby the plaintiff was injured, the
Exchequer Chamber held the defendants liable on the
47 ; Witte v. Hague, 2 D. & B. 446 ; Dalton t. Angus, 6 App. Cas.
33. 740, at p. 829 ; Percival v. Hughes,
(?) Pickard t. Smith, 10 C. B. N. 9 Q. B. D. 441 ; 8 App. Cas. 443 ;
S. 470 ; Grey t. PuUen9 5 B. & S. 52 L. J. Q. B. 719 ; and see Daniell
970 ; 32 L. J. Q. B. 169 ; Bower v. v. Directors of Metropolitan Railway
Peate, 1 Q. B. D. 321 ; 45 L. J. Q. B. Co., L.R.5EL. 45.
808 THE LAW Or CONTRACTS.
ground that a duty was cast on them to see that the
trench was properly filled up, and that the defendants
could not escape from liability by delegating the duty to
another who omitted to perform it The Court appears
to have drawn an important distinction between an
omission of a duty cast upon the employer and to be
performed by the contractor, and the commission of a
wrongful act done by a contractor in the course of, but
not according to, his contract ; in the latter case the
employer would not be liable.
It is, however, obviously not essential " that the relation
of principal and agent in the sense of one commanding
and the other obeying should subsist in order to make
one responsible for the tortious act of another: it is
enough if it be shown to have been by his procurement
and with his assent. The cases where the liability of one
for the wrongful act of another has turned upon the
relation of principal and agent are quite consistent with
the party's liability, irrespective of any such relation : as
if I agree with a builder to build me a house, according to
a certain plan, he would be an independent contractor,
and I should not be liable to strangers for any wrongful
act unnecessarily done by him in the performance of his
work, but clearly I should be jointly liable with him for
a trespass on the land if it turned out that I had no right
to build upon it " (r).
A railway company entered into a contract with A. to
construct a portion of their line. A. contracted with B.,
who resided in the country, to erect a bridge on the line.
B. had in his employment C, who acted as his general
servant, and as a surveyor, and had the management of
(r) Per Willes, J., Upton ▼. Townend, 17 C. B. 71.
THE LAW OF CONTRACTS.
809
B.'slmsiness in London, for which he received an annual
salary. B. entered into a contract with C, by which C.
agreed for £40 to erect a scaffold, which had become
necessary in the building of the bridge ; but it was agreed
that B. should find the requisite materials, and lamps, and
other lights. The scaffold was erected upon the footway
by C/s workmen, a portion of it improperly projected,
and owing to that and the want of sufficient light, D. fell
over it at night, and was injured. After the accident, B.
caused other lights to be placed near the spot, to prevent
a recurrence of similar accidents. — Held, that an action
was not maintainable by D. against B. for the injury thus
occasioned (s).
Where the owner of a carriage hires horses of a stable-
keeper, who provides a driver, through whose negligence
an injury is done, the driver must be considered as the
servant of the stable-keeper or job-master, against whom,
consequently, the remedy must be taken ; unless there be
special circumstances showing an assent, either express or
implied, to the tortious act, of the party hiring the horses,
or showing that such party had control over the servant,
and was in fact, dominus pro tempore (t).
The maxim, Respondeat superior, does not, moreover, Ma»ternot
■er-
(«) Knight r. Fox, 5 Exch. 721
(distinguishing Burgess v. Gray, 1 C.
B. 578) ; Steel v. South Eastern JR.
C, 16 C. B. 550.
(t) The following cases may be
referred to on this subject, which can
only be briefly noticed in the text : —
M'Lauglin v. Pryor, 4 Scott, N. E.,
655 ; 8. C, 1 Gar. & M. 854 ; Quar-
man v. Burnett, 6 M. & W. 499 ;
the judgments of Abbott, C.J., and
Littledale, J., m Laugher t. Pointer,
5 B. & C. 547 ; DalyeU v. Tyrer, E.,
B. & E. 898 ; Hart v. Crowley, 12
A. & E. 378 ; Taverner v. Little, 5
Bing., N. C, 678 ; Croft v. Alison
4 B. & Aid. 590 ; Judgm., Seymour
y. Greenwood, 7 H. & N. 858 ; S. 0.,
6 Id. 859 ; Smith v. Lawrence, 2
Man. & Ry. 1; Sammcll y. Wright,
5 Bsp., N. P. C, 263 ; Scott v. Scott,
2 Stark., N. P. C, 488; Brady y.
Giles, 2 M. * Rob. 494 ; per Patte-
son, J., 8 A. ft E. 889.
810
THE LAW OF CONTRACTS.
vmnt for
damage
(•siuied Vy
nr^list'Dce
of fellow*
iMrrvanL
apart from the statute hereinafter mentioned, apply to
make the master responsible to a servant who sustains
bodily hurt whilst discharging the duties incidental to his
employment, such hurt having been caused by his own
carelessness or negligence (u), through a defect in ma-
chinery (x), or a deficiency of hands (y), of which the
injured party must necessarily have been cognisant (z\ or
occasioned by the negligence of a fellow-servant, provided
the master has been reasonably cautious in selecting as
his associates persons possessed of ordinary skill and
care (a). If A. and B. are fellow-servants of C, and by
the unskilfulness of A., B. is injured while they are jointly
engaged in the same service, B. will under ordinary
circumstances have no claim against C. ; for A. and B.,
" have both engaged in a common service, the duties of
which impose a certain risk on each of them ; and, in
case of negligence on the part of the other, the party
injured knows that the negligence is that of his fellow-
servant and not of his master. He knew when he engaged
in the service that he was exposed to the risk of injury,
not only from his own want of skill or care, but also from
(u) JDynen v. Leach, 26 L. J.,
Ex., 221 ; Senior v. Ward, 1 E. k E.
385.
(x) Dynen v. Leach, supra ;
Priestley t. Fowler, 3 M. & W. 1.
See WinterboUom y. Wright, 10 M.
k W. 109 ; MeUors v. Shaw, 1 B. k
S. 437, 446.
(y) Skipp v. Eastern Counties R.
C, 9 Exch. 223 ; Seymour v. Mad-
dot, 16 Q. B. 326.
(2) See Assop v. Yates, 2 H. k N.
768, which likewise illustrates the
maxim In jure non remota causa scd
proximo spectatur.
(a) Hutchinson v. York, Newcastle,
and Berwick R. C, 5 Etch. 343 ;
Wigmore v. Jay, Id. 354 ; Tarrant
v. Webb, 18 0. B. 797, 804; Ormond
v. Holland, E. B. k E. 102 -r Priest-
ley t. Fowler, 3 M. k W. 1, which
has often been recognised (see, for
instance, Waller v. South Eastern JL
C., 32 L. J., Ex., 205, 209 ; 8. C,
2 H. k C. 112 ; per Keating, J.,
Searle ▼. Lindsay, 11 C. B. N. 8.
439) ; Southcote v. Stanley, 1 H. k
N. 247, 450.
812 THE LAW OF CONTRACTS.
own servant for bodily hurt sustained through negligence :
— " Where," he says, " an injury is occasioned to any one
by the negligence of another, if the person injured seeks
to charge with its consequences any person other than
him who actually caused the damage, it lies on the person
injured to show that the circumstances were such as to
make some other person responsible. In general, it is
sufficient for this purpose to show that the person whose
neglect caused the injury was at the time when it was
occasioned acting not on his own account but in the
course of his employment as a servant in the business of
a master, and that the damage resulted from the servant
so employed not having conducted his master's business
with due care. In such a case the maxim Respondeat
superior prevails, and the master is responsible."
"But,* continues Lord Cranworth, "do the same
principles apply to the case of a workman injured by
the want of care of a fellow-workman engaged together
in the same work? I think not. When the workman
contracts to do work of any particular sort, he knows, or
ought to know, to what risk he is exposing himself ; he
knows, if such be the nature of the risk, that want of care
on the part of a fellow-workman may be injurious or
fatal to him, and that against such want of care his
employer cannot by possibility protect him. If such want
of care should occur, and evil is the result, he cannot say
that he does not know whether the master or the servant
was to blame. He knows that the blame was wholly that
of the servant. He cannot say the master need not have
engaged in the work at all, for he was party to its being
undertaken.
"Principle, therefore, seems to me opposed to the
doctrine, that the responsibility of a master for the ill
«S14 THE LAW OF CONTRACTS.
which he undertakes, a satisfactory conclusion may be
arrived at n (A).
The doctrine asserted by the House of Lords in The
Bartonskill Coal Company v. Reid, has been frequently
applied, ex. gr.9 in Clarke v. Holmes (i), in which case
Cockbwm, C. J., observes, that, " where a servant is
employed on machinery, from the use of which danger
may arise, it is the duty of the master to take due care
and to use all reasonable means to guard against and
prevent any defects from which increased and unnecessary
danger may occur. No doubt when a servant enters on
an employment, from its nature necessarily hazardous, he
accepts the service subject to the risks incidental to it ;
or if he thinks proper to accept an employment on
machinery defective from its construction, or from the
want of proper repair, and with knowledge of the facts
enters on the service, the master cannot be held liable for
injury to the servant within the scope of the danger
which both the contracting parties contemplated as
incidental to the employment." But the danger con-
templated on entering into the contract must not be
aggravated by any omission on the part of the master
to keep the machinery in the condition in which, from
the terms of the contract or the nature of the employ-
ment, the servant had a right to expect that it would
be kept (k). " A master," as remarked on another occa-
sion (I), " is by law bound to provide proper and efficient
(h) Waller v. South Eastern R. C> (i) 7 H. & N. 937, 943-4 ; & C,
32 L. J., Bx., 205, 209; S. C, 2 6 Id. 349.
H. k C. 102 ; Abraham y. Reynolds, (*) Per Cockburn, C. J., 7 H. & N.
5 H. fc N. 1 43 ; Vote ▼. Lancathirt 944 ; Weenu t. Mathieton, 4 Macq.
and Yorkshire R. C, 2 H. & N. 8c. App. Cm. 215.
728. (0 Per Keating, J., 11 C. R N. R
439.
816
THE LAW OF CONTRACTS.
liability of
owner of
realty for
nuisance.
received by the latter whilst in the service of the former
has recently been made the subject of legislative enact-
ment. By the Employers' Liability Act (*), a master may
be sued by his servant for personal injury caused to him
by reason of the defective condition of the machinery or
plant, or, by the negligence of any person in the service of
the employer holding a certain position (defined by the
Act) in his employment. An action under this statute
must be brought in the County Court, and the amount
recoverable is not to exceed such sum as may be found to
be equivalent to the estimated earnings during the three
years preceding the injury, of a person in a similar position
to that occupied by the injured workman. Many of the
provisions of the Act have already received judicial con-
struction, and it is not proposed to enter here into the
decisions except to notice one case, from which it appears
that mere knowledge by the workman of the danger will
not of itself preclude him from recovering against his
master ; it only being a fact to be taken into considera-
tion in determining whether or not the workman has been
guilty of contributory negligence (£).
It has been held that the owner of realty is not respon-
sible for a nuisance committed thereon by the occupying
tenant, unless, indeed, he has been a party to the creation
of the nuisance after the demise, or has demised land with
the nuisance existing (u).
In Todd v. Flight (x), a lessor had let the premises in
a ruinous and dangerous condition, and whilst in that
condition and after the lease, a portion of the demised
(«) 48 & 44 Vict. c. 42.
(t) Stuart v. Evans, 31 W. R.
706.
(«) Rich v. BasUrfidd, 4 C. B.
783 ; cited in Brown v. BuueU, L.
R. 3 Q. B. 261.
(x) 9 C. B. (N. S.) 877; SOL. J.
C. P. 21.
818
THE LAW OP CONTRACTS.
on which a private person or a company is liable for
damage caused by the neglect of servants has been held
applicable to a corporation which has been entrusted by
statute to perform certain works, and to receive tolls for
the use of such works, although those tolls, unlike the
tolls received by the private person or the company, are
not applied to the use of the corporation, but are devoted
to the maintenance of the works, and in case of any
surplus existing to' a proportionate diminution of die
tolls (6).
" The law requires that the execution of public works
by a public body shall be conducted with a reasonable
degree of care and skill ; and if they, or those who are
•employed by them, are guilty of negligence in the per-
formance of the works entrusted to them, they are respon-
sible to the party injured" (c).
In an ordinary case, moreover, where such commis-
sioners in execution of their office enter into a contract
for the performance of work, it seems clear that the
person who contracts to do the work "is not to be con-
sidered as a servant, but a person carrying on an inde-
pendent business, such as the commissioners were fully
justified in employing to perform works which they
could not execute for themselves, and who was known
to all the world as performing them" (d). And the
(6) Mersey Docks Trustee* v. Gibbs,
Same v. Penhallow, L R. 1 H. L.
$3, where the cases are reviewed.
(c). Clothier v. Webster, 12 C. B.
N. 8. 790, 796. See Brownlowr.
Metropolitan Board of Works, 16 G.
B. N. 8. 546 ; Gibson v. Mayor, <kc.t
of Preston, L. R. 6 Q B. 218;
Parsons r. St. Matkew, Bethnal
Green, L. R. 8 C. P. 66 ; Hyams y.
Webster, L. R. 4 Q. B. 138. Local
Boards and other bodies constituted
sarreyors of highways are an excep-
tion to this role, and an action will
not lie at the suit of one of the pub*
lie, injured by the defective condition
of the highway. Gibson r. The Corpo-
ration of Preston, LL6Q.B.
218, 39 L. J. Q. R 131.
„ (<|) Jndgni., Alien v. Hayward, 7
8S0
THE LAW OF CONTRACTS.
86 — which is applied to render the master answerable for
the negligence of his servant, because this has arisen from
his own negligence or imprudence in selecting or retain-
ing a careless servant — is not applicable to the sovereign,
in whom negligence or misconduct cannot be implied, and
for which, if it occurs in fact, the law affords no remedy.
Accordingly, in a modern case, already alluded to, it was
observed by Lord Lyndhurst, that instances have occurred
of damage occasioned by the negligent management of
ships of war, in which it has been held, that, where an act
is done by one of the crew without the participation of
the commander, the latter is not responsible; but that
if the principle contended for in the case then before the
Court were correct, the negligence of a seaman in the
service of the Crown would, in such a case, render the
Crown liable to make good the damage; a proposition
which certainly could not be maintained (k).
(k) Viscount Canterbury v. A.-G.,
1 Fhill. 306 ; Feather v. Beg., 6 B. &
S. 294, et seq. ; Tobm v. Reg., 16
C. B. N. 8. 810 ; Reg. v. Prince, L.
R. 1 C. G. 150. See ffodgkinson v.
Fcrnie, 2 C. B. N. S. 415.
It seems almost superfluous to ob-
serve, that the above remarks upon
the maxim Respondeat superior, are
to some considerable extent appli-
cable in criminal law. On the one
hand, a party employing an innocent
agent is liable for an offence com-
mitted through this medium ; on the
other, if the agent had a guilty
knowledge he will be responsible as
well as his employer. See Bac. Max.,
reg. 16. Though "it is a rule of
criminal law that a person cannot be
criminally liable for acting as the
Agent of another without any know-
ledge that he was acting wrongly ; "
per Crompton, J., Heame v. Oartowr
2 E. & B. 76.
In Coleman v. Riches, 16 C. B.,
118, Jervis, C.J., specifies various*
cases in which criminal responsibility
will be entailed on a master for the
acts of his servants in the ordinary
course of their employment
"There are," moreover, "many
acts of a servant for which, though
criminal, the master is civilly respon-
sible by action :" per Jervis, C.J.,
DunhUy v. Farris, 11 C. B., 458 ;
Palmer v. Evans, 2 C. B. N. S.
151 ; Roberts, app., Preston, rasp. ,
9 0. B. N. S. 208.
Upon the above subject Lord Wens-
leydale thus observes : — " I take it
to be a clear proposition of law, that
if a man employs an agent for a per-
822
THE LAW OF CONTRACTS.
role
Omnis Ratihabitio retrotrahitur et Mandato priori
^quiparatur. (Co. Litt. 207, a.) — A subsequent
ratification has a retrospective effect, and is equiva-
lent to a prior command.
It is a rule of very wide application, and one which
we find repeatedly laid down in the Roman law, that
ratihabitio mandato comparator (n\ where ratihabitio is
defined to be " the act of assenting to what has been done
by another in my name" (o). " No maxim/' remarks Mr.
Justice Story, " is better settled in reason and law than
the maxim, Omnis ratihabitio retrotrahitur et mandato
priori cequiparatur (p), at all events, where it does not
prejudice the rights of strangers. And the civil law does
not, it is believed, differ from the common law on this
subject " (q).
It is, then, true as a general rule, of which instances
have occurred in the preceding pages, and with respect to
which we shall merely make a few additional observations
in this place (?*), that a subsequent ratification and adop-
(n) D. 46. 8. 12, § 4 ; D. 50. 17.
60 ; D. 8. 5. 6, § 9 ; D. 48. 16. 1,
{14.
(o) Brisson. ad verb. "Ratiha-
bitio."
(p) Co. Litt. 207. a ; 258. a ;
Wing. Max. 485. Many instances of
the application of this maxim are
given in 18 Yin. Abr., p. 156, tit.
"Ratihabitio." See Ward \. Broom,
head, 7 Exch. 726 ; Sievewright v.
Archibald, 17 Q. B. 108 ; cited per
Brie, C.J., Heyworth v. Knight, 17
€. B. N. S. 808. (See, also, Parton
t. Crofts, 16 C. B. N. S. 11.) Doe
d. Ovtteridge v. Sowrby, 7 C. B. N.
S. 599, 626.
(q) Far Story, J., delivering judg-
ment, Fleckner t. United State*
Bank, 8 Wheaton (U. S.), R. 863.
(r) The operation of the maxim a»
to ratihabitio with reference to the
law of principal and agent, is consi-
dered at length in Story on Agency.
See Ifitckeson t. Nieol, 7 Exch.
929 ; Simpson y. EggingUm, 10 Kxch.
845 (which forcibly illustrates the
maxim, supra, and in connection with
which, see per Manle, J., TasstU v.
Cooper, 9C.B. 582; KimpY. Balls,
824 THE LAW OP CONTRACTS.
hitio well applied to such a case ; and it was held, that
the jury were warranted in inferring a joint authority to
insure, and that the part-owners were jointly liable for the
premium to the insurance-broker, although he had debited
H. alone, and divided with him the profits of commission,
upon effecting the insurance (x). It is, indeed, true that
" no one can sue upon a contract, unless it has been made
by him, or has been made by an agent professing to act
for him, and whose act has been ratified by him;" and
although persons who could not be named or ascertained
at the time when a policy of insurance was effected, are
allowed to come in and take the benefit of the insurance,
yet they must be persons who were contemplated when
the policy was made (y).
Again — " if an arbitrator omits to enlarge the time
limited for making his award, but continues to act as if
he had enlarged it, even to making his award, although in
fact he has no authority, yet he is a person animo agendi,
and if the parties afterwards choose to ratify his act by
agreeing that the time shall be enlarged or otherwise,
though the act was not enforceable, yet, if ratified, it would
be just as binding as if done with original authority " (?)•
Without unnecessarily multiplying instances to the
same effect as the preceding, it may be sufficient to state
the general proposition, that the subsequent assent by the
principal to his agent's conduct not only exonerates the
latter from the consequences of a departure from his
orders, but likewise renders the principal liable on con-
tracts made in violation of such orders, or even where
(z) Rcbinton v. QUadow, 2Blng., (y) Watson t. Swan*, 11 G. B.
N. CM 156, 161. SeeFmwv. Clark, N. 8. 756, 769.
1 B. &C. 186. (*) Per Blackburn, J., Lord t.
Zee, L R. S Q. R 404, 408.
826
THE LAW OF CONTRACTS.
Reason of
the rule as
to ratifica-
tion when
applied to
contract*.
time of the supposed ratification the means of forming an
independent judgment (e).
.The doctrine Omnis ratihabitio retrotrahitur, et man-
date cequvparatur is one," remark the Court of Exchequer
in a modern case (/), " intelligible in principle, and easy
in its application, when applied to cases of contract. If
A., unauthorised by me, makes a contract on my behalf
with B., which I afterwards recognise and adopt, there
is no difficulty in dealing with it, as having been ori-
ginally made by my authority. B. entered into the con-
tract on the understanding that he was dealing with me,
and when I afterwards agreed to admit that such was the
case, B. is precisely in the condition in which he meant to
be ; or if he did not believe A. to be acting for me, his
condition is not altered by my adoption of the agency, for
he may sue A. as principal at his option, and has the
same equities against me, if I sue, which he would have
had against A." It should also be stated that there
cannot be an effective ratification of a contract by a person
or company not in existence at the time such contract was
effected, consequently a company cannot ratify a contract
which purported to be made on its behalf before it existed
as a company (g).
Further, an act void and illegal in its inception, for
want of authority given by a third person, cannot be
made good by the subsequent ratification of the latter.
Thus, where one Jones forged the defendant's name to a
promissory note, and the defendant subsequently, by a
(e) Sentry t. King, 5 H. L. Cas.
627, 664.
(/) Bird v. Brown, 4 Exoh. 798,
799 ; per Lord Wensleydale, Ridgway
y. Wharton, 6 H. L. Cas. 296.
{g) Re Bmpreu Engineering Co.,
16 Ch. Div. 125 ; Method* v. Porto
Alegre Railway Co., L. R. 9 C. P. 503;
43 L. J.C. P. 253; Kelntrr. Baxter,
LR.2C. P. 174 ; SpiUcr v. Pari*
Skating Rink Co., 7 Ch. Div. 368, is
overruled by the Uter Authorities.
THE LAW OF CONTRACTS.
written memorandum, undertook to be responsible for the
note "bearing his signature," it was held that, even
assuming the memorandum purported to ratify the act
of Jones in signing the defendant's name, it could not
operate bo, because, although a voidable act may be
ratified by matter subsequent, it is otherwise where an
act is originally and in its inception void (h). The Court
also held, that as Jones did not purport to sign on behalf
of the defendant, bat held out the signature as the
defendant's, the doctrine of ratification did not apply.
In cases of tort, there is more difficulty (i). If A. rojmi
professing to act by my authority, does that which prima «Aa
facie amounts to a trespass, and I afterwards assent to
and adopt bis act, there he is treated as having from the
beginning acted by my authority, and I become a tres-
passer unless I can justify the act, which is to be deemed
as having been done by my previous sanction. So far
there is no difficulty in applying the doctrine of ratifica-
tion even in cases of tort. The party ratifying becomes,
as it were, a trespasser by estoppel ; he cannot complain
that he is deemed to have authorised that which he
admits himself to have authorised.
But the authorities go much further, and show that
in Borne cases, where an act, which if unauthorised would
amount to a trespass, has been done in the name and
on behalf of another, but without previous authority, the
subsequent ratification may enable the party, on whose
behalf the act was done, to take advantage of it, and to
treat it as having been done by his direction. But this
doctrine must be taken with the qualification that the act
828
THE LAW OP CONTRACT**.
circumstances when the ratifying party might himself
have lawfully done the act which lie ratifies (&).
In accordance with the foregoing remarks it has been
held, that a railway company may be liable for an assault
ratified by them, if the act complained of could be said to
have been done for the use or benefit of the company,
ex. gr., the assault and imprisonment of a party liable to
the company for not having paid his fare, is an act of a
servant of the company which manifestly might have
been for their benefit ; it might therefore be ratified by
them (I).
By the common law, says Sir E. Coke (m), " he that
receiveth a trespass, and agreeth to a trespass after it
be done, is no trespasser, unless the trespass vxis done
to his use, or for his benefit, and then his agreement
subsequent amounteth to a commandment; for, in that
case, Omnis ratihahitio retrotrahitur et mandato cequi-
paratur" The question of liability by ratification de-
pends accordingly upon this consideration — whether the
act was originally intended to be done to the use or for
the benefit of the party who is afterwards said to have
ratified it(n). A person, therefore, who knowingly re-
ceives from another a chattel which the latter has wrong-
fully seized, and afterwards on demand refuses to give
it back to the owner, does not thereby become a joint
(k) Ace. per Bovill, C.J., Ains-
worth v. Creeke, L. K. 4 C. P. 486 ;
cited in Medium v. Streeler, Id. 496.
(I) Judgm., Eastern Counties R.
C. v. Broom, 6 Bxch. 326, 827;
Roe v. Birkenhead, Lancashire, and
Cheshire R. C, 7 Exch. 96.
. (m) 4 Inrt. 817 ; cited, per Parke,
J., 4 B. A Ad. 616 ; per Willes, J.,
Stacey, app., Whitehurst, resp., 18
C. B. N. S. 856; Arg., NleoU v.
QUnnie, 1 M. & S. 590 ; 6 Scott, N.
R. 897. See another application of
the maxim to a tort, per Lord Ellen-
borough, C. J., 9 East, 281.
(n) Judgm., 6 Exch. 327 ; Jame*
v. Isaacs, 12 0. B. 791.
#30 THE LAW OF CONTRACTS.
inquiry, to take the risk upon himself, and to adopt the
whole of their acts (r).
Generally speaking, the subsequent ratification of an
act done as agent, is equal to a prior authority. This
proposition, however, is not universally true. In the case
of a tenant from year to year, who has by law a right to
a half-year's notice to quit, if such notice be given by an
agent without the authority of the landlord, the tenant is
not bound by it (*). Where, moreover, a person commits
a tortious act, — as, if he seise goods, claiming property
in them himself, — the subsequent agreement of another
party will not amount to a ratification of his authority at
the time (t). So, if two out of three executors contract
with another person on their own account, amd as agents
for the third executor, such last-mentioned party may
adopt the contract, and all three may sue upon it,
although it was made with the two only: but if the
contract was with the two on their own account only,
they could not ; for, to such a case according to the
distinction above mentioned, the maxim which we have
been illustrating does not apply (tt).
Whether a criminal act can be so ratified by another as
to make the ratifier a particepe cri/minis, is a matter of
considerable doubt, and seems never to have been dis-
tinctly decided. In Reg. v. Woodward (x), the defendant's
wife had received the stolen goods from the principal
felon, and paid him part of the price on account; the
(r) LewU v. Read, 13 M. & W. («) Judgm., 2ExcKl88.
834 ; Freeman y. Mother, 18 Q. B. (t) Judgm., 6 Scott, N. &. 904.
780, 789 ; per Blackburn, J., Lord (u) Heath v. Chilton, IS If. k W.
r. Zee, L. R. 3 Q. B. 408 ; Hauler 682, 638.
v. Lemoyne, 5 C. B. N. S. 530 ; (x) Reg. v. Woodward, 31 L. J.
ColleU v. Fotter, 2 H. & N. 856, M. C. 91, cited Smith's L. C.t 8th
861* ed.# 382.
832 THE LAW OF CONTRACTS.
latterly considered, viz., Qui facit per alium facit per se —
Respondeat superiw — and Omnis ratihabitio retrotra-
hitur et mandato priori ceqwiparatur — will often simul-
taneously claim attention from the practitioner, where
a state of facts involving the relation of principal and
agent is placed before him. It may well therefore be
imagined, that the effort would be vain to separate from
each other and systematically classify reported cases,
illustrating the maxims specified. Little has consequently
been here attempted in dealing with these elementary
principles beyond offering to the reader a selection of
decisions, arranged under the respective heads to which
they seemed specially appropriate, fitted for impressing on
his mind the meaning and leading qualifications of the
legal principles above commented on.
Nihil tam conveniens est naturali jEquitatt quak
unumquodque dissolvi eo llgamine quo ligatum
EST. (2 Inst 360.) — Nothing is so consonant to
natural equity as that every contract should be
dissolved by the same means which rendered it
binding.
wSion^f1 Every contract or agreement ought to be dissolved by
the rule. matter of as high a nature as that which first made it
obligatory (z). And, again, " it would be inconvenient
that matters in writing, made by advice and considera-
tion, and which finally import the certain truth of the
agreement of the parties, should be controlled by averment
(z) Jenk. Cent 166 ; Id. 74.
j
834
THE LAW OF CONTRACTS.
Record.
Specialty -
llOW llift-
rhsrved be-
fOTB DTMK'h.
We propose, in the next place, to consider the three
following species of obligations : viz., by record, by spe-
cialty, and by simple contract ; as to the first of which
it will suffice to say, that an obligation by record may
clearly be discharged by a release under seal (/); and that
a judgment or decree of the House of Lords can, due
regard being had to constitutional principles, only be
reversed or corrected by Act of Parliament (g).
In the case of a specialty, no rule of our common law
was better established than that such a contract could,
before breach, only be discharged by an instrument of
equal force (Ii) ; that a subsequent parol, that is to say,
written or verbal agreement, not under seal, dispensing
with or varying the time or mode of performance of an
act covenanted to be done, could not be pleaded in bar to*
an action, on an instrument under seal, for non-perform-
ance of the act in the manner thereby prescribed (i), — in
markable instance of the revival of
an obsolete law. See, also, per Pat-
teson, J., Reg. v. Archbishop of
Canterbury, 11 Q. B. 627.
(/) Per Parke, B., Barber y. St.
Quintin, 12 M. & W. 45S (cited in
Ex parte Games, 8 H. & C. 299) ;
lift., s. 507, and1 the commentary
thereon ; Shep. Touch., by Preston,
322 ; Farmer v. Mottram, 7 Scott,
N. B. 408.
(g) Tommey v. White 8 H. L.
Cas. 49 ; per Lord Campbell, C. J., 1
E. & B. 804. See Frith y. Wol-
laston, 7 Exch. 194. A local custom
may, of course be abrogated by
statute, see {ex. gr.) Trutcoil v.
Merchant Tailors' Co., 11 Exch.
855 ; Cooper r. 1/ubbuck, 12 C. B.
IT. S. 456.
{h) Per Boeanquet, J., S Scott, N~
B. 216. But in certain cases as*
equitable plea may be available that
performance has been dispensed with
by an instrument not under seal ;
see per Pollock, G. B., 1 E i X.
458.
(i) Heard v. Wadham, 1 Bast,
619 ; Owynne v. Davy, 2 Scott, K.
R. 29 ; cited per Oockburn, C. J.,
L. R. 3 Q. B. 127 ; Roe v. Harrison,
2 T. B. 425 ; Blake' $ ease, 6 Bep.
43 ; Peytofs ease, 9 Bep. 77 ; Kaye
v. Waghorn, 1 Taunt 428 ; Jenk.
Cent. 66 ; Cocks v. Nash, 9 Bing.
341 ; Harden v. Clifton, 1 Q. B.
522 ; Rippinghall v. Lloyd, 5 B. &
Ad. 742, is particularly worthy of
perusal in connection with the above
subject.
THE LAW OF CONTRACTS.
83
' I
**
»"
0
f
short, that the terms of a deed could not be contradicted
or varied by parol ; that .a parol licence could not be set
up in opposition to a deed (k).
In equity the rule appears to have been different (l) ;
a parol agreement founded on valuable consideration
would have been a good ground for an injunction to
restrain an action upon the original deed, in breach of the
subsequent agreement ; and it would appear from the
authorities that a contract under seal before breach, even
if required by law to be in writing, may be rescinded by
a valid parol agreement (m).
Where there has been a breach of a contract under seal, jjjgjjjg^
and the damages are unliquidated, accord with satisfaction after breaclu
of the damages resulting from such breach may be a good
plea to an action on the specialty ; the action being founded,
not merely on the deed, but on the deed and the subse-
quent wrong, which wrong is the cause of action and for
which damages are recoverable (n). At law nothing,
however, could discharge a covenant to pay on a certain
day, but actual payment or tender on that day (o).
Accord and satisfaction was no bar to an action for a debt
certain covenanted to be paid (p), the reason apparently
being that the duty to pay took its essence and operation
originally and solely by the writing, and therefore it
ought to be avoided by matter of as high a nature (q).
In equity, however, accord and satisfaction would be a
[k) Per Lush, J., Albert v. Gro»
venor Investment Co.% L. R. 3 Q. B.
128.
(I) See Addison on Contracts, 8th
ad., 1221 ; Leake, Digest of Con*
tracts, 802 ; Taylor v. Manners, L.
K. 1 Ch. App. 48 ; 38 L. J. Oh.
J28.
(m) See note (I), supra, and Fry,
Specific Performance, 2nd ed., 445.
(n) BUM s case, 6 Rep. 43.
(o) Per Parke, B., Poole v. 7W
bridge, 2 M. & W.. 223, 226.
(p) Judgm., Massey t. Johnson, X
Exch. 253.
,(2) Leake, p. 877.
3 H 2
830 THE LAW OF CONTRACTS.
good answer to the action, it being always borne in mind
that payment and acceptance of a smaller sum in satis-
faction of a larger is no answer to an action for the
balance (r).
It has been held in equity that a voluntary declaration
by a creditor that he intends to release his debtor from a
debt, though not amounting to a release at law, may
nevertheless, if acted upon by the debtor, be held in
equity to be a representation which the creditor is bound
by (*).
The preceding remarks may, therefore, be summed up
thus, that a party liable on a specialty maybe relieved, be-
fore breach, first by an agreement founded on valuable con-
si deration, which agreement may be by word of mouth ;
and, secondly, it is submitted by the voluntary declaration
of the obligee if acted upon by the obligor to the know-
ledge of the former.
SHE!* C0M" ^e extett* df applicability of the maxim, Ununupwd-
que dissolvitur eod&m, ligamine quo ligatur, to simple
contracts, may be thus concisely indicated : " It is/' says
Parke, B., in Foster v. Dawber (t), " competent for both
parties to an executory contract, by mutual agreement,
without any satisfaction, to discharge the obligation of
that contract (it). But an executed contract cannot be
discharged, except by release under seal, or by perform-
ance of the obligation," or by accord aud satisfaction (#).
<r) Infra, p. 843. is a general rule of law, that a
(«) Yeoman* v. William*, L. R. simple contract may before bread}
1 Hq. 184. be waived or discharged, without
(0 6 Exch. 839, 851. a deed and without consideration ;
(u) See Dt Bernardy v. Harding, but after breach there can he no
8 Exch. <622. discharge, except by deed or upon
(x) Goldham v. Edward*, 170. B. sufficient consideration.* Bytes on
141, and note (r), p. 842. "It Bills, 7th ed., p. 168, adopted per
tract*.
83S
THE LAW OF CONTRACTS.
the written- contract (&) ; but, after the instrument has
been reduced into writing, it is competent to the parlies,
at any time before breach of it, by a new contract, not in
writing, either altogether to waive, dissolve, or annul the
former agreement, or in any manner to add to, or subtract
from, or vary, or qualify the terms of it, and thus to make
it a new contract, which is to be proved partly by the
written agreement, and partly by the subsequent verbal
terms engrafted upon what will be thus left of the written
agreement (c). It should be observed, that the first part
of the above rule is confined and must be restricted in its
application to a contemporaneous verbal agreement. It
has been expressly decided, that, in an action on a bill
or note, a contemporaneous agreement, in writing, may
be set up to vary the contract evidenced by such instru-
(b) See Eden v. Blake, 13 If. k W.
614 (which presents a good illustra-
tion of this rule) ; Abrey t. Crux,
L. R. 5 C. P. 37 ; Laurie r. SchoU-
field, L. R. 4 C. P. 622 ; per Willes,
J., Heffield y. Meadow*, L. R. 4 C.
P. 599 ; LockeU r. Nicklin, 2 Rich.
93 ; Shdton y. Livius, 2 Cr. k J.
411 ; Martin y. Pycroft, 2 De G.
M. k G. 785 ; Adams v. Wordiey,
1 M. k W. 874, 380 ; recognised in
Flight y. Gray, 3 C. B. N. S. 320 ;
322 ; Hughes v. Statham, 4 B. & C.
187 ; Hoare v. Graham, 3 Gamp.
57 ; cited per Tindal, C.J., 5 Scott,
N. R. 254 ; Henson v. Coope, 3
Scott, N. R. 48 ; Reay y. Richard-
son, 2 Cr. M. k R. 422; per
Bayley, J., Lewis v. Jones, 4 B. &
C. 512 ; per Lord Abinger, C.B.,
Allen y. Pink, 4 M. k W. 140, 144 ;
Knapp y. Harden, 1 Gale, 47 ;
Soares v. Qlyn, 8 Q. B. 24 ; Manley
v. Boycot, 2 E. k B. 46.
See Malpas v. London and Sasik
Western*. C, L. R. 1 C. P. 336.
A mistake in the original written
contract may sometimes be set np by
way of equitable defence : see SUtU
y. Haddock, 10 Exch. 643 ; Jk« t.
Scottish Equitable Life Ass. Soct 2
H. JfcN. 19; Waker. Harrop,l&
k N. 768.
But formerly an equitable defend
to an action was admissible only
where it set up matter in respect of
which a court of equity would have
granted relief unconditionally; Ftigto
v. Gray, supra.
(c) Judgm., Gossy. Lord Nugent,
5 B. & Ad. 64, 65 : Hargreata *.
Parsons, 13 M. & W. 561. Taylor
v. Hilary, 1 Cr. M. k R. 741, and
Giles v. Spencer, 3 C. B. N. S. 244,
present instances of substituted agree-
ments. See, also, Palmare y. CaU
burn, Id. 65 ; Douglas y. TTrfM*
17 C B. 685.
840
THE LAW OF CONTRACTS.
Where
writing is
required by
statute.
if issue be taken thereon, the defendant, it has been
observed, must, prove " a proposition to exonerate on the
part of the plaintiff, acceded to by himself, and this
in effect will be a rescinding of the contract previously
made " (i).
Where a contract is required to be in writing by the
statute law, it clearly cannot be varied by any subsequent
verbal agreement between the parties ; for, if this were
permitted, the intention of the legislature would be
altogether defeated (k). A contract, for instance, foiling
within the operation of the 4th section of the Statute of
Frauds cannot be waived and abandoned in part; for
the object of the statute (f) was to exclude all oral
evidence as to contracts for the sale of land; and,
therefore, any contract sought to be enforced must be
proved by writing only ; and if such a contract could be
verbally waived in part, the new contract between the
parties would have to be proved partly by the former
written agreement, and partly by the new verbal agree-
ment (m). And this reasoning applies also to a contract
(i) Judgm., 7 M. ft W. 59. In
Wood v. Leadbittcr, 13 M. & W. 888,
it was held that a parol licence to
enter and remain for some time on
the land of another, even though
money were paid for it, is revocable
at any time, and without paying back
the money. In this case the law
respecting the revocation of a licence
was much considered. See, also,
Roffey v. Hendenon, 17 Q. B. 586 ;
Adams v. Andrews, 15 Q. B. 284 ;
Taplin v. Florence, 10 C. B. 744.
As to the proper mode of plead-
ing a contemporaneous or subsequent
agreement, varying that entered into
between the parties, see per Parke,
B., Heath v. Durant, 12 M. k W.
440, which was an action of assump-
sit on a policy of insurance.
(A*) With reference to the Statute
of Frauds, see Ooss v. Lord Nugent,
5B. k Ad. 58; Caton v. Caton, L. R.
2H.L 127; jurMaule, J., Pontifex
v. Wilkinson, 2 C. B. 361; per
Alderson, B., Eden v. Blake, 13 M.
& W. 616 ; Stowed v. Robinson, 3
Bing. N. C. 928, 938.
(/) See Wain v. WarUers, 5 East,
10 ; Motley v. Boothby, 3 Bing. 112.
(m) Judgm., Goss v. Lord Nugent,
5 B. ft Ad. 66 ; recognised, Marshall
842
THE LAW OF CONTRACTS.
question, therefore, is, whether we can supply an alleged
defect in the contract by parol evidence of a contem-
poraneous or subsequent agreement for the payment of
the salary quarterly. I think that would be a direct
violation of the statute " (q).
It seems that neither the 4th nor the 17th section of
the Statute of Frauds can apply to prevent a verbal
waiver or abandonment of a contract within its operation
from being set up as a good defence to an action upon
the contract. Under the former of these sections, indeed,
the remedy by action is taken away in certain specified
cases if there be no written agreement, and, under the
latter the particular contract is invalidated ; but it does
not appear that a verbal rescission of the contract would
be void as within the language of either section, nor
that the policy of the statute would lead to such a con-
clusion (?') ; and a parol agreement amounting to an entire
abandonment and rescission of the contract, would be
effectual in equity in answer to a claim by either party
to specific performance («). A verbal alteration of a con-
tract required by statute to be in writing, being invalid,
(q) Oiraud v. Richmond, 2 0.B.
834, 840 ; recognising Go$s v. Lord
Nugent, supra,
(r) See Judgm., Goss v. Lord
Nugent, 6 R & Ad. 65, 66 ; cited
Harvey v. Grabham, 5 A. k E. 74 ;
Stead v. Daicber, 10 A. & E. 65 ;
Judgm., Noble v. Ward, L. R. 2 Ex.
137-8. See Moore v. Campbell,
supra. To an action for breach of a
parol contract, accord and satisfac-
tion is a good plea, Car., Taylor
v. Hilary, 1 C. M. & R. 743;
Griffiths v. Owen, 13 M. k W.
58; Carter t. Wormald, 1 Exch.
81; Bainbridgt v. Lax, 16 L. J.,
Q. B. 85. As to what will con-
stitute or support a plea of accord
and satisfaction, Bee HaU v.
Flockton, 16 Q. B. 1039; S. C,
14 Id. 380; Williams v. London
Commercial Exchange Co., 10 Exch.
569 ; Gabriel v. Dresser, 15 C. B.
622 ; Perry v. Attwood, 6 E. k B.
691, and cases there cited.
(«) Fry, Specific Perform., 2nd
ed., 445 ; Leake, Digest of Contracts,
799, and cases there, note (/).
THE LAW OF CONTRACTS.
does not effect an implied rescission of the origina
tract (t).
We may further observe, in connection with the r
under consideration, that payment of a portion
liquidated and ascertained demand, cannot be in
satisfaction of the whole ; for here the contract be
the parties consists in reality of two parts, viz., pay
and an agreement to give up the residue ; which
agreement is void, as being made without consideratio
The above rule does not, however, apply if the cla
bond fide disputable ; nor if there has been an accep
of a chattel or of a negotiable security in satisfa
of the debt, will the Court examine whether that >
faction were a reasonable one, but it will merely in
whether the parties actually came to such an agreer
A man, therefore, may give in satisfaction of a del
JE100 a horse of the value of £o, but not £5 ; and a
of money payable at a different time may be a :
satisfaction of a larger sum payable at a future day
Moreover, although the obligor of a bond cannot, at
day appointed, pay a less sum in satisfaction of the wl
yet if the obligee then receive a part and give his ace
tance under seal for the whole, this will be a good
charge, according to the maxim, Eodem ligamine
ligatwm est dissolvitwr (y).
I
(t) Noble v. Ward, L. B. 2 Ex.
135. See Ogle v. Earl Vane, L. R.
3 Q. B. 272.
(w) Bttrt v. Fookes, 11 Q. B. D.
221 ; 52 L. J., Q. R 712 ; Slbret v.
Tripp, 15 M. ft W. 23 ; qualifying
the decision in Cumber v. Watte, I
Stra. 426.
See per Parke, R , OurletoU v. Clark,
3 Exch. 377, and in £van$ v. P i
1 Exch. 606 ; PintieVs case, 5 I
117 ; Jones v. Sawkins, 5 C. B.
Grimdey t. Parker, 3 Exch. < :
EaU t. Conder, 2 C. R. N. & 2 !
(x) 15 If. ft. W. 34, 38 ; Coop
Parker, 14 C. B. 118.
(y) Co. Litt. 212, b. ; per Pai
R, 15 M. & W. 34.
S44 THE LAW OF CONTRACTS.
Additional Lastly, the maxim which has been here considered has
example of "
im- been held to apply in some cases which do not fall within
die law of contracts : thus, a donative is a benefice merely
given and collated by the patron to a man, without either
presentation to, or institution by, the ordinary, or induc-
tion by his order. In this case, the resignation of the
donative by the incumbent must be made to the patron ;
for a donative begins only by the erection and foundation
of the donor, and he has the sole visitation and correction,
the ordinary having nothing to do therewith ; and, as the
incumbent comes in by the patron, so he may restore to
him that which he conferred, for Unumqiwdque eodcm
modo quo coUigatum est dissolvitur (z).
VlGILANTIBUS, K0N DORMIENTTBUS, JURA SUBYENIUNT
(2 Inst. 690.) — The laws assist iltose wlio are vigi-
larvt, not those who sleep over their rights (a),
inntena* of We have already, under the maxim Caveat emptor (6),
ibis rule*
considered cases illustrative of the proposition that courts
of justice require and expect that each party to a contract
or bargain shall exercise a due degree of vigilance and
caution ; we shall now, therefore, confine our attention to
the important subject of the limitation of actions, which
will serve to exemplify that general policy of our law, in
pursuance of which " the using of legal diligence is always
(2) Per Litiledale, J., RenneU v. 541.
Bishop of Lincoln, 7 B. & C. 160 ; (a) See Wing. Max., p. 672 ; Ho-
S. C, 8 Bing. 490 ; citing FairehUd bart, K. 847.
y. Oaire, Yelv. 60 ; 8. C, Cro. Jac. (6) See, also, the maxim, Prior
65; 3 Burn, Ecclea. Lav, 9th ed., tempore, potior jure.
846 THE LAW OF CONTRACTS.
matter of regret in modern times that, in the construc-
tion of the Statute of limitations (21 Jac. 1, c. 16), the
decisions had not proceeded upon principles better adapted
to carry into effect the real objects of the statute ; that
instead of being viewed in an unfavourable light as an
unjust and discreditable defence, it had not received such
support as would have made it what it was intended to
be, emphatically a statute of repose. It is a wise and
beneficial law, not designed merely to raise a presumption
of payment of a just debt from lapse of time, but to afford
security against stale demands after the true state of the
transaction may have been forgotten, or be incapable of
explanation by reason of the death or removal of wit-
nesses " (i). So in the ancient possessory actions, "there
was a time of limitation settled, beyond which no man
should avail himself of the possession of himself or his-
ancestors, or take advantage of the wrongful possession of
his adversary ; for if he were negligent for a long and un-
reasonable time, the law refused afterwards to lend him
any assistance to recover the possession merely ; both
to punish his neglect, nam leges vigilantibus, non dor-
mientibu8, subveniunt, and also because it was presumed
that the supposed wrong-doer had in such a length of
time procured a legal title, otherwise he would sooner
have been sued " (&). . . . And further, Sir W. P. Wood,
V.C., remarks, in Manby v. Bewiclce (1), that, "the legis-
lature has in this, as in every civilized country that has
(*) Bell v. Morrison, 1 Peten conttiiuta e$t ut aliquis litium jini*
(U.S. ), R. 860. euet ; D. 41. 10. 5 ; Wood, Civ. Law,
(it) S Com. by Broom & Hadley, 3rd ed., 123.
270, 271. As to the doctrine of (J) 3 K. & J. 352 ; Tnatcu of
Prescription in the Roman Law, see Dundee Harbour v. DougaUy 1 M&cq,
Mackeld. Civ. Law, 290. Usucapio .Sc. App. Can. 317.
S48 THE LAW OF CONTRACTS.
force, that shall be sued or brought at any time after
the end of the then session of Parliament, shall be com-
menced and sued within the time and limitation fol-
lowing,— (that is to say), — the said actions of debt for
rent upon an indenture of demise, or covenant or debt
upon any bond or other specialty (o), or actions of debt
or set. fa. upon recognizance, within ten years after
the end of the then session of Parliament, or within
twenty years after the cause of such actions or suits, but
not after ; the said actions by the party grieved, one
year (p) after the end of the then session, or within two
years after the cause of such actions or suits, but not after;
and the said other actions, within three years after the
end of the then session, or within six years after the cause
of such actions or suits, but not after (q). It is, however,
further provided, that nothing in this Act shall extend
to any action given by any statute, where the time for
bringing such action is or shall be by any statute specially
limited.
By section 4 of the same statute, it is further enacted,
that, if any person, entitled to any such action or suit
as above mentioned, shall, at the time of such cause of
action accruing, be within the age of twenty-one years,
feme covert, non compos mentis, [or beyond the seas (r),J
(o) An action of debt by a railway statute) ; Tobacco Pipe Maker* v.
Company for calls under the S & 9 Loder, 16 (J. B. 765 ; Jones v. Pope,
Vict. c. 16, and the Company's 1 Wma. Saund. 38.
Special Act, most be brought within (p) See stat 81 Elk. c 5, a. 5 ;
twenty yean of the accruing of the Dyer v. Best, 4 H. & C. 189.
cause of action ; Corlt and Bandon (?) See Sturpist v. DareU, 4 H. ft.
R. C. v. Ooode, 18 C. B. 826 ; & C, N. 622.
Id. 618. See Shepherd r. NUU, 11 (r) See 19 & 20 Vict a 97, a.
Ezch. 55, 65, 67 (where the action 10.
was likewise helot to be founded on a
THE LAW OF CONTRACTS.
849
then such person shall be at liberty to bring the same,
provided it be commenced within the specified time after
coming to or being of full age, discovert, of sound memory,
[or returned from beyond the seas («)] ; and a provision is
inserted in the same section, which applies to the case of
a defendant similarly circumstanced (t).
The doctrine of limitation in the case of simple con- simple con-
tracts,
tracts is founded upon a presumption of payment or
release arising from length of time, as it is not common
for a creditor to wait so long without enforcing payment
of what is due ; and, as presumptions are founded upon
the ordinary course of things, ex eo quod plerumque Jit,
the laws have formed the presumption, that the debt, if
not recovered within the time prescribed, has been ac-
quitted or released. Besides, a debtor ought not to be
obliged to take care for ever of the acquittances which
prove a demand to be satisfied ; and it is proper to limit
a time beyond which he shall not be under the neces-
sity of producing them. This doctrine has also been
established as a punishment for the negligence of the
creditor. The law having allowed him a time within
which to institute his action, the claim ought not to be
received or enforced when he has suffered that time to
elapse (u).
For the above reasons, it was enacted by stat. 21
Jac. 1, c. 16, s. 3 (x)y that all actions of account and of
(s)la\
(0 See Forbes v. Smithy 11 Bxch.
161.
(u) 1 Pothier, by Evans, 451.
(x) This statute, observes Pollock,
C. K, in (hdlivcr v. Gulliver, 1 JL k
N. 176, "applies in terms to actions
at law only, though by analogy courts
of equity have adopted the provision ;
but the 85th section of the Com. Law
Proc. Act, 1854, cannot alter the
effect of the Statute of Limitations ia
Courts of Law."
See Harris y. Quint, L. B. 4 Q,.
B. 653.
3 x
850
THE LAW OF CONTRACTS,
•t
accounts.'
assumpsit (other than such accounts as concern the
trade of merchandise between merchant and merchant,
their factors or servants), and all actions of debt grounded
upon any lending or contract without specialty, and all
actions of debt or arrearages of rent(y), shall be com-
menced and sued within six years next after the cause
of such action or suit, and not after (z). And now by
stat. 19 & 20 Vict. c. 97, s. 9, it is further provided that
Merchants' " All actions of account or for not accounting, and suits
for such accounts as concern the trade of merchandise
between merchant and merchant, their factors or ser-
vants, shall be commenced and sued within six yeans
after the cause of such actions or suits, or, when such
cause has already arisen, then within six years after the
passing of this Act ; and no claim in respect of a matter
which arose more than six years before the commence-
ment of such action or suit shall be enforceable by
action or suit by reason only of some other matter of
claim comprised in the same account having arisen within
six years next before the commencement of such action
or suit."
The 7th section of the statute of James, above cited,
contains also a proviso, similar to those already men-
tioned, with respect to infants, married women, non
(y) See 3& 4 Will. 4, c 27, a. 42 ;
19 & 20 Vict. c. 97, 88. 10, 11.
(z) See HarUand v. Jukes, 1 H. &
C. 667. No time less than six yean
is unreasonable, as between drawer
and holder of a cheque, for its pre-
sentment, unless loss is occasioned by
the delay ; Laws v. Randy 3 C. B.
N. S. 442. See also, as to payment
by cheque, Hopkins r. Ware, L. R.
4 Ex. 268.
Inasmuch as a debt which ac-
crued more than six years before
action brought may have been re-
newed within that period, a plea
of the Statute of Limitations ought
to allege that the debt did not
accrue within the six years. See
Bush y. Martin, 2 H. & C. Sll ; ft
vide EvertU v. Robertson, 1 E. k EL
16.
THE LAW OF CONTRACTS. 851
compotes mentis [and persons imprisoned or beyond the
seas (a) ], viz., that an action may be commenced in the
above cases within six years after the particular disability
shall have ceased. The action of debt for not setting
out tithes is not within the above statute; but, by 53
Geo. 3, c. 127, s. 5, no action shall be brought for the
recovery of any penalty for not setting out tithes, unless
such action be brought within six years from the time
when such tithes became due.
With respect to certain of the statutory disabilities Absence
above specified, it has been recently enacted that " no ^JSt Jf^011"
person or persons who shall be entitled to any action or ^ofS^
suit, with respect to which the period of limitation within "* l 3~
which the same shall be brought is fixed," by the 21 Jac. 1,
c. 16, s. 3; 4 Ann. c. 16, s. 17 ; 53 Geo. 3, c. 127, s. 5 ;
3 & 4 Will. 4, c. 27, ss. 40, 41, 42 ; and 3 & 4 Will. 4,
c. 42, 8. 3, " 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 one or more of
such persons, being at the time of such cause of action
•or suit accrued beyond 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 being
imprisoned at the time of such cause of action or suit
accrued." (6).
(a) See 19 & 20 Vict. c. 97, s. 10. after the period has elapsed within
(6) 19 & 20 Vict c. 97, 8. 10. In which the right to bring the action is
Cornill v. Hudson, 8 E. & B. 429, limited by statute irrespective of the
Lord Campbell, C.J., observes, that circumstance that the plaintiff has
the above 10th section of the Act been abroad or in prison. See Towns-
prevents any action being commenced end v. Deacon, 3 Bxch. 706.
8 I 2
852
THE LAW OF CONTRACTS.
Absence
lieyond wetm
«if Joint
<lebtor.
Judgment
recovered
against Joint
debtor.
Fart iwy-
nient by one
contractor,
Ac, not to
prevent bar
liy certain
utatatea of
limitation*
in favour of
another con-
tractor, &c.
Also by the next ensuing section of the Act just
cited (o) it is further enacted that " where such cause of
action or suit with respect to which the period of limita-
tion 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 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.19
The 14th section also provides in reference to the 21
Jac. 1, c. 16, s. 3, and 3 & 4 Will. 4, c. 42, & 3, that;
" 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 con-
tractor, no such co-contractor or co-debtor, executor or
administrator shall lose the benefit of the said enactments
or any of them so as to be chargeable in respect or by
reason only of payment of any principal, interest, or other
money, by any other or others of such co-contractors or
co-debtors, executors or administrators." This section of
(e) 19 * 20 Vict c 97, s. 11.
854
THE LAW OF CONTRACTS.
period limitation runs, or the mode in which a claim may
be taken out of the operation of the statute, or, when
barred by any statute, may be revived by a subsequent
promise or acknowledgment. These subjects will be
found minutely treated of in works devoted to an ex-
position of the law of real property, and of contracts and
mercantile transactions. There is, however, one maxim
which naturally suggests itself in this place, and which is
illustrated by those provisions in the different statutes
of limitation, which, in the cases of infancy and coverture,
and others similar, suspend their operation until removal
of such disability. The maxim alluded to is expressed
thus : Contra non valentem agere nulla cwrrU jprte-
8einptio — prescription does not run against a party who is
unable to act. For instance, in the case of a debt due,
it only begins to run from the t$me when the creditor has
a right to institute his suit, because no delay can be'
imputed to him before that time (k). Where, therefore,
a debt is suspended by a condition ; as, if the contract
be to pay money at a future period, or upon the happen-
ing of a certain event, as, " when J. S. is married," the
six years are to be dated, in the first instance, from the
arrival of the specified period ; in the second, from the
time when the event occurred (I). Where, however, the
breach of contract, which, in assumpsit, is the gist of the
action (m), occurred more than six years before the com-
fit) 1 Pothier, by Evans, 451
Hemp v. Garland, 4 Q. B. 619, 524
Flood v. Pattenon, 30 L. J., Chanc
486 ; Huggint v. Coatet, 5 Q. B. 432
Holmes r. Kerrison, 2 Taunt. 323
Oowper v. Oodmond, 9 Brag. 748.
See, also, Davits v. Humphreys, 6
M. & W. 158 ; Bell, Diet, and Big.
of Scotch Law, 223.
Where a loan is made by cheque
the Statute of Limitations runs from
the date of payment of the cheque ;
Garden v. Bruce, L. £. 3 C. P.
300.
(I) 1 Pothier, by Evans, 451;
Shutford r. Borough, Godb. 437 ;
Fenton v. EmbUrs, 1 W. 331a. 353.
(m) " The rule is firmly established
856
THE LAW OF CONTRACTS.
Actions ex
contractu
by personal
represent*,
tives.
various actions which may be maintained by and against
executors and administrators, as well as those rights of
action which die with the person, — to which alone the
above rule may be considered in strictness to apply.
The personal representatives are, as a general rule,
entitled to sue on all covenants broken in the lifetime of
the covenantee ; as for rent then due, or for breach of
covenant for quiet enjoyment (r), or to discharge the land
from incumbrances (*). A distinction must, however, be
remarked between a covenant running with the land, and
one purely collateral. In the former case, where the
formal breach has been in the ancestor's lifetime, but
the substantial damage has taken place since his death,
the real and not the personal representative is the proper
plaintiff; whereas, in the case of a covenant not running
with the land, and intended not to be limited to the life
of the covenantee, as a covenant not to fell trees, ex-
cepted from the demise, , the personal representative is
alone entitled to sue (0* In a recent case, it was held,
that the executor of a tenant for life may recover for a
breach of a covenant to repair committed by the lessee
of the testator in his lifetime, without averring a damage
to his personal estate ; and, in this case, the rule was
stated to be, that unless the particular covenant be one
for breach whereof, in the lifetime of the lessor, the heir
alone can sue, the executor may sue, unless it be a mere
(r) Lucy y. Levington, 2 Ley. 26.
By 13 Edw. 1, st. 1, c. 23, executors
shall -have a writ of account. In the
stat. 31 Bdw. 3, st. 1, c. 11, origi-
nated the office of administrator.
(«) Smith t. Simondt, Comb. 61.
(t) Raymond v. Fitch, 2 0. M.
& B. 598, 599 ; per Williams, J.,
and Parke, B., Beckham r. Drake,
2 H. L. Cas. 596, 624 ; per Parke,
J., Carr v. Roberts, 5 B. & Ad. 84 ;
Kingdon v. NoUle, 1 M. & 8. 355 ;
4 M. & S. 53 ; King v. Sonet, 5
Taunt. 518 ; S. C. (in error), 4 M.
& S. 188.
858
THE LAW OF CONTRACTS.
Agftlnvt
representa-
tives.
and, generally, with respect to injuries affecting the life or
health of the deceased, — such, for instance, as arise out of
the unskilfulness of a medical practitioner, or the negli-
gence of an attorney, or a coach proprietor, — the maxim
as to actio personalis is applicable, unless some damage
done to the personal estate of the deceased be stated on
the record (c). But, where the breach of a contract
relating to the person occasions a damage, not to the
person only, but also to the personal estate; as, for
example, if in the case of negligent carriage or cure there
was consequential damage — if the testator had expended
his money, or had lost the profits of a business, or the
wages of labour for a time ; or if there were a joint con-
tract to carry both the person and the goods, and both
were injured ; it seems a true proposition, that, in these
cases, the executor might sue for the breach of contract,
and recover damages to 'the extent of the injury to the
personal estate (d).
The personal representatives, on the other hand, are
liable, as far as they have assets, on all the covenants
and contracts of the deceased broken in his lifetime (e),
and likewise on such as are broken after his death, for
the due performance of which his skill or taste was not
required (/), and which were not to be performed by the
(c) Judgm., 2 M. & S. 415, 416 ;
BecUuXm v. Drake, 2 H. L. Cm.
579, 596, 624. See Knights r.
Quartet, 2 B. & B. 104.
(d) Judgm., 8 M. Jc W. 854, 855.
(e) SemUe. "Where a relation
exists between two parties which in-
Yohres the performance of certain
duties by one of them,. and the pay-
ment of reward to him by the other,
the law will imply, or the jury may
infer a promise by each party to do
what is to be done by him ;" and for
breach of each a promise by deceased,
his executor* might sae ; Morgan y.
Ravey, 6 H. & N. 265, 276.
(/) Per Parke, B. , Sikmi r. Xirk-
man, 1 M. Jc W. 423 ; per Patteson,
J., Wentworth r. Cock, 10 A. k &
445, 446 ; Hopwood ▼. Wkaley, 6
I.
860
THE LAW OF CONTRACTS.
ArtioiiK ex
//Wicf« by
jieraonal
representa-
tives.
the stipulated period, his administrator refused to
accept (n).
The action of debt on simple contract, except for
rent (o), did not, however, formerly lie against the
personal representative for a debt contracted by the
deceased (p), unless the undertaking to pay originated
with the representative (q) ; and the reason of this was,
that executors or administrators, when charged for the
debt of the deceased, were not admitted to wage their law,
and, consequently, were deprived of a legal defence which
the deceased himself might have made use of; but this
reason did not apply to assumpsit, which, therefore might
always have been brought (r). Now, however, by stat
3 & 4 Will. 4. c. 42, s. 13, wager of law is abolished ; and
by sect. 14 it is enacted, that an action of debt on simple
contract shall be maintainable in any court of common
law against an executor coadministrator.
It is, however, to actions in form ex delicto that the
rule Actio personalis tnwr\Jtur cum perwnd is peculiarly
applicable ; indeed, it has been observed that this maxim
is not applied in the old authorities to causes of action
on contracts, but to those in tort which are founded on
malfeasance or misfeasance to the person or property of
another; which latter are annexed to the person, and
die with the person, except where the remedy is given
to the personal representative by the statute law («) ; it
(r) Wtntwortk r. Cock, 10 A. &
S.42.
(o) Norwood v. Head, Plowd. 180.
(p) Barry v. llobinaon, 1 N. R.
293.
(q) Ridddl v. Sutton, 6 Bing. 206.
(r) 3 Bla. Com. 16th ed., 847,
and n. (12). In PerHnton r. Gil-
ford, Cro. Car. 539, debt was held to
lie against the •executors of a sheriff,
who had levied under a ji fa., and
died without paying over the money-
As to a set-off by an executor sued as
such, see Mardall v. TheUuston, 6
E. & B. 976 ; S. C, 18 Q. B. 857.
(t) Per Lord Abinger, C.B., 2 C,
M., k R. 597.
J
802
THE LAW OF CONTRACTS.
session of them from that time, though before probate
granted (6). The title of an administrator, however, is
derived from the letters of administration, though it has
relation back, for many purposes, to the date of the death ;
for instance, trespass has been held maintainable by an
administrator for an act done between the death and the
grant of the letters of administration (c). Detinue, how-
ever, will not lie by an administrator for goods of the
intestate, which the defendant has re-delivered prior to
the grant of administration (d).
In regard to the doctrine of relation just mentioned, we
may add in the words of a very learned judge, that " an
act done by one who afterwards becomes administrator to
the prejudice of the estate, is not made good by the sub-
sequent administration. It is only in those cases where
the act is for the benefit of the estate, that the relation
back exists, by virtue of which relation the administrator
is enabled to recover against such persons as have inter-
fered with the estate, and thereby to prevent it from being
prejudiced and despoiled " (e).
Previously to the stat. 3 & 4 Will. 4, c. 42, no remedy
was provided for injuries to the real estate of any person
deceased committed in his lifetime (/) ; but sect 2 of that
statute enacts, that an action of trespass, or trespass on
the case, as the case may be, shall be maintainable by the
executors or administrators of any person deceased, for any
(6) Judgm., Ptmberton ▼. Chap-
man, 7 E. k B. 217 ; citing Smith v.
MUles, 1 T. B. 480.
(c) Thorpe v. StaUvoood, 5M. &
Or. 760 ; recognised FoeUr r. BaUt,
12 M. k W. 227. See Wdchman r.
Sturgu, 13 Q. B. 652. In Boeder
v. Arch, 10 Exch. 333, the doctrine
of relation was also held applicable,
under peculiar circumstances, so as to
prevent the operation of the Statute
of Limitations. See per Parke, B.,
Id 339, 340.
(d) CromfiM t. Such, 8 Exch.
825.
(e) Per Parke, B., Morgan t.
Thomas, S Exch. 307.
(/) 1 Wms. Sannd. 217, n.
IJ
THE LAW OF CONTRACTS.
868
injury to the real estate of such person committed in his
lifetime, for which an action might have been maintained
by such person, provided such injury shall have been com-
mitted within six calendar months before the death of
such deceased person, and such action be brought within
one year after the death of such person. This proviso
seems to apply where the action commenced in the life-
time of the testator, is continued by his executors, after
his death, the acts complained of being committed more
than six months before his death (g).
Notwithstanding the statutory exceptions above noticed
to the general rule which was recognised by the common
law, the rule still applies where a tort is committed to a
man's person, feelings, or reputation, as for assault, libel,
slander, or seduction of his daughter: in such cases no
action lies at suit of the executors or administrators, for
they represent not so much the person as the personal
estate of the testator or intestate, of which they are in law
the assignees (h).
Again, prior to the 9 & 10 Vict, c. 93, (amended by o a io vict.
27 & 28 Vict c. 95,) an action was not maintainable
against a person who, by his wrongful act, occasioned the
death of another; but by sect 1 of that statute it is
enacted, that " whensoever the death of a person shall be
caused by wrongful act, neglect, or default, and the act,
neglect, or default is such as would (if death had not
•ensued) have entitled the party injured to maintain an
action, and recover damages in respect thereof (i), then
iff) Kirk t. Todd, 21 Ch. Dir.
484.
(A) 3 Bla. Com. 16th ed., 802, n.
{9) ; Com. Dig. " AdminiHratum,"
<B. 13).
(i) These words have reference,
"not to the nature of the loss or
injury sustained, bat to the circum-
stances under which the bodily injur/
arose, and the nature of the wrongful
act, neglect, or default complained
of :" thus, if the deceased had by hfe
864 THE LAW OF CONTRACTS. (
■
and in every such ca9e the person who would have been
liable if death had not ensued, shall be liable to an action
for damages, notwithstanding the death of the person
injured, and although the death shall have been caused
under such circumstances as amount in law to felonr."
By sect 2, it is further enacted, that " every such action
shall be for the benefit of the wife, husband, parent (k)T
and diild (1), of the person whose death shall have been
so caused, and shall be brought by and in the name of the
executor or administrator of the person deceased ; or if
there be no executor or administrator of the deceased, or
such action as aforesaid be not brought within six calendar
months alter his death, then it may be brought in the
name or names of all or any of the persons for whose
benefit the personal representatives of the deceased would
have sued (m). In every such action the jury may give
such damages as they may think proportioned to the
injury resulting from such death to the parties respec-
tively for whom and for whose benefit such action shall
be brought ; and the amount so recovered, after deduct-
ing the costs not recovered from the defendant, shall be
divided amongst the before-mentioned parties, in such
shares as the jury by their verdict shall find and direct'9
And by sect. 3, the action for damages must be brought
within twelve calendar months after the deatb of such
deceased person. It will be observed, that this statute
own negligence materially contributed JL C.f 2 B. & S. 759, 767.
to the accident whereby he lost his (k) 8. 5.
life, inasmuch as he, if Hring, could (I) Id. ; see Diehmmm r. North
not hate maintained an action for Eastern JL C, 2 EL Jt C 735.
damages, although there had been (at) 27 Jfc 28 Vict, c 95, a. 1 ; see
negligence on the part of the defend- abo a. 2 ; Read r. (free* ffssfii m JL
ant* an action would not lie under C.f L. JL 3 Q. B. 555 ; et vide stak
the statute; Ppm t. Great Northern 81 & 32 Tict c 119, as. 25, 28.
THE LAW OF CONTRACTS.
865
only applies where death ensues from the particular
wrongful act, and does not, therefore, affect the class of
cases above mentioned, viz., where a tort is committed to
the person which does not occasion death (n).
By the statute 8 & 4 Will. 4, c. 42, s. 2, already Agji*
mentioned, trespass and case will also lie against personal ™^aeuta
representatives for any wrong committed by any person
deceased, 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
person's death, and so as such action shall be brought
within six months after the executors or administrators
shall have taken upon themselves the administration of
the estate and effects of such person (o). Prior to this
Act, the remedy for a tort to the property of another, real
or personal, by an action in form ex delicto, — such as
trespass, trover, or case for waste, for diverting a water-
course, or obstructing lights,— could not have been enforced
against the personal representatives of the tort-feasor
unless advantage accrued to the latter (p) ; and, even
now, no action can be maintained against them under
that statute for a personal tort committed by him (q).
(n) See, further, as to the opera-
tion of the above statute, Broom's
Com. Law.
(o) With reference to this statute
see Richmond v. Nicholson, 8 Scott,
134; Powell v. Bees, 7 A. & E. 426.
(p) 1 Wms. Saund. 216 n. (1).
See Bacon v. Smith, 1 Q. B. 348.
Where chattels, wrongfully in the
possession of testator, continued in
specie in the hands of his executor,
replevin or detinue would hare been
maintainable to recover the specific
goods; Bro. Abr. "Detinue" pL 19;
Le Mason v. Dixon, Sir W. Jones,
173, 174. See CrossfM v. Such,
8 Bxch. 825, and infra, 867.
(q) 1 Wms. Saund. 216, n. (1) ;
Com. Dig. " Administration/* (B.
15) ; 2 Inst. 882 ; Irdandr. Chainp-
neys, 4 Taunt. 884. By stats. 30
Oar. 2. st 1, c. 7, and 4 & 5 Will. &
M., c 24, s. 12, the representatives
of an executor or administrator who
has committed waste are rendered
liable : see Huntley v. Russell, 13
Q. B. 572.
As to the liability of the executor
3 K
86C THE LAW OF CONTRACTS.
Cases, however, do occur where an action founded in tort
will (r), independently of the above Act* lie against the
executor (0). For instance, the executors of an innkeeper
have been held answerable for the value of articles lost
by the plaintiff whilst staying in the inn kept by the
deceased (t).
In a recent case, where the question arose, whether the
reigning sovereign was liable to make compensation for
a wrong done by the servants and during the reign of his
predecessor : Lord Lyndhurst, G, observed, that if the
case had been between subject and subject, an action
could not have been supported, upon the principle that
Actio persOTtalis moritur cum persond ; and, although it
was contended that a different rule prevails where the
sovereign is a party, that some authority should be
adduced for such a distinction (w).
For a tort committed to the person, it is clear, then,
that at common law no action can be maintained against
the personal representatives of the tort-feasor, nor does
the stat 9 & 10 Vict. c. 93, as amended by 27 & 28 Vict
c. 95, supply any remedy against the executors or admin-
istrators of the party who, by his " wrongful act, neglect,
or default/' has caused the death of another ; for the first
section of this Act renders that person liable to an action
for damages, " who would have been liable if death had
not ensued," in which case, as already stated, the personal
representatives of the tort-feasor would not have been
liable.
of an executor for a devastavit by the recognised, 4 B. & Ad, 829.
latter, see Coward v. Gregory, L. B. (Q Morgan v. Ravey, 6 H. & N.
2 C. P. 158. 265. See stat. 26 & 27 Vict, c. 41.
(r) AnU, p. 866, n. (r). (u) Viae. Canterbury y. X-(?., 1
(«) Per Lord Mansfield, C.J., PHIL 822.
HamMy t. Trott, 1 Cowp. 878;
808
THE LAW OF CONTRACTS.
Action Uy ft
muter
whoor ■er-
rant tuui
been killed
on the »jK)t.
against those who represented his estate. The reader is
referred to the judgment of Cotton, L.J., which contains
an exhaustive review of the legal history of the maxim
under consideration (z).
The question whether a master has a right of action
in respect of injuries to his servant which result in the
instant death of the latter was discussed and answered in
the negative in the case of Osborn v. OHlett (a). As the
present Lord Bramwell dissented from the view expressed
by the majority of the Court, it has been thought
desirable to consider somewhat carefully the decisions
and principles of law applicable to the subject The
ancient reason of the rule that the master cannot recover
seems to have been this, that the servant dying of the
extremity of a battery, it became an offence to the Crown,
being converted into a felony, and that drowned the par-
ticular offence and private wrong previously offered to the
master, and his action was thereby lost (6). This reason
appears practically to be no longer good law since the
recent cases of Ex pte. Ball and the Midland Insurance
Co. v. 8mith(c), and the decision in Osborn v. Gittett, would
appear to depend for its correctness on the nisifffW8
decision of Lord Elleriborvugh in Baker v. Bolton {d)t 10
which it was laid down as law that in a civil court the
death of a human being could not be complained of as an
injury. If the ground for this statement is, as it seems it-
must be, that death can only be complained of as a civil
(z) By the Rales of Court, 188S,
0. 17. r. 1 ; a cause or matter, whether
the cause of action suirivo or not,
shall not abate by reason of the death
of either party between the verdict
and judgment.
(a) L. B. 8 Exch. 88.
(6) Biggin* y. Butcher, Yelr. 90.
(c) 10 Ch. D. 667 ; 6 a B- D'
561; 50 L. J. Q. B. 41; W'
D'Avigdor, 10 Q. B. D. 412.
(d) 1 Gamp. 493.
THE LAW OF CONTRACTS.
injury if caused by negligence, and that if so caused i
amounts to a felony, which merges the civil remedy b]
action, the answer appears to be twofold, — first, tha
possibly there may be a killing under circumstances o
sufficient negligence to maintain an action if death ha<
not ensued, though the negligence is not criminal so as U
render the killing manslaughter (e) ; and secondly, tha
even assuming the negligence to be criminal so as t<
render the killing manslaughter, yet the civil remedy ty
action for the loss of service is not thereby merged in oi
suspended until criminal proceedings for the death have
been taken (/). It is submitted, therefore, that the
authorities and reasoning upon which the decision in
08bom v. Gillett, rests are no longer the law, and that
an action is maintainable by a master for the loss of the
services of his servant by reason of the instantaneous
death of the latter, brought about by the defendant's
negligence.
It may be observed, in concluding this subject, that
cases have occurred, ex.gr., respecting the right of action by
or against a feme covert (g), surviving her husband, for an
injury to her person or property, or for her tortious act
committed before or during coverture, — which are exceed-
ingly similar in principle and analogous to those which
have been here cited and commented on. It cannot,
however, be said with propriety that the maxim above
illustrated is strictly applicable to such cases ; and it has,
therefore, been thought better to confine our attention to
those in which the right of action or liability either sur-
(fi) Per Bramwell, B., Odborn v. (?) See per Erie, C.J., Capd v.
OHUtt, L. R. 8 Ex., at p. 93. PoweB, 17 C.RN.& 747.
(/) Supra, p. 868.
870
THE LAW OF CONTRACTS.
vives the death of the party, or, in the words of the
maxim, moritur cum persond (h).
(A) As to actions by and against
the executors of a parson in respect
of was^e and dilapidations, see Bon
t. Adcock, L.B.SC.P. 655 ; Bun-
bury t. If acton, 3 Exch. 558 ; War*
ren ▼. Lugger, Id. 579 ; Bryan v.
Clay, IS. k B. 38 ; Martin t.
Boe, 7 E. k B. 237 ; Win r. Met*
ealft, 10 B. k C. 299. In Bird r.
Befph, 4 R ft Ad. 830, Patteson, J.f
obeerres, that "the action against the
executor of a parson for dilapidations
is an anomalous action, and appears
like an exception to the general rule
that 'Actio perBonali* moriturtmm
penond.'*' See, also, GUaves t.
ParfiU, 7 C. B. N. 8. 838.
871
CHAPTER X.
MAXIMS APPLICABLE TO THE LAW OF
We have in a previous Chapter, inves
rules of the law of evidence which relate p
interpretation of written instruments ; it
these concluding pages, to state some
rules of evidence. Very little, however,
attempted beyond a statement and brief
them ; because, on reflection, it appeared d<
to refer the reader to treatises of acknowle
on the subject, from which, after patient c
the more important cases there indicated, i
tion of the extensive applicability of the ibl
can alone be derived.
Optimus Interpres Rerum Usus. (2
Usage is the best interpreter of th
Custom, consuetudo, is a law not writt*
by long usage and the consent of our ancei
hence it is said that usage, usus, is the leg
custom (&). Moreover, where a law is esta
implied consent, it is either common law
(a) Jacob, Law Diet., tit. "Cut- (b) Per Bayley
torn." 440.
872
MAXIMS APPLICABLE TO THE LAW OF EVIDENCF.
Custom,
when good
universal, it is common law (c) ; if particular to this or
that place, then it is custom. When any practice was, in
its origin, found to be convenient and beneficial, it was
naturally repeated, continued from age to age, and grew
into a law, either local or national (d). A custom, there-
fore, or customary law, may be defined to be an usage
which has obtained the force of law, and is, in truth, the
binding law within a particular district, or at a particular
place, of the persons and things which it concerns (e):
Consuetudo loci est observanda (/).
There are, however, several requisites to the validity of
a custom, which can here be but briefly specified.
First, it must be certain, or capable of being reduced
to a certainty (g). Therefore, a custom that lands shall
descend to the most worthy of the owner's blood, is void
for how shall this worth be determined ? but a custom to
descend to the next male of the blood, exclusive of
females, is certain, and therefore good. And a custom to
► i
(c) " In point of fact, the common
law of England, lex non scripta, is
nothing bat custom ;" Jndgm., Nunn
t. Varty, 3 Cart. 863. Bat the
claim of any particular place to be
exempt from the obligation imposed
bj the common law, may also be pro-
perly called a custom. Id.
(d) 3 Salk. 112. Ex non seripto
jus venit q uod usus comprobavk ; nam
diuturni more* consensu utentium
eomprobati legem imitamtur ; 1. 1. 2. 9.
Consuetudinisjus esseputaturid quod
voluntaU omnium sine lege vetustas
comprobavit — Cic. de Invent, ii. 22.
(t) Ze Case de Tanistry, Davys, &.
81, 32; cited Jndgm., 9 A. & E.
421 ; and in Rogers v. Brtnton, 10
Q. B. 26, 63.
(/) 6 Hep. 67 ; 10 Rep. 139- &*
Busker, app., Thompson, resp.i 4&
B. 48.
{g) Bluett t. Tregonning, 3 A.
& K. 554, 575 (where the cu*o»
alleged was designated, jxr Wil-
liams, J., as "uncertain, ig-
nite, and absurd"); Constable ▼•
Nicholson, 14 C. R N. & 230;
A.-G. t. Mathias, 27 L J., <%**•>
761 ; Padwick t. Knight, 7 Bxck.
854 ; Wilson r. WUlcs, 7 Bast, IflJ
Broad bent r. Wilkes, WiUes, 860;
S. C. (in error), 1 Wils. 63 (which
also shows that a custom mn»t be
reasonable) ; with this case compare
Rogers r. Taylor, 1 H. A N. 709
Carlyon r. Lowering, Id). 784.
874
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
Further, a custom is not necessarily unreasonable
because it is prejudicial to the interests pf a private man,
if it be for the benefit of the copamonwealth ; as the
custom to turn the plough upop>£he headland of another,
which is upheld in favour of husbandry ; or to dry nets
on the land of another, which is likewise upheld in
favour of fishipg and for the benefit of navigation (p).
So, a custom the exercise of which causes interruption to
A -highway for a beneficial purpose and during a limited
time may be reasonable (9). And a custom that the
tenant shall have the way-going crop after the expira-
tion of his term (r), or that a tenant, who is bound to
use a farm in a good and tenantable manner and accord-
ing to the rules of good husbandry, shall be at liberty on
quitting the farm to charge his landlord with a portion
of the expense of draining land which needs drainage
according to the rules of good husbandry, though the
drainage bo done without his landlord's knowledge or
consent (a), is not unreasonable (t). So, a custom for the
(p) Judgm., Tyson v. Smith (in
error), 9 A. & E. 421 ; Co. Litt.
88, b. See Lord Falmouth r. George,
5 Bing. 286, 293. A custom for all
the inhabitant* of B. , as each, to enter
the close of the plaintiff and take
fish there without limit -would be
bad : Lloyd v. Jones, 8 C. R, 81,
89 ; citing QatewarcTs case, 6 Bep.
60, b. ; A.*G. t. Mathiat, 27 L. J.
Ohanc, 761. See Mounseyr. Ismay,
1 H. k C. 729 ; 8 Id. 486.
A custom for the inhabitants of a
parish to exercise and train horses at
all seasonable times of the year in a
place beyond the limits of the parish,
is bad ; Sowerby v. Coleman, L. R.
2 Re. 96.
(q) Elwood t. Bullock, 6 Q. B.
883.
(r) Wigglesworth r. Dattisfm,
Dougl. 201 ; S. C, 1 Smith L. C
8th ed., 606, and Note thereto.
(*) Mousley v. Ludlatn, 21 L. J.»
Q. B., 64 ; Dolby v. Hint, 1 B. &B.
224.
In Outhbert t. Gumming, lOExeh.
809 ; S. C, 11 Bzch. 405, a ques-
tion arose as to the reasonableness of
an alleged usage of trade. See Grit-
seU t. Bristowe, L. R. 4 a P. 36 ;
Cropper t. Cook, L. R. 8 0. P. 194 ;
Baines v. Swing, L. R. 1 Ex. 320.
(t) The Marquis of Salisbury t.
Gladstone, 9 H. L. Oas. 692,
and followed in Blevett, app>,
876
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
but, if it be grounded, not upon reason, but error, it is not
the will of the people (c), and to such a custom the esta-
blished maxim of law applies, Mains usus ert aboUn-
dus (d) — an evil or invalid custom ought to be abolished.
Thirdly, the custom must have existed from time imme-
morial (e) ; so that, if any one can show its commence-
ment, it is no good custom (/), but the law has laid down
no rule as to the extent of evidence which is required to
establish a custom, or from which the presumption or
inference of the fact of a custom may be rightly drawn.
It is the province of a jury to draw these conclusions of
fact (g).
Fourthly, the custom must have continued without any
(c) See Taylor, Civ. Law, 3rd ed.,
245, 246 ; Noy, Max., 9th ed., p. 59,
II. (a) ; Id. 60.
(d) Lift. 8. 212; 4 In«t. 274.
Hilton v. Earl Granville, 5 Q. B. 701
(which is an important case with
reference to the reasonableness of
a manorial custom or prescriptive
right), commented on, but followed
in BlacheU v. Bradley, 1 B. & 8.
940, 954, practically overruled in Gill
v. Dickinson, 5 Q.B. DM p. 159; 49 L.
J. Q. B. 262. See, also, Roger* v.
Taylor, 1 H. & N. 706 ; Clayton v.
Corby ; 6Q. B. 415(whereapreaeriptive
right to dig clay was held unreason-
able) ; cited per Lord Denman, C. J.,
12 Q. B. 845; Gibbs v. Flight,
3 C. B. 581 ; Bailey v. Stephen*,
12 C. B. N. S. 91 ; Constable v.
Nicholson, 14 C. B. N. S. 230,
241. In Lewis v. Lane, 2 My. k K.
449, a custom inconsistent with the
doctrine of resulting trusts was held
to be unreasonable.
" The Superior Courts have at all
times investigated the customs under
which justice has been administered
by local jurisdictions ; and, unless
they are found consonant to reason
and in harmony with the principles
of law, they have always been rejected
as illegal ;" Judgm., Cox v. Mayor
of London, 1 H. k C. 358 ; a C,
L. R.2H.L 239.
(c) See, as to proofs whence im-
memorial usage, or the legal origin
of a toll, may be presumed, Holford,
app., George, reap., L 1 3 Q. E
639, 649, 650; Bryant y. Foot, Ja\
497; Lawrence t. Hitch, Id. 521;
Shephard v. Payne, 16 C. B. N. &,
132 ; Foreman v. Free Fisher* of
WhitstabU, L. R. 4 H. L. 266, and
cases there cited.
(/) 1 Com. by Broom k Hadby
68. The above requisite of a good
custom is, however, qualified by the
Prescription Act, 2 k 3 Will 4,
c. 71.
(g) Hanmer v. Chance, 4 De O.
J. & & 626, 34 L. J. Oh. 413.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 877
interruption ; for any interruption would cause a tem-
porary cessation of the custom, and the revival would
give it a new beginning, which must necessarily be within
time of memory, and consequently the custom will be
void. But this must be understood with regard to an
interruption of the right; for an interruption of the
possession only, for ten or twenty years, will not destroy
the custom. As, if the inhabitants of a parish have a
customary right of watering their cattle at a certain pool,
the custom is not destroyed though they do not use it for
ten years : it only becomes more difficult to prove ; but,
if the right be in any way discontinued for a single day,
the custom is quite at an end (h).
Fifthly, the custom must have been peaceably enjoyed
and acquiesced in, not subject to contention and dispute.
For, as customs owe their origin to common consent, their
being immemorially disputed, either at law or otherwise,
is a proof that such consent was wanting (i).
Sixthly, a custom, though established by consent, must,
when established, be compulsory, "and not left to the
option of every man whether he will use it or no. There-
fore a custom that all the inhabitants shall be rated
towards the maintenance of a bridge will be good ; but a
custom that every man is to contribute thereto at his own
pleasure, is idle and absurd, and indeed no custom at
all"(Jfc).
Seventhly, customs existing in the same place " must
be consistent with each other ; one custom cannot be set
up in opposition to another. For if both are really
customs, then both are of equal antiquity, and both esta-
te 1 Com. by Broom & Hadley, (£) 1 Com. by Broom k Hadley,
69. 73.
(•) Id. ibid.
878 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
blished by mutual consent : which to say of contradictory
customs is absurd " (I).
Eighthly, customs in derogation of the common law,
or of the general rights of property, must be strictly
construed (m).
Ninthly, if it is sought to attach a custom to a written
contract or agreement it must not be inconsistent there-
with, therefore where by the terms of a charter-party a
ship was to proceed to a .certain port, or so near thereinto
as she could get, and there discharge her cargo as cus-
tomary, it was decided that a custom of the port by
which the charterer was only bound to take delivery at
the port, and not at a place as near thereto as the vessel
could safely get was bad, as being inconsistent with the
written contract (ri).
Where, then, continued custom has acquired the force
of an express law (o), reference must of course be made to
such custom in order to determine the rights and liabili-
ties of parties, arising out of transactions which are
affected by it; Optimus wtferprea rerum uaus. This
maxim is, however, likewise applicable to many cases, and
under many circumstances, which are quite independent
of customary law in the sense in which that term has been
here used, and which are regulated by mercantile usage
and the peculiar rules recognised by merchants.
usage of The law merchant, it has been observed, forms a branch
of the law of England, and those customs which have been
(l) 1 Com. by Broom & Hadley, (») BayUm v. Trevin, 5 C. P. D
73. 130; 41 L. J. Q. B. 661; The
(m) Id. ; Judgm., 10 Q. B. 57 ; per Alhambra, 6 C. P. D. 68 ; 50 L. J. P.
Bayley, J., 2 B. & C. 839. See as to 86.
the above role, per Cockburn, C. J., (o) See Judgm., 9 A* & E. 425,
2 H. & N. 680, 681. 426.
trade.
880 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
by any local custom, or amongst particular classes, ac-
quired a peculiar sense, distinct from the popular sense of
the same words, their meaning may be ascertained by re-
ference to that usage or custom (a). And the question
in such cases usually is, whether there was a recognised
practice and usage with reference to the transaction out
of which the written contract between the parties arose,
and to which it related, which gave a particular sense to
the words employed in it, so that the parties might be
supposed to have used such words in that particular sense.
" The character and description of evidence admissible for
that purpose " being " the fact of a general usage and
practice prevailing in that particular trade or business,
not the judgment and opinion of the witnesses, for the
contract may be safely and correctly interpreted by refer-
ence to the fact of usage, as it may be presumed such fact
is known to the contracting parties, and that they contract
in conformity thereto ; but the judgment or opinion of
the witnesses called affords no safe guide for interpre-
tation, as such judgment or opinion is confined to their
own knowledge " (t).
The following examples must here suffice in illustration
of the subject just adverted to (u), and in the maigin will
be found references to a few cases, showing the operation
of the well-known rule stated above, that evidence of usage
— mercantile or otherwise — cannot be admitted to vary
a written contract (x).
(*) Judgm., Robertson ▼. French, As to mercantile words see ^°
4 East, 135. See Carter v. Crick, 4 Peck r. North Staffordshire A &,
H. k N. 412. 10 H. L. Cas. 648.
(*) Jadgm., Lewis v. Marshall, 8 (u) See further on this subject,
Scott, N. R. 493 ; Jbusian Steam Broom's Com., 5th ed., Bk. II. <#*P-
Nav. Co. v. Silva, 13 C. B. N. S. 4.
610. (x) la the under-mentioned oases,
882
MAXJHS APPLICABLE TO THE LAW OF EVIDENCE.
custom' has been frequently proved as a fact in and recog-
nised by the Courts as a binding custom in a particular
trade they will take judicial notice of it (z). Thus, for
example, the custom of letting out furniture on what is
called the hiring system has been so frequently proved
that the Courts have taken judicial notice of it in questions
arising on the reputed ownership clauses in the statutes
relating to bankruptcy (a).
Where evidence of an established local usage — as on
the stock exchange of a particular town (b) — is admitted
to add to or to affect the construction of a written contract,
it is admitted on the ground that the contracting parties
are both cognisant of the usage, and must be presumed to
have made their agreement with reference to it ; and it
would seem that if a person employs another to transact
business for him in a particular market, being ignorant
of its usages he will nevertheless be bound thereby, pro-
vided the same are reasonable, and do not change the in-
trinsic nature of the employment, but merely regulate
its performance (c).
applied to palm-oil, Ward* t. Stuart,
1 C. B. N. S. 88 ; "in regular turns
of loading," Leidemann v. SckuUz,
14 C. B. 88 ; (with which compare
Hudson v. Clcmentson, 18 C. B.
213).
(s) Bee the observations and cases
collected in the note to Wigglenoorth
t. Dallison, Smith's L. C, 8th ed.,
606, ct scq.
(a) Crawcourv. Salter, 18 Ch. Div.
30 ; Whitfield v. Brawn, 16 M. &
W. ; where the Court appears to have
judicially noticed the custom for
bookbinders to have in their shops
books for Bale on commission.
(6) Baylijfc v. Butttrworth, 1
Rxch. 425 ; Pollock t. Stable*, 12 Q.
B. 765 ; BayUy t. Wilkin*, 7 C. R.
886 ; Taylor v. Stray, 2 C. B. N. S.
174 ; Cropper v. Cook, L. R. 8 C. P.
194, 198; Vtscounp Torrington v.
Lowe, L. R. 4 C. P. 26 ; GrituU v.
Bristotoe, Id. 36 ; Maxted ▼. Paine,
L. R. 4 Ex. 81, 203 ; Davit v. Hay-
cock, L. R. 4 Rx. 373 ; Kidton v.
Empire Mar. Ins. Co., L. R. 1 C. P.
585, L. R. 2 C. P. 357 ; Chapman v.
Shepherd, L. R. 2 C. P. 228.
(c) Robinson v. MolleU, L. R. 7
H. L. 836 ; and for a case where one
contracting party was bound by a cus-
tom of a port of which he was ignorant ;
Kingv. Hinde, 12 L. R. Ir. 113.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
There is also another extensive class of decisions in
which evidence of usage is admitted to explain and con-
strue ancient grants or charters, or to support claims not
incompatible therewith [d). Nor is there any difference
in this respect between a private deed and the king's
charter (e) : in either case, evidence of usage may be
given to expound the instrument, provided such usage is
not inconsistent with, or repugnant to, its express
terms (/). So, the immemorial existence of certain
rights or exemptions, as a modus or a claim to the pay-
ment of tolls, may be inferred from uninterrupted modern
usage (g).
Generally, as regards a deed (as well as a will), — the
state of the subject to which it relates at the time of
execution, may be inquired into ; and where a deed is
ancient, so that the state of the subject-matter or its date
cannot be proved by direct evidence, evidence of the
mode in which the property in question has been held
and enjoyed is admissible; as where the question was
whether the soil or merely the herbage passed under the
(d) Bradley v. Pilots of Newcastle,
2 E. ft B. 427 ; Duke of Beaufort v.
Mayor of Swansea, 3Exch. 413, 435;
and cases cited ; Attorney-Gen, t.
Drummond, 1 Dm. & War. 353 ;
2H.L. Cas. 837 ; Shore v. Wilson,
9 CL & Fin. 569.
(e) "All charters or gran te of the
Crown may be repealed or revoked
when they are contrary to law, or
uncertain or injurious to the rights
and interests of third persons, and
the appropriate process for the pur-
pose is by writ of scire facia*."
Judgm., Reg. v. Hughes, L. E. 1 P.
C. 87.
(/) Per Lord Kenyon, C.J., Witii-
nell v. Gartham, 6 T. R. 398 ; B. v.
Salway, 9 B. & C. 424, 435 ; Stam-
mers v. Dixon, 7 Bast, 200 ; per
Lord Brougham, C, A.-G. v. Brazen
Nose Coll., 2 CI. & Pin. 317.; per
Tindal, C.J., 8 Scott, N. R. 813.
{g) See per Parke, B., Jenkins v.
Harvey, 1 Cr., M. & R. 894 ; per
Richardson, J., Chod v. Tilsed, 2 B.
& B. 409 ; Foreman v. Free Fishers
of WhitstaUt, L. R. 4 H. L. 266, and
cases there cited ; Earl of Egremont
t. Saul, 6 A. & E. 924 ; Brune v.
Thompson, 4 Q. B. 543.
3 L 2
S84
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
statutes.
Remarks of
Mr. Justice
tStory
mspectbig
usage.
term "pastura" contained in an ancient admission as
entered on the court rolls of a manor, evidence was re-
ceived to show that the tenants had for a long series of
years enjoyed the land itself (h), the manner in which the
subject to which it refers has been possessed or used —
Optimus interpres rerum nmi8 (/).
Lastly, evidence of usage is likewise admissible to aid
in interpreting Acts of Parliament, the language of which
is doubtful ; for jus et norma loqwendi are governed by
usage. The meaning of things spoken or written, must be
such as it has constantly been received to be by common
acceptation (fc), and that exposition shall be preferred,
which, in the words of Sir E. Coke (I) is " approved by
constant and continual use and experience : " Optima
enim est legis interpres conmetudo (m). Thus, the Court
was influenced in its construction of a statute of Anne, by
the fact that it was that which had been generally con-
sidered the true one for one hundred and sixty years (n).
We shall conclude these very brief remarks upon the
maxim Optimus interpres rerum ums in the words of
Mr. Justice Story, who observes, " The true and appro-
priate office of a usage or custom is, to interpret the other-
{h) Doe v. Bevies, 7 G. B. 456 ;
cited in Taylor on Evidence, 7th ed.,
p. 1006.
(i) Per Lord Wensleydale, Water-
park t. Furnell, 7 H. L. Cas. 684 ;
citing Weld v. Hornby, 7 East, 199 ;
Duke of Beaufort v. Swansea, 3
Exch. 418; A.-G. v. Parker, 1 Ves.
43 ; 3 Atk. 576 ; per Lord St. Leo-
nards, A.-O. v. Drummond, 1 Dru.
& W. 368. See the maxim as to
contemporanea expositio, ante, p.
638. As to construing the rubrics
and canons see Martin t. Mackonockie,
LR.2A.tE. 195.
(k) Vaughan, R., 169 ; per Crow-
der, J., The Fermoy Peerage, 5 H.
L. Cas. 747 ; Arg., R. r. BeUringer,
4 T. R. 819.
(I) 2 Inst. 18.
Cm) D. 1. 3. 87 ; per Lord
Brougham, 8 CI. & Fin. 354.
(n) Cox v. Leigh, L. R.9Q.B.
333 ; 43 L. J. Q. B. 123 ; and see
Maxwell's interpretation of statutes,
p. 271.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
wise indeterminate intentions of parties, and to ascertain
the nature and extent of their contracts, arising, not from
express stipulations, but from mere implications and pre-
sumptions, and acts of a doubtful or equivocal character.
It may also be admitted to ascertain the true meaning of
a particular word, or of particular words in a given instru-
ment, when the word or words have various senses, some
common, some qualified, and some technical, according to
tbe subject-matter to which they are applied. But I
apprehend that it can never be proper to resort to any
usage or custom to control or vary the positive stipula-
tions in a written contract, and, d fortiori, not in order
to contradict them. An express contract of the parties is
always admissible to supersede, or vary, or control a usage
or custom ; for the latter may always be waived at the
will of the parties. But a written and express contract
cannot he controlled, or varied, or contradicted by a usage
or custom ; for that would not only be to admit parol
evidence to control, vary, or contradict written contracts ;
but it would be to allow mere presumptions and impli-
cations, properly arising in the absence of any positive
expressions of intention, to control, vary, or contradict
the most formal and deliberate declarations of the
parties " (o).
COILIBET IN SUA ARTE PEEITO EST CREDENDUM. (Co.
Litt. 125. a.) — Credence sltauld be given to one
skilled in his peculiar profession.
*^ WAXIUS APPLICABLE T^ THT LA* .*
f'-iniatioa of nsmberie** a:-^--c*. i=.r. "t* h: ti-^:
lion* peculiar U> tLe tra»ie§ at-1 ©:oi::: .« rf iL
and, in the«e case*, the jury mu«i accvrr r z to the alwre
maxim, attend to the witnesses and d*ei-::<e aroxi^g lo
their number, professional skill, and mear* of knowledge.
Thus, in an action against a surgeon for ignorance, the ques-
tion may turn on a nice point of sorg^rr. In an action on
a policy of life insurance, physicians mist be examined.
So, for injuries to a mill worked by running water, and
occasioned by tne erection of another mill higher up the
stream, mill-wrights and engineers must be called as wit-
nesses. In like manner, many questions respecting navi-
gation arise, which must necessarily be decided by a jury,
as in the ordinary case of deviation on a policy of marine
insurance, of seaworthiness, or where one ship runs down
another at sea in consequence of bad steering {j>\
^J^^m Respecting matters, then, of science, trade (q\ and
auea.*, k*. others of the same description, persons of skill may not
only speak as to facts, but are even allowed to give then-
opinions in evidence (r), which is contrary to the general
rule, that the opinion of a witness is not evidence: Thus
the opinion of medical men is evidence as to the state of
a patient whom they have seen ; and even in cases where
they have not themselves seen the patient, but have
heard the symptoms and particulars of his state detailed
by other witnesses at the trial, their opinions on the
nature of such symptoms have been admitted (s). In
( p) Johnstone ▼. Sutton (in error), that he is reasonably competent to
1 T. R. 688, 589. the task he undertakes, may be re-
(7) The importance attached to the f erred to the maxim *upra.
tex tntrcatoria, or custom of mer- (r) 1 Stark. Ev., 4th ed., 173, 175;
chants, and the implied warranty by Stark. Ev., 4th ed., 96, 278.
a skilled labourer, artisan, or artist, (*) 1 Phil. Ev.t 10th ed., 621.
888
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
Insurance.
tion becomes substantially one of science only, it may be
convenient to allow the question to be put in that general
form, though the same cannot be insisted on as a matter
of right/'
Further, on the principle expressed by the maxim,
CuUibet in sud arte perito est credendum, ship-builders
have been allowed to state their opinions as to the sea-
worthiness of a ship from examining a survey which had
been taken by others, and at the taking of which they
were not present ; and the opinion of an artist is evidence
as to the genuineness of a picture (x). But, although
witnesses conversant with a particular trade may be
allowed to speak to a prevailing practice in that trade,
and although scientific persons may give their opinion on
matters of science, it has been expressly decided that
witnesses are not receivable to state their views on
matters of legal or moral obligation, nor on the manner
in which others would probably have been influenced if
particular parties had acted in one way rather than
another (y). For instance, in an action on a policy of
insurance, where a broker stated, on cross-examination,
(x) PhiL Ev., 10th ed., 522, So
evidence as to the genuineness of
handwriting given by a witness pos-
sessing the requisite experience and
skill is admissible, although little or
no weight has, by many judges, been
thought to be due to testimony of
this description. 2 Phil. Ev., 10th
ed., 308 ; Doe d. Mudd. v. Sucker-
more, 5 A. & E. 703 ; Doe d. Jen-
kins v. Davits, 10 Q. B, 314. See
Brookes v. Tichbourne, 5 Exch. 929,
931 ; Newton v. JRicketts, 9 H. L
Cas. 262.
And now by stat. 17 & 18 Vict.
c. 125, s. 27, it is enacted that
"comparison of a disputed writing
with any writing proved to the satis-
faction of the judge to be genuine
shall be permitted to be made by
witnesses; and such writings, and
the evidence of witnesses respecting
the same, may be submitted to the
Court and jury as evidence of the
genuineness, or otherwise, of the
writing in dispute."
(y) Judgm., 5 B. & Ad. 846. See,
also, Greville v. Chapman, 5Q. B.
731 ; as to this case see Taylor on
Evidence, 7th ed., 1193.
890 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
to without objection (/), and probably the view taken by
the Common Pleas in the cases referred to would now be
upheld as the correct one.
Where the fixing the fair price and value upon a
contract to insure, is a matter of skill and judgment, and
must be effected according to certain general rules and
principles of calculation applied to the particular circum-
stances of each individual case, it seems to be matter
of evidence to show whether the fact suppressed would
have been noticed as a term in the particular calcula-
tion. In some instances, moreover, the materiality of the
fact withheld would be a question of pure science; m
others, it is very possible that mere common sense,
although sufficient to comprehend that the disclosure
was material, would not be so to understand to what
extent the risk was increased by that fact; and, m
intermediate cases, it seems difficult in principle wholly
to exclude evidence of the nature alluded to, although
its importance may vary exceedingly according to
circumstances (g). Thus, it has been said (h), that the
time of sailing way be very material to the risk. How
far it is so must essentially depend upon the nature
and length of the voyage, the season of the year, tbe
prevalence of the winds, the conformation of the coasts,
the usages of trade as to navigation and touching and
staying at port, the objects of the enterprise, ana
other circumstances, political and otherwise, which may
retard or advance the general progress of the voyage.
(/) Arnould, Mar. Ins., 5th ed., 888.
581 ; Ionides y. Pinder, L. R. 9 Q. {h) Per Story, J., delivering ja<k*
B. 581, at p. 535 ; 43 L. J. Q. B. ment, M'Lanaham v. Univenal I*
227. surance Co., 1 Peters (U- s)» *
(y) 8 Stark. Ev., 3rd ed., 887, 188.
892
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
accordingly (i). In a more recent case it has been held
that the mercantile custom or usage of a foreign country
bearing on any particular subject may be proved by one
who, though not a lawyer by profession, nor having filled
any official appointment as judge, advocate, or solicitor,
can satisfy the Court that he had special and peculiar
means of acquiring knowledge respecting it (ft). Thus, for
example, the Court has allowed the law of a foreign
country to be proved by the evidence of a secretary to the
embassy of that country (I).
Lastly, although in accordance with the principal
maxim, a skilled witness may be examined as to mercan-
tile usage, or as to the meaning of a term of art, be
cannot be asked to construe (m) a written document, for
Ad quceetionem legis respondent judices.
Omnia pilesumuntuk contra Spoliatorem. (Branch,
Max., 5th ed., p. 80.) — Every presumption is mode
against a wrong-doer.
Enmpie of The following case will serve forcibly to illustrate the
above maxim. An account of personal estate having been
rule.
(i) The Sussex Peerage, 1 1 CI. k
Fin. 85. See, also, Di Sora v.
PhUlipps, 10 H. L. Cas. 624 ; per
Lord Langdale, M.B., in Earl Nel-
son v. Lord Bridport, 8 Beav. 527 ;
Baron de Bode v. Reg., 8 Q. B.
208, 246, 250, ct stq; The Perth
Peerage, 2 H. L. Cas. 865, 874.
" A long course of practice sanctioned
by professional men, is often the best
expositor of the law ; " per Lord
Kldon, C, Candler v. Candler, 1
Jac. 232.
(k) Pander Doncht v. TheUusson,
8 C. B. 812. See Reg. v. Povey, 22
L. J., Q. B., 19 ; S. C, Dearsl., C.
C. 82. In Brittow ▼. Sequeiritie, 5
Exch. 275, a witness was held inad-
missible to prove the law of a foreign
country, whose knowledge of it had
been acquired solely by studying it at
a university in another country. This
decision was followed in re the goods
of Bonelli, 1 P. D. 69; 45 L. J. P. 2.
{I) In the goods of Dost Aly Khan,
6 P. D. 6 ; 49 L. J. P. 78.
(m) KirJcland v. Nisbet, 8 Maoq.
Sc. App. Cas. 766.
894
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
sold without any express stipulation as to price, and
the vendor prove the delivery of the goods, but give no-
evidence to fix their value, they are presumed to be worth
the lowest price for which goods of that description usually
sell ; but, if the vendee himself be shown to have sup-
pressed the means of ascertaining the truth, then a con*
trary presumption arises, and the goods are taken to be of
the very best description (r).
According to the same principle, if a man withhold an
agreement under which he is chargeable, after a notice to
produce, it is presumed, as against him, to have been
properly stamped, until the contrary appear (s). Where
a public officer, such as a sheriff, produces an instrument,
the execution of which he was bound to procure, as
against him it is presumed to have been duly executed (0*
Moreover, if a person is proved to have defaced or de-
stroyed any written instrument, a presumption arises, that,
if the truth had appeared, it would have been against his
interest, and that his conduct is attributable to bis know-
ledge of this circumstance, and, accordingly, slight evidence
of the contents of the instrument will usually, in such a
case be sufficient (u). A testator made a will, by which
he devised certain premises to A., and afterwards made
Trial, 29 St. Tr. 1198-4). But "a
person who refuses to allow his solici-
tor to violate the confidence of the
professional relation " cannot be re-
garded in the same odious light as
was the jeweller in the above case ;
per Lord Chelmsford, Wentworih v.
Lloyd, 10 H. L. Gas. 591.
(r) Clunnes r. Pezzey, 1 Gamp. 8 ;
followed Lavrton v. Sweeney (Exch.),
8 Jur. 964. See Hayden v. Hay-
ward, 1 Camp. 180.
(s) Orisp r. Anderson, 1 Stark.,
N. P. C., 85.
(0 ScoU r. Waithman, 8 Stark.,
N. P. C.t 168 ; Plumer v. Bruoo, 11
Q. B. 52 ; Barnes r. Lucas, 1 By. &
M. 264.
(u) 1 Phil. Br., 10th ed., 477,
478, where various cases are cited
exemplifying the maxim in the text ;
Annesley v. Earl of Anglesey, 17
Howell, St Tr. 1480 ; 1 Stark. Br.,
8rd ed., 409 ; Roe d. Haidane v.
Harvey, 4 Burr. 2484 ; Lord Trim-
Ustown y. Ktmmis, 9 CL & P. 775.
<S9B MAXIMS APPLICABLE TO THE LA\V OF EVIDENCE.
i
means of showing the quantum of his interest, and that
"the non-production of the lease raised a presumption
that the production of it would do the plaintiff no good/
Kui«- in On the principle of this maxim rests the well-known, rule
iirtimiK of * *
ejiTtment. jn actions of ejectment that the plaintiff must recover by
the strength of his own title, not the weakness of his
antagonist's, for no one can recover in ejectment who would
not be entitled to enter without bringing ejectment ; and
any person entering on the possession of the tenant unless
he have a better title is a wrong doer.
If the evidence alleged to be withheld is shown to be un-
attainable, the presumption contra spolicUorem ceases, and
the inferior evidence is admissible. If therefore, a deed be
in the possession of the adverse party, and not produced,
or if it be lost and destroyed, no matter whether by the
adverse party or not, secondary evidence is clearly admis-
sible ; and, if the deed be in the possession of a third
person, who is not by law compellable to produce it, and
he refuses to do so, the result is the same, for the object
is then unattainable by the party offering the secondary
evidence (a).
Omnia pr^sitmuntur rite et solenniter esse acta.
(Co. Litt. 6 b. 332.) — All acts are presumed to have
been rightly and regvlarly done.
Ruieutated' Ex diuturnitate temporis omnia pr&sumuntur rite
et solenniter esse acta (6). " Antiquity of time fortifieth
(a) Judgm., Doed. Gilbert v. Eo*$t (b) Jenk. Cent. 185 ; Robert* t.
7 M. k W. 121 ; Martton v. Dowries, BethtU, 12 C. B. 778, seems to offer
1 A. & E. 31 ; Cocke v. Tanswell, an illustration of the presumption
8 Taunt. 450. omnia toUenniter etas acta. See
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
897
all titles and supposeth the best beginning the law can
give them " (c). And again, " it is a maxim of the law of
England to give effect to every thing which appears to
have been established for a considerable course of time,
and to presume that what has been done was done of
right, and not of wrong " (d). This maxim applies as well
where matters are in contest between private persons as
to matters public in their nature (e).
For instance : A lease contained a covenant on the part Rule applies
to private.
of the lessee that he would not, without the consent of the ri-',tJ1-
lessor, use, exercise, or carry on in the demised premises,
any trade or business whatsoever, nor convert the demised
dwelling-houses into a shop, nor suffer the same to be
used for any other purpose than dwelling-houses. One of
the dwelling-houses was converted into a public-house
and grocery shop, and the lessor, with full knowledge
thereof, for more than twenty years received the rent.
The plaintiff, having purchased from the lessor the rever-
sion of the premises in question, brought an action of
ejectment for breach of the covenant above specified. —
Held, that user of the premises in their altered state for
more than twenty years, with the knowledge of the lessor,
was evidence from which a jury might presume a licence (/*).
Potez v. Olouop, 3 Bxch. 191 ; ob-
served upon, per Lord Wensleydale,
Bulier v. Mountgarret, 7 H. L. Cas.
647 ; Morgan v. Whitmore, 6 Exch.
716.
(c) Hob. 257 ; EUu v. Mayor
of Bridgnorth, 15 C. B., N. S.,
52.
(d) Per Pollock, C.B., 2E&N.
623 ; and in Price v. Wimoood, 4 H.
& N. 514, where the same learned
judge observes, "The law will pre-
sume a state of things to continue
which is lawful in every respect ; but,
if the continuance is unlawful, it
cannot be presumed."
(e) See, per Pollock, C. B., Real
v. Lamb, 6 H. & N. 85-86 ; per
Crompton, J., Dawson v. Surveyor of
Higkwaytfor Willoughby, 5 B. & S.
924.
</) Gibson v. Doeg, 2H,ftN.
615.
3 U
808
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
Where, indeed, a private right is in question, the pre-
sumption omnia rUi esse acta, may as already stated,
under various and wholly dissimilar states of facts arise ex
diutumitate temporis. — Thus, the enrolment of a deed
may he presumed ; where there has been a conveyance
by lease and release, the existence of the lease may
be presumed on the production of the release ; and
livery of seisin, the surrender of a copyhold estate, or
a reconveyance from the mortgagee to the mortgagor,
may be presumed (g). Where an attestation clause to
a deed stated that the deed had been signed, sealed
and delivered, and certain commissioners before whom
the deed had to be executed, certified that the parties
had acknowledged the same to be their respective acts
and deeds, the Court presumed the deed to have been
properly sealed, although upon the face of it there wa»
no indication of the impression of a seal (h). Upon
the same principle proceeds the rule that deeds, wills,
and other attested documents which are more than
thirty years old, and are produced from an unsuspected
repository prove themselves, and the testimony of the
subscribing witness may be dispensed with, although
of course it is competent to the opposite party to
(g) Per Watson, B., 2 H. k N.
777 ; and cases cited, Doe d. Robert-
son v. Gardiner, 12 C. R 319.
So a lease will be presumed, in the
absence of evidence to the contrary,
on production of the counterpart :
Hughes v. Clark, 10 C. B. 905.
In Avery v. Bovcden (in error),
6 E. ft B. 978 ; Pollock, C. B., ob-
serves, that "where the maxim of
Omnia rite acta praxumuntur applies,
there indeed, if the event ought pro-
perly to have taken place on Tuesday r
evidence that it did take place on
Tuesday or Wednesday is strong
evidence that it took place on the
Tuesday. "
(h) lie J. Sandilands and others,
L. R. 6 C. P. 411 ; for a case where
the] primd facie presumption was
rebutted and the onus shifted see
Marine Insurance Co. v. Hardside,
L L 5 H. L 624 ; 42 L. J. Ch.
173.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
899
call him to disprove the regularity of the execu-
tion (i).
Again, where acts are of an official nature, or require Rule applied
the concurrence of official persons, a presumption arises ™£offlcltI
in favour of their due execution. In these cases the
ordinary rule is, Omnia prcemmuntur rith et solenniter
esse acta donee probetur in contrarium (&)— everything
is presumed to be rightly and duly performed until the
contrary is shown (I). The following may be mentioned
as general presumptions of law illustrating this maxim :-
That a man, acting in a public capacity, was properly
appointed and is duly authorized so to do (m) ; that in
the absence of proof to the contrary, credit should be
given to public officers who have acted, primd facie
(t) Best on Presumptions, p. 81.
The date which appears un the face
of a document is prima facie its true
date, Malpas v. Clements, 19 L. J. Q.
B. 435 ; Lam v. Rmnd, 3 C. B. N. S.
244.
(k) Co. Idtt 282 ; Van Omeron v.
Dowick, 2 Camp. 44 ; Doe d. Phil-
lips v. Evans, 1 Cr. & M. 461 ;
Powell v. Sonnett, 3 Bing. 381, offers
a good instance of the application of
this maxim. Presumption as to sig-
nature, Taylor v. Cook, 8 Price, 658.
The Court will not presume any fact
so as to vitiate an order of removal :
per Lord Denman, C. J., R. v. Stock-
ton, 5 B. ft Ad. 550. See Reg. v.
St. Paid, Covtnt Garden, 7 Q. B.
232; Reg. v. Justices of Warwick-
shire, 6 Q. B. 750 ; Reg. v. St, Mary
Magdalen, 2 E. ft B. 809. As to an
order of affiliation, see Watson r.
Little, 5E&N. 472, 478. As to
an award, see per Parke, B., 12 M.
ft W. 251 ; as to presuming an in-
denture of apprenticeship, Reg. v.
Inhabs. of Pordingbridge, E. B. ft E.
678 ; Reg. v. Inhabs. of Broadhemp-
tan, 1 E. ft E. 154, 162, 163.
Qucerc whether the maxim applies
to the performance of a moral duty,
see per Willes, J., Fitxgerald v.
Dressier, 7 C. B. N. S. 899.
(Z) See per Story, J., delivering
Judgment, Bank of the United States
r. Dandridge, 12 Wheaton (U. S.),
B. 69, 70 (where the above maxim is
illustrated and explained) ; Daviesy.
Pratt, 17 C. R 188.
(m) Per Lord Ellenborough, C.J.,
R. v. Verelst, 3 Camp. 432 ; Monke
r. Butler, 1 Roll. R. 83 ; M'Oahey v.
Alston, 2 M. ft W. 206 ; Faulkner
v. Johnson, 11 M. ft W. 581 ; Doe
d. Hopley v. Young, 8 Q. B. 63 ;
Reg. r. Essex, Dears!, ft B. 369;
M'Mahon v. Lennard, 6 H. L. Cas.
970. See the above maxim applied,
per Erie, C.J., Bremner v. Butt,
L.R.1C. P. 759.
3x2
900
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
within the limits of their authority, for having done so
with honesty and discretion (n) ; that the records of a
court of justice have been correctly made (o), accord-
ing to the rule, Res judicata pro veritate accipitur (p) ;
that judges and jurors do nothing causelessly and mali-
ciously (q) ; that the decisions of a court of competent
jurisdiction are well founded, and their judgments regu-
lar (r) ; and that facts, without proof of which the
verdict could not have been found, were proved at the
trial (a).
Besides the cases below cited (f), which strikingly illus-
trate the presumption of law under our notice, the follow-
ing may be adduced : —
(») Judgm., Earl of Derby y. Bury
Improvement Commissioners, L. R.
4 Ex. 226.
(o) Reed y. Jackson, 1 East, 555.
(p) D. 50. 17. 207 ; Co. Litt 103,
a. ; Judgm., Magrath v. Hardy, 4
Bing., N. C. 796 ; per Alderaon, B.,
Hopkins v. Francis, 13 M. & W.
-670 ; Irwin v. Grey, L. R. 2 H. L.
20 ; Smith y. Sydney, L. R. 5 Q. B.
203.
A family Bible is in the nature of
a record, and being produced from
the proper custody, is itself evidence
of pedigrees entered in it ; Hubbard
v. Lees, L R. 1 Ex. 255, 258.
(q) Sutton v. Johnstone, 1 T, R.
,503. See Lumley v. Qyt, 3 E. & B.
114.
(r) Per Bayley, J., LytUeton y.
Cross, 8 B. & C. 327 ; Reg. y. £re-
nan, 16 L. J., Q. B., 289. See Lee
y. Johnstone, L. R. 1 Sc. App. Gas.
426 ; Morris v. Ogden, LR.4C.P.
487, 699.
(*) Per Buller, J., SpUres y. Par-
ker, IT. R. 1 45, 146. If the retain
to a mandamus be certain on the face
of it, that is sufficient, and the Court
cannot intend facts inconsistent with
it, for the purpose of making it bad.
Per Boiler, J., R. v. Lyme Regis, 1
Dougl. 159. See Av. Nottingham
Waterworks. Co., 6A.&K 355.
(t) See, as to presuming an Act of
Parliament in support of an ancient
usage, Judgm., Reg. v. Chapter of
Exeter, 12 A. & E. 532— the passing
of a by-law by a corporation from
usage, Reg. v. Powell, 3 E. & R.
377 ; in favour of acts of Commis-
sioners having authority by statute,
Horton v. Westminster Improvement
Commissioners, 7 Exch. 780 ; Reg.
v. St. Michael's, Southampton, 6 E.
& B. 807 ; an order of Justices for
stopping op a road, Williams v.
Eyton, 2 H. & N. 771, 777 ; S. C,
4 Id. 357. See, also, Woodbridgt
Union y. Guardians of Cdneis, 13
Q. B. 269.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
901
It is a well-established rule that the law will presume other in-
* stances. —
in favour of honesty and against fraud (u) ; it will more- JwJnT^t
over strongly presume against the commission of a ft™*1'*0-
criminal act, ex. gr., that a witness has perjured him-
self (x).
The law will also presume strongly in favour of the
validity of a marriage, especially where a great length of
time has elapsed since its celebration (y) — indeed the
legal presumption as to marriage and legitimacy is only
to be rebutted by " strong, distinct, satisfactory and con*
elusive" evidence (z), therefore where it was shown that the
man and woman had gone through a form of marriage,
and thereby indicated an intention to be married, it was
held that those who claimed by virtue of the marriage
were not bound to prove that all necessary ceremonies had
been performed (a).
Where the claimant of an ancient barony, which has
been long in abeyance, proves that his ancestor sat as a
peer in Parliament, and no patent or charter of creation
can be discovered, it is now the established rule to hold
(u) Middleton v. Barned, 4 Exch.
241 ; per Parke, B.t Id. 243 ; and
in Shaw, app., Beck, reap., 8 Exch.
400 ; Doe d. Tatum v. Catomore, 16
Q. B. 745, 747, with which compare
Doe y. ShaUcross v. Palmer, Id.
747. See TroU v. Trott, 29 L. J.,
P. M. & A, 156.
(x) Per Lord Brougham, M cGregor
v. Topham, 8 H. L. Cas. 147, 148 ;
per Turner, L.J., 4 De G. M. ft G.
158.
(y) Pier* y. Pier*, 2 H. L. Cas.
831 ; Sichel v. Lambert, 15 C. B.
N. S. 781, 787, 788 ; Harrison v.
Mayor of Southampton, 4 De Gex,
M. & G. 137 ; as to when consent to
a marriage presumed, Be Birch, 17
Beav. 358.
(z) Per Lord Brougham, 2 H. L.
Cas. 373 ; citing, per Lord Lynd-
hurst, Morris v. Davits, 5 CI. ft P.
265. See Lapsley y. Orierson, 1 H.
L. Gas. 498; The Saye and Sele
Peeraye, Id. 507 ; per Erie, J.,
Walton r. Gavin, 16 Q. B. 58 ; Bar*
riton y. Mayor of Southampton, 4 De
G. M. ft G. 137, 153.
(a) Sasty Velaider, &e. y. Sembe*
cutty, dx., 6 App. Cas. 364. See,
also, B. y. Jones, 11 Q. B. D. 118 ;
52 L. J. M. C. 96 ; 72. y. Oresswelt, 1
Q. B. D. 446 ; 45 L. J. M. C. 77.
902
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
that the barony was created by writ of summons and
sitting, although the original writ of summons or enrol-
ment of it is not produced (6). In The Hastings Peerage.
it was proved that A. B. was summoned by special writ
to Parliament in the 49th Hen. 3, but there was no proof
that he ever sat, there being no rolls or journals of that
period. A. B.'s son and heir, C. D., sat in the Parliament
of 18 Edw. 1, but there was no proof that he was sum-
moned to that Parliament, there being no writs of
summons or enrolments of them extant from 49 Hen. 3
to 23 Edw. 1. It further appeared that C. D. was sum-
moned to the Parliament of 23 Edw. 1, and to several
subsequent Parliaments, but there was no proof that he
sat in any of them. Held, that it might be well presumed
that C. D. sat in the Parliament of the 18th of Edw. 1
in pursuance of a summons, on the principle that Omnia
prcesumwntur legitime facta donee probetur in contra-
riv/m (c).
As regards the acts of private individuals, the presump-
tion, omnia rite esse acta, forcibly applies where they are
of a formal character, as writings under seal (<£). Like-
wise upon proof of title, everything which is collateral to
the title will be intended, without proof; for, although
(b) The Braye Peerage, 6 CI. &
Fin. 757 ; The Vaux Peerage, 5 CI.
Jt Fin. 526.
(c) The Hatting* Peerage, 8 CL &
Fin. 144.
(d) See Arg. and Judgm., in Ricard
v. William*, 7 Wheaton (U. &), R.
59; Strvther v. Lucae, 12 Peters
(U. S.), B. 452 ; S. P., 2 Id. 760 ;
2 Exch. 549 ; PArcy v. Tamar, <fcc.
H C.t 4 H. & C. 463, 467-8.
As to presumption that a foreign
bill of exchange was duly stamped at
the time of it* indorsement to plain-
tiff, Bradlaugh v. Be Rin, L. B. S
C. P. 286.
As to presumption of evidence of
probate, see Doe d. Woodhoutc v.
Powell, 8 Q. B. 576.
As to presumption that a will was
duly executed, Lloyd r. Robert*, 12
Moo., P. a C., 158, 165 ; TroU v.
TroU, 29 L. J.f P. M. k A., 156*
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 903
the law requires exactness in the derivation of a title, yet
where that has been proved, all collateral circumstances
will be presumed in favour of right (e) ; and, wherever
the possession of a party is rightful, the general rule of
presumption is applied to invest that possession with a
legal title (/). No greater obligation, it has, indeed, been
said (<7),lies upon a court of justice than that of supporting
long continued enjoyment by every legal means, and by
every reasonable presumption ; this " doctrine of presump-
tion goes on the footing of validity, and upholds validity
by supposing that everything was present which that
validity required," Omnia prcemmuntur rith fwisse acta
is the principle to be observed.
In reference also to a claim by the rector of a parish
to certain fees, founded on prescription, it has been judi-
cially observed that « the true principle of the law appli-
cable to this question is that where a fee has been received
for a great length of time, the right to which could have
had a legal origin, it may and ought to be assumed that
it was received as of right during the whole period of legal
memory, that is, from the reign of Richard I. to the present
time, unless the contrary is proved " (h).
On the same principle it is a general rule that, where
a person is required to do an act, the not doing of which
would make him guilty of a criminal neglect of duty, it
shall be intended that he has duly performed it unless
the contrary be shown — etabit prcemmptio donee pro-
betur in contrari/um (i) ; negative evidence rebuts this
(e) S Stork. Ev., 3rd ed., 936; 2 897.
Wms. Saund. 5th ed., 42, n. (7). (g) Per Lord Westbury, Lee v.
(/) Per Lord EUenborough, C.J., Johnstone, L. R. 1 Sc. App. Cas. 435.
8 Bast, 263. See Simpson, app., (h) Bryant v. Foot, L. R. 3 Q. B.
Wilkinson, reap., 8 Scott, N. R. 814; 505 ; Lawrence r. Hitch, Id. 521.
Doe d. Dandy. Thompson, 7 Q. B. (i) Wing. Max. 712; Hob. R» 297;
904
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
of inferior
<*otirt».
presumption, that all has been duly performed (&). Thus,
on an indictment for the non-repair of a road, the pre-
sumption, that an award, in relief of the defendants, was
duly made according to the directions of an indosure
Act, may be rebutted by proof of repairs subsequently
done to the road by the defendants ; for, if the fact had
been in accordance with such presumption, they ought
not to have continued to repair (I).
It is, however, important to observe, in addition to the
above general remark, that, in inferior courts and pro-
ceedings by magistrates, the maxim, Omnia prcesumuntur
riti esse acta, does not apply to give jurisdiction (m).
Thus, the Lord Mayor's Court in London is an inferior
Court. When therefore process had issued out of that
Court against C. as a garnishee, and he declared in pro-
hibition, a plea which set up the custom of foreign attach-
ment but did not allege, and the fact did not warrant
any such allegation, that the original debt or the debt
alleged to be due from the garnishee to the defendant
arose within the City, or that any one of the parties to the
suit was a citizen or was resident within the city, was held
insufficient to show the existence of jurisdiction (ri).
Again, where the examination of a soldier, taken
per Sir W. Scott, 1 Dods. Adm. R.
266 ; Davenport v. Mown, 15 Tyng
(17. S.), R., 2nd ed., 87. "It seems
reasonable that presumption which is
not founded on the basis of certainty,
should yield to evidence which is the
test of truth." Id.
(£) Per Lord Ellenbonragh, O.J.,
JL y. Badingfield, 2 M. & S. 561 ;
recognising Williams r. Eatt India
Co., 3 East, 192.
(0 R. r. Baslingfidd, 2 M. & S.
558 ; Manning r. Eastern Oomntiss
R. C, 12 M. & W. 287 ; Doe <L
Xanney y. Gore, 2 If . & W. 321 ;
Bey sham v. Forster, 5 Man. & By.
277.
(m) Per Holroyd, J., 7 B. & C.
790. See Reg. v. Inhabs. of Gate
Fvlford, Dearsl. & B. 74 ; Best on
Presumptions, p. 81.
(n) The Mayor, dfcc. of London ▼.
Cox, L.B.2H.L 239.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. .905
before two magistrates, was tendered in evidence to prove
I tis settlement, but it did not appear by the examination
itself, or by other proof, that the soldier, at the time when
lie was examined, was quartered in the place where the
justices had jurisdiction, it was held not to be admis-
sible (o). So, in the case of an order by magistrates,
their jurisdiction must appear on the face of such order ;
otherwise, it is a nullity, and not merely voidable (p).
Where an examination before removing justices left it
doubtful whether the examination had been taken by a
single justice or by two, the Court stated that they would
look at the document as lawyers, and would give it the
benefit of the legal presumption in its favour ; and it was
observed, that the maxim, Omnia prce&umwntur ritk esse
acta applied in this case with particular effect, since the
fault, if there really had been one, was an irregular
assumption of power by a single justice, as well as a
fraud of the two, in pretending that to have been done by
two which was, in fact, done only by one (q).
In a case before the House of Lords some remarks were
made in reference to this subject, which may be here
advantageously inserted: — It cannot be doubted, that
where an inferior court (a court of limited jurisdiction,
either in point of place or of subject-matter) assumes to
proceed, its judgment must set forth such facts as show
that it has jurisdiction, and must show also in what
respect it has jurisdiction. But it is another thing to
contend that it must set forth all the facts or particulars
(o) R. v. All Saints, Southampton, coton, 6 T. B. 178 ; R. y. Holm, 11
7 B. & C. 785. East, 381 ; Rey. v. Totntu, 11 Q.
(p) Per Bayley, J., 7 B. ft C. 790 ; B. 80.
R. v. HuUoU, 6 T. B. 583 ; R. r. (q) Reg, v. SUkstone, 2 Q. B. 520f
lldling, 1 Stra. 8 ; R. y. Chilvers- and cases cited, IcL p. 729, n. (/>).
906
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
out of which its jurisdiction arises. Thus, if a power of
commitment or other power is given to justices of a
county, their conviction or order must set forth that
they are two such justices of such county, in order that
it may be certainly known whether they constitute the
tribunal upon which the statute they assume to act under
has conferred the authority to make that order or pro-
nounce that conviction. But, although it is necessary
that the jurisdiction of the inferior court should appear,
yet there is no particular form in which it should be
made to appear. The Court above, which has to examine,
and may control, the inferior court, must be enabled,
somehow or other, to see that there is jurisdiction such
as will support the proceeding ; but in what way it shall
so see it is not material, provided it does so see it (r).
.The rule, therefore, mayj>e stated to be, that, where it
appears upon the face of the proceedings that the inferior
court has jurisdiction, it will be intended that the pro-
ceedings are regular (s) ; but that, unless it so appears,
— that is, if it appear affirmatively that the inferior court
has no jurisdiction, or, if it be left in doubt, whether it
has jurisdiction or not, — no such intendment will be
made (t). "The old rule for jurisdiction is, that nothing
shall be intended to be out of the jurisdiction of the
(r) Per Lord Brougham, Taylor v.
Clemeon, 11 CL & Fin. 610, affirm-
ing the judgment of the Exchequer
Chamber in 8. C, 2 Q. B. 978. In
this case, and in The Mayor, <fce. of
London v. Cox, LH2H.L. 239,
many authorities as to the necessity
of showing jurisdiction Are collected
and reviewed.
(«) A presumption in favour of
regularity in official practice is often
made. Set (ex. or.) Barnes r. Keane,
15 Q. B. 75, 82 ; Be Warne, 15 C.
B. 767, 769 ; Baker v. Cave, 1 H. k
N. 674 ; Cheney t. Courtois, 13 a
B. N. S. 684 ; Robinson t. Colling-
wood, 17 C. B. N. S. 777.
(t) Per Tindal, C.J., Dewtpster v.
PvrneU, 4 Scott, N. R. 39 (citing
Moravia v. Sloper, Willes, 30, and
Titiey v. FoxkaU, Id. 688) ; per Brie,
J., Barnes v. Keane, 15 Q. B. 84.
maxims applicable to the law of evidence. 907
superior court but that which specially appears to be so ;
nothing is intended to be within the jurisdiction of an
inferior court but that which is expressly alleged " (u).
And again, '* it is necessary for a party, who relies upon
the decision of an inferior tribunal, to show that the pro-
ceedings were within the jurisdiction of the Court (x).
Where the District Court of Philadelphia at the suit of Foreign
* e.mrt of
the defendant issued a writ of attachment against a cer- juJuSiotioiw
tain ship, the property of the plaintiff, for the purpose of
enforcing a debt which the defendant alleged was owing
to him by the plaintiff, and the plaintiff afterwards
brought an action against the defendant in this country
for trespass in seizing the ship, it was held that it must be
presumed, in the absence of evidence to the contrary ,that the
Court had jurisdiction to issue the process in question (y).
In the great case of Gosset v. Howard (z), the Court of <*>**< v
° v ' Howard
Exchequer Chamber held, that the warrant of the Speaker
of the House of Commons must be construed by the
rules applied in determining as to the validity of the
warrants and writs issuing from a superior court ; and
they remarked that, with respect to writs so issued, it
must be presumed that they are duly issued, that they
have issued in a case in which the Court has jurisdiction,
unless the contrary appear on the face of them, and that
they are valid of themselves, without any allegation other
than that of their issue, and a protection to all officers
(u) Aig., Peacock v. Bell, 1 Wins. Stylet, 5 Exeh. 583 ; ace The
Saund. 73 ; adopted Qoutt v. How- Mayor, <kc, of London v. Cox, L. R.
ard, 10 Q. B. 458 ; and in The 2H.L 239.
Mayor, Ac., of London v. Cox, L. (y) Taylor t. Ford, 29 L. T. (N.
R. 2 H. L. 259. See, also, further S.) 392
in connection with the text, Id. 261, (2) 10 Q. B. 411, where the cases
et acq. with respect to the -validity of war-
(x) Per Alderson, B., Stanton v. rants were cited in argument
908 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
and others in their aid acting under them. Many of the
writs issued by superior courts do, indeed, upon the face
of them, recite the cause of their issuing, and show their
legality — writs of execution for instance. Others, how-
ever, do not, and, though unquestionably valid, are framed
in a form which, if they had proceeded from magistrates
or persons having a special jurisdiction unknown to the
common law, would have been clearly insufficient, and
would have rendered them altogether void. With respect
to the Speaker's warrant, the Court held themselves
bound to construe it with at least as much respect as
would be shown to a writ out of any of the courts at
Westminster ; observing, in the language of Mr. Justice
Pov/ys (a), that " the House of Commons is a great Court
and all things done by them are intended to have been
riti acta " (b).
rale.
Res inter alios acta alteri nocere non debet.
(Wing. Max., p. 327.) — A transaction between tvx>
parties ought not to operate to the disadvantage of
a third (c).
principle Of maxims relating to the law of evidence, the above
may certainly be considered as one of the most important
and most practically useful ; its effect is to prevent a
litigant party from being concluded, or even affected, by
the evidence, acts, conduct, or declarations of strangers (d).
(a) Reg. v. Paty, 2 Lord Raym. Mll intcrfucrunt neque prejudteium
1105, 1108. ioUm irrogmre.— Cod. 7. 56. 2.
(6) Judgm., Gossct y. Howard, 10 (d) The maxim as to ra inter
Q. B. 457. alio* acta, was much considered in
(c) Res inter alios judicata neque Meddowcrofi v. Huguemn, 3 Curt.
emolumentum afcrrc his qui judicio R. 403 (where the issue of a marriage
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE,
909
On a principle of good faith and mutual convenience,
a man's own acts are binding upon himself, and are, as
well as his conduct and declarations, evidence against
him ; yet it would not only be highly inconvenient, but
also manifestly unjust, that a man should be bound by the
acts of mere unauthorized strangers ; and if a party ought
not to be bound by the acts of strangers, so neither ought
their acts or conduct to be used as evidence against
him (e).
The above rule, then, operates to exclude all the acts,
declarations, or conduct of others as evidence to bind a
party, either directly or by inference ; so that, in general,
no declaration, written entry, or affidavit made by a
stranger is evidence against a man ; nor can a person
be affected, still less concluded, by any evidence (/),
decree, or judgment to which he was not actually, or, in
consideration of law, privy (g).
which had been pronounced null and
void by the Consistorial Court, at-
tempted unsuccessfully to impeach
that sentence in the Prerogative
Court). S. C, 4 Moore, P. C. C,
886. See Reg. v. Fontaine Moreau,
11 Q. B. 1028, and cases infra.
(e) 1 Stark. Evid. 3rd ed., 58, 59 ;
Stephen, Dig. Law of Evid., 1st ed.,
138. See Armstrong v. Normandy,
5 Exch. 409 ; Reg. v. Ambergate,
<fcc, R. C., 1 E. & B. 372, 381;
Salmon v. Webb, 3 H. L. Cas. 510.
(/) See Humphrey* v. Pensam, 1
My. & Cr. 580.
(g) "It cannot be doubted that
a man's assertions or admissions,
whether made in the course of a
judicial proceeding or otherwise, and,
in the former ease, whether he was
himself a party to such proceeding or
not, may be given in evidence against
him iff any suit or action in which
the fact so asserted or admitted be-
comes material to the issue to be
determined. And in principle there
can be no difference whether the
assertion or admission be made by
the party himself, who is and ought
to be affected by it, or by some one
employed, directed, or invited by
him to make the particular statement
on his behalf. In like manner a
man who brings forward another for
the purpose of asserting or proving
some fact on his behalf, whether in a
court of justice or elsewhere, must
be taken himself to assert the fact
which he thus seeks to establish :"
per Cockburn, C.J., Richards v.
Morgan, 4 B. ft S. 661.
010
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
Maxim
applied to
judicial
jiroceedinKK.
JtUlpilfTltK
In u )<*<»» ut
and in rrut.
From an important case (A), immediately connected
with this subject, the following remarks are extracted : —
It is certainly true, as a general principle, that a trans-
action between two parties in judicial proceedings ought
not to be binding upon a third party, for it would be
unjust to bind any person who could not be admitted to
make a defence, or to examine witnesses, or to appeal
from a judgment, which he might think erroneous ; and,
therefore, the depositions of witnesses in another cause (t)
in proof of a fact, the verdict of a jury finding the fact,
and the judgment of the Court upon facts found, although
evidence against the parties and all claiming under them,
are not, in general, to be used to the prejudice of
strangers (k).
As between the parties to the original suit, it will be
merely necessary to observe, that the judgment of a
court of concurrent jurisdiction directly upon the point
is as a plea, a bar, or as evidence, conclusive, between the
same parties upon the same matter directly in question
in another court (I). But, where the judgment of a court
of competent jurisdiction has been pronounced in rem,
and has actually operated upon the status of a particular
thing, it may happen that some other court, proceeding
likewise in rem, may pronounce a contrary judgment on
(A) See the opinion of the judges
in the Duchess of Kingston's case,
11 Howell, St T. R., 261. See, also,
Needham v. Bremner, L. R. 1 C. P.
683 ; Natal Land, die., Co. v. Qoodf
L. R. 2 P. C. 121 ; Davies, demand.,
Lowndes, ten., 7 Scott, N. R. 141 ;
Doe d. Bacon v. Brydges, Id 383 ;
Lord TrMestown v. Kemmis, 9 CI.
ft Fin. 781, cited BoUeau r. Butlin,
2 Rxch. 665, 677. The general rule
stated in the text has, bowerer, been
departed from in certain cases ; for
instance, in questions relating to-
manorial rights, public rights of way,
immemorial customs, disputed boun-
dary, disputed modus, and pedigrees.
(t) See, for instance, Morgan yw
NichoU, L. R. 2 C. P. 117.
(h) See, also, Judgnu, King r,
Norman, 4 C. B. 898.
(0 Ante, p. 321 et seq.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
911
the same subject-matter, in which case it must be looked
upon as arrogating to itself and exercising the functions
of a court of appeal, and it is only in this point of view
that its decision can be considered as warrantable. It
must be further observed, that in no case can a judgment
be evidence of any matter which came collaterally in
question, though within the jurisdiction of the Court, nor
of any matter incidentally cognizable, nor of any matter
to be inferred by argument from the judgment ; and the
above rule applies not only to the parties to the judgment,
but likewise to the privies thereto (m).
As regards third persons, it is peculiarly necessary to
notice the distinction between judgments strictly inter
partes and those in rem; a judgment inter partes or
in personam being, in general, conclusive between the
original parties only and their privies (n) ; whereas a
judgment in rem renders the thing adjudicated upon,
ipso facto, such as it is thereby declared to be, and is,
therefore, of effect as between all persons whatever (o).
Thus, a grant of probate or of administration is in the
nature of a decree in rem, and actually invests the
executor or administrator with the character which it
declares to belong to him ; and such a grant of probate
or administration is accordingly (if genuine, unrevoked,
and granted by a Court of competent jurisdiction) con-
Cm) Duchess of Kingston's east,
ubi supra, and note thereto, 2
Smith, L. C. 8th ed., 832, 833 ; Doe
d. LordDowne v. Thompson, 9 Q. B.
1037.
(n) See, for instance, Lady Wen-
man v. Mackenzie, 5 E. & B. 447.
(o) Bat a verdict of guilty and
judgment thereon on an indictment
for obstructing a public highway
cannot be pleaded as an estoppel
in an action afterwards brought by
the party convicted against a third
person for using the way : Petrit v.
Nuttall, 11 Bxch. 569. For a defi-
nition of Judgment in rem, see L. ft.
4 H. L. 427, per Blackburn, J,
912 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
elusive as against all the world (p). So, the sentence of a
foreign Court of Admiralty, duly constituted and of
competent jurisdiction, decreeing a ship to be lawful
prize, is conclusive as to that which is in it, and as to the
existence of the ground on which it professes to proceed,
against all persons, until reversed by a regular court of
appeal ; all the world, it has been said, are parties to
such a sentence (q). And, generally, where any statute or
law, decree or judgment, is of a public nature, or operates
in rem, the rule as to res inter alios acta does not apply,
for to such proceedings all are privy (r).
It is likewise requisite to notice the distinction which
exists between the case in which a verdict or judgment
inter partes is offered in evidence, with a view to
establish the mere fact that such a verdict was given, or
such a judgment pronounced, and that in which it is
offered as a means of proving some fact which is either
expressly found by the verdict, or upon the supposed
existence of which the judgment can alone be supported.
In the latter case, as above stated, the evidence will not,
in general, be admissible to conclude a third party;
whereas, in the former, the judgment itself is invariably
not only admissible as the proper legal evidence to prove
the fact, but is usually conclusive evidence for that
(jo) See, per Bailer, J., Allen, v. a foreign judgment, see 2 Smith, L
Dundas, 8 T. R. 129 ; Protser v. C, 8th ed., 888 et seq.
Wagner, 1 C. B. N. S. 289. (r) 1 Stark. Evid., Srded., 61, 62;
(q) Per Lord Mansfield, C. J., Pirn r. Curcll, 6 M. & W. 284.
Bernardi v. MotUux, DougL 681 ; See Cammdl v. Sewell, 5H.&K.
Hughet v. Cornelius, 2 Show. 232; 728; S. C. Id. 617, which was
per Lord Ellenborough, G.J., Bolton finally decided, however, by reference
v. Gladstone, 6 East, 160 ; 2 Park. to the lex loci contracMs, and the
Mar. Insor., 8th ed., 718; Km opinion of the Judges, per Blackburn,
dersley v. Chate, cited Id. 748. As J., in Castrique v. Imtic, L» R. 4
to the weight due to, and efficacy of H. L. 414.
i
I
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 913
purpose, since it must be presumed that the court has
. made a faithful record of its own proceedings. Moreover,
the mere fact that such a judgment was given can never
be considered as res inter alios acta, being a thing done
by public authority; neither can the legal consequences
of such a judgment be ever so considered, for, when the
law gives to a judgment a particular operation, that
operation is properly shown and demonstrated by means
of the judgment, which is no more res inter alios than
the law which gives it force (s).
There is another qualification of the general rule as to
res inter alios to be noticed.
Where the acts or declarations of others have any legal where act*
operation material to the subject of inquiry, they must JjSJjJJjJ1*"
necessarily be admissible in evidence, and the legal
consequence resulting from their admission, can no more
be regarded as res inter alios acta than the law itself.
For instance, where a question arises as to the right to a
personal chattel, evidence is admissible even against an
owner who proves that he never sold the chattel, of a
subsequent sale of the chattel in market overt; for,
although he was no party to the transaction, which took
place entirely between others, yet, as such a sale has a
legal operation on the question at issue, the fact is no
more res inter alios than the law which gives effect to
such a sale. So, in actions against the sheriff, it very
frequently happens that the law depends wholly on trans-
actions to which the sheriff is personally an entire stranger;
as, where the question is as to the right of ownership in
particular property seized under an execution; and in
(t) 1 Stark. Evid., 3rd ed., 252
King v. Norman, 4 C. B. 884
Thomas v. RuueU, 9 Exch. 764
Drouet r. Taylor, 16 C. B. 671 ;
Boileau v. RuiUn, 2 Exch, 665.
8 N
914 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
these cases all transactions and acts between others are
admissible in evidence, which, in point of law, are material
to decide the right of property (<).
In an action of assumpsit for making and fixing iron
railings to certain houses belonging to the defendant, the
defence was, that the credit was given to A., by whom
they were built under a contract, and not to the defendant.
A-, who had become a bankrupt since the railing was
furnished, was called as a witness for the defendant, and
having stated that the order was given by him, he was
asked what was the state of the account between himself
and the defendant in reference to the building of the
houses at the time of bis bankruptcy. To this question
A.'s reply was, that the defendant had overpaid him by
£350. On the part of the plaintiff it was insisted that
the state of the account between A. and the defendant
was not admissible in evidence; that it was res inter alios
acta; and that the inquiry was calculated improperly to
influence the jury. It was held, however, by the Court in
banc, that the evidence was properly received ; and Erie,
J., remarked, that in an action for goods sold and delivered,
a common form of defence is, that the defendant is liable
to pay another person, and that in such cases the jury
usually come to the conclusion that the defendant in
reality wants to keep the goods without paying for them ;
that the evidence in question went to show the bonajidts
of the defence by proving payment to such third person ;
and that it was not, therefore, open to the objection of
being res inter alios acta (u).
Hearsay. The well-known rule excluding hearsay evidence may
here claim attention, more especially as its operation is
(0 1 Stark. Erid., 3rd ed., 61. («) Gerith r. ChartUr, ICE.
18, 17.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
915
not unfrequently confounded with that of the maxim
" res inter alios'9 A leading authority^) upon the law of
evidence condemns the expression " hearsay evidence " as
inaccurate and misleading, and the cause of general mis-
conception as to the true nature of the rule. The same
writer prefers the phrase "derivative or second-hand
evidence." This is not receivable, the law requiring all
evidence to be given under formal responsibility, i.e. upon
the direct testimony of a witness in open court, subject
to the penalties with which falsehood is attended. The
rule therefore may be thus stated; — the fact that a
statement was made, whether orally or in writing, by a
person not called as a witness, is not admissible in
evidence, except in certain excepted cases. Some of
these excepted cases, which effect a most important
qualification of the rule, must now be noticed.
The declaration or entry of a deceased person who had S^f*^118
1st. Declare
tions against
peculiar means of knowing the matter stated and no JfoJ^1"*"
object in misrepresenting it, is admissible, if relevant to lntenM"
the issue, where such declaration or entry was opposed
to the proprietary (y) or pecuniary^) interest of the
declarant (a). In such a case, when a written statement
or entry is relevant, it is only necessary to prove the
handwriting and death of the party who made it (6).
In the leading case on this subject, it was held, that R{i/*<™ v.
0 * * ltulgicuy.
(x) Best on Evidence, 7th ed.,
445 et seq. See Stephen's Dig. Law
ofKv., lsted., 22, 189.
(y) R. v. Exeter, L B. 4 Q. B.
341 ; 38 L. J. M. C. 126 ; 20 L. T.
693 ; 17 W. R. 850.
(z) The Sussex Peerage case, 11
CI. & P. 85 ; 22. v. Overseers of Bir-
mingham, 1 B. & S. 768.
(a) Per Bayley, B., OUadow t.
Atkin, 1 Cr. & M. 428, adverting to
Middleton v. Melton, 10 B. k C.
317, per eundem ; 1 Starkie, 3rd ed.,
62 ; Steph. Dig. 85, 147 ; Doe d.
Sweetiand v. Webber, 1 A. Sc E.
740; Plant v. Taylor, 7 H. & N.
238.
(ft) Per Parke, J., 8 B. & Ad. 889.
3 N 2
916
MAXIMS APPLICABLE TO THE LAW OP EVIDENCE.
an entry made by a man-midwife, who had delivered a
woman of a child, of his having done so on a certain day,
referring to his ledger, in which he had made a charge for
his attendance, which was marked as " paid," was evidence
upon an issue as to the age of such child at the time
of his afterwards suffering a recovery (c). Here, it will be
remarked, the entry was admitted, because the party,
by making it, discharged another, upon whom he would
otherwise have had a claim. In another case, which
was an action of trover by the assigness of a bankrupt,
two entries made by an attorney's clerk in a day-book
kept for the purpose of minuting his transactions,
were held admissible, by the first of which the clerk
acknowledged the receipt of £100 from his employer for
the purpose of making a tender, and in the second of
which he stated the fact of tender and refusal ; for if an
action had been brought by the official assignee of the
bankrupt against the clerk for money had and received,
the plaintiff could have proved by the first entry that the
defendant had received the £100 ; and, by the second, he
could have shown that the object for which the money
was placed in the defendant's hands had not been
attained. Consequently, the declaration might be con-
(c) Highan v. Ridgway, 10 East,
109 (distinguished in Doc d. King-
lake v. Bevist, 7 C B. 456, 496,
509, 512 ; and in Smith v. Blakeyt
L. R. 2 Q. B. 326); Bradley v.
Janut, 13 C. B. 822, 825 ; Pereival
v. Nanaon, 7 Exch. 1 ; Edit v. King*
ford, 14 C. B. 759 ; Doe d. Earl of
Ashburnham v. Michael, 17 Q. B.
276.
In Higham v. Ridgway, it should
be obsenred, there was evidence to
show that the work for which the
charge was made was actually done.
(See Doe d. Gallop ▼. Vowles, 1 M.
& Bob. 261). Moreover, it will not
be a valid objection to the admissi-
bility of an entry, that it purports to
charge the deceased, and afterward*
to discharge him ; for such an objec-
tion would go to the very root of tail
sort of evidence. (Per Lord Tenter-
den, C.J., JRowe v. Brenton, 3 Mao.
& By. 267.)
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
917
sidered as the entry of a fact within the knowledge of the
deceased, which rendered him subject to a pecuniary
demand (d). And, generally, it may be observed, that the
rule as to res inter alios acta does not apply to exclude
entries made by receivers, stewards, and other agents
charging themselves with the receipt of money; such
entries being admissible, after their decease, to prove the
fact of their receipt of such money (e).
The foregoing are illustrations of the rule as to decla-
rations against pecuniary interest. The following re-
marks relate rather to declarations against proprietary
interest. An occupier proved to be in possession (/) of a
piece of land is, primd facie, presumed to be owner in
fee, and his declaration is receivable in evidence, when it
shows that he was only tenant for life or years (g). So,
in an issue between A. and B7 whether 0. died possessed
of certain property, her declaration, that she had assigned
it to A. was held admissible (h). But it is clear, that a
person who has parted with his interest in property
cannot be allowed to divest the right of another claiming
under him by any statement which he may choose to
make (i), and, therefore, the declarations of a person who
had conveyed away his interest in an estate by executing
a settlement, and had subsequently mortgaged the same
estate, were, after the death of the mortgagor, held inad-
(d) Marks v. Lahie, 8 Bing. N. C,
408.
(e) Per Parke, J., Middleton v.
Melton, 10 B. & C. 327.
(/) His possession most be prored.
La Touch* t. Hutton, 9 Ir. R, Eq.
166.
(g) Judgm., Create v. Barrett, 1
C. M. & R. 931 ; per Mansfield,
C.J., Peaceable v. Watson, 4 Taunt.
16 ; Davies v. Pearce, 2 T. B. 53 ;
Lord Trmlettown v. Kemmis, 9 CI.
& Fin. 780. As to the extent to
which a tenant for life may by his
declaration affect a remainderman,
see Howe r. Malkin, 40 L. T. 196;
27 W. R. 340.
(h) Ivat t. Finch, 1 Taunt. 141.
(i) Per Lord Denman, C.J., 1 A.
k E. 740.
918
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
2nd. De-
claration
nuuie in
course of
basilicas.
Pi !rt v. Earl
*>J Tvrrimj'
t'ni.
missible, on behalf of the mortgagee, to show that money
had actually been advanced upon the mortgage (I').
The declaration of entry of a deceased person if rele-
vant to the issue is admissible where it was made by the
declarant in the ordinary course of business, or in the dis-
charge of professional duty, also near the time when the
matter stated occurred and of his own knowledge (Q.
The case (/) usually referred to as establishing the
above rule, was an action brought by the plaintiff, who
was a brewer, against the Earl of Torrington, for beer sold
and delivered ; and the evidence given to charge the de-
fendant showed, that the usual way of the plaintiff's
dealing was, that the draymen came every night to the
clerk of the brewhouse, and gave him an account of the
beer they had delivered out, which he set down in a book
kept for that purpose, to which the draymen signed their
names; and that the drayman was dead whose name
appeared signed to an entry stating the delivery of the
beer in question. This was held to be good evidence of a
delivery.
In another important case on this subject, at the trial
of an action of ejectment, it was proved to be the usual
course of practice in an attorney's office for the clerks to
serve notices to quit on tenants, and to indorse on dupli-
cates of such notices the fact and time of service ; that,
on one occasion, the attorney himself prepared a notice
to serve on a tenant, took it out with him, together with
(k) Doe d. Sweetland v. Webber,
1 A. & & 733. As to declarations
against interest, see, also, The Suttex
Peerage, 11 CI. & Fin. 86 ; Smith v.
Blakey, L. R. 2 Q. B. 826 ; jwrLord
Denman, 0. J., Davit v. Lloyd, ICar.
& K. 276 ; Taylor v. Witham, 3 Ch.
D. 605 ; 45 L. J. Ch. 798 ; 24 W. B.
877.
(I) Steph. Dig. 1st ed., 33, 144,
and notes to Price v. Earl of Torrwf.
to*, 1 8m. L. C. ; MaUommm t. 0*2tea,
10 H. L. Cas. 605 ; Smith r. Blot*,
LR.2Q.B. 329, 333.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
919
two others, prepared at the same time, and returned to
his office in the evening, having indorsed on the duplicate
of each notice a memorandum of his having delivered it
to the tenant ; and two of the notices were proved to have
been delivered by him on that occasion. The indorse-
ments so made were held admissible, after the attorney's
death, to prove the service of the third notice (m).
It is necessary, however, that the particular entry be
contemporaneous with the circumstance to which it '
relates ; that it be made in the course of performing
some duty (n), or discharging some office (o) ; and that it
be respecting facts necessary to the performance of such
duty ; for, if the entry contain a statement of other cir-
cumstances, however naturally they may be thought to
find a place in the narrative, it will not be legal proof of
those circumstances (p).
Space will not permit of the other exceptions to the other
. exceptions*
rule excluding hearsay evidence being here treated. The
following extract from a judgment of Parke, B., well
expresses the rule itself, and indicates many of the excep-
tions which qualify it. — One great principle in the law of
evidence is, that all such facts as have not been admitted
(m) Doe d. PatteshaU ▼. Turford,
3 B. & Ad. 890; cited per Sir J.
Bomilly, M.B., Bright v. Legerton,
29 L. J., Chanc, 852, 854 ; Stapyl-
ton v. doughy 2 E. & B. 933 ; Eastern
Union R. C. v. Symonds, 5 Exch.
237 ; Doe d. Padwick v. Witicomb.
4 H. L. Cas. 425; S. C, 6 Exch.
601. See Doe d. Padwick v. Skin-
ner, 3 Exch. 84 ; Reg. v. St. Mary,
Warwick, 1K&B. 816, 820, 825 ;
Rag. y. Inhabs. of Worth, 4 Q. B.
182. See, also, Poole v. Dicas, 1
Bing., N. C, 649.
(n) See Massey v. Allan, 18 Ch.
D. 558.
(o) See Polini v. Grey, 12 Ch. D.
411; 49 L. J. Ch. 41 ; 40 L. T. 861;
28 W. R. 81.
(p) Chambers v. Bemasconi (in
error), 1 C. M. & R. 347 ; per
Blackburn, J., Smith v. Blakey, L.
B. 2 Q. B. 832 ; per Parke, J., 3 B.
& Ad. 897, 898 ; per Pollock, 0. B.,
Milne v. Leister, 7 H. 4 N. 795 ;
Trotter v. Maclean, 13 Ch. D. 574.
020 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE,
by the party against whom they are offered, or some ope
under whom he claims, ought to be proved under the
sanction of an oath, (or its statutory equivalent,) either on
the trial of the issue, or some other issue involving the
same question, between the same parties, or those to
whom they are privy. To this rule certain exceptions
have been recognised some from very early times, on the
ground of necessity or convenience ; such as the proof of
the quality and intention of acts by declarations accom-
panying them, of pedigrees and of public rights by the
statement of deceased persons presumably well acquainted
with the subject, as inhabitants of the district, in the one
case, or relations, within certain limits, in the other ; and
another exception occurs, where proof of possession is
allowed to be given by the entries of deceased stewards or
receivers charging themselves, or proof of facts of a public
nature by public documents (q).
Jtagest*. There is one other topic, which may be adverted to as
qualifying both the rule which excludes evidence of res
inter alios acta, and also that as to hearsay evidence.
Under the head of res gestce, an expression which, accord-
ing to Sir James Stephen (r), seems to have come into
use on account of its convenient obscurity, facts and state-
ments are frequently admitted in evidence, which upon
the broad construction of one or other of the rules which
have been noticed would be inadmissible. The doctrine
of res gestce was much discussed in the leading case of
Doe v. Tatham (s). In delivering his opinion to the
(g) Per Parke, R, 7 A. & & 884, 486 ei seq., and Steph. Dig.
885. For additional information as (r) Dig. L. of Et., 1st ecL, p»
to the maxim respecting res inter 134.
alios acta, the reader is referred to (*) 7 A, & E. 318.
1 Tayl. BTicL,'7th ed., 296 ei seq.,
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 921
House of Lords in that case, Parke, B., said, " Where any
facts are proper evidence upon an issue, all oral or written
declarations which can explain such facts may be received
in evidence " (£). Where declarations accompany an act,
they are frequently admissible in evidence as part of the
res gestce, or as the best and most proximate evidence of
the nature and quality of the act ; their connection with
which either sanctions them as direct evidence, or consti-
tutes them indirect evidence from which the real motive
of the actor may be duly estimated (u).
Thus, an action was brought by a man on a policy of Avemny.
insurance on the life of his wife ; and the question arose wird-
as to the admissibility of declarations made by the wife,
when lying in bed, apparently ill, as to the bad state of
her health, at the period of getting the regular surgical
certificate, and down to that time. These declarations
were made to the witness, who was produced at the trial
to relate the wife's own account of the cause of her being
found in bed by witness at an unseasonable hour, and
with the appearance of being ill, and were held admis-
sible, on the same ground, that inquiries of patients, by
medical men, with the answers to them, are evidence of
the state of health of the patient at the time ; and it was
further observed, that this was not only good evidence,
but the best evidence which the nature of the case
afforded (x).
So, where a bankrupt has done an equivocal act his
declarations accompanying the act have been held admis-
sible to explain his intentions ; and, in order to render
(t) 4 Bing. N. C. 489. (x) Ave$on v. Lord Kinnaird, 6
(u)SeeiWv. JSWtott, 4Exch. 78; East, 188; 1 Phill. Br., 10th ed.,
. per Pollock, C.B., MUne v. Leuter, 149.
' 7 H. k N. 796.
922 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
them so, it is not requisite that such declarations were
made at the precise time of the act in question (y).
So, in cases of treason and conspiracy, it is an esta-
blished rule, that, where several persons are proved to
have combined together for the same illegal purpose, any
act done by one of the party in pursuance of the plan
originally concerted, and with reference to the common
object, is, in the contemplation of law, the act of the
whole party (z), though, where a question arises as to the
admissibility of documentary evidence, for the purpose of
implicating a party, and showing his acquiescence in such
illegal purpose and common object, it will always be
necessary to consider, whether the rule scribere est agere
applies, or whether the evidence in question is merely
the narrative of some third party of a particular occur-
rence, and therefore, in its nature hearsay and original
evidence.
Nemo tenetur seipsum accusaee. — (Wing. Max. 486.)
No mem can be compelled to criminate himself (a).
Policy of This maxim expresses a characteristic principle of
English Law (b). Hence it is, that although an accused
person may of his own accord make a voluntary statement
as to the charge against him, a justice of the peace,
before receiving his statement, is required by the 11 & 12
(y) Batman v. BaUey, 5 T. R. (a) A man is competent to prove his
512. Per Tindal, C.J., Ridley v.. own crime, though not compellable ;
Gyde, 9 Bing. 852; Ratoson v. per Alderaon, B. , Udal v. Walton* U
Haigk, 2 Bing. 99. See Smith y. M. & W. 256.
Cramer, 1 Bing., N. C. 585. (6) As to the Scotch law on the
(z) Per Bayley, J., WaUonU ease, above point, see LongwortkY. Ydver-
32 Howell, St. Tr. 7 ; Reg. v. Blake, ton, L. R. 1 Sc. App. Cas. 218.
6 Q. B. 126.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
923
Vict. c. 42, s. 18, to administer to him the caution that he
is not bound to say anything, and that what he does say
may be used in evidence against him. It may be stated
*s a general rule that a witness in any proceeding is (c),
privileged from answering not merely where his answer
will criminate him directly, but where it may have a ten-
dency to criminate him (d). " The proposition is clear,"
remarked Lord Eldon in Ex parte Symes (e), " that no
man can be compelled to answer what has any tendency
to criminate him,"— which proposition is, it seems, to be
thus qualified, that the danger to be apprehended by
the witness must be " real and appreciable with reference
to the ordinary operation of law in the ordinary course of
things, not a danger of an imaginary and unsubstantial
.character having reference to some extraordinary and
barely possible contingency, so improbable that no reason-
able man would suffer it to influence his conduct," for
.such a possibility should not be suffered to obstruct the
.administration of justice (/). And, although a party to
a cause, who has been subpoened as a witness, cannot
object to be sworn on the ground that any relevant ques-
tions would tend to criminate him (g), he may when such
objectionable questions are put claim his privilege (h),
(c) See cases cited infra,
(d) Fisher v. Ronalds, 12 C. B.
762 : per Pollock, C.B., Adams v.
Lloyd, 3 H. & N. 362 ; JL v. Oar-
bett, 1 Ben. C. C. 236. The cases
supporting this proposition are col-
lected in Rose. Iaw of Evidence in
Crim. Cas., 4th ed., pp. 162 et stq.
See Ex parte Fernandez, 10 C. B.
N. S. 3 ; Re Fernandes, 6 H. & N.
717 ; Bradlaugh v. Evans. 11 G. B.
N. S. 377.
(e) 11 Ves. 525.
(/) Reg. v. Boyes, 1 B. & & 311,
330. Approved Re Reynolds, 21 Ch.
D. 701. See Re Mexican and South
American Co, 28 L. J., Ghana, 631.
ig) Boyle v. Wiseman, 10 Exch.
647.
(A) The objection that interroga-
tories delivered under 17 & 18 Vict
c 125, s. 51, tend to criminate the
party sought to be interrogated must
come from himself when sworn : 0«-
924
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
The protection does not extend to excuse a person from
answering questions on the ground that the answers may
establish or tend to establish that he owes a debt or is
otherwise liable in any civil suit, either at the instance
of the Crown or of any other person (i), as to whether a
person is bound to answer a question the answer to which
may criminate his or her wife or husband, the authorities
are somewhat conflicting, though they tend to establish
the privilege in such cases (&).
Where, however, the reason for the privilege of the
witness or party interrogated ceases, the privilege will
cease also (Z) ; as if the prosecution to which the witness
might be exposed or his liability to a penalty or forfeiture
is barred by lapse of time, or if the offence has been par-
doned or the penalty or forfeiture waived (m).
born v. London Dock Co., 10 Bxch.
698, followed in Cheater v. Wortley,
17 C. B. 410, 426 ; and in Bortlett
t. Lewis, 12 0. B. N. S. 249 ; Fieher
y. Owen, L. E. 8 Ch. 645 ; 47 L. J.
Ch. 681, C. A.
As to interrogatories tending to
criminate, see Edmund* v. Green-
wood, L. R. 4 0. P. 70 ; VMebounet
y. Tobin, Id. 184 ; AUhuten y. La-
bouchere, 8 Q. B. D. 654 ; Atherley
v. Harvey, 2 Q. B. D. 524 ; W. of
England Bank v. NicholU, 6 Ch. D.
618.
As to compelling a person to pro-
duce document*, the production of
which might subject him to penalties,
see Pritchett y. Smart, 7 C. B. 625,
citing Bullock v. Richardson, 11 Ves.
378. See Webb y. Eat, 5 Ex. D.
23 ; 49 L. J. Ex. 250 ; 41 L. T. 715 ;
28 W. R. 336. Where a doubt is
expressed by the C. A. whether a
party is protected from producing
documents even though he swears
they will tend to criminate him.
Whether or not a witness is com*
pellable to answer questions baring
a tendency to disgrace him, is ably
discussed by Mr. Best in his Princi-
ples of the Law of Evidence, 2nd ed.,
pp. 163 et *eq., to which the reader
is referred. See 17&18 Vict, c 125,
b. 25.
(t) 46 Geo. 3, c. 37, which was
enacted to put an end to the doubts
which had been expressed.
(k) R y. Claviger, 2 T. R. 263 ;
R. y. AU Saint*, WorceUer, 6M.s
G. 194, 200, per Bayley, J. ; Cart-
wright v. Oreen, 8 Ves. 405 ; R. r.
HaUiday, Bell, 257.
(I) Wigr. on Discovery, 2nd ed.
p. 83, where the equity cases upon
the point tupra, are collected.
(m) See Ex parte Fernandez, and
Reg. y. Boyt*, ante, p. 923 n. (<*)
and(/).
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
925
The rule Nemo tenetur sevpsum accvAare, which has How mie is
£ qualified.
been designated (n) " a maxim of our law as settled, as
important and as wise as almost any other in it/' is, how-
ever, sometimes trenched upon, and the privilege which it
confers, is in special cases abrogated. Thus a bankrupt
under examination by the Court of Bankruptcy does not
enjoy any such protection (o) ; but a witness summoned
for examination as to the bankrupt's affairs may refuse to
answer upon the ground that his answer might tend to
'Criminate him (p). And the legislature will sometimes on
grounds of policy, extend indemnity — partial or entire — to
a witness whose privilege is taken away (r) or not insisted
on ; thus by the 24 & 25 Vict, c. 96 (The Larceny Act,
1861), it is enacted (s. 85), that nothing in any of the
preceding ten sections of that Act contained which relate
to frauds by agents, bankers, and factors, " shall enable or
entitle any person to refuse to make a full and complete
discovery by answer to any bill in equity, or to answer any
question or interrogatory in any civil proceeding in any
court or upon the hearing of any matter in bankruptcy
or insolvency ; and no person shall be liable to be con-
victed of any of the misdemeanours in any of the said
sections mentioned by any evidence whatever in respect
of any act done by him, if he shall at any time previously
(n) Per Coleridge, J., DearsL &
B. 61.
(o) Ex pte. Schofidd, 6 Ch. D.
230 ; s. 17 of Bankruptcy Act, 1883.
Reg. t. Scott, Dearsl. & B. 47 ; Reg.
v. Cron, Id. 68 ; Reg. v. Sheen, Bell
0. C. 97 ; Reg. v. Robinson, L. R. 1
0. C. 80, 85, 87, 90.
(p) Ex pte. Reynolds, 21 Ch. D.
601 ; 52 L. J. Ch. 223 ; 47 L. T.
495 ; 31 W. B. 187. See s. 59 of
The Corrupt Practices Act, 1882, and
the examples in Tayl. on Evidence,
§ 1455.
(r) For instance, under the 15 &
16 Vict. c. 57 (an Act to provide for
more effectual enquiry into the exist-
ence of corrupt practices at elections
for members to serve in Parliament),
9, 10, 11.
Affidavit
926 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
to his being charged with such offence have first dis-
closed such act on oath in consequence of any compul-
sory process of any court of law or equity in any action,
suit, or proceeding which shall have been bond fide insti-
tuted by any party aggrieved, or if he shall have first dis-
closed the same in any compulsory examination or depo-
sition before any Court upon the hearing of any matter in
bankruptcy or insolvency " (s).
The disclosure of any such illegal act as above referred
to, in order to be available as a protection, must have
been made bond fide, and must not have been a mere
voluntary statement, made for the express purpose of
screening the person making it from the penal consequences
of his act (t).
Annwering Lastly, in Reg. v. GriUyard(u), the facts were as under : —
a maltster, suspected of having violated the excise laws,
obtained a conviction against his servant for the purpose,
as was suspected and charged, of relieving himself from
penalties in respect of the same transaction by force of
the stat. 7 & 8 Geo. 4, c. 52, s. 46. In support of a rule
nisi to quash the conviction thus had the affidavits stated
circumstances, showing that the conviction in question
had been collusively obtained, and no affidavit was made
in opposition to the ride. On behalf of the maltster it
was urged that he ought not (regard being had to the
maxim now under consideration) to have been called
upon to defend himself by affidavit on a charge which
was virtually of a criminal nature (x). But the con-
viction nevertheless, was quashed as being " a fraud and
(f) 8ee also s. 86 of the same st. a. 52.
(t) 8ee Reg. v. Strahan, 7 Cox, C. («) 12 Q. B. 527.
C., 85 ; which was decided wider the {x) Citing Stephens v. Hill, 10 K.
repealed statute 7 & 8 Geo. 4, c. 29, & W. 28.
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 927
mockery, the result of conspiracy and subornation of
perjury," Coleridge, J., remarking that, "where the
Court observes such dishonest practices it will interfere,
although judgment has been given," and that " no honest
man ought to think it beneath him or a hardship upon
him to answer upon affidavit a charge of dishonesty
made upon affidavit against him. If a man, when such
a serious accusation is preferred against him, will not deny
it, he must not complain if the case is taken pro confe&o."
' Upon the cognate subject of the competency of wit- ^JXI^JJ^
nesses a few remarks must suffice (y). At one time it
was the most important topic of the Law of Evidence,
and was much discussed in the older text-books. Until
the present reign, interest in a suit was considered to
disqualify a person from giving testimony, the result
being that, in most cases, the best evidence available was
excluded. At Common Law the parties, and their hus-
bands and wives, were incompetent as witnesses in all
cases. This incompetency was removed as to the parties
in civil cases by 14 & 15 Vict. c. 99, s. 2, and as to their
husbands and wives by 16 & 17 Vict. c. 83, ss. 1 and 2.
By both these Acts the Common Law was expressly
reserved in criminal cases, and by the latter the incom-
petency of the parties, and their husbands and wives, was
retained in proceedings instituted upon the ground of
adultery. Now, by the 32 & 33 Vict. c. 68, s. 3, the
incompetency in such proceedings is removed, but it is
provided that no witness shall be asked any question,
the answer to which may tend to show that he or she
has committed adultery, unless such witness has already
(y) See Best, Bk. 1, Pt. 1, Ch. 2, where a complete history of the sub-
ject will be found.
928
MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.
given evidence in the same proceeding in disproof of the
alleged adultery.
In criminal cases (z), the rule is still in accordance with
the principle, nemo tenebur aeipsum accusare. The
accused person, his or her wife or husband (a), and every
person, and the wife or husband of every person jointly
indicted with him (6), is incompetent to give evidence.
To this rule there are exceptions. In any criminal pro-
ceeding against a husband or wife for any bodily injury
inflicted upon his or her wife or husband, such wife or
husband is competent and compellable to testify (c).
Another exception arises from the Married Women's
Property Act, 1882(d). By sect 12, it is enacted that,
in any proceeding under that section (e), a husband or
wife shall be competent to give evidence against each
other. At the present time a still more important modi-
fication is in contemplation, for by the Criminal Code
Bill, introduced by the Government in the House of
Commons in 1879, it is proposed that " any one accused
of any indictable offence (and the husband or wife of such
person) shall be a competent witness for himself or
herself'9 and may be cross-examined if he tenders his
(z) As to what are criminal pro-
ceedings, as distinguished from civil,
see R. v. Russell, 3 E. k B. 942
Caltdl v. Ireson, E. B. k B. 91
Parker v. Green, 2 B. k S. 299
Bishop of Norwich y. Pearce, L. R. 2
A. k E. 281. The doubt entertained
in A.G. y. Rudloff, 10 Ex. 84, is
settled by 28 k 29 Vict c 104, s: 84,
as to proceedings upon the revenue
side of the Court of Exchequer.
(a) R. y. Thompson, L. R. 1 G. G.
R 377 ; 41 L. J. M. C. 112 ; supra.
(6) R, y. Thompson; R. v. Payne,
L. R. 1 0. G. R. 349 ; 41 L. J.
-M. G. 65 ; but see R. y. Deeley,
11 Cox, C. C. 607; 23 L. T.
168/
(c) Reeve v. Wood, 5 B. & S. 364.
As to Treason, see Taylor, s. 1237.
(d) 45 k 46 Vict. c. 75.
(«) The draughtman's blunder ex-
posed by the case of R. v. BrittleUm,
12 Q. B. D. 266, has been corrected
by an Act of the present session.
MAXIMS APPLICABLE TO THE LAW ,OF EVIDENCE. 929
evidence (/). But a provision is added, that no such
person shall be liable to be called by the prosecutor, thus
recognizing the principle, nemo tenetur seipmm accusare.
Hating thus briefly touched upon some few rules
relating chiefly to the admissibility of evidence, and
having considerably exceeded the limits originally pre-
scribed to myself, I now feel compelled reluctantly to take
leave of the reader, trusting that, however slight or dis-
proportioned this attempt to illustrate our legal maxims
may appear, when compared with the extent and impor-
tance of the subject, I have yet, in the language of Lord
Bacon, applied myself, not to that which might seem
most for the ostentation of mine own wit or knowledge,
but to that which might yield most use and profit to the
student ; and have afforded some materials for acquiring
an insight into those conclusions of reason — those legum
leges— essential to the true understanding and proper
application of the law — whereof, though some may strongly
savour of human refinement and ingenuity, the greater
portion claim from us instinctively, as it were, recognition
— and why ? they have been ' written with the finger of
Almighty God upon the heart of man ' (g).
(/) Cl. 100, and note, 8. 4 ^2) of or his or her wife or husband, may,
the Explosive Substances Act, 1883, if such person thinks fit, be examined
46 Vict. c. 3, by which a person as a witness,
accused of an offence under the Act, {g) See Calvin's case, 7 Rep. 126^
3 o
V
INDEX.
ACCESSIO,
title by, in Boman law, 457, ib. n. (y)
ACCQSSORIUM SEQUITUR PRINCIPALE. See CoaocON,
FREIGHT, INTERE8T.
instances of this role, 457.
ACCOBD AND SATISFACTION,
plea of, ^
ACT? OP GOD,
definition of, 224.
damage to sea-walls arising from, 225.
contract, performance of when excused, 229, et $eq.
payment of rent not excused by, 228.
bond, condition of, impossible by, 231, 232.
devise, condition in, prevented by, 233.
carrier not liable for, 233.
rule, where inapplicable, 236.
ACTA EXTERIOR A INDICANT, &c, 293. See Trespass.
ACTIO PERSONALIS MORITUR CUM PERSONA, 855. See
Executor, Trespass, Master and Servant.
ACTION AT LAW. See Case, Contract, Debt, Ldotation,
Trespass, Trover, Vexue.
none against the Sovereign, 48, et seq.
right of, merges in felony, 155, 203—206.
consolidation of actions, 320
ACTUS CURIJE NEM1NEM GRAVABIT, 116.
judgment nunc pro tunc, U7.
limitation to rule, 119.
ACTUS DEI NEMINI FACIT INJURIAM, 224.
3 o 2
932 INDEX.
ACTUS LEQIS NEMINI EST DAMNOSUS, 120.
ACTUS NON FACIT REUM, Ac, 300. See Criminal Intention,
Criminal Law, Libel, Drunkenness.
AD EA QUJS FREQUENTIUS, &c, 35. See Statutes.
AD PROXIMUM ANTECEDENS FIAT RELATIO, &c, 636.
See WUXS.
AD QUjESTIONEM FACTI &c, 06. See Judge, Jury.
ADMINISTRATOR. See Personal Representatives.
relation of title of, 861, 862.
ADVOWSOjN. See Quare Impedit.
appendant to a manor, 459.
AFFIDAVIT,
court will look solely at facts deposed to therein, 156.-
to be sufficiently intituled, 630, 631.
AGENT. See Principal and Agent.
AIDER BY VERDICT, 174, et setj.
ALIEN. Set Allegiance.
ALIEN AT10 REI PRJEFERTUR, &c. See Alienation.
ALIENATION,
how defined, 414.
feudal system was opposed to, 415.
distinguished from subinfeudation, ib.
operation of statute Quia Emptvres, 416.
De Prerogativd Regis, ib.
De Bonis, 417.
favoured by the courts, 418, 419.
by will, 419.
light of at common law, 420.
creation of perpetuities by will restrained, 423.
trusts for accumulation, 424.
by feme covert may be restrained, 426.
of personalty favoured, 427, 429.
under Settled Estates Act, 1882, 430.
INDEX. 933
ALLEQANS CONTRARIA, &c. See Estoitel, Grant, Election.
role as to, 161, 287, 288.
party bound by misrepresentation, 281, ei «*/.
fictitious payee of bill, 288.
ALLEGIANCE
defined, 71.
released from by act of Legislature, 73.
of aliens, 74.
Naturalization Act, 74.
ALLUVION,
where it belongs to the owner of the land, 157.
AMBIGU1TAS LATENS, NON PATENS, &c, 561. See Ambi-
guity, Will, Deed, Evidence.
AMBIGUITY.
definition of latent and patent, 561 .
rule as to patent, ib.
qualification of rule as to, 566.
latent, rule as to, 566.
admissibility of extrinsic evidence respecting, 570.
rule of construction in absence of, 573.
ANCESTOR. See Heie.
APPORTIONMENT
of rent, in what case, 227, 277.
APPROPRIATION. See Payment.
ARGUMENTUM AB INCONVENIENT I, &c> 177, See Docu-
ments, Statutes.
ARREST
under process, when unlawful, 122.
ASSAULT. See Trespass.
ASSIGN ATUS UTITUR JURE AUCTORIS, 434. /fee Assignee,
Landlord and Tenant, Pawnee.
ASSIGNEE,
who is an assignee, 434.
what amount of interest is assignable, 436 — 139.
934 INDEX.
ASSIGNEE (continued).
of chose in action, his rights, 441.
of bill of lading, 439.
liability of, 441.
may sue in his own name, 44 1 .
ASSIZES, ONE LEGAL DAY, 128. Set Fiction.
exception, ib.
ATTAINDER. See Heir.
corruption of blood not pleadable in proceedings to set aside,
159.
ATTORNEY,
action against, for negligence, 193, 707.
for trespass, 829.
no privity between a town agent and the client of a country
solicitor, 707.
AUDI ALTERAM PARTEM.
rule and examples, 106 — 109.
AUTREFOIS ACQUIT,
plea of, 330, 331.
AUTREFOIS CONVICT,
plea of, 330, 331.
AWARD,
how set aside, 87.
affects merger of original claim, 326.
when sufficiently certain, 580.
surplusage in, 582.
AWAY-GOING CROP,
who is entitled to, 387—390.
right of possession in respect of, 488.
custom for tenant to have, 874.
BAILIFF. See Sheriff.
BANK NOTE,
alteration of, 149.
stolen, not recoverable from bona fide holder, 768.
INDEX. 935
BANKRUPT,
declarations by, when evidence, 921.
is bound to answer, though ho may criminate himself, 925.
BARONY,
proof of ancient, 901, 902.
BASTARD
cannot inherit lands, 483, 484.
may take under a devise to children when, 519.
BENIGN^ FAC1ENDJE SUNT, &c, 498. See CONTRACT, Deed,
Will, Statutes.
BILL OP EXCHANGE. See Assignee, Debt, Negotiable In-
strument, Nudum Pactum.
effect of alteration of, 148, 149.
fictitious payee, 288.
notice of dishonour, not specific, 151.
waiver of, 657.
the holder of bill indorsed in blank may sue, 44*.
whether consideration requisite, 709.
laches in respect of, does not affect Crown, 63.
rights of holder of, 671, 672.
stolen, 768.
effect of payment by, 776.
mistake in, not to be explained by parol evidence, 564, 565.
discharged by waiver, 837.
BILL OP LADING,
transfer of, by indorsee, 439, 440.
authority of master of ship as to, 792.
maxim of caiua proximo, how applied, 216.
BILLS OF SALE,
priorities amongst holders of, 341.
BLANK,
in a will not supplied by parol evidence, 562.
BOND,
effect of alteration of, 148.
action on, by commissioners of taxes, 156.
act of God making condition impossible, 231.
Act of Parliament making condition impossible, 233.
936 INDEX.
BOND (continued).
effect of the condition becoming otherwise impossible, 241, 242,
executed under assumed name, 280.
illegality a good defence to action on, 687, 688.
how discharged, 834, 836, 843.
BONI JUDICIS EST AMPLIARE JUMSDICTIOXEJi. 73.
See Judge.
BOROUGH ENGLISH, 338.
BOTTOMRY BONDS, exception to Qui prior est, &c. 240.
BOUGHT AND SOLD NOTE,
effect of alteration of, 149.
BROKER. See Lien.
BYE-LAW
restraining navigation of canal, 20.
power of corporation to make, 450.
CARRIER. See Case, Principal and Agent.
for what damage he is liable, 219, 233.
how bound by his notices, 553.
railway company regarded as, 780.
CASE. See Injury, Limitation, Negligence.
origin of the action, 183.
novelty of complaint io, no objection, 183.
against returning officer, by voter, 184.
for invasion of a right, 192.
where it lies indifferently with assumpsit, 193.
by reversioner, 372.
<JA VEA T EMPTOR, 723. See Contract, Sale of Land, Sale
of Goods, Fraud, Misrepresentation.
CERTAINTY,
what degree of, is sufficient, 578.
in a lease, i*6»
an agreement, 574.
as to date in agreement for lease, 279.
in an award, 580.
in sale of goods, 580.
INDEX. 937
CERTUM EST QUOD CERTUM REDDI POTEST, 578. See
Certainty, Interest.
iJESSANTE RATIONE LEQIS, &c, 153. See Law.
CHALLENGE,
peremptory, allowed the prisoner in all felonies, 315.
OHABTEB-PABTY,
when vitiated by alteration, 150.
how construed by reference to the intention of the parties, 508.
freight, pro rata itineris, how recovered, 609, 610
liability of parties to, 800.
CHEQUE,
action against banker, for refusing payment of, 192.
is assignable, 443.
within what time to be presented, 850.
CHOSE IN ACTION,
assignment of, 441.
assignee, when he may sue, 442.
as a rule subject to equities, 664.
CIRCUITY
is to be avoided, 329.
CLAUSULA DEROGATORIA,
what, 21.
COHABITATION.
grant of annuity after, 433.
COLONIAL LEGISLATIVE ASSEMBLY
power of, to punish for contempt, 454, 455.
COMITY OP NATIONS, 16.
COMMISSIONERS OF PAVING,
liability of, 5.
COMMISSIONERS OP TAXES,
action by, on bond, against tax-collector's surety, 57.
938 INDEX.
COMMON,
action for damage to, 140 — 142.
pur cause de vicinage, 154.
right to abate nuisance on, 412.
of pasture appendant, 460.
COMMUNIS ERROR FACIT JUS, 134.
meaning of maxim, 134.
limitations, 135—137.
its object is to protect vested interests, 137.
COMPULSION. See Necessitas.
CONDITION,
rendered impossible by act of God, 231, 232.
by act of obligor, 241.
by act of stranger, 242.
impossible at its creation, 241.
rendered impossible by act of obligee, 241.
CONFLICT OP LAWS, 15, 16.
divine and human, 15, 16.
foreign municipal, 16.
CONFUSION OF GOODS, 278.
CONSENSUS FACIT MATRIMONIUMt &c, 468. See Marriage.
CONSENSUS TOLLIT ERROREM, 131. See Waiter.
CONSIDEBATION. See Contract, Nudum Pactum.
in Boman and French Law, 699.
definition of, in English law, *6., 702.
impossible, 242.
CONSTABLE. See Judicial Authority.
when he may justify under wa/rant, 90.
require assistance of bystanders, 453.
CONTEMPORANEA EXP0SITI0 EST, &c, 638. See Grants,
Statutes, Precedents.
CONTEMPT,
power of colonial legislative assembly to punish for, 454.
INDEX. 939
CONTINGENT INTEREST.
how distinguished from Tested estate, 626.
CONTRACT. See Caveat Emptor, Limitation, Nudum: Pactum,
Principal and Agent, Carrier.
made on Sunday, when void, 17, 18.
tort, how distinguished from, 194.
act of God excuses performance of, 229 et seq.
impossibility of performance, when an excuse, 240.
improbability of performance no excuse-, 243.
rescission, when justified, 244.
exception to this rule, 244, 245. .
by infant for necessaries, 493.
father whether liable on son's oontract for necessaries, 494.
written agreements, how oonstrued, 507, 508.
fortius contra proferentem, 551.
rule of Roman law as to, 554.
exceptions, 556.
ambiguity, latent and patent, 572.
expreesum facit cessare taciturn, 612, 613.
parol evidence, where inadmissible, 619.
examples — contract of sale, 613.
sale of goods, 615.
warranty, 615.
implied by law, 616.
sale of specifio chattel, 617.
evidence of custom, where admissible, 618, 621.
evidence inadmissible to vary, 619.
qui hosret in litterce, when applied to, 643.
modus et conventio vincunt legem, 645.
of married woman when void, 652.
rights of third parties not affected by, 653.
ncidental advantages may be renounced by the party entitled
to benefit, 655.
modus et conventio will not cure illegality, 650, 651.
effect of adopting an unauthorised, 823.
fraud, 282, 283, 287. See Fraud.
a party shall not take advantage of his own
fraud, 282, 283.
par delictum, 673. See Par Delictum.
immoral or illegal, 686 — 690.
to oust court of jurisdiction, 691.
940 INDEX.
t
CONTRACT (amtimttd).
when divisible, 095.
reason of rule as to ratification of, 826.
discharge and variation, 834 — 843.
special, 834—836.
simple, 836—839.
contracts within Statute of Frauds, 840.
may be explained by usage, 879.
actions on by personal representatives, 856, d $eq.
against personal representatives, 858, 859.
CONTRIBUTION,
amongst tortfeasors, none, 682.
CONVEYANCE. See Deed.
act of God making a condition annexed impossible, 233.
condition being otherwise impossible, 242.
COPYHOLD,
relation of title to, 127, 128.
COPYRIGHT,
what it is, 345, 346.
depends on priority of composition and publication, 346.
CORPORATION,
power of, to make bye-laws, 450.
liability of, for works under statute, 818.
COURT. See Judge.
agreement to oust jurisdiction of, 691.
COVENANT. See Deed, Landlord and Tenant, Personal Repre-
sentative, Specialty.
breach of, occasioned by statute, 239, 240.
running with land, 442, 661.
CRIMINAL CONVERSATION,
effect of husband's connivance on the maintenance of action for,
262, 263.
CRIMINAL INTENTION,
intention, when material, 300 — 304.
bare intention not punishable, 305.
in misdemeanors, 306.
persons of immature years, 308.
\
INDEX. 941
CRIMINAL INTENTION (continued).
libel and slander, 310—315.
murder, 305.
presumption infavorem vitce, 315.
CRIMINAL LAW. See Indictment, Judgment.
foundation of, 8, 9.
should never be retrospective, 35.
whether ignorance excuses infringement of the law, 261.
plea of autrefois acquit, 330, 331.
actus nonfacit reum nisi mens sit reat 300.
attempt distinguished from intention, 306, 307.
law relating to malice, 309.
consideration infavorem vitce, 315.
doctrine of res judicata applies, 330 — 332.
master and servant, 820, n. (&).
principal and agent, 830.
CROWN. See Allegiance, Alienation, Execution, Extent,
Franchise, Judgment, King, Limitation, Master and
Servant, Petition of Right, Pardon, Statutes.
Trurrima relating to, 40 — 74.
attributes of, 40.
descent of, 44.
conflicting rights of Crown and subject, 65 — 67.
demise of, 43.
irresponsibility of, 46.
grant from, when void, 47 — 51.
remedy against, 51 — 59.
not responsible for laches of its servants, 51 — 55.
when bound by statutes, 68—71.
Fortius accipiuntur applied in favour of, not against, 560.
servant of, not liable on contract, when, 819.
ratification by, of agent's act, 831.
CUICUNQUE AL1QUIS QUID CONCEDIT, &c, 445. See
Minerals, Grant, Statute.
CUJU8 EST DARE EJUS EST D1SP0NERE, 430. See Landlord
and Tenant, Easement.
CUJUS EST SOLUM, &c, 371. See Land, Minerals, Trespass.
942 INDEX.
CURSUS CURIAE EST LEX CURI2B, 129. See Praoitck.
CUSTOM,
distinguished from usage of trade, 881.
affecting mercantile contracts, 879.
knowledge of, when material, 882.
reasonableness of, 152.
respecting away-going crop, 387, et $eq.
definition of, 871.
requisites to the validity of, 872 — 878.
CY-PEfcS,
the doctrine of, 521.
DAMAGES,
when too remote, 199.
in actions of contract, 200 — 220.
of tort, 201.
special, what are, 221.
when recoverable, 220.
DEBT. See Contract, Limitation of Actions, Penalty, Mjuc-
riaob.
DECISIONS. See Precedents.
DE DONIS,
statute of, 417.
DEED,
requisites to the validity of, 97.
effect of alteration of, 148.
general principles for construction of, 499.
1. must give effect to every part, tft.
2. must be reasonable, t'5.
3. must be favourable, \b.
deeds shall be made operative, 501.
examples, 501, 502.
words of doubtful import in, 503.
agreement for lease, 503.
construction of covenants, 504.
joint and several, 505.
dependent and independent, t'6.
generally, 507, 508.
ex antccedertUbus et coneequentibue, 533.
INDEX. 943
DEED (continued).
general principles for construction of (continued).
examples — bond with condition, 534.
recitals, ib.
covenants, 535.
transposition of words, 536.
rejection of words, 537.
maxim, noacitur a sociis applied to, 542.
fortius contra proferentem, 549.
application to deed-poll, ib.
grant, ib.
leaseholds passed by general words in, 550.
exceptions, 556.
ambiguity, 561.
patent, not to be helped by averment, ib.
qualification of rule, 566.
latent, may be removed by averment, ib.
remarks on parol evidence, 570.
rule where no ambiguity exists, 573—575.
words deleted cannot be considered, 575.
certainty in, how ascertained, 579.
rejection of surplusage in, 582.
falsa demonstratio non nocet, 595.
verba generalia, how restrained, 602, 603.
construction of, 603.
recital controlling general words in, 603.
expressum facit cessare taciturn, 606.
applied to control implied covenants, 607.
examples — mortgage deed, 609.
charter-party, 610.
clausula inutilis, 628.
words incorporated by reference, ib.
schedule, 629.
relative words, how referred, 636.
exceptions and provisoes in, 632, 633.
context, how used, 533.
literal construction, where departed from, 642.
false grammar, 642.
explained — by contemporaneous acts of the parties,
638.
rendered invalid by fraud, 687.
usage may explain, 883
944 INDEX.
DE FIDE ET OFFICIO JUDICIS, 80. See Judge.
DELIVERY ORDERS,
title acquired by , 341.
DE MINIMIS NOy CURAT LEX, 138.
rule stated and considered, 138.
meaning of maxim, 138.
in application for new trial, ib.
trespass to realty, inapplicable, 140.
misdemeanour, 141.
DE NON APFARENTIBUS, &c, 156.
DESCENT. See Heib.
DESCRIPTION. Bee Falsa Demonstrate.
praeentia carport* toilit errorem nominis, 592.
juryman sworn under wrong name, 593.
DOCUMENTS, MERCANTILE.
inconvenience when an argument in construction of, 178.
DOLUS,
what, 222, n. (d).
circuitu non purgatur, 222.
DOMUS TUTISSIMUM REFUQIUM, 404. See Seymatne's-
Case, Sheriff, Landlord and Tenant, Trespass.
protection limited to bouse alone, 410.
to occupier, 411, 412.
DRUNKENNESS,
when an excuse for crime, 304, 305.
EASEMENT. See Land, Water, Light.
how protected by 2 & 3 Will. 4, o. 71, 364.
right to create, how limited, 432.
ELECTION,
doctrine of, 167.
EMBLEMENTS. See Landlord and Tenant, Tenant for Life.
ERROR,
on attainder, 159.
INDEX. 945
ESTOPPEL. See Lease.
account stated operating as, 161 — 2.
general account of, 162, et seq.
injuria not necessarily an element in, 163.
illustrations proving this, 163 — 4.
in pais, definition of, 283 — 6.
limitation of doctrine, 286.
ESTOVEES,
right to, 700.
EVIDENCE. See Witness.
admissibility of opinion in matters of science, 886.
of underwriters as to materiality of facts, 889.
of experts in foreign law, 692.
extrinsic, when admissible to explain instrument, 566, 568.
specification, 511.
secondary evidence of written document, 896.
presumption contra spoliator em, 892.
the effect of withholding, 893, 894.
presumption riti esse acta, 896, et seq,
rule as to res inter alios acta, 908, et seq.
how qualified, 1st, judgments in rem, 910.
2nd, acts having legal operation, 913.
hearsay when admissible, 914, 919.
declaration against interest, 915.
in course of business, 918.
res gestce, 920.
in treason and conspiracy, 922.
of wife or husband, 495, 928.
EX ANTECEDENTIBUS ET CONSEQUENTIBUS, &c, 533. See
Deeds, Wills, Statutes.
EX DOLO MALO NON ORITUR ACTIO, 684. See Contract,
Fraud, Judgment.
EX NUDO FACTO NON ORITUR ACTIO. See Nudum Pactum.
EXECUTIO JURIS NON HABET INJURIAM, 12L See-
Arrest, Trespass, Sheriff.
EXECUTION,
priority cf Crown, 66.
3 p
946 INDEX.
EXECUTOR. See Personal Representative, Futures, Trespass.
right of retainer by, 209—10.
EXPRESSIO EORUM QU^E INSUNT NIHIL OPERATUR, 625.
^Contingent Interest; Tender.
EXPRESS UM FACIT CESS ARE TACIT 'UM, 606, eteeq.
EXPRESSIO UNIVS EST EXCLUSIO ALTERIUS, 606- See
Warranty, Contract, Statutes.
EXTENT,
right of the Crown to priority under, 67.
FACTOR. SeclAES, Principal and Agent; Sale of Goods.
FACTORS' ACTS, 762, 763.
FALSA DEMONSTRA TIO NON NOCET, 584. See Wills, Lease,
Grant, Deed.
FELONY. See Criminal Law.
whether private remedy suspended by, 155, 263 — 5.
FERRY,
grantee of, liable to repairs, 606.
how protected, 607.
FICTION,
denned, 125.
presumption of law distinguished from, 125.
not applied where prejudice or injury would result, 127 — 9.
judicial day when divisible* 128.
FIXTURES,
division of subject, respecting right to, 391.
denned, 391.
right to, of heir against executor, 392.
relaxation in favour of trade, 393, 395.
of ornamental, 398.
of devisee against executor, 395.
of devisee and heir, 396.
INDEX. 947
FIXTUEES (continual),
r^ght to {continued).
of vendee against vendor, ib.
of mortgagee against mortgagor, ib., 397.
valuation, 398.
of remainderman or reversioner against executor, 399.
of landlord against tenant, ib.
for agricultural purposes, 400.
tenant must remove during his term, 401.
effect of special usage as to, 402.
mining, rights of mine owner to, 403.
FOREIGN JUDGMENT,
obtained by fraud, void, 281.
FOREIGN LAW,
how proved, 892.
FORTIUS CONTRA PROFERENTEM, 548. See Deeds, Con-
tract, Wills, Statutes, Crown.
in contract for sale of land, 728 — 730.
for sale generally, 743, et setj.
FRANCHISE
granted by the Crown, when void, 47, 60.
FRAUD. See Contract, Judgment ; Landlord and Tenant ;
Statute of Limitations, Foreign Judgment, Misre-
presentation.
renders a transaction voidable, 289, 290.
definition of dolus and fraud, 685, 728, 743.
effect of, in vitiating contract, 686, 697.
deed, 687.
improper motive when implied, 748.
whether moral fraud necessary element, 750 — 757.
legal fraud, doctrine of examined, 750.
by agent in contracting, 783.
of corporation, 803.
by partner, 786.
FREIGHT. See Charter-party, Money had and received.
follows property in vessel, 464
GAVELKIND, 335, 461
3 r 2
048 LNDEX.
GENERAL WORDS. See Deed, Will, Statute.
rule as to, 600 H aery.
GOODS. See Sale of Goods.
GRANT. See Deed.
what passes by, 446 — 448.
things necessarily incident to, 451.
ancient, how construed by usage, 638
title-deeds belong to purchaser, 458
of future property, when yalid, 465, 466.
falsa demonslratio, 594.
no man shall derogate from his own, 166.
IUSRED1TA& NVNQUAM ASCENDIT, 489.
UTERES EST QUEM NUPTIAH DEMONSTRANT, 480. See
IIeib.
HEIR. See Executob, Fixtures, Marriage.
hceres est quern nuptiir demonstrant, 480.
heir to the father is heir to the son, 482
former exception in case of attainder, 482, 348.
vullius filiu* cannot be, 483.
nemo est haste* viventist 486.
relaxed interpretation of the term " heir," 487.
hctreditcu nunqtiam ascendit, 489.
rule, how qualified by stat. 3 & 4 Will. 4, c. 106; 489, 490.
lineal descent preferred, 490.
exclusion of the half blood, 491.
did not hold on the descent of the Crown, 492*
HIGHWAY,
who liable for repair of, ratione tenure? , 662, 663.
HOMICIDE,
in what cases excusable, 12.
distinction between justifiable and excusable, 12 (a).
in resisting entry, 405
HOUSE,
right of support to, 186-7, 351 .
HUSBAND AND WIFE. See . Mabeiage Conteact, Principal
and Agent, Witness.
INDEX. 949
IGNORANTIA FACTI EXCUSAT, <£*., 246. See Money Paid,
Specific Performance, Criminal Law.
moaning of role, 247-8.
rule applied in equity, 256-260.
INDEMNITY ACTS,
through boing retrospective involve injustice, 35 («).
INDICTMENT,
one count in, may refer to another, 631
rejection of surplusage in, 583.
INFANT,
contract by, for necessaries, 493.
when contract by, binds parent, 494.
within what age he is doli incapax, 308.
malitia supplet aitatem, 309.
except in rape, 310.
IN FICTIONS JURIS SEMPER ^EQUITAS, &c, 124.
IN JURE NON REMOTA CAUSA, &c. See Marine Insurance,
Bills of Lading, Negligence.
not applicable to cases of fraud or crime, 22-23.
INJURY. See Misfeasance, Nuisance, Remedy, King.
where no action lies for, 186-90.
remedy by indictment, 197.
where caused by felonious act, civil remedy suspended till after
trial, query, 155.
damnum absque injuria1, 186-91.
damage caused by, when too remote, 199-200.
remedy by operation of law, 209-10.
doctrine of contributory negligence, 262.
trivial — de minimi* nan curat lex, 139.
IN PR^ESENTIA MAJORIS, &c, 105. See Queen's Bench Division.
INSURANCE. See Marine Insurance, Policy of Insurance.
INTENTION
deducible from acts, 293.
what, to constitute crime, 300, et seq.
bare, dispunishable! 305.
950 INDEX.
INTEREST
dependent on principal, 463.
when payable under 3 & 4 Will. 4, o. 42, 580, 581.
INVOLUNTARY ACTION. See Necessity.
JOINT DEBTOR,
absence beyond seas of, 852.
JUDGE. See Jury.
jurisdiction of, 75.
power to amend, 77.
at chambers, 77.
discretion, meaning of, 78-9.
no action lies against, 80-6.
unless where he exceeds his jurisdiction, 83-4.
distinction between judicial and ministerial act, 84-6.
appeal from, when, 79, 86.
of County Court, appeal from, 86.
new trial, limit of right to, ib.
construction of documents for, 97-9.
libel trial for, duty of, 101, 314.
malicious prosecution, duty of, 99.
nonsuit, when duty to, 103.
when disqualified by interest, 110-2, 115 (a),
misdirection of, 104.
JUDGMENT. See Pleading, Execution.
form of, against the Crown, 52.
nunc pro tunc, 117.
relation of, ib.
cannot be cited in argument in appeal, 160.
conclusive with respect to what parties, 321-325.
in ejectment, 326.
impeachable for fraud, 328.
obtained by collusion, 691.
presumption as to regularity of, 904-908.
recovered against joint debtor, 852.
in rem, 910 et seq.
in personam, ib.
JUDICIAL OFFICE, 75-106. See Judge, Awaed.
INDEX. 951
JUDICIAL AUTHOBITY,
protection, afforded by to constable, 90-2.
to sergeant-at-arms, 89.
to persons by order of House of Commons, 89.
JURISDICTION. See Judge.
where judge exceeds, 83-4.
territorial limits of, 94.
JUEY,
province of judge and jury defined, 90, 104.
on malicious prosecution, 99.
in libel, 101.
JURYMAN,
wrong, sworn by mistake, 593.
JUSTICE, mode of administering, 106-146.
JUSTICES,
liability of, 83.
cannot act when interested, 113-115.
party to be summoned before conviction by, 108.
cannot delegate their functions, 796-7.
proceedings before, 900.
KING. See Cbown.
maxims relating to, 40-74.
how subject to the law, 40-1.
case of prohibitions, 42.
twofold character of, 40.
is beneath the law, 42.
never dies, 43.
descent from, ib.
succession to real property in case of, 44.
ditto, personal, 45.
fiction of immortality not logically carried out, 45, 866.
can do no wrong, twofold meaning of this, 46.
grant by, when void, 47-51.
in case of patent, 49
how construed, 607.
remedy against, 51.
952 INDEX.
KING {continued).
petition of right, 51—58.
procedure, 51.
whether the subject can claim royal fiat as of right, 53.
whore petition of right will lie, 54
not for negligence of the king's servants, 3d.
subject's remedy in such oases, 51 — 55.
petition in respect of booty, &c, 56 — 8.
nwnstraiu de droit, 58.
when to be made party to action by attorney, 59.
what favours cannot be conferred on subject by, 59, 60.
whether he can pardon, 60, n. (e).
light of, not barred by lapse of time, 61 — 64.
limitation of rule by statute, 62.
where property in chattel, &c, Tests in, jointly with sub-
joct, 65.
execution at suit of, 66, 67.
not bound by statute unless named, 68.
examples, 68, 69.
rule, how restricted, 69—71, n. (*), 70.
sale in market, overt, not bound by, 68.
allegiance to, cannot be abjured at common law, 71 — 74.
but may since Naturalization Acts, 74.
not liable for personal negligence of his servant, 819, 820.
offset of ratification by, of act of officer, 831.
LAND,
legal definition of, 374, 376.
light to support of, 353.
liability in respect of injury to, 351 — 353.
through hazardous operations, ib.
liability of owner of, for nuisance, 816.
LANDLOBD AND TENANT. See Ejectment, Fixtures, Lease,
Property, Surrender.
acceptance of rent waiver of notice to quit, 165
apportionment of rent, when land lost by casualty, 227.
in case of eviction, 277.
landlord may not dispute his own title, 277.
liability of, premises being destroyed by fire, 228.
of tenant for waste, 380, 381.
where tenant may cut down trees for repairs, ib.
INDEX. 932
LANDLORD AND TENANT (continued).
right of tenant to emblements, 381 — 3S7.
to away-going crop, 387 — 390.
distress for rent, 408.
jus disponendi of landlord, 433.
liability on covenants running with the land, 442, 661 .
custom of the country in farming, when admissible, 619.
covenant by tenant in exoneration of landlord, 646, 647.
qui stntit commodum sentire debet et onw, 661
applied to the liability of tenant to repair, ib.
liability in respect of nuisance, 816, 817.
liability of landlord for bailiff distraining, 820.
LABCENY
in respect of property found, 765, 766.
LAW
is founded in reason, 151
how this proposition must be understood, 155.
law not applied where reason inapplicable, 153.
examples, 153, 154.
regards the course of nature, 246.
ignorance of, does not excuse, 247, 261.
LAWS,
necessity of obedience to existing, 13, 14,
when opposed to law of God, 15, 16.
framed to meet cases of ordinary occurrence, 35 — 39.
LEASE. See Landlord and Tenant.
exception of trees in, 154.
for what term warranted by power, 169.
where void or voidable, 172, 173.
certainty of, how ascertained, 578, 579.
rule as to falsa demonstratio applied to, 587, 588.
no warranty that premises are habitable, 727.
except in case of furnished house, 727.
nor of fitness in case of lan<}, 726.
LEGES POSTERIORES PRIORES, &c, 21. See Statutes.
r
954 INDEX.
LEX NON COGIT AD IMPOSSIBILIA, 237. See Maotamus,
Covenant, Contract, Sessions.
LIBEL. See Case, Damages, Judge, Jury.
substantial damages recoverable though actual damage not
proved, 196.
definition of, 310.
privileged communication, 311.
literary criticism, 312, 313.
what malioe will sustain action for, 314.
LICET DISPOSITIO STT INUTILIS. See Grant, Well.
LIEN. See Landlord and Tenant, Principal and Agent,
of a factor on goods of his principal, 648.
of a banker, ib.
LIGHT,
prescriptive right to enjoyment of, 363, 364.
LIMITATION OF ACTIONS,
in case of Crown, 61 — 64.
Crown cannot avail of against petition of right, 58, n, (o)t
concealed fraud, 281.
operation of, how prevented, 612.
appropriation of payments in reference to, 772, 773,
acknowledgment of debt barred by, 714.
policy of statutes for, 846.
ejectment, 847.
debt and covenant, ib.
on simple contracts, 848.
on merchants' accounts, 850. ,
effect of part-payment by one contractor, 852.
in case of absence beyond seas of joint debtor, ib.
ex delicto, 853.
prescription, ib.
runs from what time, 853—855.
LOGIC, BULES OF, 147—179.
LUNATICS,
saving in favour of, in Statute of Limitations, 851.
1
INDEX. 955
MAGISTRATES. Set Justices.
MAINTENANCE, 689 n. (a).
MALICIOUS PROSECUTION. See Judge, Juky.
MANDAMUS
does not lie to do an impossibility, 238, 239.
MARINE INSURANCE,
proximate cause of loss what, 211, 212.
perils of seas, loss what referable to, 213, 214.
how defined, 217.
evidence as to disclosure of facts and risk, 889.
MARKET OVERT. See Sale of Goods.
defined, 764.
Crown not bound by sale in, 68.
sale in, 764, et seq.
custom of London, 764.
MARRIAGE CONTRACT.
extinguishes a debt between the parties, 120.
exceptions, ib,
consensus facit matrimonium, 468 — 470,
per verba de prcasenti, 469.
2>er verba defuturo, 474.
between parties under age, 475.
consent of parents or guardians, 476.
of members of the royal family, 477.
according to the lex loci, for what purposes valid, 478 —
480.
at British embassies, &c, 480, n. (e).
contract for, how discharged, 839.
proof of foreign law respecting, 891.
presumption in favour of, 901.
MASTER AND SERVANT. See Principal and Agent.
homicide justifiable in defence of one another, 12.
I
956 INDEX.
MASTER AND 8ERVANT {continued).
servant justified for acts done in defending master from felony,
13.
communication of the character of a servant, when privileged,
312.
what constitutes the relation of, 802, 803.
respondeat stqxrior, 798.
liability of ship-owner, 800.
job-master, 800.
qualification of general rule, 804.
wilful act of servant, ib.
contractor not a servant, 800.
employers of, when liable, 807.
action by master for death of servant, 868.
master not generally liable for injury by fellow-servant, 809 —
815.
Employers' Liability Act, 815, 816.
liability of public functionaries, 817.
of sheriff, 805.
of Crown for act of its servants, 51.
of servants of the Crown, 819, 820, 83!.
of master criminally, 820 n. (&).
MELIOR EST CONDITIO POSSIDENTIS, 667
See Ejectment, Title, &c, Par Delictum.
MERGER,
definition of, 170.
MINERALS. See Lease.
owners of, obligations of, 354, 355*
property in, 375.
reservation of, to grantor, 446, 450.
effect of grant of, 447 n. (A).
MINING FIXTURES. See Fixtures.
MISCHIEVOUS ANIMALS,
liability of owner of, 368.
MISDEMEANOR,
conviction for lesser in charge of greater, 171.
INDEX. 937
MISFEASANCE, 193.
MISREPRESENTATION,
in law and equity, 730.
what relief granted in respect of, 730 — 733.
cases as to compensation examined, 731, 732.
what constitutes deceit in action for, 748.
MODUS ET COXVENTIO VINCUNT LEGEM, 045. See Con-
tract.
MONEY HAD AND RECEIVED,
where the action for, lies, 81, 251 — 2 — 3.
action for freight on treasure paid by captain of a king's ship,
250.
MONEY PAID. See Payment.
where recoverable, and where not, 250 — 255.
voluntary payment, 266.
compulsory payment, 267 — 273.
MONSTRANS BE DROIT, 58—9.
MORTGAGE,
priority amongst mortgagees, 338, 339.
doctrine of tacking, 340.
NECESaiTY,
voluntary and involuntary acts, 10.
compulsion explained, 10.
by husband, 10.
by violence, 11.
by necessity, 11.
in sense of Lord Bacon, 12.
self-preservation, 12.
obedience to existing laws, 12, 13.
in case of sheriff, 13.
arising from acts of another person, 14.
limitation of, quoad jura private, 14, 15.
NEGLIGENCE,
contributory, when no defence, 216.
what is primd facie evidence of, 298 — 300.
V
958 IKDEX.
NEGLIGENCE (continued).
example of, 365, 366.
in keeping dangerous instruments, 366.
mischievous animals, 368.
animals mansuetce natures, 369.
doctrine as to, in connection with negotiable instruments, 670 —
672.
NEGOTIABLE INSTEUMENT,
title to by transfer, 767.
NEMO DEBET BIS VEXABI, 316. See Judgment, Res Judi-
cata, Award, Criminal Law, Maxim, now Quaujied,
332.
NEMO DEBET ESSE JUDEX IN PBOPBIA, &c., 110. See
Justice.
NEMO EST E^EBES VIVENTIS, 486. See Heib.
NEMO PATBIAM EXUEBE, &c, 71. See Allegiance.
NEMO TENETUB SEIPSUM ACCUSABE, 922. See Witness,
Evidence, Husband and Wife.
NEW TBIAL, •
limit of right to, 86.
on account of misdirection, 104.
not granted where damages are small, 138.
NON FEASANCE, 193.
NON POTEST EXCEPTIO, &c, 158.
NONSUIT, 103. See Judge.
NOSCITUB A SOCIIS, 541. See Deeds; Wells; Statutes;
Policy of Insurance.
NOVA CONSTITUTION 28. fl* Statutes.
INDEX. 959
NUDUM PACTUM.
in Roman law, 699.
in English law, 699, et seq.
consideration requisite to sustain a contract in general, 702 —
709.
a contract under seal, 701.
good, ib,
valuable, ib.
a simple contract, 702.
bill of exchange, promis-
sory note, 709.
whether moral obligation is sufficient, 708.
consideration executed, 710, 712, et seq.
implied request, 711.
allegation of request, 711 — 713.
precedent good consideration how revived, 714, 715.
concurrent, 710, 721.
promise express or implied, 718, 719.
continuing, 722.
executory, 710.
OTISANCE,
action for, 361, 363.
liability of owner of realty for, 816.
NULLUM TEMPUS OCCURRIT REGI, 61.
See Limitation of Actions.
NULLUS COMMODUM CAPERE POTEST, &c., 273. See Pew-
cifal and Agent, Landlord and Tenant, Estoppel,
Contract, Allegans Contraria.
illustration, 274 — 5,
inapplicable where right of third party affected, 291.
OMNE MAJUS CONTINET, &c, 168. See Tender ; Merger.
OMNIA PRsESUMUNTUR CONTRA SPOLIATOREM, 892. See
Evidence.
OMNIA PRJESUMUNTUR RITE ESSE ACTA. See Evidence.
960 INDEX.
OMXIA PR+ESVMUNTUR RITE ESSE ACTA, 896. See Evi-
dence, Public Officer, Marriage Process.
OMXIS INXOVATIO PLUS PERTURBAT, 141. See Precedent.
OAfXIS RATIHABITIO ET MANDATO PRIORI JEQUIPARA-
TUR, 822. See Principal and Agent.
OPTIMCS INTERPRES RERUM USUS, 871. fce Custom, Evi-
dence, Contract, Deeds, Statutes.
OUTLAWRY,
in another action, no bar in proceedings to reverse, 160.
PAR DELICTUM,
rule stated, 673, 676.
applied to illegal agreement, 673.
wager, 674.
joint tort-feasors, 682.
test applicable as to, 676.
rule as to, in equity, 683.
mtlior conditio possidentis, when applied, 674, et seq., 678.
PARDON,
cases in which the Crown cannot at common law grant, 60 — 10*
statutes conferring on Crown power to, 60.
PARTNER. See Principal and Agent.
where party represents himself to be, 164.
liability of retiring, 286.
right of survivorship between, 427.
when executors of a deceased may take his plaoe, 648.
responsibility of, how created, 785.
for fraud of copartner, 78a — 6.
PATENT,
licensee cannot dispute validity of, 164.
who is entitled to, 343, 344.
first and true inventor, 344,' 345.
construction of, 509.
specification of, how construed, 510.
extrinsic evidence to explain, 511.
PAWNBROKERS,
some acts relating to, 765.
INDEX. 961
a
PAWNEE,
interest of, in pledge, 444.
sale by, 767.
PAYMENT. See Money paid.
application of, to what debte by creditor, 772, 774, 775.
by bill or note discharges debt, 776.
of lesser sum does not discharge debt, 843.
PERITO EST CREDENDUM IN SUA ARTE, 885. See Evidence.
PERSONA CONJUNCT A JEQUIPARATUR, 493. See Infant,
Husband and Wife.
PERSONAL REPRESENTATIVES. See Administratob, Fix-
tubes, Trespass.
executor may pay himself before other creditors, 210.
dc son tort, 210.
may sue for breach of covenant committed in testator's lifetime,
856.
on what contracts they may sue, 856, 857.
what rights of action do not pass to, 857, 858.
for what torts they may sue, 860, 861.
liability for contracts and upon covenants of testator or intes-
tate, 858, 859.
for torts, 865.
legal possession of, before probate, 861, 862.
PETITION OF RIGHT. See Kino.
PLACITA JURIS, Lord Bacon, as to, 9.
PLEADING,
surplusage in, 583, and n. (p).
POLICY OF INSURANCE,
revival of, 254.
interpretation of, 511.
application of, noscitur 4 sociie, 542, 543.
concealment in reference to, 750
whether affected by conduct of master and crew, 800*
how vitiated, 750.
evidence in action on, 888 — 90.
3Q
4
1
962 INDEX.
t
PRACTICE,
of Courts, neoesssity of adhering to roles of, 129 — 131.
PREAMBLE. See Statute.
PBECEDENTS, JUDICIAL,
settled' law, when not disturbed, 143, 641.
exceptions, 145.
PRESUMPTION, 125. See Evidence.
in favour of title, 901, 903.
PBBSUMPTION OF LAW. See Fiction.
PRINCIPAL AND AGENT. See Caveat Emptor, Contract
Lien, Master and Servant.
fraud of agent, when principal liable for, 276.
ratification of contract, 653.
general rule, qui facit per alium faeit per «, 777.
payment to or by agent, 778, 779.
payment to a principal's agent, when a discharge, 778, 779.
delivery of goods to carrier, 780.
agency for sale of goods, 78 1 .
el credere, 781.
ability of agent, 782, 785.
co-partnership, 785, 786. m
railway companies, 787.
agency, how constituted, 789.
wife, when agent of husband, 792.
sheriff, 793.
master of ship, 792.
respective liability for tort, 798.
agent cannot delegate his authority, 704.
except in certain cases, 795.
by custom of trade, 797, 798.
magistrate cannot delegate, 797.
ratification of agent's act, 823, 827.
in actions for tort, 825.
whether any for crime, 830.
relationship must exist at time of agent's act, 826.
PRINCIPAL AND SURETY.
surety, when released, 658, 659.
INDEX. 963
PRIVILEGED COMMUNICATIONS. See Libel.
PEOCESS OF COURT,
mistaken serving of, whether actionable, 190.
legality, when presumed, 904—908.
PROPERTY. See Alienation.
mode of acquiring, 335—347.
personal, follows law of owner's domicile, 485.
real, follows lex'sitOs, 484.
PUBLIC COMPANIES, 4—7.
PUBLIC AND PRIVATE ACTS,
distinction between, 7.
PUBLIC WELFARE, individual rights cede to, 1, ei aeq.
PUBLIC OFFICERS,
official character presumed, 899.
presumption as to execution of documents by, 900.
QUANDO JUS DOMINI, &c, 65. See King.
QUARE IMPEDIT,
by tenants in common, 246.
QUEEN. See Crown, King.
QUEEN'S BENCH DIVISION,
power of, oyer inferior Courts, 105, and n. (t).
QUI HJSRET IN LITERA HJERET IN CORTICE, 641. See
Deeds, Contracts, Statutes.
QUI JUSSU JUDICIS NON VIDETUR D0L0, &c, 88. See
Judicial Authority, Statutory Protection.
QUI PER ALIUMFACIT PER SEIPSUM FACERE VIDETUR.
See Principal and Agent.
3 q 2
964 INDEX.
■
QUI PRIOR EST TEMPORE, &c., 333. See Title, Mortgage,
Bills of Sale, Patents, Bottomry Bonds.
exceptions in case of, 340.
QUI 8ENTIT COMMODUM, &c, 661. Sec Landlord and
Tenant, Principal and Agent, Highway.
QUIA EMPTORES, statute of, 416.
QUICQU1D PLANT ATUR SOLO, &c, 376. See Landi^obd and
Tenant, Fixtures.
QUICQUID SOLVITUR, SOLVITUR SECUNDUM MODUM, «fcc.,
770. See Payment, Limitations of Actions.
QUILIBET RENUNCIARE POTEST PRO SEt &c, God. Sa
Contract, Bills of Exchange, Principal and Surety.
QUOD AB INITIO NON VALET, &c, 171.
qualification of rule, 174, et sey.
QUOD REMEDIO DESTITUITUR, &c, 206. See Bemittbr,
Betainer.
QUOTIES NULLA AMBIQU1TAS NULLA EXPOSITIO, 573
See Ambiguity, Deeds, Statutes.
BAILWAY ACTS, »
construed strictly, 4, 559.
BAILWAY COMPANY,
goods carried by, at owner's risk, 265.
money exacted by, recoverable, 270, 271.
like other carriers as to delivery of goods, 730.
implied authority of station-master oft %b.
liable in trover for conversion by agent, 799.
may be liable for an assault ratified by, 828.
liability of committee-men, 787.
BATE,
no presumption against retrospective, 32, n. (*).
EBLATION,
doctrine of— with respect to judgment, 117.
INDEX. 965
BEMEDY,
statutable, when only, 185, 193.
RES INTER ALIOS ACTA, &c, 908. See Judgment, Evi-
dence. .
RES IPSA LOQUITUR, 298. See Negligence.
RES MAJIS VALEAT QUAM PEREAT, 498. See Deed, Will,
Statutes, Contbact.
RESPONDEAT SUPERIOR, 798. See Master and Servant,
Principal and Agent, Landlord and Tenant, Con-
tractor.
RES JUDICATA,
essentials of plea of, 318.
doctrine of law as to, 321.
EETAINEB,
doctrine of, 209.
EEVEBSIONER. See Executor, Fixtures.
when he may maintain action, 372.
whether liable for nuisance, 816, 817.
REX NON SUR HOMINE, <fcc, 40. See Kino.
REX NUNQUAM M0RITURy 43. See King.
BEX NON POTEST PECCARE, 46. See Kino.
REX NON POTEST GRATIAM, £9. See Kino.
ROT N9EST LIE PER ASCUN STATUTE, 68. See Kino.
«
SALE OF LAND. See Fraud, Misrepresentation.
warranty of title in Civil Law, 723.
in English Law, 724.
purchaser must examine, 724.
966 INDEX.
SALE OF GOODS. See Caveat Emptor, Contract,
•» OVEBX.
effect of a sale on credit, 646.
time, when the essenoe of contract, ib.
by description, 734.
sample, 73d.
warranty, definition of, 734, 735.
distinguished from description, 735.
from representation, 746.
as to quality, 735 — 743.
express, 736.
mere commendation is not, 736.
implied, 738.
in what cases, 740.
in sale of provisions, 742.
as to title, 757—761.
rule of Civil Law, 757.
general rule of English Law, 757, 759.
rule in America, ib.
Mr. Benjamin's view, 759.
special circumstances may create, 758.
implied, when subject matter unascertained,
760.
title, who may confer, 761.
general rule, 761.
exceptions,
possession with apparent ownership, 761 —
763.
factors and consignees, 762 — 763.
sale in market overt, 764.
sale by pledgee, 767.
in case of stolen goods, 765—767.
where possession fraudulently obtained, 766, 767.
payment to true owner, sale by another, 760.
of chattel containing concealed property, 769.
SALUS POPULI SUPBEMA LEX, 1, 9.
SERGEANT- AT- ARMS, 89. See Judicial Authority.
SESSIONS,
" appeal to next," meaning of, 245.
INDEX. 967
SEYMAYNE'S CASE, 404— 414.
SHERIFF. Sec Extent.
liability of, for ministerial act, 14, 15.
for arrest, 122, 123.
action against, for an escape, 192.
when liable for act of bailiff, 793.
when a trespasser ab initio, 294.
when he may break house, 406.
execution at suit of Crown, 407, 408.
right to break open inner doors, 409, 410.
may summon the posse comitattis, 453.
liability of, for executing writ after a supersedeas, 805.
SHIPOWNER,
authority of master of ship, 792.
liability of owner for act of crew, 800, 801.
SIC UTERE TUO UT AL1ENUM NON LJEDAS, 347. See Laud,
Watee, Light, Nuisance, Negligence.
SLANDER. See Libel, Case.
SPECIAL VERDICT,
how construed, 156.
SPECIALITY,
how discharged, 834.
SPECIFIC PERFORMANCE,
mistake of fact, when a ground to refuse, 260.
modus et conventio applied to, 689.
misrepresentation, effect of, 730 — 733.
STATUTE OF FRAUDS. See Contract.
what constitutes sufficient memorandum under, 630.
STATUTES. See Bye-Law, Clausula Debogatoeia, Indemnity
Acts, Railway Acts, Rate.
construction of, as to compensation, 4 — 7.
1
I
I
\
968 INDEX. I
•
STATUTES (continual).
distinction between public and private, 7.
repeal of prior statute, bow effected, 21 — 23, 833.
wben implied, 22.
concurrent efficacy of, 24.
effect of repeal, 25.
wben Aot begins to operate, 26.
common law yields to, 27. .
anoient custom yields to, ib.
wben not revived, 26.
retrospective, defined, 28.
generally not retrospective, 28.
may be construed retrospective without express words, 29.
dealing with procedure are retrospective, 29.
rule as to retrospective, bow limited, 32 — 34.
criminal, not retrospective, 3d.
intended to meet ordinary circumstances, 35, 38.
casus omissus in, 39.
void, where opposed to the law of God, 15, 16.
bow far the Crown is bound by, 68 — 71.
date from the giving of the royal assent, 26.
construction of, bow guided by convenience, 179.
authority, when implied from, 452.
where words applicable to inferior degree are used, 605, 606.
to be construed according to maker's intention, 539, 620, 643.
penal — construction of, 527.
general principles of construction, 525, 526.
founded on intentions of Parliament, 526.
every word should take effect, 526, 539.
words to be construed in ordinary sense, 531, 539.
preamble, how limited by, 529.
headings and recitals, 530.
technical terms, 532.
ex aniecedentibus et consequentihis, 539. #
full effect to be given to words of, 539.
decisions on similar words in other Acts, 540.
noscitur d eociiSy applicable in construction of, 541, 546,
547.
fortius accipiuntur contra prof erentem applies only in case of
private, 556, 557.
construction, where no ambiguity, 577.
d verbis legis non est recedendum, 577.
verba generalia in, 605, 606.
INDEX. 969
STATUTES (continued). *
general principles of construction (continued).
expressum facit ceuare taciturn, 620, 621*
exceptions and provisoes in, 634, 635.
literal construction, how far followed, 643*
guided by contemporaneous opinion, 630.
evidence of usage to explain, 884.
acts relating to public companies, 604*
application of maxim exprestio unius, Ac, to construction of,
620, 621.
STATUTES CITED.
13 Ed. 1, st. 1, c. 23 ; 856 n. (r).
st. of West. 2, c. 1; 417.
st. of West. 2, c. 18 ; 459 n. (t>
st. of West 2, c. 24; 183.
18 Ed. 1, st. 1, c. 1; 416.
i 17 Ed. 2, c. 6; 416.
4 Ed. 3, c. 7 ; 861.
20 Ed. 3, c. 1 ; 63, n. (i).
25 Ed. 3, st. 5; 861, n. («).
31 Ed. 3, st. 1, c. 11 ; 856, n. (r).
34 Ed. 3, c. 15 ; 417.
5 Eic. 2, c. 7 ; 414.
! 4 Hen. 7, c. 24 ; 419, n. (g).
I 21 Hen. 8, c. 11 ; 766, n. (««).
28 Hen. 8, c. 11 ; 383.
32 Hen. 8, c. 1 ; 420.
c. 34 ; 476.
c. 36 ; 419.
33 Hen. 8, c. 39 ; 66, n. (y), 166.
34 & 35 Hen. 8, c. 5 ; 419, n. (g), 420.
c. 20; 447, n. («).
5 & 6 Ed. c. 16 ; 743.
2P.&M.0.7; 765, n. (//).
13 Eliz. c. 4 ; 66, n. (z).
c.10; 172.
27 Eliz. c. 4; 520.
31 Eliz. c. 5; 848, n. (p).
c. 12 ; 675 n (h).
43 Eliz. c 2 ; 68, 494, 621.
970 INDEX.
STATUTES CITED {continued).
I Jac. 1, o. 21 ; 765.
21Jac. 1, c.3; 344.
o. 16 ; 62, 847, 849, 851, 853, 855, n. (?).
12 Car. 2, a 24 ; 420.
17 Car. 2, c. 8 ; 117, n. (6).
29 Car. 2. c. 3; 30.
c. 7 ; 17.
30 Car. 2, at 1, a 7 ; 865, n. (q).
4 & 5 W. & M. c 24 ; 865, n. (q).
7 & 8 Will. 3, o. 25 ; 681.
9 & 10 Will. 3. c. 7 ; 223, n. (Z).
c. 15; 87.
10 & 11 Will. 3, c. 17; 680.
13 Will. 3, a 2 ; 82, n. (a).
4 Ann. o. 16; 655, 851.
6 Ann. c. 31 ; 228, n. (6).
8 Ann. c. 19 ; 364.
10 Ann. o. 23 ; 681.
1 Geo. 1, at 2, c. 13; 36.
II Geo. 2, c, 19 ; 38, 294, 385.
12 Geo. 2, c. 28 ; 680.
17 Geo. 2, c. 38 ; 295.
19 Geo. 2, c 13 ; 471.
24 Geo. 2, c. 44 ; 91, 92.
26 Geo. 2, c. 33 ; 176.
1 Geo. 3, o. 23 ; 82, n. (e).
6 Geo. 3, c. 53 ; 36.
9 Geo. 3, o. 16 ; 62.
12 Geo. 3, o. 11; 71.
14 Geo. 3, c. 78 ; 647.
32 Geo. 3, c. 58 ; 62.
o. 60 ; 101.
33 Geo. 3, o. 13 ; 26.
39 & 40 Geo. 3, c. 98 ; 424, 465, n. (t).
43 Geo. 3, c. 37 ; 924.
53 Geo. 3, c. 127 ; 851.
59 Geo. 3, c. 31 ; 57.
3 Geo. 4, c 126 ; 162.
4 Geo. 4, c. 34 ; 333.
4 Geo. 4, o. 76 ; 470, 476.
c. 83 ; 439.
INDEX. 971
STATUTES CITED {continued).
4 Geo. 4, o, 91 ; 480, n. (f).
5 Geo. 4, c. 83; 547.
6 Geo. 4, c. 94 ; 439, 762.
7 & 8 Geo. 4, c. 29 ; 75, 93, 765, n. (*).
c 52 ; 926.
c. 75 ; 547.
9 Geo. 4, c. 14 ; 34, 794.
c. 91 ; 480, n. (c).
11 Geo. 4 ft I Will. 4, c. 68 ; 463.
1 ft 2 Will. 4, c 41 ; 175.
2 & 3 Will. 4, o. 71 ; 364, 371.
c. 76 ; 365.
c. 100 ; 640.
3 ft 4 Will. 4, c 15 ; 302.
c. 27 ; 209, 847, 850, n. (y)t 851.
c. 42; 580,847,851, S60.
c. 74 ; 419.
c. 106; 468, 482, 433, 434, 489, 492, 49 \
5 & 6 Will. 4, c. 50, sec. 78 ; 319.
c. 83 ; s. 1, 50, n. (7), 479.
6 & 7 Will. 4, c. 85 ; 474, 476, n. (x)9 477.
1 Vict. c. 22 ; 477.
c. 26 ; 420, 466, n. (m), 604, XL (a).
2 ft 3 Vict c. 85 ; 582, n. (m).
3&4Vict. c. 9; 89.
c 52 ; 44, n. (Q.
c. 72 ; 477.
4 & 5 Vict. c. 1 ; 33.
5 & 6 Vict. c. 39 ; 439, 763.
c. 45 ; 346, n. (t), 347.
c. 83 ; 344.
c 93 ; 301.
c. 97 ; b. 4 ; 94, n. (o).
6 & 7 Vict. c. 18 ; s. 4 ; 582, n. (m).
c. 73 ; 34, n. (I).
c. 86 ; 802.
c. 96 ; 313, 319.
7 Vict. c. 12 ; 346, n. (*).
7 & 8 Vict. c. 76 ; 459, 11. (n).
c. 81 ; 471.
S&9Vict. c. 10; 236.
972 INDEX.
STATUTES CITED {continued).
8 & 9 Vict. c. 16 ; 843, n. (o).
c. 18 ; 69.
c. 20 ; 200.
c. 106 ; 436, 549, n. (x), 607, n. {p).
c. 109; 30.
9 & 10 Vict. o. 93 ; 203, 863.
10 & 11 Vict. c. 93 ; 346, n. (t).
11 & 12 Vict. c. 44; 84, n. (/).
12 & 13 Vict. c. 92 ; 113.
13 & 14 Vict. c. 21 ; 22, n. (</), 26, u. (6).
14 & 15 Vict. c. 25 ; 385, 400.
c. 99 ; 927.
c. 100; B. 9; 171, 306.
15 & 16 Vict. c. 12 ; 346, n. (*).
c. 24 ; 420.
c. 76; 8. 139; 117, n. (b).
c.85; 8. 32; 37.
16 & 17 Vict, o 83 ; 495, 927.
c 119 ; 674.
17 & 18 Vict c 90; 718.
c. 104 ; a. 388 ; 819, n. (y).
c. 125 ; 32, 103, n. (i), 796, n. (*), 888, n. (*)„
923, n. (h).
18 & 19 Vict. c. 15; 541.
c. Ill; 440, n. (z).
c. 120 ; s. 76 ; 109.
19 & 20 Vict. c. 97; 343, 576, 794, 848, 850, 851, 852.
c. 101 ; s. 50 ; 328.
c. 119 ; 474, n. (/>), 476, n. (*), 477.
c. 120; 419.
20 & 21 Vict. c. 43 ; 245.
c. 57 ; 427.
c. 85 ; 34, n. (f), 262, 426, 685, n. (/*), 845,
n(«).
21 & 22 Vict. c. 77 ; 419.
c. 90 ; 34, n. (I).
c. 93 ; 72, n. (&).
22 Vict. c. 32; 60, n. (e).
22&23 Vict. c. 35; 484.
c. 93 ; 484, n. («).
23 & 24 Vict. c. 34 ; 51,69.
INDEX. 973
STATUTE3 CITED (continued).
24 & 25 Vict. c. 96 ; 308, n. (e), 925.
c. 98 ; s. 14, 302, n. (k).
c. 100 ; 303, 332, n. (p), 405, n. (e), 765, 768, n. (<■)
a. 55 ; 313.
25 & 26 Vict. c. 37 ; 44, n. (n).
c. 68 ; 346, n. (t).
c. 88 ; 332, n. (o).
26 & 27 Vict. c. 41 ; 866, n. (*).
c. 125 ; 28, n. (o).
27 & 28 Vict. c. 45 ; 419, n. (ifc).
c. 95 ; 203, n. (n), 863, 864, n. (m).
28 & 29 Vict. c. 60 ; 368, n. (♦).
c. 104 ; 66, n. (a), 928.
30 & 31 Vict. c. 35 ; 765, n. (&), 766.
c. 142 ; s. 5 ; 194.
c. 142; s. 13; 86, n. (r).
31 & 32 Vict. c. 20 ; 72, n. (6).
c. 86 ; 442, n. (/).
c. 119; 864, n. (wi).
32 & 33 Vict. c. 46 ; 66, n. (y).
c. 68 ; 495, 927.
33 Vict. c. 14 ; 73, n. (h), 74.
33 & 34 Vict. c. 29; s. 14; 32.
35 & 36 Vict. c. 93 ; 765, n. (t).
c. 94 ; s. 16 ; 302.
36 & 37 Vict. c. 61 ; 44.
c. 66 ; s. 24 ; 133.
s. 25 ; 442, n. (p).
s. 49 ; 86.
37 & 38 Vict. c. 38 ; s. 71 ; 339.
c. 54 ; 621.
c. 57 ; 847.
c. 62 ; 8. 2 ; 655.
c. 78; s. 11; 724.
38 & 39 Vict. c. 55; 6. 150; 663.
c. 87 ; s. 127; 339.
c. 92 ; s. 3 ; 400, n. (q).
40 Vict. c. 11; 115.
40 & 41 Vict. c. 39 ; 439, 763.
43 & 44 Vict. c. 42 ; 816,
c. 48; 19.
074 INDEX.
STATUTES CITED {continued).
44 & 45 Vict c. 41 ; 8. 18 ; 340, 341, n. (s), 724.
o. 60 ; 8. 2 ; 313.
45 & 46 Vict o. 38 ; 410, 430.
c. 75 ; 443, 495, 928.
46 & 47 Vict. o. 57 ; 8. 25 ; 345.
8* «$3 ; «>44.
c. 61; 8. 34; 400.
STATUTOEY PEOTECTION, {
general remarks as to, 92. ,
8UMMA RATIO EST QU^E PRO RELIGIONS FACIT, 5K
SUNDAY. See Contract.
is not dies juridicus, 17.
the Lord's-day Act, 17.
trading on, 17.
recent legislation, 19.
bye-law to close navigation on, not valid, 20.
SURPLUSAGE. See Deed.
SUBEENDEE,
by operation of law, 653, 654. •
TAXES,
to be imposed by clear authority, 3 and note (/).
TENANT FOE LIFE,
liability of, for waste, 380.
right of his representatives to emblements, 383.
TENDEE,
when good, 168.
meaning of, 627.
to agent, 779.
TITLE. See Land, Minerals, Propebtt, Sale of Land, Sale
of Goods.
to unappropriated land, 335.
by escheat, 336.
elder shall be preferred, 337.
to chattels, possessory, valid against wrongdoer, 337.
INDEX. 975
TITLE {continued).
as between execution-creditors, 342.
by possession, 666.
by transfer of negotiable instruments, 767 — 768.
presumption of from possession, 901, 903
TORT. See Case, Infant, Injtuby, Trespass.
contract distinguished from, 194.
joint tort feasors, no contribution amongst, 632.
TBEES. See Landlord and Tenant.
TRESPASS. See Sheriff.
whether it lies against disseisor, or against his grantee, 127.
for taking goods of wrong party, 124.
lies for taking a horse, &c, damage feasant, if the horse were
at the time under the plaintiff's care, 273.
ab initio by abuse of authority, 293 — 297.
for an assault committed abroad, 332.
whether it lies for unintentional injury, 348, 349.
lies for a direct injury, 349.
lies for overhanging building, 372.
not against freeholder at suit of occupier, 414.
by command of the Crown, 821.
by agent, adopted by principal, 827.
action of, by personal representatives, for injury to real estate,
862.
against personal representatives, 865 — 867.
TROVER,
for goods seized under execution against a third party, 284, 285.
UBI EADEM RATIO IBI IDEM JUS, 147. See Deeds, Bills of
Exchange, Banknotes.
qualification of maxim, 151.
UBI JUS IBI REMEDIUM, 181.
UNUMQUODQUE D1SS0LV1TUR EODEM LIG AMINE, &c, 832.
See Contract, Statute, Payment.
USAGE. See Custom, Evidence.
UTILE PER INUTILE NON VITIATUR, 581.
See Deed, Award, Pleading, Indictment.
976 # INDEX..
VERBA OENERALIA RESTR1NQUNTUR, &c., COO.
See Deed, Will, Statute. .
VERBA RELATA INESSE VIDENTUR, 628.
Bee Affidavit, Will, Indictment, Statute, Statute
of Fuauds.
VERDICT,
aider by, 174, et seq.
VIQILANTIBUS NON D0RM1ENTIBUS JURA SUBVENIUNT,
844. See Limitation of Actions.
VOLENTI N02T FIT INJURIA, 262.
See Ceim. Con., Money Paid, Negligence, Railway.
illustrations, 263, 264.
VOLUNTARY ACTION. Set Necessity.
WAIVER,
doctrine explained, 132.
error in pleading cured by, ib,
irregularity when cured by, 133.
implied, when, 134.
of right by married woman, 660.
none to detriment of public, 660.
WARRANTY. See Sale of Land, Sale of Goods.
when express, excludes implied, 615, 616.
WATER,
right in running water, how to be exercised, 356 — 358.
artificial, 358, 359.
subterraneous, 360.
WAY,
right of, when impliedly granted or reserved, 447.
reservation of, 450.
of necessity, 449, 4529
WIPE. See Husband and Wife.
\ 3
t . ...
.iKdex. : 977
WILL,
property acquired subsequent to execution of, passes under,
466.
general principles of interpretation of wills, 512, 513.
founded on testator's intentions, 512, 515.
which must be collected from the words used, 515-
regardless of legal results, ib.
technical expressions, 517.
"children," 519.
"dying without leaving issue,'1 519, 520.
" estate," 520.
" heirs of the body," 521.
cy-prts, 521.
doctrine of, when inapplicable, 52£j|
summary of doctrine as to construction of, 522, 523. '
analogous principles of Roman law, 524.
nvscitur & bocUb applicable to, 543.
ex antecedentibus et consequent ibus, 538.
when irreconcilable clauses in, last words will prevail, 538*
technical rules, 515, 517, 519.
conjunctive and disjunctive words in, 545.
fortius contra proferentem, does not apply to, 556.
ambiguities, 562, et aetj.
patent, example of, 563.
qualification of rule as to, 566.
latent, example of, 567.
general remarks as to parol evidence to explain, 569.
falsa demomtratio non nocet, 584.
applies to remove surplusage, 585, 586.
not to supply defect, 590.
legal intendment, 597.
summary of the above principles, 598, 599.
cerba yeneralia, how construed, 604.
doctrine of general intent qualified, 604, 605.
documents incorporated by reference, 631, 632.
exceptions and provisoes, 632, 633.
relative words, how referred, 637.
context, how used, notcitur d wct'w, 543.
WITNESS. See Evidence.
not bound to criminate himself, 923.
meaning of rule, 923, 924.
3 R
<« . ■* .TT.-
•
78 . INDEX.'
WITNESS (eonftniial}.
how qualified, 925, 926.
competency of, 927, 928.
husband and wife, 495, 928.
Criminal Code Bill, 928. «
^ -~ WORDS. See Deed, Statutes, Will.
V
<$ WBIT,
^^) what ie good sendee of, 280.
\ r
0
\ *
THE END.
BRADBURY, AOIfXW, AXD CO., fBIHTBrS, WRITSFRIABS.
X
V
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