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3 



• « » • 









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.), 4 use 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- 
tur y 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 ipsa 1 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 qua 1 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, 296 f 

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\ Velo5 r , 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. Gray x 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. Wainman r 

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 

Minin g 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. & N f 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. Clemson f 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. 448 f 



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, 

Pming x 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- 
actment 1 ' 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 t now th e 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, 
M r 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 *»P tlon "- 
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. Wyatt f 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. 

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™ 1 f r> ' 
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'of 1 Further, the king's debts shall, in suing out execution, 

crown. b e p re f erre( 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, <L m c, 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" en No ^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 »«j in8ta 
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. Ferrand t 
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 ▼. Arnaud t 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. 
Wood y 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. re f ere nce 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. Sharpe t 
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. 



§ 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$dl t 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. 
Wing t 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*. J n 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. poW er incident to all Courts, inferior 

(b) Per Gould, J., Cage v. Acton, M we u 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 50 2, 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'ient 1 ^ mav ^P 6811 * 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 ^j e w h en 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 exce pted, 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. f 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 ft t>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. Angas y 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. C v 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»Si e to ha11 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. ; 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., bj T 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 ^T 1 ^ 
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, dc f 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. 



t i % 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 £x r 
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 

SSrhSd 06 " 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 p ena u-y ^ ma( j e 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 j n 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 ; M f 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. 



of e iiaum SUr8 ( 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. R f 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 JJJJiJlt 11 
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 b y 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„i c __ 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 b y 
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 ▼. Whitworth t 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, 
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 contrai m ia 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- 
ctters 9 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. C 9 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., M l Pherson 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). 

E X( *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. Warren y 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. Morris y 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 c cu P* 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 wron s 

* 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 ™{]f a ° f d 
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. Low y 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, 
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 years 1 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 In J ur ? ,_ 

" " 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$t t 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. HW f 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 
building 4 also— 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 U po n 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 l n 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). 
W W*+ 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. l n 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, ? 
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. f 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&&Q y 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*e y 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 wh