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INTENDED FOR THE USE OF STUDENTS AND
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JOHN INDERMAUR,
SOLICITOR,
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SEVENTH EDITION.
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Printed by Ballantyne, Hanson & Co.
At the Ballantyne Press
■y -//•■' -
PEEFACE TO SEVENTH EDITION.
The number of statutes that have been passed
directly affecting the subject-matter of this work,
since the last edition was published (November
1 891), is not very great ; but there has been one
Act of particular importance, viz., the Sale of
Goods Act, 1893, and there has also been the
Gaming Act, 1892, to say nothing of various
minor statutes. Needless to say during a period
of four years there have been many cases of im-
portance decided, and from statute law and case
law together, I have found a great deal in the
work requiring alteration and revision. It has,
of course, been necessary to mainly rewrite that
part of the book relating to the Sale of Goods,
and I trust it will be found to present the sub-
ject in a clear and compendious shape. I have
throughout revised the work very carefully, and
though I have added a good deal of new matter,
I have succeeded in keeping it nearly within the
same compass as the last edition — I only regret
that I have not been able to quite do so. How-
ever, as it is, there is only an increase of seven-
teen pages ; and after all, five hundred pages
VI PREFACE TO THE SEVENTH EDITION.
can hardly be considered too much, even for
students, on a subject of so wide a range as the
"Principles of Common Law." With regard
to case law, I think all useful decisions down
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I desire to express my thanks to my friend
and colleague Mr. Charles Thwaites for having
kindly perused the proof sheets and made many
valuable suggestions. I am also, as usual, in-
debted to many of my pupils for useful criticism ,
made whilst I have been taking them through
the work.
J. I.
22 Chancery Lane, W.C,
October 1895.
PEEFACE TO FIKST EDITION.
The chief object of the present work is to supply
the student with a book upon the subject of
Common Law (or, in other words, of the law as
usually administered in the Queen s Bench, Com-
mon Pleas, and Exchequer Divisions of the High
Court of Justice), which, while being elementary
and readable on the one hand, yet also goes suffi-
ciently into the subject to prepare the student
for examination upon it. The present work is
indeed written mainly with a view to the Exa-
minations of the Incorporated Law Society, for
which the Author has had considerable experience
in reading with students ; but at the same time
he trusts it may be found useful to those who
are adopting the other branch of the profession.
The Author does not consider that any apology is
necessary for presenting this work, it being new
in its design as offering to the student a com-
paratively short volume combining the plain and
popular divisions of "Contracts" and "Torts,"
and keeping as much as possible from all matters
of practice, and from Criminal Law, and also from
all matters of an exceptional nature and likely
viii PREFACE TO THE FIRST EDITION.
neither to be useful in examination nor in prac-
tice. In addition to the two main divisions the
Author has added another, in which the subjects
of "Damages" and "Evidence" are discussed,
as no work on the " Common Law " could be
complete without.
Besides his chief object, the Author has also
had another in view, viz., to produce a book
which may — if not alwaysin itself, yet, at any rate,
by aid of the extensive references to either text-
books or cases — form a work useful to the practi-
tioner. In many cases it may — from its very size
— be useful for this purpose only as an index ;
and remembering this, the Author has considered
that in many places references to larger text-
books would be preferable to cases, and has acted
accordingly ; and here he would acknowledge
the obligations he is under to the learned authors
and editors of the various works he has in the
following pages referred to.
With these few words the Author sends his
work forth to speak for itself and be judged on
its merits, assuring his readers that no pains have
been spared on his part to ensure accuracy, and
trusting that his labours may meet with appro-
bation.
J. I.
2 2 Chancery Lane, W.C,
Auyust 1876.
TABLE OF CONTENTS.
PAr.K
Table op Cases cited xi
Index to Statutes cited ..... xxxi
Editions of Text-Books referred to . . xxxvi
Introduction
PAET I.
OF CONTRACTS.
CHAP.
I. Of the different kinds op Contracts : their
Breach and the Eules for their Con-
struction ...... 7
II. Op Simple Contracts, and particularly of
Cases in which Writing is required for
their Validity . . . . -31
III. Of Contracts as to Land, and herein op
Landlord and Tenant .... 60
IV. Op Contracts as to Goods, and herein op
Bailments, including Carriers and Inn-
keepers . . . . . . -91
V. Of Mercantile Contracts, and herein of
Bills op Exchange, Promissory Notes,
AND Cheques . . . . . -143
VI. Of some particular Contracts, irrespective
OF ANY Disability op the Contracting
Parties . . . . . . .198
VII. Of Contracts with Persons under some Dis-
ability 231
TABLE OF CONTENTS.
CHA.P.
PAGE
VIII. Of the Liability on Contracts, their per-
formance, AND excuses for THEIR NON-
PERFORMANCE . . . • • -256
IX. Of Fraud and Illegality .... 283
PART II.
OF TORTS.
I. Of Torts generally 3°9
II. Of Torts affecting Land . . -320
III. Of Torts affecting Goods and other Per-
sonal Property, and herein of the Title
TO the same ....••
IV. Of Torts affecting the Person . . -356
V. Of Torts affecting the Person (continued) 380
VI. Of Torts arising peculiarly from Negli-
gence ....... 407
PART III.
OF CERTAIN MISCELLANEOUS IMATTERS NOT
BEFORE TREATED OF.
I. Of Damages 439
II. Of Evidence in Civil Cases . . . 464
336
GENERAL INDEX 501
TABLE OF CASES CITED.
PAGE
ABBOT V. Macfie .... 437
Abbott V. Wolsey . . . . 102
Abrahams v. Deakin . . . 409
Abrath v. North-Easteru
Rv. Co 377
Aceball v. Levy .... 97
A'Court V. Cross . . 57, 273
Ackerman v. Ehrensperger 191
Ackroyd v. Smithies . . 263
Acraman v. Morris ... 96
Acton V. Blundell . . 5, 311
Adams v. Lindsell ... 36
v. Newbigging . . 155
Addington, Ex 2'a»'^c, In
re Ives 374
Addison v. Gandesequi . . 146
Akerblom v. Price . . . 201
Alabaster v. Harness . . 297
Alderson v. Waistell . . 359
Aldous V. Corn well . . . 183
Aldridge v. Fern .... 70
Alexander v. Jenkins . . 397
Allbutt V. Medical Council 385
AUinson v. Frisbv . 270, 276
AUport v. Nutt .... 302
Allsop V. Wheatcroft . . 294
AUum V. Dickinson ... 70
Ames V. Hill 308
V. Hughes .... 494
Anderson v. Gorrie . 31 8, 389
V. Oppenheimer . 343
Anderson, Ex parte, lie
ToUemache 12
Anderson's Trade - mark,
^e 213
Angus V. Clifford .... 283
Angus V. M'Laclilan . . . 141
Appleby f. Franklin . . . 313
Arbuthnot v. Bunsilal . . 11
Archer v. Marsh ....
Arden v. Goodacre . . .
Armory v. Delamirie 337
Armstrong, In re, Ex parte
Gilchrist
• V. Lancashire,
&c., Ry. Co. ...
• V. Milburn .
r. South Lon-
don Tramways Co.
V. Stokes
Arms worth v. South -East
ern Ry. Co
Arnott V. Hayes . . .
Ashby V. White . 4, 310,
443
Ashenden v. L. B. & S. C
Ry
Ashling V. Boon . . .
Ashton V. Blackshaw
Asquith v. Asquith . .
Attorney-General v. Day
Light and Coke Co. .
V. Moore
Attwood V. Sellar . ,
Aubrey v. Crux . . ,
Avery v. Bowden . .
Aylesford, Earl of r. Earl
Poulett
Aylesford Peerage Case
B
BADDELEY v. Granville
Bailey v. Sweeting . .
V. Walford .
Bain v. Fothergill . .
Baines v. Geary . . .
PAGE
295
462
> 339
245
437
273
226
148
459
468
311,
132
192
115
220
60
331
340
200
171
257
373
471
423
47
284
454
294
Xll
TABLE OF CASES CITED.
PAGE
Baines v. Toj'e 235
Baker v. Carrick .... 3S7
Baldwin v. Casella . . . 346
Ball, £x parte, In Re Shep-
herd 313
V. Dunsterville . 57, 15S
r. Warwick .... 297
Ballard v. Tomlinson 5, 327, 343
Bamford r. Turnley . . . 330
Banbury Peerage Case . . 496
Bank of England v. Vagliano 186
Banner v. Berridge . . 58, 274
Barber, In re, Ex parte Stan-
ford 118
V. Houston . . . 273
%'. Lessiter . . . 376
Barclay, Ex parte .... 74
Baring V. Corrie . . 151, 154
Barker v. Furlong . . . 348
Barlow v. Teale .... 65
Barnaby v. Bailee . . . 471
Barnstaple Second Annui-
tant Society, In Re , . 40
Barraclough v. Greenhough 485
Barrow v. Isaacs .... 89
Bartonsbill Coal Co. v.
Keid 421
Barwick v. English and Joint
Stock Bank 286
Basebe v. Matthews . . . 376
Batchelor v. Bigger ... 70
V. Yates ... 74
Bateman v. Kingston 236, 237
V. Finder . . . 274
Battishill v. Eeed . . . 460
Batty V. Harriot .... 303
Baxendale v. Bennet . . 194
Baxter v. De Valmer . . 483
V. Earl of Ports-
mouth 253
Bayley, Ex farte .... 46
V. Eimmell . . . 227
Beaumont r. Reeve . . 43, 296
Beck V. Pierce 243
Beckett v. Tower Assets
Co 116
Beddal v. Maitland . . 81, 325
Bedingfleld v. Onslow . . 455
Beech r. Jones . . . . 171
Beetson v. Beetson . . . 299
V. Collyer .... 227
PAGE
Behn V. Burness .... no
Bell V. Banks 52
V. Midland Ey. Co, . 450
V. Stocker .... 243
Bellairs v. Tucker . . . 286
Bellamy v. Debenham . . 33
Belshaw v. Bush .... 265
Bentley v. Vilmont . . . 338
Bentson r. Taylor . . . no
Berkeley Peerage Case . . 470
Bernina, The 437
Betts V. Gibbon . . . . 319
Bevan v. Carr 55
Bew, In re, Ex parte Bull . 86
Bewley v. Atkinson . 472, 474
Bianchi v. Offord . . . 118
Bickerdike v. Bollman 179, 181
Bidder v. Bridges . . . 475
Biffen v. Bignell .... 250
Binns, In re. Ex parte Hall 76
Birch V. Liverpool ... 55
Bird V. Davey 117
V. Lord Greville . . 90
V. Jones 359
Birkeley v. Presgrave . . 200
Birkmyr v. Darnell ... 50
Bissell V. Fox 197
Black V. Hunt 397
Blackburn v. Haslam . . 208
V. Mason
V. Vigors
Blackmore v. Bristol and
Exeter Ey. Co.
Blades v. Free . .
Blake's Case . .
Blankenstein v. Robertson
Blenkinsop r. Clayton .
Bloodworth v. Gray . .
Bloomer r. Bernstein
Boaler r. Mayor . . .
Boldero v. London & West
minster Discount Co.
Bolton V. Lambert . .
V. Corporation of
Liverpool
Bonham, Ex parte, Re Tol
lemache
Booth V. Arnold ...
Borries v. Imperial Otto
man Bank ....
Borthwick r. Evening Post
14
304
208
343
252
269
117
100
396
258
52
2S9
146
491
397
154
212
TABLE OF CASES CITED,
Xlll
Bortick v. Head, Wright -
son & Co 425
Bosville V. Attorney-Gen, . 496
Botterill v. Whitehead 381, 393
Boughton, Re, Boughton v.
Boughtoii . .
Boulton V. Prentice
Bound V. Lawrence
Bourke v. Warren
Bourne v. Wall
Bowen v. Anderson
V. Hall . .
Bower v. Peate
Bowies', Lewis Case
, . 219
, 249
. 422
^ . 382
, . 118
, 66, 427
. . 406
328, 427
• • 334
Boydell v. Drummond 33, 34, 48
Bracegirdle v. Heald , . 55
Bradburn v. Great Western
Hy- Co 459
Bradford v. Roulston . . 41
Bradford Corporation v.
Pickles 5, 327
Bradlaugh v. Newdegate . 297
Brass V. Maitland . . . . 413
Brewer ». Jones .... 221
Bridger v. Savage . . . 299
Bridges v. Hawksworth . 339
Brind v. Dale 129
Briscoe r. Briscoe . . . 218
Bristol, &c., Bread Co., Ltd.
V. Maggs 33
Britain v. Eossiter ... 55
British American Tele-
graph Co. V. Colson . , 37
British Columbia Saw Mills
V. Nettleship .... 44S
British Mutual Banking
Co. V. Charnwood Forest
Ry. Co 286
British South Africa Co.
V. Companhia di Mo§am-
bique 321,
British Waggon Co. v. Lea
Broad v. Pitt . . .
Broadwood v. Granara
Brodribb v. Brodribb
Bromage v. Pressor .
Brooke v. Brooke . .
V, Eamsden .
Brooks V. Hassell . .
Broughton v. Jackson
Brown v. Ackroyd .
360
257
493
141
371
378
475
424
145
363
251
Brown, Ke, Brown r. Brown
lie, Dixon V. Brown
Ex parte. In re
Smith
Ex parte. In re
Suffield & Watts .
V. Butterfly Co.
V. Hawkes
V. Mallett . .
V. Tibbits . .
Browne v. Croome
Buckle V. Money . .
Budd V. Marshall , .
Bull, Ex 2'iartc, In re Bew
Bunker v. Midland Ry
Co
Burchell v. Hickisson .
Burdett, In re, Ex part
Byrne
Burges v. Wickham . .
Burgess, Ex parte. Re Hood
Burlinson v. Hall . ,
Burnard v. Haggis .
Bursill V. Tanner . ,
Burton v. Henson
Bury V. Thompson
Butcher v. Nash . .
Butler V. Hunter . . 41
V. M. S. & L. Ry,
Co.
PAGE
176
282
10
218
422
379
429
217
383
450
70
86
423
415
118
205
116
165
239
492
363
66
64
, 412
409
470
19
485
118
37
V. Mountgarret .
Butterworth, In re, Ex
parte Russell . . .
Buxton V. Garfit . . .
Byrne, Ex parte. In r
Burdett
V. Van Tienhoven
Bywell Castle, The . .
C
CAD AVAL V. Collins . . 281
Cahill v. Fitzgibbon . . . 12
Caird v. Sime 212
Calvert r. Thomas ... 118
Calye's Case ... 139, 141
Canning v. Farquhar . . 208
Capital and Counties Bank
V. Henty 383
Carlill V. Carbolic Smoke
Ball Co 38
XIV
TABLE OF CASES CITED.
PAGE
68
282
Carlton v. Bowcock . . .
Carnac, Be, Ex parte
Simmons
Carol V. Bird 386
Carpenter r. Deen . . . 119
Carslake v. Mapledoram . 396
Carter, Ee, Carter v. Carter 272
V. Drysdale .... 426
Cartwright v. Green . . . 490
Castelain v. Preston . . . 206
Catling V. King .... 64
Caton V. Caton .... 57
Catt V. Tourle . . . 476, 493
Catton V. Bennett . . . 442
Cave V. Hastings .... 56
Chalmers v. Shackell . . 390
Chamberlain v. Boyd . . 449
V. Williamson . 6
V.Young. . . 169
Chamberlyn v. Delarive . 100
Chambers v. Miller . . . 195
Chandelor v. Lopus . . , 1 1 1
Chanter v. Leese .... 46
Chapleo v. Brunswick Bdg.
Society
Chapman v. Great West-
ern Ry. Co
Chappie, In re, Ex parte
Ford
Charleston v. London
Tramways Co
Charlton v. Charlton . .
Chartered Merc. Bank of
India v. Netherlands
India Steam Navigation
Co
145
1-^6
409
218
Chasemore v. Richards . 5
Chauntlet v. Robinson
Chester v. Powell
Chibnall v. Paul . .
Child V. Hearn . . . 325
Churchill, In re . .
City Bank v. Sovereign Life
Assurance Co.
Clarke v. Birley . .
r. Chambers .
V. Cuckfield Union
V. Millwall Dock Co
201
327
427
90
33°
437
51
209
52
413
223
78
436
Clayards v. Dethick . ,
Clayton's Case 262
Clayton v. Blackey ... 65
PAGE
363
493
207
142
383
187
272
75
417
118
120
348
220
420
361
Coggs V. Bernard 122, 123, 125,
128, 142, 150
Cohen v. Kittel .... 299
Colchester, Mayor of v.
Brook 333, 435
Cole V. Eley 218
Cleary v. Booth . . ,
Cleave v. Jones . . ,
Cleaver v. Mutual Reserve
Fund
Clench v. D'Arenberg .
Clutterbuck v. Chaffers
Clutton V. Attenborough
Coates V. Coates . . .
Coatsworth v. Johnson
Cobb V. Great Western Ry.
Co
Cochrane v. Entwistle
V. Moore . ,
V. Rymill . ,
Cockburn v. Edwards
Cockle V. South-Eastern
Ry. Co
Cockroft V. Smith . ,
Coleman v. Godwin . . .
Collingridge v. Emmott .
212
Collins V. Blantern 16, 291
V. Renison . . .
Collis V. Selden ....
Colonial Bank v. Cady . .
Comitd des Assureurs
Maritimes v. Standard
Bank of South Africa
Concha v. Concha . .
Connar v. Justice . .
Conner v. Fitzgerald
Consolidated Co. v. Curtis
Consolidated Cr. and Mort
gage Co. V. Gosney .
Conway v. Belfast Rv
Co
Cook V. Eshelby .
Cooke V. Lamotte
Coombs V. Dibble
Cooper V. Crabtree
V. Davis
Coote V. Judd . .
Corbishley's Trusts, In
Corn V. Mathews .
Cornfoot v. Fowke
395
211,
, 292
362
413
1S5
350
12
396
471
348
iiS
422
154
496
303
455
120
212
475
238
284
TABLE OF CASES CITED.
XV
Corrigan v. Great North-
ern and Manchester, S.
and L. Rys 132
Cory V. Thames Ironworks
Co 448
Cotton, Ex parte . . . . 119
Conlson, Ax parte, Re
Gardiner 245
Coulthart r. Clementson . 52
Coutourier r. Hastie . . 151
Coutts V. Irish Exhibition 225
Cowburn, Re, Ex parte
Firth 120
Cowley V. Newmarket
Local Board 414
Cox V. Burbridge .... 429
V. Glue 322
V. Great Western
Railway Co 423
V. Hickman .... 155
Coxhead v. Mullis . . . 233
Crabtree v. Robinson . , 80
Craddock v. Rogers . . . 220
Craigs, The 201
Crane v. London Dock Co. 337
Crawcour v. Salter . . . 492
Crepps V. Burden . . . 307
Cripps V. Judge .... 422
Croix V. Morris .... 2S4
Crosby v. Leng . . . . 313
V. Wadsworth . . 61
Crowhurst v. Amersham
Burial Board .... 343
Crowther V. Elgood . . . 371
V. Thorley . . . 224
Cuff e V. Murtagh .... 1 59
Cukson V. Stones .... 228
Culley V. Charman . . . 249
Cumber v. Wane . . 262, 263
Gundy v. Lindsay . . . 338
Cunningham & Co., In re,
Simpson's Claim . . . 224
Curlewis v. Clarke . . . 269
Cuthbertson r. Parsons . 411
Cutter V. Powell .... 259
D
DXGlA^Yi., Ex parte . . 74
Dalby v. India, &c., Assur-
ance Co 206
Dalton V. Angus
V. South
Ry. Co. . .
PAfiK
. . 328, 427
• Eastern
460
220
142
Dangar's Trusts, Re, .
Dansey v. Richardson
Darley Main Colliery Co,
V. Mitchell 328
Darley v. Tennant ... 85
Darrell v. Tibbitts . . . 206
Davey v. London and
South-Western Railway
Co 437
Davidson r. Carlton Bank 119
Davies v. Davies .... 294
V. Makuna . . . 295
V. Mann .... 435
r. Rees 118
V. White .... 468
V. Williams . . . 403
Davis, In re, Ex parte
Pollen's Trustees ... 77
V. Burton . . . . 117
V. Goodman . . . 117
Dawes, Ex parte, In re
Moon 25
Dawkins v. Lord Poulett 318, 389
V. Lord Rokeby 318,
389
Day V. Bream 384
V. Buller 396
V. M'Lea 263
Dean v, James 267
V. White 500
251
247
144
168
239
348
299
Deare v. Soutten ....
Debenham v. Mellon . .
De Bussche v. Alt . . .
Decroix v. Meyer ....
De Francesco v. Baruum .
Delaney v. Wallis . . .
De Mattos v. Benjamin . .
Denaby Main Colliery Co.
V. Manchester, Sheffield,
and Lincoln Ry. Co. . .
Deusham's Trade-mark, Re
Derry v. Peek . .
Devaynes v. Noble . . .
Diamond Fuel Co., //i re,
Metcalf's Case ....
Dickinson v. Dodds . . .
Dickson v. Great Northern
Rv. Co
137
213
283, 2S5
. 262
371
37
XVI
TABLE OF CASES CITED,
Dickinson
Ry. Co. . . .
Diggle V. Higgs .
Ditcham i'. Warrall
Dixon V. Bell . .
V. Brown .
V. Clark
V. Yates .
PAGE
North-Eastern
. 418
301, 303
. 2
• 413
. 282
. 268
96, 104
. 428
469
46S,
d. Rigge V. Bell
V. Turford
Dodd r. Holme .
Doe d. Banning v. Griffin .
d. Didsbury v. Thomas
469
d. Gallop V. Vowles . 472
d. Mudd V. Sucker-
more 482
. . 65
473. 474
Donnellan v. Read ... 54
Donnison v. People's Cafe
Co 56
Donovan V. Laing, Wharton
& Down's Construction
Syndicate . . . 411, 412
Doodson V. Turner, Re
Knowles 373
Doolan v. Midland Ry. Co. 133
Doughty r. Firbank . . . 423
Douglas V. Patrick . 266, 267
Dovaston r. Payne . . . 324
Drew v. Nunn . . 147, 252
Driver v. Broad .... 62
Drover v. Beyer .... 376
Dudgeon v. Pembroke . . 205
Duke V. Littleboy . . . 296
Duncan Fox & Co. v. North
and South Wales Bank . 5 1
Dunlop V. Higgins ... 36
Dyer v. Munday .... 410
E
EADIE V. Anderson . . 488
Eager v. Grimwood . . . 405
Eaglesfield v. Marquis of
Londonderry .... 287
Earl of Aylesford v. Earl
Poulett 373
East India Co. v. Hensley . 145
Eastland r. Burchell 248, 250
Easton Estate Co. v. West
ern Waggon Co. . .
Eastwood V. Kenyon
Ebbetts V. Conquest . .
Edge V. Strafford . . .
Edgington v. Fitzmaurice
2S6
Edridge v. Hawkes
V. Hawker
Edwards, Ex parte
Aberayron Mu
tnal Insurance Co.
V. Carter
V. Harben
V. Marcus
V. Midland
Co.
V. Yates
Co,
Edwick V. Hawker
Elbinger v. Kaye .
Elhs V. Sheffield Gas Con
sumers Co. .
Elphick v. Barnes
Elsee i: Gatward
Elwes r. Mawe .
Emblem v. Myers
Emmens v. Pottle
Emmett v. Norton
Empress Engineerin
In re . .
Eugel V. Fitch . .
England, Bank of v.
liano . . .
Esdaile v. Visser
Etheriugton v. Parrott
Evans v. Bremridge
V. Collins .
• V. Drummond
V. Judkins
i\ Roberts
78
50
455
63
284,
81, 325
81, 325
219
Vag
35
237
288, 289
120
Ry,
379
268
1-325
148
414
96
123
72
450
384
249
224
454
186
372
247
52
284
160
267
61, 116
• 79
Ewer V. Lady Clifton
F
FABRIGAS V. Mostyn . . 450
Fairman v. Oakford . . . 226
Falk, Ex parte, In re Keill 107,
108
Fanny, The 199
Farrant v. Barnes . 134, 413
TABLE OF CASES CITED.
XVll
lie
Cow
Scho
Co.
262
Farrow v. Wilson .
Favenc v. Bennett
Fawcet v. Casli .
Fearnside v. Flint
Fell V. Knight . .
Fenn v. Bittlestone
Fenton v. Blyth .
Ferns v. Carr . .
Fewings, Ex ^xtrie,
Sneyd ...
Finlay v. Chirney
Firth, Ex 'parte. Re
burn ....
Re, Ex parte
field ....
V. Bowling Iron
Fisher v. Leslie .
V. Konald .
V. Taylor .
Fitch V. Jones . .
V. Sutton . .
FitzJohn v. Mackinder
Flannery v. Waterford and
Limerick Ry. Co.
Fleet V. Murton .
V. Perrins
Florence, The . .
Flower v. Saddler
Flureau- v. Thornhill
Foakes v. Beer . .
Forbes v. Jackson
Ford, Ex parte.
Chappie . . .
Fores v. Wilson .
Forse v. Skinner .
Forster v. Mackretb
Fountain v. Boodle
Fowle V. Freeman
Fox V. Bishop of Chester
Foy V. London, Brighton,
and South Coast Ry. Co
Frangaise des Asphaltes v.
Farrell . . .
Francis v. Bruce .
V. Cockrell
V. Roose .
Franklin v. South-Eastern
Ry. Co. ...
Frasef v. Byas . .
Freeman v. Pope .
V. Rosher
26
In
FACE
230
262
227
270
354
121
46
II
6
490
343
308
488
158
305
, 264
378
416
147
499
201
298
454
264
51
21
403
359
158
386
32
306
420
451
188
412
396
459
126
289
348
Fri.sby, Re, Allin.son v.
Frisby 270, 276
Frost V. Knight . . .22, 257
Furber V. Cobb .... 118
GABRIEL V. Dresser . . 269
Galliard v. Laxton . . . 366
Gandy v. Gandy .... 32
Gardiner, Re, Ex parte
Coulson 245
Gas Light and Coke Co. v.
Vestry of St. My. Abbotts 331
Gebruder Naf v. Ploton . 349
Gent, Re, Gent- Davis v.
Harris 373
George v. Clagett . . 154
Re, Francis v. Bruce 188
Gerhard v. Bates 38, 315, 317
Gibbs V. Guild 273
V. Great Western
Ry. Co. ...
Gibson v. Jeyes .
Gilbert v. Fletcher
Gilchrist, Ex parte, In re
Armstrong ....
Giraud v. Richmond
Gladwell v. Steggall . .
Goddard v. O'Brien . .
Godfrey v. Dalton . .
Godsall V. Boldero . .
GofEn V. Donelly . . .
Gogarty v. Great S. & W,
Ry. Co
Golding, Ex parte
Good V. Cheesman
Goodman v. Harvey
Goodwin v. Parton
V. Robarts
Gordon v. Marwood
V. Silber .
Gosman, In re . .
Goss V. Lord Nugent
Gould, In re. Ex parte
OfBcial Receiver . ,
Ex parte. Re Walker
Govier v. Hancock . .
Gowan v. Wright . .
Grainger v. Hill . . .
Grand Junction Canal Co
V. Shugar ....
423
496
239
245
55
414
263
219
206
389
131
108
264
1S4, 185
276
183
200
141
452
28
13
71
249
10
365
327
XVlll
TABLE OF CASES CITED.
Grant v. Ellis . .
Grant v. Thompson
Graves v. Masters
Gray v. Stait . .
PAGK
• 85
. 296
• 145
81, 82
Great Western Rj. Co. v.
Bunch . . . 135, 136, 137
Grebert-Borgnis v. Nugent 457
Green v. Button .... 45 1
V. Humphreys . 58, 273
V. Kopke . . . . 148
V. Marsh . . . . 116
V, Sevin .... 29
V. Wynn .... 52
Greening v. Reeder . . . 207
Gregory v. Hurrill . . . 272
Griffiths r. Earl of Dudley 426
V. Teetgen . 403, 404
Grissell, In re 245
Guild V. Conrad . .
Gunn r. Bolckow 104
V. Roberts . .
Gurney v. Behrend .
Guy V. Churchill . .
Guy Mannering, The
Gwilliam v. Twist
199,
Gwynne r. Gwynne
265
• 199
• 203
. 218
. 204
144, 410
■ 275
H
HADLEY V. Baxendale 447, 44S
Haigh V. Rojal Mail Steam
Packet Co 420
Hall, Ex parte. In re Binns 76
V. Pickard .... 353
Hallett V. Hastings . . . 270
Hallett's Estate, In re . . 262
Hamborough v. Mutual
Life Insurance Co. of
New York 20S
Hamilton v. Pandorf . . 203
V. Magill ... 457
— V. Vaughan Sherrin
Electric Co 23S
Hamlin v. Great Northern
Ry- Co 433
Hamlyn v. Talisker Dis-
tillery 26
Hammack v. White . . . 352
Hammersmith and City
Ry. Co. V. Brand . . . 431
Hampden v. Walsh . . . 301
Hannafoad r. Hunn . . . 318
Hanrahan v. Limerick
Steamship Co 425
Hardwick, In re, Ex parte
Hubbard 115
Hargrave v. Hargrave . .
Hargreave v. Spink . . .
Harman v. Johnson . . .
Harper v. Luffkins . . .
Harris, Ex parte ....
V. Briscoe ....
• V. Carter ....
v. Great We.-tern
471
337
158
404
79
297
45
Ry- Co 39, 1 36
79
36
385
390
V. Shipway
Harris's Case . . .
Harrison v. Bush . .
V. Eraser .
— r. London
and
North-Western Ry. Co. . 459
V. Stratton . . 394
Hart V. Baxendale . . . 131
V. Prater 235
v. Swaine .... 285
Hartley v. Ponsonby . . 45
Harvey v. Brydges . 325, 362
V. Gibbons ... 45
V. Harvey .... 80
V. Croydon Union
Sanitary Authority . . 499
Haslam v. Cron .... 470
V. Sherwood ... 45
Hasleham v. Young . . . 158
Hastings' Estate, In re
Hallet r. Hastings . . 270
Hastings v. Pearson . . . 152
Hawes v. Draegar . . . 496
Hawken v. Shearer . . . 325
Hawker v. Hallewell . . 305
Hawkesworth v. Chaffey . 32
Hawks V. Cottrell . . . 219
Hay don 1^ Brown . . . 115
Heald v. Kenworthy . . 147
Heaven r. Pender . . . 316
Heawood v. Bone .... 79
Hebdish v. M'llwaine . . 385
Hebdon v. West .... 207
Hedley v. Pinkuey & Sons
Steamship Co 422
Helby v. Matthews . . . 1 54
Henderson v. Stevenson . 39.
TABLE OF CASES CITED.
XIX
Heneage, In re , .
Henthorn v. Fraser .
Herman y. Zeucbner
Heseltine v. Simmons
Heske r. Samuelson .
Hetherington r. Groome
Hey wood v. Dodson .
Hickman v. Upsall .
Hicks V. Faulkner
378, 379
Higham r. Ridgway .
Hill V. Foley . . .
— - V. L. & N. W. Ey,
Hilton V. Eckersley .
Hindehaugh v. Blakey
Hinton v. Sparkes
Hitchcock V. Cohen .
V. Edwards
Hoadley v. McLaine .
Hoare v. Niblett . .
V. Rennie , .
• 245
36,37
291, 292
. 121
. 422
118
485
475
377,
471
192
133
295
169
, 454
• 295
• 194
40, 97
• 159
. 258
. 462
22, 257
Co,
44O:
Hobson V. Thellusson
Hochster v. De la Tour
Hockaday, In re, Ex parte
Nelson 120
Hodgkinson v. Fletcher . 249
Hodkinson v. L. & N.-W
Ry. Co. .... 135, 136
Hodson's Settlement, Re,
Williams v. Knight . . 237
Hodson V. Walker . . . 321
Hogg V. Ward . .
V. Kirkby .
Hogbton T. Hoghton
Holder v. Soulby ,
Hole r. Barrow . . . . 331
Holland, Ex farte. In re
Heneage 245
Holleran v. Bagnall . . . 419
Holloway, In re Young v.
HoUoway ...... 493
Holmer v. Taunton . . . 382
Holmes v. Brierly . . . 233
Honck V. Muller .... 25S
Hood, Re, Ex parte Burgess 116
Hooper, In re 251
Hopkins v. Logan ... 43
V. Grazebrooke . . 454
Hopkinson v. Smith . . . 217
Houldsworth v. City of
Glasgow Bank .... 290
. 212
496, 498
. 142
Household Fire, &c., Co.,
Limited v. Grant .
Howard v. Beal . .
V. Refuge Friendly
Society . . . . ,
Howe v. Finch ....
V. Smith ...
Howson V. Hancock . ,
Hoyle, Re, Hoyle v. Hoyle
Hubbard, Ex parte, In re
Hardwick ....
Hudston V. Mid. Ry. Co.
Huggall V. M'Lean . .
Hughes V. Coles . . .
V. Percival . .
Hugill V. Masker . . .
HuUe V. Heightman . .
Hulme V. Tenant . . .
Hulton V. Brown . . .
Hume V. Druyff . . .
V. Peploe ...
Hunt V. Great Northern
Ry. Co
Hunter v, Nockolds . .
V. Johnston . .
Hussey v. Horne-Payne
Hutchinson r. Tatham .
V. York, ice.
Ry. Co
Hutton V. Ballock . .
Hydraulic Engineering Co
V. M'Haffie ....
Hyman v. Nye ....
36
467
206
422
100
302
49
115
135
69
270
412
153
259
243
30
375
191
385
85
359
32, 33
147
421
148
457
417
I'ANSON V. Stuart .381, 382,
394
Imperial Loan Co. v. Stone 253
Inca, The 201
Indermaur V. Dahies . . 415
Ingle v. M'Cutchan . . . 217
Ingram v. Little .... 34
Inman v. Stamp .... 62
Irvine v. Watson .... 147
Ives, In re. Ex parte
Addington 374
JACOBS, Ex parte . . .
V. Credit Lvonnais .
53
26
XX
TABLE OF CASES CITED.
PAGE
Jacoby v. Whitmore . . . 294
Jakeman v. Cook .... 45
James, Ex parte, Re Mutual
and Permanent Benefit
Building Society . . . 144
V. Campbell . . . 358
r. Soulby .... 213
James' Trade-mark, hi re . 213
Jameson v. Midland Ry.
Co 134
Jarrett v. Hunter .... 64
Jay V. Johnstone .... 270
Jeffries v. Great Western
Ry. Co 337
Jenkins v. Morris .... 253
Jennings v. Hammond 224, 303
Jennings v. Randall , . . 239
Jesser v. Gifford . . 322, 455
Jesus College v. Gibbs . . 467
Jetley v. Hill 247
John V. Bacon 412
Johnson, He, Ex ixirte
Edwards 219
Re, Sly V. Blake . 270
I. Credit Lyonnais 1 53
• V. Colquhoun . . 263
V. Lindsay . . . 422
r. Raylton ... 29
Juhnston v. Sumner . 248, 249
Johnstone v. Milling 22, 257, 258
Joliffe V. Baker .... 285
Jolly V. Rees . . . 247, 248
Jones, Ex parte, In re
Grissell ....
Jones V. Bird . . ,
V. Brown . . ,
V. Gooday . ,
V. Gordon . ,
V. Liverpool Corpora
tion
V. Marshall . .
V. Merionethshire
Building Society .
V. Simes . . .
V. Thomas .
V. Wylie . . .
Jordan v. Norton . .
Joyce V. Swann . .
Jupp V. Powell ... 58,
245
428
403
460
185
410
126
298
323
386
359
32
97
^ 273
K
KALTENBACH v. Lewis
Kearley v. Thompson . ,
Kearney v. London, Brigh-
ton and South Coast Ry
Co
Keen v. Henny
Kellard v. Rooke .
Kelly V. O'Malley .
V. Partington
Kelner v. Baxter .
Kemble v. Farren
Kemp V, Burt . .
V. Falk .
Kendal v. Hamilton
14S
292
Kennedy, Ex 'parte
V. Brown
r. Panama
Co.
446,
407
411
423
38S
449
. 224
■ 441
. 219
107, ic8
. 159
. 116
. 216
Mail
290
180
V. Thomas
Kibble, Ex parte, Re On-
slow 12, 233
V. Gough .... 102
Kiell, In re. Ex parte Falk 107
Killeena, The 201
Kimber v. Press Association 387
King V. London Improved
Cab Co 411
V. Stewart .... 281
Kingston's, Duchess of,
Case 12
Kirk V. Blurton .... 158
V. Todd 323
Kitcat t). Short . . . . 493
Knight V. Crockford . . 56
V. Gibbs .... 451
V. Gravesend, &c. . 21
Knowles, Re, Doodson v.
Turner 373
Knowlman v. Bluett . . 55
Knox V. Bushell . . . . 251
LAING V. Meader ... 267
Laird v. Pym 454
Lambert, In re .... 470
Lampleigh v. Braithwaite 18, 41
Lancaster v, Allsup . , . 162
Langridge r. Levy . 311,315.
31D. 317
TABLE OF CASES CITED.
XXl
Co
and
28,
Larios v. Gurety . ,
Latimer v. Official
oi^erative Society
Latter v. Braddell
Laugher v. Pointer
Lavery v. Purssell
Lawder v. Peyton
Lawler v. Linden .
Lawrence v. Fletcher
Lawrie v. London
South-Western Ky. Co.
Lea V. Whittaker . .
Leather Cloth Co. v. Lor
sont
Le Blanche r. London and
North-Western Ry. Co
Leduc V. Ward . . .
Lee V. Butler ....
V. Everest . . .
V. Hammerton . .
V. Eiley ....
Leeds Bank v. Walker .
Leggott V. Barrett . .
Lemmon v. Webb . .
Lemprifere v. Lange . .
Leonard v. Wells, Re Leo
nard's Trade-mark
Leroux v. Brown .
Lewis V. Alleyne .
V. Graham .
V. Jones . .
Leyman v. Latimer
Licensed Victuallers News
paper v. Bingham . .
Lickbarrow r. Mason 105
Lightbound v. M'Myn
Lilley v. Eanken , .
Limpus V. London General
Omnibus Co. . . .
Lindsell v. Phillips . .
Lines v. Rees ....
Liver Alkali Co. v. John
son
Llewellin, Re ... .
Lock r. Pearce ....
London Assurance Co. v
Mansel
London and County Bank
ing Co. V. Groome
London Joint Stock Bank
V, Simmons .
PACK
444
427
359
410
62
262
227
219
433
441
294
433
202
153
221
493
429
182
29
333
236
213
26
236
85
286
394
212
108
51
305
410
270
260
129
218
20S
194
i8S
PACE
London Wharfing and
Warehousing Co., Re . 453
Long V. Clarke .... 80
v. Keightley . . . 403
V. Millar 35
Lonsdale, Earl of v. Nel-
son 333, 334
Lovell V. Howell .... 422
Low V. CoUum 377
Lowe, Fx parte, Re Stan-
dard Manufacturing Co. 116
Lumley v. Gye . . . 405, 451
Lynch v. Knight .... 45 1
V. Nurdin . . 413, 434
Lytton, Earl of v. Devey . 213
M
MACDONALD v. Whit-
field 173
Macdonnell v. Marsden . 463
Macdougal v. Knight . . 388
Mackay 1;. Merritt . . . 118
Maclean v. Currie ... 90
V. Dunn . . . 146
Macnamara's Estate, In re 262
Macrae v. Clarke .... 462
Macrow v. Great Western
Ry- Co 135
M'Cartan v, North-Eastern
Ry- Co 433
M'Giffin V. Palmer's Ship-
building Co 422
M'Gregor v. Gregory . . 381
V. M'Gregory . 55, 298
M'Kenire v. Eraser . . . 476
M'Kinnell v. Robinson . . 296
M'Lay v. Perry , . . . 112
M'Lean v. Clydesdale
Banking Co 193
M'Mahon v. Field ... 451
M'Manus v. Crickett . . 409
V. Lancashire Ry.
Co 132
M 'Mullen v. Helberg . . 56
M'Myn, In re 51
M'Nally v. Lane, and
Yorks. Ry 132
M'Pherson v. Daniels 393, 399
Maggi, In re, Winehouse v.
Winehouse n
XX 11
TABLE OF CASES CITED.
PAGE
Mainwaring r. Leslie . . 248
Malcolm Flinn & Co. v.
Hojle 148
Mallam v. May .... 294
Mallet r. Bateman ... 53
Maltby v. Murrell . . . 177
Manby v. Scott . . 246, 250
Manchester Bonded Ware-
house Co. V. Carr . . 90, 428
Manchester, Mayor of v.
Lyons 475
Manchester, Mayor of v.
Williams 38 1
Manchester, &c., Ry. Co.
V. Brown 132
Manchester, &c., Ry. Co.
V. North Central Waggon
Co
Manchester, &c., Ry. Co.
V. Wallis
Manchester and Oldham
Bank r. Cook ....
Mangan v. Atterton . . .
Manisty v. Churchill . .
Manley v. Field ....
V. St. Helen's Canal
Manzoni v. Douglas . 352,
Marewood v. South York
shire Ry. Co. . . .
Margrett, Ex parte. Re
Soltykoff. . . .
Market Overt, The Case
of,
Markwick v. Hardingham
Marriott v. Hampton .
37
Ry
Marris v. Ingram . ,
Marsden v. Meadows
Marshall v. Green
V. York, &c
Co
Martin v. Gale . .
V. Hewson
V. Palmer .
— : V. Shoppee ■
Martindale r. Booth
Marvin v. Wallace
Marzetti v. Williams . 192,
Massey v. Allen
Master r. Miller
Mathieson r. London and
County Bank ....
116
429
460
437
51
404
430
,408
2S9
236
337
143
281
) 373
"5
I, 62
414
236
301
79
358
289
104
444
473
182
197
t'AOE
Mathilda, The 199
Matthew, Ex parte, Re
Matthew 265
Maugham v. Hubbard . . 484
Maud, Re 219
Maunder v. Venn .... 403
Mears v. London and South-
western-Ry. Co. . . . 353
Melville v. Stringer . . . 117
Mercer, Ex parte, In re
Wise 289
V. Irving .... 442
Merest ?'. Harvey . 323, 460
Merrivale v. Carson . . . 3S7
Merry weather v. Nixan 319, 416
Mersey Steel and Iron Co.
V. Naylor 258
Metropolitan Asylum Dis-
trict r. Hill 331
Metropolitan Bank, The,
V. Pooley 376
Meux V. Great Eastern Ry. 414
Meyerstein's Trade - mark,
Re 213
Mexborough, Earl of, and
Wood, In re . . . 440, 443
Midland Insurance Co. v.
Smith 313
Midland Ry. Co. v. Silvester 52
Milan Tramway Co., In re,
Ex parte Theys .... 278
Mildred v. Maspons ... 150
Miles V. New Zealand
Alford Estate Co. . . 39
Millen v. Brasch .... 130
Miller v. David .... 449
V. Hancock . . . 427
V. Race . . 183, 184
Millership r. Brookes . . 15
Mills V. Armstrong . . . 437
V. Dunham .... 294
v. Fowkes .... 262
Milward v. Midland Ry. Co. 423
Mineral Bottle Exchange
Co. V. Booth .... 294
Missouri Steamship Co., Re 26
Mitchell V. Crassweller . 409
r. Jenkins . . . 378
r. Reynolds 226, 293,
295
Mitchison v. Thompson . 89
'J'Al'.LE OF CASES CITED.
XXlll
Mogul Steambliip Co. v.
M'Gregor
Monk V. Clayton ....
Monkton v. Attorney-
General
Montague v. Benedict 247,
250
Montreal, Bank of r. Mun
ster Bank ....
Moodie v. Banister . .
Moon, In re, Ex parte
Dawes
Moorcock, The . . .
Moore v. Fulham Vestry
Moreton v. Hardern
Morgan v. Hutchins
V. Jackson . .
V. London General
Omnibus Co.
V. Rowlands
Morris v. Langdale . .
: V. London and West
minster Bank . . .
V, Salberg . .
Morritt, In re, Ex parte
Official Receiver . .
Morton v. Tibbitt . .
Mostyn v. Fabrigas . .
Moxon V. Sheppard . .
Moyce v. Newington
Moyle?;. Jenkins . . .
Mulligan v. Cole . . .
Mullinger v. Florence .
Mumford v. Collier . .
V. Gething. .
Munch's Application, Re
Munday v. Asprey . .
Munster v. Lamb . . .
Murphy v. Sullivan . .
V. Wilson . . .
Murray v. Currie . . .
Mutual and Permanent
Building Society, lie
Myers v. Elliott . . ,
295
149
470
50
27s
25
112
281
416
422
342
422
275
451
444
432
120
102
360
218
338
426
382
141
116
294
215
56
389
55
423
411
144
117
N
NATIONAL Bolivian
Navigation Co. v. Wil-
son 12, 145
National Mercantile Bank
V. Hampson ....
V. Rymill
National Telephone Co,
Baker
Nelson, In re, • Ex parte
Hockaday ....
V. Buncombe
V. Liverpool Brew
ery Co. . . .
Nepean v. Doe . .
Ness V. Stephenson
Newbolt V. Bingham
Newbould v. Smith . .
Newlands v. National Em
ployers' Accident Asso
elation . . .
Newton v. Harland
Nichols V. Marsland
Nickson v. Brohan
Noden v. Johnson
Nordenfelt v. Maxim Nor
denfelt Gun and Am
munition Co. . . .
Norman v. Bolt . . .
V. Ricketts . .
North Staffordshire Ry
Co. V. Peek ....
Northcote v. Doughty .
Northumberland Avenue
Hotel Co. Rt, Sully'
Case
Nugent V. Smith . . .
Nurse v. Craig ....
348
348
431
120
253
330
244, 474
79
88
275
2S7
325
344
149
363
294
52
266
132
233
224
128
250
O
OAKES V. Turquand . . 290
Oakey v. Dalton .... 355
Oakfi'eld, The . . . . . 204
O'Brien v. Clement . . . 381
Ockenden v. Henley . . 455
Official Recr., Ex parte, In
re Morritt 120
Ex parte, In
re Watson 116
Ogden V. Benas . . . . 195
Ogle V. Earl Vane . . . 457
O'Keefe v. Walsh ... 68
Old V. Robson 296
XXIV
TABLE OF CASES CITED.
PAGE
Oliver v. Hunting ... 35
V. Horsliam Local
Board 414
Omichund v. Barker . . 476
Onslow, Re, Ex parte
Kibble 12, 233
Osborne v. London Docks
Co
V. Jackson
O'Shea v. Wood . .
O'Sullivan v. Thomas
Ottway V. Hamilton .
Owen V. Homan . .
PADSTOW Assurance As
sociation, In re . .
Page V. Morgan . . .
Paley v. Garnett . . .
Palliser v. Gurney . .
Palmer v. Bradley . .
V. Grand Junction
488
423
474
301
251
52
224
lOI
422
245
79
Ey. Co 129
Palmer's Trade Mark, Re . 215
Pappa V. Rose 31S
Parker v. South -Eastern
Ry. Co 39
Parsons, Ex parte, In re
Townshend . . . 116, 117
r. Brand
Pasley v. Freeman . .
Paterson v. Gandesequi
Patschieder v. Great West
ern Ey. Co. . .
Pattison v. Jones .
Pearce v. Brooks .
Peareth v. Marriott
Pearson v. Attorney
ral
V. Pearson
V. Seligman
Peek V. Gurney .
Pennell v. Attenboro
Penry v. Brown .
Percival v. Nan son
Perry v. Barnett .
V. Fitzhowe .
Perton, deceased, Re, Pear
son V. Attorney-Gen. 469, 471
117
III
146
136
3S6
296
12
Gene-
469, 471
293
2S7
284
126
72
472
304
334
Peter c. Compton
Peters v. Fleming
Peto V. Blades . .
Phelan r. Tedcastle
Phelps V. London & North
Western Ry. Co.
Phene, In re . .
Phillips V. Barnett
V. Eyre . .
V. Fordyce
V. Henson
V. Homfray
~ V. Jansen
V. London & South-
PAGE
54
234
112
56
135
475
365
361
52
79
5. 324
384, 396
459
Junc-
S.-W.
134
181
295
Co.
Western Ry. Co.
Pickford v. Grand
tion Ry. Co.
Pigot's Case . .
Pilkington v. Scott
Pinciani v. L. &
Ry. Co. . . .
Pinel's Case . .
Pirie v. Middle Dock
Pitman v. Francis
Pittard v. Oliver .
Planche v. Colburn
Plating Co. v. Farquharsou
Playford v. United King-
dom Telegraph Co. . .
Polhill V. Walter . . 147, 175
Polkinhorn v. Wright . . 362
Pollen's Trustees, Ex parte.
In re Davis 77
Ponting V. Noakes . . 343
Pooley's Trustee v. Whet-
ham 220
Pope, In re 14
Popple V. Sylvester . . .
Popplewell V. Hodgkinson
Portuguese Consolidated
Copper Mines, Re . . .
Potter V. Dutfield . . .
V. Peters ... 34
131
262, 269
200
219
386
260
297
315
II
5
146
64
. 35
Pounder v. North-Eastern
Ry. Co 417
Powell f. Fall 431
Powers, Re, Lindsell v.
Phillips 270
Preece V. Gilling . . . . 115
Pretty v. Bickmore . . . 330
Price ?'. Green . . 294, 440
TABLE OF CASES CITED.
XXV
PAGE
Price V. Price 265
V. Earl of Torrington 473
Price's Patent Candle Co. ,
Re 213
Priestly v. Fowler . . . 421
Prince v. Howe .... 394
Protector Endowment Loan
Co. V. Grice . . . 442, 443
Pryor v. Great Northern
Ry. Co 420
Puckford V. Maxwell . , 265
Purcell V. Sowler . . . 388
Pusey V. Pusey .... 445
Pym V. Great Northern
Ry. Co 460
Q
QUARMAN V. Burnett , 410
Quartz Hill Gold-Mining
Co. V. Eyre 379
Quenerduaine v. Cole . . 36
Quincey v. Sharp . . . 273
RADLEY V. London and
North-Western Ry. Co.
Railton v. Matthews . .
Rain forth, In re, Gwynne
V. Gwynne . .
Ramsey v. Margrett
Raphael v. Bank of Eng
land
Rapier v. London Tram
ways Co
Rayner v. Mitchell . . .
V. Preston . . .
Read v. Ambridge . .
V. Anderson . .
V. Coker . . 35
V. Edwards . .
V. Great Eastern Ry,
Co
Reade v. Conquest ,
Real and Personal
Co. V. Clears . . .
Reddie v. Scoolt . . .
Redgrave v. Hurd . .
Redhead v. Mid. Ry. Co.
Reed v. Royal Ex. Co. .
Adv,
435
52
275
115
I8S
331
409
206
395
300
358
346
420
212
118
405
283
417
207
PAGE
Reese Silver-Mining Co.,
In re 283
Reg. V. Birmingham . 472, 473
V. Brittleton . . . 479
V. Boyes 4S8
V. Castro 370
V. Cox & Railton . . 491
r. Ensor 400
V. Essex County Court
Judge 453
V. Garbett .... 488
V. Jackson . . 252, 366
V. Labouchere . . . 391
V. Mahon 314
V. Moore 476
V. Vincent ... 353
V. Wilson .... 352
V. Yates 391
Reid V. Reid 241
Reuter v. Sala 29
Rex V. Topham .... 400
Reynolds, Ex parte, In re
Reynolds 489
V. Bridge .... 442
Rhodes v. Moules . 158, 159
In re, Rhodes v.
Rhodes 474
V. Smethurst . . 272
V. Sugden . . . 218
Rice, In re 481
Rich V. Basterfield . . , 329
Richards v. London, Brigh-
ton & South Coast Ry. Co. 136
V. West Middlesex
Waterworks Co. . . . 364
Richardson v. Langridge . 65
V. Mellish . . 444
V. Williamson . 147
Rigborgs Minde, The . . 204
Rigby V. Bennett . . 328, 428
V. Connel .... 296
Riley v. Baxendale . . . 228
Rist V. Faux 403
Rivatz V. Gerussi .... 208
Robarts v. Tucker 186, 192, 194
Bobbins v. Jones .... 427
Roberts, In re, Evans v.
Thomas 1 16
v. Smitli .... 421
Robertson r. M'Donogh . 216
Robinson v. Lynes . . 243. 246
XXVI
TABLE OF CASES CITED.
Robinson r. M'Donnell .
. — v. Macdonnell
— ?'. Marchant .
- — - — V. Rutter . ,
Robson V. North-Eastern
. Rj. Co. . . .
Rodwellr. Philips
Roe V. Mutual Fund Loan
Association, Limited
Roffey v. Henderson
Rogers, £x jmrte, In re
Rogers ... .
V. Lambert
and
Brd
I
Rolin V. Steward . . .
Rona, The
Ronan v. Midland Ry. Co
Ronayne v. Sherrard
Roope V. D'Avigdor . .
Roscoe r. Boden . . .
Roscorla v. Thomas . . <
Rossiter v. Miller . . .
Rotherham Alum
V Chemical Co., In re
Rousillon V. Rousillon
Routledge r. Grant ,
Rowe I'. London Sch
Rowntree v. Richardson
Royal Aquarium v. Parkin
son
Royal Bank of Scotland v.
' Tottenham . .
Royle V. Busby .
Ruddiman r. Smith
Ruddy V. Midland
Western Ry. Co.
Ruel V. Tatnell .
Rugg V. Minett
Russell, Ex parte,
Butterworth
^ r. Shenton
Ryder v. Wombwell
Rylands v. Fletcher
300
7- 142
444
199
133
63
313
429
III
64
Great
In re
PAGE
2S9
97
396
150
420
61
17
71
32
294
35
454
39
389
194
221
409
132
383
95
19
329
235
343
SAINTER V. Ferguson . . 442
St. Helen's Smelting Co. v.
Tipping 329
St. Lawrence, The . . . 202
Salaman v. Warner ... 5
PAGE
Sale r, Lambert .... 64
Salford, Mayor of r. Lever 150
Sanders v. Teape . . 344, 413
Sanford v. Clarke ... 66
Sanguienetti v. Stuckey's
Banking Co 19
Sarson v. Roberts ... 90
Satanita, The 204
Satherwaite r. Duerst . . 401
Saunders r. Dence ... . 150
Saunderson r. Jackson . 56, 57
Sayers v. Collyer .... 461
V. Norriss ... 57
Schaffers v. General Steam
Navigation Co ... . 423.
Schofield, Ex parte, He
Firth 490
Scholfield V. Earl of Lon-
donderry 182
Scott V. Lord Seymour . . 360
— — V. Morley . . . 246, 373
?•. Sheppard .... 364
r. Stansfield. . . . 318
V. Uxbridge Ry. Co. . 267
Scovell r. Boxall .... 62
Seager, Re 239
Seaman v. Nethercliff . . 3 89
Seaton, Ex parte. Re Deer-
hurst ....... 12
V. Benedict 247, 248, 250
Seeley.r. Briggs ..... 239
Semayne's Case ... 80, 342
Senior v. Ward . . . . 421
Seroka r. Kattenberg . . 252
Sewell r. Burdick .... 203
Seymour v. Bridge . . . 304
Sharp V. Powell .... 449
Shaw V. Benson .... 224
V. Great Western
Ry. Co . 133
r. Port Philip Gold
Mining Co 286
Sheffield v. London Joint
Stock Bank ..... 185
Shepherd, In re, Ex parte
Ball 313
Shipley v. Todhunter . . 395
Shbre v. Wilson .... 28
Sibree^. Tripp .... 263
Silvester, Re, Mid Ry. Co.
■ r. Silvester 52
TABLE OF CASES CITED.
XXVU
Simm V. Anglo-American
Telegraph Co. . . .
Simmons, In re, Ex parte
Carnac
V. Mitchell 38
V. Woodward
■ V. Great Western
Ry. Co
Simon v. Lloyd . . .
Simpson's Claim, Re Cun
ningham
Simpson v. Bloss . . .
V. Crippin . .
■ • V. Eggington .
V. Hartopp
V. Nicholls . .
.Sinclair v. Bowles . .
Singer Manufacturing Co
V. Clark
Singleton v. Eastern Coun
ties Ry. Co
Six Carpenters' Case, The
83, 342
Skinner v. L. B. & S. C
Ry. Co
V. Weguelin .
Skrine v. Gordon . . .
Slade V. Tucker . . .
Slattery v. Dublin, &c
Ry. Co
Sly V. Blake ....
Smale v. Roberts . . .
Small V. National Provincial
Bank of England .
Smethurst v. Taylor .
Smith, In re, Ex parte
Brown ....
■ — V. Algar .
r. Anderson
V. Baker .
V. Braine .
V. Chadwick
V. Cook
• V. Dickenson
— V. Keal . .
V. Land and House
Property Corporation
V. London and
South-Western Ry. Co.
V. Marrable . .
■ V. Morgan . . .
16
282
394
117
132
265
224
302
258
261
76
306
259
127
437
407
144
234
493
416
270
25
74
145
10
39
224, 303
425
495
285
346
442
432
286
430
90
13
Smith V. Roche . . .
V. Steele . . .
V. Surman . . ,
V. Thorne . . .
V. Union Bank
of
147,
As-
Co.
London . . .
Smout V. Ilberry .
Snead v. Watkins ....
Snow V. Whitehead . . .
Society Gdn^rale de Paris
r. Milders
Solomon v. Davis ....
Soltau V. De Held . 329,
Soltykoff, Re, Ex parte
Margrett
Somerset, Duke of v.
Cookson . . .
Southcote V. Stanley
Southee r. Denny .
South Hetton Coal Co.
North-Eastern News
sociation . • .
Spears v. Hartley
Speight V. Olivrera
Spencer v. Slater .
Spice V. Bacon . .
Spirett V. Willows
Stainton v. The Carron
Stamford Banking Co
Smith
Standard Manufacturing
Co., In re, Ex parte Lowe
Stanford, Ex parte, In re
Barber. . . .
Stanley r. Powell .
Staplyton v. Clough
Stead V. Salt . .
Stein V. Cope . .
Stevens r. Marston
V. Sampson
V. Woodward
Stevenson v. M'Lean
V. Newnham
Stewart v. Great Western
Ry. Co. '. .
Stiles V. Cardiff Steam
Navigation Co.
Stilk r. Meyrick
Stockport Waterworks Co,
V. Potter . .
Stokell V. Niven
PAGS
44
422
61
273
197
252
141
343
257
171
332
236
445
413
396
381
272
405
289
140
289
150
275
116
118
434
474
158
145
116
387
409
36
290
269
346
45
330
64
XXVlll
TABLE OF CASES CITED.
Stokes V. Lewis ....
Stonor V. Fowle ....
Storey v. Ashton ....
Stott V. Fairlamb ... 28
Strahan v. Universal Stock
Exchange ....
Stretton v. Eastell . .
Strong, In re ... ■
V. Foster . . .
Stroud V. Austin . . .
Stuart V. Bell . . . •
V. Evans . .
Studds V. Watson . .
Studdy V. Beesty . . ,
Stum V. Dixon ....
Sturges V. Bridgman
Sturla V. Freccia . . ,
SuflEell V. The Bank
England ....
Suffell & Watts, In
Er parte Brown
Sury V. Pigot , . . 326,
Sussex Peerage Case 470
Sutton V. Grey
V. Great Western
Ry.
Co. . .
- V. Sutton
85
Swain v. Ayres
Sweet V. Lee . .
Sweeting v. Pearce
Swift V. Pannell .
Swinfen v. Swinfen
Sykes v. Beadon .
TAILBY V. Official Recr. .
Talley v. Great Western
Ry. Co. ...
Tallis V. Tallis . .
Tancred v. Delagoa Bay
Co. Limited . .
Tanner v. Smart .
Tatam v. Reeve
Tattersall v. National
Steamship Co. Limited
Taylor v. Bowers .
r. M'Keand
V. Roe . .
V. Smith .
V. Wit ham
PAGE
42
374
409
, 186
301
265
372
52
457
385
422
34
181
319
331
475
182
218
327
474
151
137
270
75
55
304
122
499
224
165
136
294
165
274
300
•33
290
348
453
102
472
Temperton v. Bussell
Tetley v. Griffith . .
Thacker v. Hardy
V. Wheatley .
PAGE
. 406
• ^45
300, 301
. 300
Theys, Ex parte, Be Milan
Tramways Co 278
Thol V, Henderson . . . 447
Thomas v. Edwards . . . 148
V. Evans .... 267
V. Kelly . . . 118, 119
V. Quartermaine . 423,
424, 425
Thompson, In the goods of
475
V. Lacy ....
V. North-Eastern
Ry. Co
470
V. Ross . . .
Thomson v. Davenport .
V. Robertson .
V. Weems . .
Thorogood v. Bryan . .
V. Robinson
Thorpe v. Coombe . .
Three Towns Banking Co.
V. Maddever 289
Threlfal v. Barwick . . . 141
Thwaites v. Wilding . . 79
Tidman v. Ainslie . 393, 399
Tillett V. Ward .... 324
Tinsley v. Lacy . . . . 212
Todd V. Emly 225
V. Flight . . . 330, 427
Tollemache, Re ... . 12
Tomlinson v. Consolidated
Credit Co 82
Torrence v. Gibbons . . 403
Townsend v. Watken . . 347
In re. Ex parte
Parsons . . . . 116, 117
Trafford v. Blanc .... 12
Tredegar Iron and Coal Co.
V. Gielgud 457
Trotter v. Maclean . . . 473
Trufort, In re 12
Truman v. London, Brigh
ton, and South Coast
Ry. Co
Tucker v. Laing . .
V. Linger . .
436
404
146
426
208
437
349
176
Tuff V. Warman
431
52
70
435
TABLE OF CASES CITED.
XXIX
Tullidge v. Wade ...
Tully V. Reid
Tunney v. Midland Ry. Co
Turner, Re, Turner v.
Spencer . .
V. Hockey
V. Rookes
V. Trisby
Twynne's Case
Tyrringham's Case
U
PAGE
326
421
270
288
326, 327
UDELL V. Atherton .
Ultzen V. Nichols . . .
Underhay v. Reed . .
Underwood v. Underwood
United Telephone Co. v
London and Globe Tele
phone and Maintenance
Co
Usher v. Rich . . .
286
139
68
264
210
184
238
VALENTINI V. Canali . .
Vallance, In re, Vallance
V. Blagden 296
Vance v. Lowther . . .
Vane v. Whittington . .
Varley v. Hickman . . .
Vaughan v. Taff Vale Ry.
Co 352,
Venables v. Smith .
Vere v. Ashby . . .
Vicars v. Wilcocks .
Victoria, The . . .
Vincent v. Vincent .
Vivian v. Moat . .
V. Walker . .
Volant V. Soyer . .
Vreda, The ....
181
482
301
430
411
145
451
204
53
471
471
492
201
W
Mar-
219
40
WADSWORTH
shall
Wain V. Warlters ....
Wakelin v. London and
South-Western Ry. Co. . 436
Wakeman v. Robinson . . 434
Wakley v. Froggatt . . . 280
Walker, A',
Gould .
Re,
Walker
£x parte
Walker
Bradford
Bank
V. Hirsch .
V. Midland Ry
V. Mottram
V. Wiltshire
44
2'>art
Waller v. Lock
Wallingford v. Mutual So
ciety ....
Wallis V. Smith .
Walmesly v. Cooper
Walsby v. Anly
Walsh r. Lonsdale
Walter v. Everard
Ward V. Monaghan
V. Sinfield .
v. Weeks .
Warne v. Seebohm
Warner r. M'Kay
Wason V. Walter .
Watling V. Oastler
Watson, In re, Ex
Official Receiver
r. Strickland
V. Threkeld
V. Whitmore
Watts V. Shuttleworth
Waugh r. Carver
Weatherstone v. Hawkins
Weaver, In re .
Webb V. Bevan
r. Page
Webber v. Lee .
Webster v. British E
Life Assurance Co,
Weeton v. Woodcock
Weir V. Bell . . .
Welch V, Loudon
North-Western Ry,
Weldon v. Winslow
V. Neal . .
Wells V. Mayor of Kings
tou-upon-Hull .
Wen man v. Ash .
Wennall v. Adney
Wennhak v. Morgan
Wentworth v. Outhw
Old
Co
71
371
164
155
141
293
493
390
303
442
279
295
75
238
440
477
399
212
154
387
420
116
118
246
377
52
155
386
253
395
223
62
mpire
452, 453
71
and
Co.
aite
285
135
246
246
223
3S4
44
384
107
XXX
TABLE OF CASES CITED.
West r. Blakeway . . .
West London Commercial
Bank v. Kitson ....
Whalley v. Lancashire and
Yorkshire Ry. Co. . . .
Whatley v. Holloway . .
Whincup V. Hughes . . .
Whitcomb v. Whiting 274
White V. British Empire
Mutual Life Assurance
Co
V. Garden .
V. Jameson
V. Spettigue
Whiteley v. Adams
Whitham v. Kershaw .
Whitmore v. Farley . .
Whittingham v. Murdy
Whyman v. Garth . .
Wickham v. Wickham .
Wigglesworth r. Dallison
Wightman v. Townroe .
Wilcox V. Redhead . .
Wild V. Waygood . .
Wildes V. Russell . . .
Wilkinson v. Calvei t
V. Collyer . . .
PAGE
72
175
344
423
46
I 275
209
290
330
104
385. 390
455
45» 62
237
483
151
29
162
67
423
12
65
70
377
Willans v. Taylor . .
Williams, In re, Williams
V. Stretton 365
r. Carwardin ... 38
V. Glenister . . . 363
V. Griffiths . . . 273
V. Knight .... 237
V. Smith .... 383
Williamson v. Frere . . . 384
Willis, In re, Ex parte
Kennedy 116
Willis, Winder & Co.
Coombe 432
Wilson r. Brett . . 124, 150
V. Finch- Hatton . 90
r. Ford 251
V. Merry . . 229, 422
V. Newport Dock Co. 447
r. Owens .... 409
V. Rastall .... 491
V. The Xantho . . 203
Wilton V. Girdleston . . 349
Windhill Local Board
Vint
Winehouse v. Winehouse
Wing V. Angrave . . .
Winn V. Bull ....
Winterbottom v. Wright
Winterburn v. Brooks .
Wise, In re, Ex parte
Mercer
Wiseman v. Vanderput .
Withernsea Brick Works
In re ....
Withers v. Reynolds
Witt V. Banner
Wood V. Lane . .
V. Leadbitter
Woodgate V. Great Western
Ry. Co
Woodhouse v. Farebrother
Working Men's Mutual
Society, Limited, Re . .
Worth V. Gilling . . . .
Wragg's Trade-mark, Re .
Wren v. Wield . .
Wright V. Pearson
r. Woodgate
Wyld V. Pickford .
29S
13
475
32
421
363
289
105
13
260
119
365
326
433
280
Wyse V. Russell
223
346
215
■ 335
• 345
385. 390
. 129
• 56
YARMOUTH v. France 422, 425
Yates, Re, Batchelor v.
Yates 74
V. Freckleton . . . 261
V. White 459
Yeoland's Consols, Re . . 237
Young V. Austen . . . . 171
V. Grote .... 194
V. HoUoway . . . 493
ZAGURY V. Furnell ... 95
Zunz V. South-Eastern Ry.
Co 133, 134
INDEX TO STATUTES CITED.
PAGE
PAGE
13 Edw, I, c. 18 .
• 13
24 Geo. 2, c. 44 .
... 368
4 Edw. 3, c. 7 . .
• 355
14 Geo. 3, c. 48 .
206, 207, 306
25 Edw. 3, St. 2, c. 5
• 355
14 Geo. 3, c. 78 .
... 430
5 Rich. 2 St. I. c. 8 .
. 80
42 Geo. 3, c. 119 .
• • • 303
27 Hen. 8, c. 16 . .
. 467
53 Geo. 3, c. 141 ■
... 58
2 & 3 Phil. & M. c. 7
■ 338
I & 2 Geo. 4, c. 78
169, 172
5 Eliz. c. 9 . . . .
. 462
6 & 7 Geo. 4, c. 94
... 152
13 Eliz. c. 5 . . .
18, 287
7 & 8 Geo. 4, c. 18
... 362
27 Eliz. c. 4 . . .
19, 289
9 Geo. 4, c. 14 . .
• • 47. 99
31 Eliz. c. 6 . . . .
. 306
c.
[ . . 57,274
) ■-'
31 Eliz. c. 12 . . .
• 338
f'
5 ... 231
21 Jac. I, c. 3 . .
. 209
f
3 . .58, 287
21 Jac. I, c. 16 .2
0, 2-
'I, 364,
^,
7 ■ . . 99
> '-'
393. 398
II Geo. 4, & I Wm
. 4, c. 68, 130,
29 Car. 2, c. 3 . .
47. 143
131
■"■O J '■
-) 3
57. 64,
I Wm. 4, c. 47 .
212
^^^
143. 306
I & 2 Wm. 4, c. 32
■ .340,341
'^ ^
48,
57, 60,
3 & 4 Wm. 4, c. 27
... 85
, b. 4
61, 99, 226
3 & 4 Wm. 4, c. 42
. 20, Si, 85,
c- 7
. 48
270,271,273,323
, 355, 446, 452,
, fe. /
, s. 9
. 48
453
'^ 10
T 7
3 & 4 Wm. 4, 0. 98
3 & 4 Wm. 4, c. 10
... 267
4 . . . 20
f. T»T
48,
50, 55.
, b. 17
57, 61, 99
5 & 6 Wm. 4, c. 41
• 304, 305
29 Car. 2, c. 7 . .
. 306
5 & 6 Wm. 4, c. 5c
... 415
2 Wm. & M. sess. i, (
3- 5
82, 83,
5 & 6 Wm. 4, c. 8:
. . . 209
453
7 Wm. 4, & I Vict
c. 26 . 483
10 & II Wm. 3, c. 17
• 303
I & 2 Vict. c. no
• 9. 13. 453
3 & 4 Anne, c. 9 .
. 163
2 & 3 Vict. c. 1 1
... 14
4 & 5 Anne, c. 16 .
. ]
63, 271
2 & 3 Vict. c. 67
. . . 209
8 Anne, c. 14 . .
. 81
, 85, 86
3 Vict. c. 5 . .
... 303
9 Anne, c. 14 . .
• 304
5 & 6 Vict. c. 35
... 69
12 Anne, st. 2, c. 12
. 306
5 & 6 Vict. c. 39
... 152
2 Geo. 2, c. 22 . .
. 277
5 & 6 Vict. c. 45
58, 211, 212
4 Geo. 2, c. 28 . .
. 66
6 & 7 Vict. c. 40
... 78
8 Geo. 2, c. 24 . .
. 277
6 & 7 Vict. c. 73
. ... 217
II Geo. 2, c. 19 .
■ 67
, 81, S3
6 & 7 Vict. 0. 85
. .477.478
13 Geo. 2, c. 19 .
• 303
6 & 7 Vict. c. 86
... 411
18 Geo, 2, c. 34 .
• 303
6 & 7 Vict. c. 96
• 391, 392
19 Geo. 2, c. 37 .
. 206
7 & 8 Vict. c. 66
. ... 255
XXXll
IJJDEX TO STATUTES CITED.
PAGE
. . . 209
• 137, 325
... 392
. 64, 65, 143
29S, 299, 302,
7 & 8 Vict. c. 69
8 & 9 Vict. c. 20
8 & 9 Vict. c. 75
8 & 9 Vict. c. 106
8 & 9 Vict. c. 109
303. 304
9 & 10 Vict. c. 93
436, 459
II & 12 Vict. c. 44 . .
14 & 15 Vict. c. 19 . .
14 & 15 Vict. c. 25 . .
14 & 15 Vict. c. 99 . .
15 & 16 Vict. c. 76, s. 117
, s. 210
, s. 211
16 & 17 Vict. c. 59 . . . 194
16 & 17 Vict. c. 83 . . . 479
17 & 18 Vict. c. 31 131, 133, 137,
138
17 & 18 Vict. c. 36 . .
17 & iS Vict. c. 125, s. 22
418,419,420,
367
369
72, 73
478
482
84
-, s. 23 ,
-, s. 24 ,
-, s. 25 ,
-, s. 26 ,
-, s. 27 ,
-, s. 78
122
478
478
478
477
471
483
355>
444
18 & 19 Vict. c. 43 . .
18 & 19 Vict, cm .
18 & 19 Vict. c. 122 . .
19 & 20 Vict, c. 97, s. 2 .
192
20 & 21 Vict. c. 77 .
20 & 21 Vict. c. 85 .
21 & 22 Vict. c. 27 .
21 & 22 Vict. c. 79 .
21 & 22 Vict. c. 90 .
22 & 23 Vict. c. 35 .
23 Vict. c. 7 ...
23 & 24 Vict. c. 38
3. 280
7. 190
. 232
163, 202
. 428
. 109
40, 51.
• 51
. 169
. 271
. 271
• 274
57, 274
• 275
■ 484
• 244
. 461
• 197
. 221
. 88
. 221
14, 270
23 & 24 Vict. c. 126
23 & 24 Vict. c. 127
24 & 25 Vict. c. 96
370
24 & 25 Vict. c. 97
24 & 25 Vict, c, 100
25 & 26 Vict. c. 89
26 & 27 Vict. c. 41
26 & 27 Vict. c. 125
27 & 28 Vict. c. 75
27 & 28 Vict. c. 95 4
27 & 28 Vict. c. 1 1 2
28 & 29 Vict. c. 60
28 & 29 Vict. c. 86
29 & 30 Vict. c. 69
29 & 30 Vict. c. 96
30 & 31 Vict. c. 29
30 & 31 Vict. c. 131
30 & 31 Vict. c. 144
31 & 32 Vict. c. 54
31 & 32 Vict. c. 86
31 & 32 Vict. c. 119
31 & 32 Vict. c. 122
32 & 33 Vict. c. 46
32 & 33 Vict. c. 62
372, 373. 374
32 & 33 Vict. c. 68
479
33 Vict. c. 10 . .
33 Vict. c. 14 . .
33 & 34 Vict. c. 23
33 & 34 Vict. c. 28
297
33 & 34 Vict. c. 35
33 & 34 Vict. 0. 93
34 & 35 Vict. c. 31
34 & 35 Vict. c. 56
34 & 35 Vict. c. 74
34 & 35 Vict. c. 78
34 & 35 Vict. c. 79
35 & 36 Vict. c. 50
35 & 36 Vict. c. 65
35 & 36 Vict. c. 92
35 & 36 Vict. c. 93
36 & 37 Vict. c. 66,
279, 280
105, 218
337, 338,
• • 369
314, 362
223, 224
. 141
. 462
■ 415
419, 436
■ 14
345, 413
. 156
• 135
122
• 303
224, 225
. 209
12, 13
209
• 133
• 249
20
), 10, 371.
476, 478,
. . 267
162, 255
• • 313
217, 218,
207, 241
296
• 351
176
133
■ 78
■ 78
• 403
. 82
126, 127,370
s. 24 . 278,
, s. 25 II, 17,
20, 29, 60, 67, 164, 201, 251,
283, 323, 489
, s. 34 ■ 163
37 & 38 Vict. c. 50 . . . 242
INDEX TO STATUTES CITED.
XXXlll
37 & 38 Vict. c. 57
PAGE
• 85, 270,
45 & 46 Vict. c. 61
37 & 38 Vict. c.
37 & 38 Vict. c.
38 & 39 Vict. c.
38 & 39 Vict. c.
38 & 39 Vict. c.
38 & 39 Vict. c.
38 & 39 Vict. c.
39 & 40 Vict. c.
40 & 41 Vict. c.
40 & 41 Vict. c.
40 & 41 Vict. c.
41 Vict. c. 13 .
41 Vict. c. 19 .
41 & 42 Vict. c.
116, 118, 119,
41 & 42 Vict. c.
41 & 42 Vict. c.
41 & 42 Vict. c.
42 Vict. c. 1 1 .
43 & 44 Vict. c.
423, 424, 425,
43 & 44 Vict. c.
44 & 45 Vict. c.
88, 118, 149
44 & 45 Vict. c.
44 & 45 Vict. c.
44 & 45 Vict. c.
45 Vict. c. 9
45 & 46 Vict. c.
45 & 46 Vict. c.
45 & 46 Vict. c.
119, 121, 122,
45 & 46 Vict. c.
62 17, 231, 232
78 . . 63,476
77, s. 10 . 12
217
422
214
73
197
479
467
152
169
244, 365
31 74, 114, 115,
121, 122, 482
33 . 221, 222
38 . . 104, 141
54 • . . 372
. . . 467, 468
42 229,418, 422,
426
47 ■ 341, 342
41 . 24, 63, 84,
217, 218
3S8, 391
222
• 475
■ 149
. 211
176, 179
44
60
62
39
40
43 114, 116, 117,
483
61 . 3, 59, 166
— , s. 3 . 1S7
— , s. 4
— , s. 8
— , s. 10
— , S. 12
, ^- I ^
— , s. 14
169
-, s. 15
-, s. 16
-, s. 17
-, s. 19
-, S. 22
-, s. 24
-, s. 25
170
173
166,
172
237
186
174
176
177
177
175
305
'74
^73
194
180
191
183, iJ
194
•97
45 & 46 Vict. c. 75,
246
s. 26
s. 27
s. 28
s. 29
s. 30
s. 31
s-34
s-35
5. 36
s. 44
s-45
s. 48
s. 49
s. 50
s. 51
s- 54
s- 57
s. 59
s. 60
s. 61
s. 62
S.63
s. 64
s. 69
s. 70
s. 72
s- 73
.s. 74
s. 76
s. 77
s. 78
s. 79
s. 80
s. 81
s. 82
s. 83
s. 87
s. 89
s. 92
s. 96
PAOG
175
185
• 71
174,
305
172,
172,
173
•83.
171
193
178
179,
181
188
169
176,
187
194
188
188
188
182,
191
191
190
]66,
193
196
196
196
196
196
196
197
166
178
172,
I So
170.
244.
XXXIV
INDEX TO STATUTES CITED.
45 & 46 Vict.
279
c. 75, s. 2
479
46 Vict. c. 3
46 & 47 Vict.
46 & 47 Vict.
46 & 47 Vict.
46 & 47 Vict.
s. 5 .
s. II
S. 12
s. 13
s. 14
s. 15
S. 22
c. 19
c. 31
c. 49
c. 52,
374
46 & 47 Vict.
214, 215
46 & 47 Vict.
7i> 72, 74,
47 & 48 Vict.
48 & 49 Vict.
50 & 51 Vict.
50 & 51 Vict.
5c & 51 Vict.
50 & 51 Vict.
51 & 52 Vict.
51 & 52 Vict.
51 & 52 Vict.
51 & 52 Vict.
214
51 & 52 Vict.
51 & 52 Vict.
51 & 52 Vict.
393
52 & 53 Vict
153
52 & 53 Vict
53 & 54 Vict
154. 155.
160, 161
53 & 54 Vict
53 & 54 Vict
53 & 54 Vict
416
18
41
42
47
49
55
103
PAGE
241,
241
207
365.
242
242
242
242
490
221
226
461
53
46
86
19
340
87
373,
53 & 54 Vict. c. 70
53 & 54 Vict. c. 71
87, 264, 490
54 Vict. c. 8 . .
54 & 55 Vict. c. 35
54 & 55 Vict. c. 39
308, 487
54 & 55 Vict. c. 51
55 & 56 Vict. c. 4 .
55 & 56 Vict. c. 9 .
55 & 56 Vict. c. 13
56 & 57 Vict. c. 21
56 & 57 Vict. c. 61
c. 57
c. 61
77,86
c. 14
0. 69
c. 19
c. 28
c. 57
. c. 58
, c. 21
. c. 25
. c. 46
. c. 50
. c. 5t
. c. 62
. c. 64
• c. 45
. c. 63
• c. 39
156, 157. 158
c. 53
c. 57
c. 64
125 . 13
209, 210,
. 65,66,
• 479
479. 480
325, 415
114, 215
. 264
. 226
78,83
■ 137
• 476
210, 212,
. . 264
. . 87
388, 391,
108, 152,
56 & 57 Vict. c. 63
56 & 57 Vict. c. 71
PAGE
. . . 90
. . 13,86,
. . . 69
. . . IIS
. 190, 307,
. • ■ 397
. . • 257
299,300,301
. . . 89
. ■ 19, 289
. . . 367
. ■ • 245
• . . 3. 47
91
233. 234
50, 55-
I
s. 2
s. 4
57, 61, 100
■ 24
!
,30
• 3.
52,
158,
159-
"5
67
285,
319,
, s. 6 .
, s. 7 .
, s. 8 .
, s. 10
, S. II
, S. 12
, s. 13
, s. 14
, s. 15
, s. 16
. s. 17
, s. 18
, s. 19
, s. 20
, S. 22
•, s. 24
, 5- 25
, s. 26
, s. 27
-, s. 28
-, s. 29
-, s. 30
-, s. 31
-, s. 32
-,s. 33
-, s. 34
-, s. 35
-, s. 36
-, s. 39
-, s. 41
-, s. 42
-, s. 43
97
30
110
112
"3
113
"3
93
93
93
98
93
337
337
153
340
91
91
92
1X2
258
92
92
92
92
92
103
104
104
104
INDEX TO STATUTES CITED.
XXXV
PAGE
105
107
107
202
-, s. 48 107, 108
, s. 49 . 103
, s. 50 103,456
' s. 51 103,456
' s- 52 23, 109,
S6&57 Vict. c. 71, s. 44
,s. 45
445
56 & 57 Vict. c. 71, s. 53
,8.58
• , s. 62
57 & 58 Vict. c. 60 . 3,
199, 201, 204, 255
58 Vict. c. 16 . . .
58 & 59 Vict. c. 24 . .
58 & 59 Vict. c. 27 . .
58 & 59 Vict. c. 39 . .
PAoe
109, 457
. 102
108, 109
58, 198,
190, 307
78,83
• 74
• 365
EDITIONS OF TEXT-BOOKS REFERRED TO,
Of which more than one Edition has been published.
Addison on Torts ....
Anson's Contracts ....
Arnould on Marine Assurance .
Baldwin's Bankruptcy
Benjamin's Sale of Personal Property
Broom's Commentaries
Broom's Legal Maxims
Brown's Law Dictionary .
Bunyon on Life Assurance
Byles on Bills
Chitty on Contracts ....
Folkard on Slander and Libel (founded on Starkie
Slander and Libel)
Greenwood's Real Property Statutes
Indermaur's Manual of Equity .
Indermaur's Manual of Practice
Mayne's Treatise on Damages .
Pollock's Digest of the Law of Partnership
Pollock's Contracts .
Powell's Principles and Practice of the Law of
Evidence
Prideaux's Conveyancing
Ringwood's Torts
Smith's Leading Cases
Smith's Mercantile Law
Snell's Principles of Equity
Story on Agency
Tudor's Conveyancing Cases
Tudor's Mercantile Cases
Wharton's Law Lexicon
White and Tudor's Equity Case
Williams' and Bruce's Admiralty Practice
Williams' Principles of the Law of Personal Property
Woodfall's Landlord and Tenant . . . ■
7th Edition
7th Edition
6th Edition
7th Edition
4th Edition
8th Edition
6th Edition
2nd Edition
3rd Edition
15th Edition
12th Edition
5th Edition
2nd Edition
3rd Edition
6th Edition
5th Edition
6th Edition
6th Edition
6th Edition
1 6th Edition
2nd Edition
9th Edition
loth Edition
nth Edition
9th Edition
3rd Edition
3rd Edition
9th Edition
7th Edition
2nd Edition
14th Edition
1 5Lh Edition
PRINCIPLES OK THK COMMON LAW.
INTRODUCTION.
The origin of the Common Law of England — though The origin of
it cannot be now certainly and surely found, being i^^*^®'""""'
lost in antiquity — may probably be set down to the
customs and usages in the first instance of the early
Britons, afterwards amended and added to by those of
the Romans and other nations who spread themselves
over the country. The early Common Law was of a
narrow and limited kind, increased according to men's
necessities, until, in the present highly artificial state
in which we live, it has assumed such wide dimensions
as to make it difiicult to believe in its early foundation.
The term " Common Law " would seem, according- to
Blackstone {a), to have originated in contradistinction
to other laws, or more reasonably as a law common and
general to the whole realm ; and, used in a wide and
large sense, comprehends now not only the general
law of the realm, but also that contained in Acts of
Parliament ; and it may be divided as of two kinds, viz. :
(i) The lex non scripfa, or unwritten law ; and (2) the
lex scripta, or written law. With regard to the former
division, in the very ancient times, in consequence of
the utter ignorance of the mass of the people, the laws
could not be, and were not, reduced into writinsr, but
were to a certain extent transmitted from age to age
(a) I Bl. Com. 67.
2 INTRODUCTION.
by word of mouth. But this is not all that is included
in the lex non scrlpta, which term is indeed used in
contradistinction to the statute law, which forms the
actual lex scripta, for the monuments and records of
our legal customs are now contained in the books of
the reports of the decisions of different judges from
time to time, and in the treatises of the different
writers, commencing at periods of high antiquity and
continued until the present time (b). With regard to
the latter division, viz., the lex scripta, this comprises
the statute law of the realm. In the earlier times but
little attention was given to the laws, and indeed, from
the essentially warlike nature of the people, it was not
the greatest requirement ; but gradually, as civilization
advanced, the lex non scripta was found insufficient,
and indeed sometimes contrary to the benefit of the
country, and the direct intervention of the legislature
was required to amend, alter, and vary, or in some
cases to simply declare, the law when doubts had
arisen on it. As civilization has progressed, and age
after age has become more and more artificial, so the
statute law has increased, as is evidenced by the multi-
tude of Acts of Parliament necessary to be referred to
by the student of our laws.
As to the It might be interesting, and perhaps useful, to here
of ITodF^ enter into a consideration of the relative advantages
and disadvantages of a code of laws, but such a dis-
cussion would be beyond the scope of a work like the
present, and the subject must be dismissed with a few
remarks. True, there is in our present system of laws
the disadvantage that it involves to master it deep
and intricate study, and it requires to be traced back
to the earliest times to understand various reasonings ;
but, on the other hand, though a code would do away
with this necessity of historical research, yet it would
present law in a much more inflexible state than
(b) I Bl. Com. 6.
INTltQDUCTlON. 3
now ; and as no code could be perfect, it is to be
feared that doubts of construction and the like would
arise ; and perhaps, therefore, to leave things on tlieii-
present foundation would be well (c).
The term " common law " has also been used in con- (Jouinion law
tradistinction to equity jurisprudence, which is of later guished from
growth, and comprehends matters of natural justice *^'i"'*y-
(being other than matters of mere conscience), for
which courts of law gave no relief, or no proper relief.
Probably this distinction between common law and
■equity must to some extent always practically exist,
for although the Judicature Acts of 1873 and 1875,
to a certain extent, fuse law and equity, and though
also the rules of equity are to govern where they
have clashed with the rules of law (as will be
frequently noticed in the course of the following-
pages), yet as certain matters were formerly strictly
the subjects of cognizance in the Common Law Courts
and others in the Court of Chancery, so the like
matters respectively are and will be commenced and
carried on in the analogous divisions of the present
High Court of Justice.
It is important to have a clear and correct idea of of the nature
the nature of a person's rights which will entitle him d-ht which*"
to maintain an action for their infringement. The ]V^^ «ititle
o liim to maiii-
two main divisions of the present work are Contracts tain an action,
and Torts. In the case of the infringement of any
person's legal rights, i.e. if a valid contract be broken,
or a tortious act committed, the other party to the con-
tract, or the person against whom the tort was com-
mitted, has a right of action in respect of such breach
of contract or tortious act ; and even though he suffers
no substantial damage, yet he nevertheless has his right
(c) A first attempt at codification of one branch of the law was made
by the Bills of Exchange Act, 1S82 (45 & 46 Vict. c. 61). See also the
Partnership Act, 1S90 (53 k 54 Vict. c. 39), the Sale of Goods Act
1893 (56 & 57 Vict. c. 71), and the Merchant Shipping Act, 1S94 (57
& 58 Vict. c. 60), which are the most recent efforts in this direction.
INTRODUCTION.
Injuria sine
ilamno.
Aslibv V.
White.
of action. The rule upon this point is, that Injuria sine
clamno will entitle a person to maintain an action, which,
plainly expressed, means that when a person has suf-
fered what in the eyes of the law is looked upon as a
legal injury (d), he must have a corresponding right of
action, even though he has suffered no harm. This is
illustrated by the well-known case of Ashhy v. White (e),
which was an action against a returning officer for
maliciously refusing to receive the plaintiff's vote on
an election of burgesses to serve in Parliament, and
it was held that the defendant having so maliciously
refused to receive the plaintiff's vote, although the
members for whom he wished to vote were actually
elected, and therefore he suffered no damage, yet he
had a good right of action, for he had a legal right to
vote, and that right had been infringed.
Damnum siv
injuria.
Chasemorc
Eick(i7-ds.
On the other hand, there are many cases in which
a person, although he suffers damage by the act of
another, yet has no right of action, because there has
been no infringe iiient of what the law looks upon as a
legal right, and this is expressed by the maxim, that
Damnum sine injuria will not suffice to enable a person
to maintain an action. Thus, in an action of seduction,
unless loss of service is proved by the plaintiff, the action
cannot be maintained, for though the plaintiff may have
suffered damage without the loss of service, yet he has
not sustained what in the eyes of the law is looked
upon as an injury. The best instance, however, on this
point is perhaps found in the principle that a person
may deal with the soil of his own land as he thinks
fit, so that if he digs down and thus deprives his neigh-
bour of water that would otherwise percolate through
(d) The italicised words must be particularly observed, because there
are many wrongful acts, i.e. acts not merely morally wrong and inde-
fensible, but even contra legem, which give no right of action unless
productive of actual damage, such as the breach of a public duty, men
negligence, fraud, ordinary cases of slander. In such cases it is some-
times said that injuria and damnum must combine in order to constitutt
a right enforceable by action (Broom's Conis. 89, 90).
{(■) I S. L. C. 268 ; Lord Raymond, 938.
INTRODUCTION. ,5
the laud, yet although this operates to the great detri-
ment of such neighbour, it does not constitute the
invasion of a legal right, and will not form any founda-
tion for an action (/). And if a subsidence be caused
by the withdrawal of such underground water, the same
rule holds good {(j) — it is merely Damnum sine in-
juria (Ji). However, in the words of Mr. Broom, in
his ' Commentaries on the Common Law,' " in the vast
majority of cases which are brought into courts of
justice, both damnum and injuria combine in support
of the claim put forth, the object of the plaintiff usually
being to recover by his action substantial damages " (i).
When both injuria, and damnum are combined, then,
as a general rule, there is always a good cause of action,
except indeed where there is some special reason to
the contrary, e.g. some matter of public policy.
Although a person may have suffered an injury in Actio
the eyes of the law, whether accompanied with actual {jf^,fj^/^". "
damage or not, there are many cases in which, if '«»' ?'«'w«"-
he dies before he has enforced his riglits, the injury
dies with him, the common law maxim being. Actio
personalis moritur cum persona. And so also, on the
same principle, there are many cases in which a person
having injured another dies, and there is an end of the
remedy that the injured party would otherwise have
had {k). Taken generally, the maxim applies to actions
{/) Acton V. Blundell, \2 M. & W. 324; Chuscmore v. Richards, 7
H. L. C. 349. This last case should be carefully distinguished from
that of Ballard v. Tomlinson, 29 Ch. D. I15 : 54 L. J. Ch. 454, post.
Part II, chap. 2. See also hereon Bradford Corporation v. Pickles,
(1895), I Ch. 145 ; 64 L. J. Ch. loi ; 71 L. T. 793 (since affirmed in
House of Lords, 29th July 1S95).
(g) Popplciodl V. Hodgkinson, L. R. 4 Ex. 248.
(A.) As a recent instance of the rule see Salanmn v. Warner, 64
L. T. 598, where it was held that conspiracy and fraudulent repre-
sentation do not give a right of action to persons indirectly affected
and damaged thereby ; and that conspiracy is only actionable if entered
into with the view of injuring the plaintiff's rights, and he thereby
suffers damage.
(i) Broom's Coms. 106 ; and see generally upon the subject discussed
above. Broom's Coms. 70-107.
(k) See Phillips v. Homfray, 24 Ch. D. 439 ; 52 L. .T. Ch. 833 ; 32
W. R. 6.
INTKODUCTION.
ex delicto, but not to actions ex contractu, though as to
the latter we must usually except actions of breach of
pi'oraise of marriage, for it has been decided that an
action will not lie by personal representatives for breach
of promise to marry the deceased unless direct damage
to the deceased's personal estate can be shewn (/) ;
nor can such an action be maintained against the
personal representatives of a deceased person except
under similar circumstances {i)i). The true distinction
as to the cases in which the maxim does and does not
apply appears strictly to be not merely between actions
co: contractu and actions ex delicto, but between rights
affecting persons and rights affecting property. In
subsequent pages the exceptions that have been in-
troduced to the maxim, Actio personalis moritvr cum
jjersond are duly referred to.
Having, therefore, in these few remarks, endeavoured
to introduce the student to the subject of common law,
and the nature of the legal right in respect of which a
person has a remedy, let us proceed to our first chief
subject, viz. that of contracts.
(I) Chamherlain v. Williamson, 2 M. & S. 408.
(7rt) Finlay v. Chimcy, 20 Q. B. D. 494 : 57 L. J. Q. B. 247 ; 58
L. T. 664.
OF THE DIFFERENT KINDS OF CONTRACTS,
PART I.
OF CONTRACTS.
CHAPTER I.
OF THE DIFFERENT KINDS OF CONTRACTS, THEIR BREACH,
AND THE RULES FOR THEIR CONSTRUCTION.
A CONTRACT may be defined as some obligation of a legal Definition of *
., 1 ,, c TTT •,• contract, and
nature — either by matter ot record, deed, writing, or dififerent divi-
word of mouth — to do, or refrain from doing, some act. I'^^^^^l^^^
Contracts are usually divided as of three kinds, viz.: —
1. Contracts of record, i.e. obligations proceeding Records,
'' , . - specialties,
from some Court of record, such as judgments, recog- and simple
T •, contracts.
nizances, and cognovits.
2. Specialties, i.e. contracts in writing, sealed and
delivered.
3. Simple contracts, i.e. those not included in the
foregoing, and which may be either by writing not
under seal, or by mere word of mouth.
Contracts may also be divided as to their nature Express and
*' implied
into — contracts.
1. Express contracts, i.e. those the effect of which is
openly expressed by the parties ; and
2. Implied contracts, i.e. those which are dictated by
the law ; as, for instance, if a person goes into a shop
and orders goods, his contract to pay their proper value
is implied.
•8 OF THE DIFFEREi^T KINUS OF CONTKACTS,
Executed and Again, Contracts are divided, with reference to the
tract^ ^^^ "°"' time of their performance, into —
1. Executed contracts, and
2. Executory contracts.
Contracts of Having, therefore, three different divisions of con-
techntcluy""'^ tracts, let us proceed to consider each of them sepa-
the most ratelv ; and as to the first division, the most important
important. •' ' • n
kind of contracts, technically speaking, are contracts
of record, they proceeding from some Court of record,
but in a practical sense they may be set down as the
least important, for, with the exception of judgments,
they are not of constant occurrence, and even judg-
ments, considered in the light of contracts simply, are
not entitled to much discussion, although, considered
in other ways, they are of great importance (a). As we
have given as instances of contracts of record, judg-
ments, recognizances, and cognovits, it will be well at
the outset to have a clear understanding of each, and
then consider the peculiarities of contracts of record
generally, but yet mainly with reference to judg-
ments, as being the most important kind of contracts
of record that occur.
Definition of a A judgment may be defined to be the sentence of
j« gmen . ^^^ ^^^ pronounccd by the Court upon the matter ap-
pearing from the previous proceedings in the suit. It
is obtained by issuing a writ of summons, on which
the defendant either makes default, whereby judgment
is awarded in consequence of such default, or the case
is tried and ultimately judgment awarded (b).
(a) Sir W. R. Anson, in his work on contracts (7th ed. p. S), writes
of a judgment as being " unfortunately styled a contract of record in
English law," and continues — "The phrase is unfortunate, because it
suggests that an obligation springs from agreement which is really
imposed upon the parties ab extra."
(h) See Indermaur's Manual of Practice, Part II. chaps. 2, 5, 7.
THEIR BREACH, AND RULKS FOR THEIR CONSTRUCTION. 9
A recognizance is au acknovvledgmeut upon record J)t;Jinition of a
of a former debt, and he who so acknowledges such debt ' "
to be due is termed the recognizor, and he to whom
or for whose benefit he makes such acknowledgment is
termed the recognizee. It is very similar to a bond,
but whereas a bond creates a new debt, a recognizance
is merely an acknowledgment upon record of an ante-
cedent debt (e).
A cognovit is an instrument signed by a defendant Detiuition of a
in an action already commenced, confessing the plain- °
tifl"s demand to be just, and empowering the plaintiff to
sign judgment against him in default of his paying the
plaintiff the sum due to him within the time mentioned
in the cognovit (d). By i & 2 Vict. c. no, it was pro-
vided for the protection of ignorant persons, who might Essentials as
, -, . . • 1 1 ^o execution.
be persuaded into executing cognovits, that they must
be attested by an attorney (e), and this protection has
been still further extended by 32 & 33 Vict. c. 62 (/),
which provides that " after the commencement of this
Act (g) a warrant of attorney to confess judgment in
any personal action, or cognovit actionem, given by any
person shall not be of any force unless there is present
some attorney of one of the superior courts on behalf
of such person expressly named by him, and attending
at his request, to inform him of the nature and effect
of such warrant or cognovit before the same is executed,
which attorney shall subscribe his name as a witness to
the due execution thereof, and thereby declare himself
to be attorney for the person executing the same, and
state that he subscribes as such attorney ; " and also (Ji),
that " if not so executed it shall not be rendered valid
by proof that the person executing the same did, in
(c) Brown's Law Diet. 446.
[d] Ibid., 67.
(c) All attorneys are now styled solicitors ; Jud. Act, 1873, sect. 87.
(/') Sect. 24.
(q) ist'.January 1870.
(h) Sect. 35.
lO
OF THE DIFFERENT KINDS OF CONTRACTS,
Difference
between a
warrant of
attorney ami
a coarnovit.
Judges'
orders by
consent.
fact, understand the nature and effect thereof, or was
fully informed of the same." In this enactment it
will be noticed that a warrant of attorney is men-
tioned, being made subject to the same provisions as to
execution as is a cognovit, and as the two are some-
times confused by students, it may be well to point out
that there is this difference between them, viz. that a
cognovit is a written confession of some existing action,
whilst a warrant of attorney is simply a power given
to an attorney or attorneys to appear in some action
commenced, or to be commenced, and allow judgment
to be entered up. Cognovits and warrants of attorney
require to be filed in the Central Office of the High
Court of Justice within twenty-one days after execu-
tion (z). There is a like provision as to judge's orders
made by the consent of any defendant in a personal
action, whereby the plaintiff is authorized forthwith,
or at any future time, to sign or enter up judgment,
or to issue or to take out execution (k) ; and it has
been held that if the order is not so filed, any judg-
ment signed thereon is void as against creditors,
though it cannot be set aside on the application of
the defendant (/).
Of the pecu-
liarities of
contracts of
record, par-
ticularly
judgments.
T. Merger.
Now as to the peculiarities of contracts of record
generally, but mainly with reference to judgments.
I. Being of the highest nature of all contracts, they
Jmve the effect of merging either a simple contract or a
contract entered into hy deed (a specialty). — It is a prin-
ciple not only with regard to contracts but also estates,
that a larger interest swallows up or extinguishes a
lesser one. If a person has an estate for years, and
afterwards acquires an estate in fee simple in the same
{i) 32 & 33 Vict. c. 62, s. 26.
{k) Ibid., s. 27.
(l) Gowan v. Wright, iS Q. B. D. 201 ; 56 L. J. Q. B. 131 ; 35 W. R.
297 ; Ex parte Brown, re Smith, 20 Q. B. D. 321 ; 57 L. J. Q. B. 212 ;
36 W. R. 403.
THEIR BREA.CH, AND RULES FOR THEIR CONSTRUCTION. I I
land and in the same right, the former estate for years is
lost in the greater estate in fee (m) ; and so here, if
there is an ordinary contract by word of mouth, in
writing, or by deed, and judgment is recovered on it.
the judgment merges the rights on the former con-
tract, and the person's rights henceforth are on the
new and higher contract, the judgment. Thus where Ex parte
a mortgage deed contained a covenant by the mortgagor .vfX"'^'^ ''^
for payment of the principal sum with interest at 5
per cent, per annum, and the mortgagee sued for the
mortgage money and obtained judgment, it was held
that the covenant was merged in the judgment, and
that the mortgagee was as from the date of the judg-
ment entitled only to interest on the judgment debt
at 4 per cent., and not to the 5 per cent, under the
covenant {n).
2. They have the effect of estopping the j^ctrties to 2. Kstdpi.*-!.
them. — Estoppel has been defined as a term of law
whereby a person is stopped or hindered from denying
a matter already stated (0), and it is because of the
high nature of contracts of record that whilst they re-
main in existence they are conclusive, for no one can
aver against a record, and this has been stated by Lord
Coke, as follows : — " The Rolls being the records or
memorials of the judges of the Court of record, im-
port in them such uncontrollable credit and verity
as they admit of no averment, plea, or proof to the
contrary " (p)
The leading authority on the point of estoppel by
(m) The Jud. Act, 1873 (s. 25 (4)), however, provides that there
shall not now be any merc;er by operation of law only of anj' estate, the
beneficial interest in which would not be deemed to be merged or
extinguished in equity.
(71) Ex parte Fewings, re Sncyd, 25 Ch. D. 338 ; 53 L. J. Ch. 545 ;
32 W. R. 352. The previous decision of Popi^lc v. Sylvester (22 Ch.
1). 98; 52 L. J. Ch. 54; 31 W. R. 116) was distinguished as being
decided on the special wording of the covenant in that case. See also
Arbuthnot v. BunsUal, 62 L. T. 234.
(o) Brown's Law Diet. 21 1. See also ^o.s<, p. 16.
ip) I Inst. 260.
12
OF THE UIFFEKHiS'T KINDS OF CONTRACTS,
Diidiei^s of
Kin(i!<tons
Case.
matter of record is the Duchess of Kingston's Case (q),
which shews that a judgment is only a conclusive
estoppel where the same matter is directly involved
in it, and not where it is only incidentally involved ;
and also that, even although it might be otherwise a
conclusive estoppel, yet that may always be avoided by
shewing fraud or collusion (r).
3. As to
consideration.
3. lliey require no consideration. — This peculiarity
results from the preceding one of estoppel ; the want
of consideration can be no defence or objection to pro-
ceedings on a judgment or other record, which, as we
have seen, the party is estopped from denying. How-
ever, with regard to a proof in bankruptcy, the fact
that the debt relied on is a judgment debt is by no
means conclusive, for the Court has here full power to
inquire into the consideration thereof (s).
4. As to
priority of
payment.
4. A judgment has no 'pt^^ority in payment. — In the
administration of an insolvent estate in equity, a
registered judgment creditor of the deceased is en-
titled to priority, which is an important advantage
if the estate is insufficient to pay every one {t\ And
though the Judicature Act, 1875 ("^Oj provides that
the same rules shall prevail as to the respective i-ights
(5) 2 S. L. C. 812 ; Bui. N. P. 244. See also Peareth v. Marriott,
22 Ch. 1). 182 ; 52 L. J. Ch. 221 ; 31 W. R. 68 ; Cahill v. Fitzgihbon,
16 L. K. Ir. 371.
(r) See also Wildrs v. Rust<cll, L. R. i C. P. 722 ; National Bolivian
Navigation Company v. Wilson, L. R. 5 App. Cases, 176 ; 43 L. T. 60 ;
Concha v. Concha, il App. Cases, 541 ; 55 L. T. 522. As to the effect
of a foreign judgment see In re Trufort, Traford v. Blanc, 36 Ch. D.
600; 36 W. R. 163.
(s) Ex parte Bonhani, re Tollcianchc, 14 Q. B. D. 604; 54 L. J. Q.
B. 388 ; Ex parte Anderson, re Tolleinachc, 14 Q. B. D. 606 ; 54 L. J.
Q. B. 383 ; Ex parte Kibble, re Onslow, L. R. 10 Ch. D. 373; 44 L. J.
Bk. 63 ; 23 W. R. 423 ; Ex j^arte Scaton, re Beerhiirst, 60 L. J. Q.
B. 411 ; 64 L. T. 273.
(t) And this advantage does not only apply to English judgments,
but also to Irish judgments and Scotch decreets, if registered here,
it being by 31 & 32 Vict. c. 54, s. I, provided that if registered here,
they shall have the same force and effect as if original judgments of
this country.
(«) 38 & 39 Vict. c. 77, s. 10 (instead of sect. 25, sub-sect, i of the
.Judicature Act, 1873).
THEIK BRKACH, AND RULES FOll TIIEII; (JONSTRUCTION. 1 3
of secured and unsecured creditors as are iu force in
bankruptcy, this does not in any way affect this
point (v). Insolvent estates of deceased persons may, Admini.stn.
however, now be administered in bankruptcy under vt°nt eltates in
the provisions of the Bankruptcy Acts, 1883 and ^^^''^^ruptcy.
I 890 (x), and in that event the rules of bankruptcy
generally must prevail so far as they are possibly
applicable (y).
5. A judgment constituted a charge on the lands 0/ 5. As tu char<;-
ikc judrjnient dehtor (z). — This is a peculiarity of the ^"° ""^'''
past, and the following is a short summary of the past
and present laws upon the subject (a) : —
By 13 Ed. I, c. 18, half a judgment debtor's
land could be taken in execution under a writ of
elegit.
By 29 Car. 2, c. 3, sect. 10, execution could also be
issued to the above extent on judgments entered up
against a crdui que trust of freeholds, provided they
were vested in a trustee in fee simple, and he was duly
seised of them.
By I & 2 Vict. c. 1 10, a judgment was made a
charge upon the whole lands of a judgment debtor,
of whatever nature, but judgment was not to affect
purchasers until registered in the name of the debtor.
[v) In re the Withcrnsca Brickworks Compani/, L. R. 16 Cli. D. 337 ;
50 L. J. Ch. 185 ; 29 W. R. 178. In re Maggi, Winehome v. Winehouse,
20 Ch. D. 545 ; 51 L. J. Ch. 560 ; Smith v. Morgan, L. R. 5 C. P. D
337 ; 49 L. J. C. P. 410 ; Indermaur's Manual of Equity, 109, 1 10.
(x) 46 & 47 Vict. c. 52, s. 125 ; 53 & 54 Vict. c. 71, s.'2i.
{y) See hereon Indermaur's Manual of Equity, ill, 112; lit, re
Gould, JUx parte Official Recr., 19 Q. B. D. 92 ; 56 L. J. Q. B. 333 ; 35
W. R. 569 ; 56 L. T. S06.
(:) This was extended to Irish judgments and Scotch decreets if
registered under 31 & 32 Vict. c. 54.
(a) The law of judgments as affecting lands belongs more properly
to the subject of conveyancing and real property, and, for fuller in-
formation than is contained in a few remarks above, the student is
referred to the dissertations in Prideaux's Conveyancing, vol. i. pp.
143-148-
14 OF THE DIFFERENT KINDS OF CONTRACTS,
By 2 & 3 Vict. c. 1 1, all judgments, to so bind, were
required to be re-registered every five years.
By 23 & 24 Vict. c. 38, no judgment to be entered
up after the passing of that Act (July 23, i860) was
to affect any lands, unless a writ of execution was
issued and registered and put in force within three
calendar months from the time of registration.
By 27 & 28 Vict. c. 112, it is provided that no
judgment to be entered up after the passing thereof
(July 29, 1864) shall affect any lands until the same
shall have been actually delivered in execution by
virtue of a writ of elegit, or other lawful authority —
that is to say, equitable execution, which is obtained by
getting an order appointing a receiver. And now it
is further provided by 51 & 52 Vict. c. 5 i (h), that no
such writ or order shall bind the lands in the hands of a
purchaser for value unless it has been duly registered
at the Land Registry Office.
6. As to proof. 6. They prove themselves — which means that when
necessary to prove a contract of record the mere pro-
duction thereof is sufficient proof, and this is always
their proper mode of proof, so that when there is an
issue of mil tiel record (no such record), either the
record itself must be produced, or it may be proved by
exemplification under the great seal, or by an examined
or sworn copy {<i).
The two remaining kinds of contracts under this
division are specialties, and simple contracts, and these
are of ordinary, practical, and constant occurrence, and
therefore of very much more importance to the student
Specialty than Contracts of record. A specialty, or contract
under seal, has been styled " the only true formal
(6) Sect. 6. This provision reverses the decision In re Pope, 17 Q. B.
D. 743 ; 57 L. J. Q. B. 522.
(c) Powell's Evidence, 350.
contracts.
THEIK BREACH, AND RULES FOR THEIR CONSTRUCTION, 1 5
contract because it derives its validity from its form
alone, and not from the fact of agreement, nor from the
consideration which may exist for the promise of either
party " (d), and it is termed a deed because of the
peculiar solemnities attending its execution, it being
not only signed (e), but also sealed and delivered,
whilst a simple contract is either oral, or at most
in writing not under seal ; and it is from the point
of the supposed additional solemnities attending the
execution of deeds or specialties, that we may trace Di.stiuctions
the numerous distinctions which exist between them between
, specialties
on the one hand and simple contracts on the other. -^'kI simple
These distinctions are mainly as follows : —
contraots.
I. As to the execution.- — Here, as just stated, the i. As to
essential formalities to be observed on the execution *'^^^"*"'"-
of a deed are sealing and delivery, whilst a simple
contract may be even by word of mouth, and if writ-
ing is used, signature only is necessary. One of the
essentials, too, of the deed being delivery, a person Escrow.
may execute a deed as an escrow, i.e. " so that it shall
take effect or be his deed on certain conditions " (/), by
delivering it to some third person, and then it will not
take effect until the happening of the condition, though
on the condition being performed it will relate back to
the original date of execution. A deed cannot be de-
livered as an escrow to the other party to it, it must
be to some third person, but it may be delivered to a
solicitor acting for all parties (g).
iiierjrer.
2. As to merger. — The principle of merger has 2. As to
already been explained (A), and it may be defined as an
operation of law whereby a security or estate is swal-
lowed up or lost in a greater. It has already been
(d) Ansiin's Contracts, 51.
(e) Ther-e is some doubt whether signing is actually necessary to the
validity of a deed generally.
(/) Chitty on Contracts, 4.
ig) Millership v. Brookx, 5 H. & N. 797.
(h) Ante, pp. 10, 11.
1 6 OF THE DIFFERENT KINDS OF CONTRACTS,
remarked that the effect of a record will be to merge ^
any contract respecting the same matter not by record,
because of its higher nature ; and so here, a deed,
though of a technically less important nature than the
record, and liable to be merged in it, j'^et in its turn,
being more important than a simple contract, it will
cause a merger of that.
3. As to 2. As to estoppel. — This doctrine has already been
es oppe . touched upon in its bearing on contracts of record (i) ;
but, in addition to the definition given there of it, it
may be well to note here Lord Coke's definition, which
is perhaps a better one when the term is applied to
estoppel otherwise than by matter of record. His
definition of it is, " Where a man is concluded by his
own act or acceptance to say the truth " (Z"). It has
been noticed that a record will estop the parties to it
and those claiming under them, and so in a deed the
doctrine of estoppel applies, though generally speaking
it does not in a simple contract, for there statements
made are merely strong evidence against the parties.
Estoppel by Thus, if a man executes a deed, stating or admitting
in that deed a certain fact, he is precluded from
denying it, the reason being the solemnity of the deed ;
whilst in a simple contract the person entering into it
may show the contrary of what he has admitted in it.
But in discussing the doctrine of estoppel, what was
Ooiiiitsv. decided in the leading case of Collins v. Blantern (l)
must be noticed, viz. that though a person is estopped
from denying what he has stated in a deed, yet he
may set up the illegality or fraud of the instrument.
In that case the plaintiff sued on a bond executed by
certain parties, of whom the defendant was one, the
({) Ante, pp. II, 12.
(/t) Co. Litt. 352a. See also Simm v. Anglo- American Telegraph
Co., 5 Q. B. D. 202 ; 49 L. J. Q. B. 392 ; 2S W. R. 290, where the
doctrine was further explained by L. J. Bramwell, who remarked that
an estoppel may be said to exist where a person is compelled to admit
that as true which is not true, and to act upon a theory which is
contrary to truth.
(/) I'S. L. C. 369 ; 2 Wilson. 341.
deed.
Bhtntern.
THEIR BllEACH, AND RULES FOR THEIR CONSTRUCTION. 1 7
obligation of wliicli was ;^700, conditioned for payment
of i^3 50. The defendant pleaded the following facts:
Certain parties were prosecuted by one John Rudge,
and pleaded not guilty, and according to arrangement,
the plaintiff gave his promissory note to the prosecutor,
John Kudge, he to forbear further prosecuting, and as
part of the arrangement, the bond on which the plaintiff
sued was executed to indemnify him. Now the facts
shewed illegality in the whole matter, for it was the
stifling of a criminal prosecution ; but had the doctrine
of estoppel applied here, the defendant would have
been precluded from setting it up. It may be noticed
on this point of estoppel, that if a person in the body
of a deed admitted having received the consideration
money, at law he was estopped from setting up that
he had not received it ; but in equity he might always
have done so, otherwise the doctrine of the vendor's
lien for unpaid purchase-money could not well have
existed. Now, as the Judicature Act, 1873 (m), pro-
vides that where the rules of law and equity clash,
the latter shall prevail, the consequence is, that in
such a case a person is now always able to do what
he could, as above stated, have only formerly done in
equity.
Estoppel, however, besides being by record or deed, Estoppel in
may also in some cases be in 2}ais, i.e. by the conduct ^^
of the parties ; e.g. where an infant, having made a
lease, accepts rent after he comes of age, he will be
estopped from denying its validity («). Many circum-
stances may produce estoppel of this kind, and as a
practical example of it may be noticed the fact that a
bailee is ordinarily estopped from denying the title of
his bailor (0).
(m) Sect. 25 (11).
(n) See hereuu as to the effect of 37 & 38 Vict. c. 62, post, p. 237.
(o) Rogers v. Lambert, 24 Q. B. D. 573 ; 59 L. J. Q. B. 259 ; 62 L.
T. 664. And see, as further instances of estoppel in pais, Jioe v. Mutual
Fund Loan Association, Limited, 19 Q. B. D. 347 ; 56 L. J. Q. B. 145 ;
35 W. K. 723.
OF THE DIFFERENT KINDS OF CONTRACTS,
4. As to
consideration.
Definition of
a valuable
consideration.
4. As to consideration. — Tlie consideration is the price
or motive of a contract, and is either good or valuable.
A valuable consideration may be defined as some benefit
to the person making the promise, or a third person
by the act of the promisee, or some loss, trouble, in-
convenience to, or charge imposed upon the person to
whom the promise is made (^p). It is an essential and
unflinching rule that all simple contracts require a
valuable consideration; if they have no consideration,
or a merely good consideration, such as natural love
and affection, they will not be binding, and no action
will lie for their breach {q) ; whilst a deed will be
perfectly valid and binding with a merely good con-
sideration, or with no consideration at all (?•). This
distinction plainly arises from the fact of the additional
solemnity and importance of a deed.
A voluntary
deed is not in
every respect
as good as a
deed founded
on valuable
consideration.
It must not, however, from this be taken by the
student for granted that a voluntary deed is in every
respect as good as a deed founded on valuable con-
sideration. All that is meant is, that as between the
parties it is no objection to the validity of a deed, and
consequently no answer to an action brought upon it,
that there was no consideration for the benefits con-
ferred or the obligations entered into by it, as it would
be in the case of a simple contract. But even a deed
entered into without valuable consideration may pos-
sibly be affected on account of its want of consideration.
13 Eliz. c. s. I . The statute 1 3 Eliz. c. 5 provides that all gifts
and conveyances of either chattels or land, made for
the purpose of defeating, hindering, or delaying credi-
tors, are void against them unless made honct fide upon
{p) This definition is gathered from what is stated as to the sufficiency
of the consideration iu Chitty on Contracts, 21, 22.
(q) Lampleigh v. Braithivaite, I S. L. C. 163 ; Hobart, 105.
(r) An important exception to this rule arises in the case of contracts
in restraint of trade, which, even though by deed, must have a valuable
consideration, ^ee post, pp. 293-295.
THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 1 9
good (which means here valuable) consideration, and
bond fide to some person without notice of the fraud.
The mere fact of any conveyance or assignment being
voluntary will not necessarily render it bad under this
statute ; but the fact of its voluntary nature will
cause suspicion to attach to it, and every such volun-
tary instrument is therefore liable to be set aside under
this statute (s),
2. By 27 Eliz. c. 4, it was provided that all volun- 27 Eliz. c. 4.
tary conveyances of land should be void against subse-
quent purchasers for valuable consideration with or
without notice ; the effect of which was that althoush
a person might make a perfectly good voluntary con-
veyance to another of his land, yet if he atterwards
conveyed that land for value, even although the latter
person knew of the prior voluntary conveyance, he
would take in preference to it (t). This statute is,
however, now practically repealed by the Voluntaiy
Conveyances Act, 1893 00-
3. By the Bankruptcy Act, 1883 (./j), any voluntary Bankruptcy
settlement is void if the settlor becomes a bankrupt ^^' ^ ^'
within two years ; and if he becomes bankrupt after
that time, but within ten years, it is also void, unless
the parties claiming under such settlement can prove
that the settlor was at the time of making it able to
pay all his debts without the aid of the property com-
prised in such settlement (y), and that the interest of
the settlor in such property had passed to the trustee
of such settlement on the execution thereof.(«)
(s) See further as to fraudulent dispositions under the statute 13
Eliz. c. 5, j)Ost, pp. 287-289.
{t) See further hereon Indermaur's Manual of Equity, 37-39.
(it) 56 & 57 Vict. c. 21.
(x) 46 & 47 Vict. c. 52, s. 47.
(y/) As to the meaning of these last words see Ex parte Russell, Re
Buttericorth, 19 Ch. D. 588 ; 51 L. J. Ch. 621 ; 46 L. T. 113.
(z) As to the effect of this enactment see Sanguinetti v. Shichey's
Banking Co., 1895, i Ch. 176 ; 64 L. J. Ch. iSi ; 71 L. T. 872.
20 OF THE DIFFERENT KINDS OF CONTRACTS,
5- As to 5. As to limitation. — A simple contract is barred
after six years (a) ; a deed, after twenty years (&).
6. As to 6. As to their extent. — A deed, if the heirs were
extent. bound, and the heir had assets by descent, bound him,
whilst a simple contract did not ; so that this distinction
between a specialty and a simple contract was for-
merly one of considerable importance, for a simple con-
tract creditor had no right to come upon the real estate
3 & 4 Will. 4, descended to the heir for payment of his debt. By
°'^' 3 & 4 Will. 4, c. 1 04, this anomaly was done away with,
that statute providing that real estate should be liable
for payment of simple contract as well as specialty
debts, provided, however, that creditors by specialty in
which the heirs were bound should be paid first. This
32 & 33 Vict, distinction has also now been done away with by 3 2 &
*^' "^ ■ 33 Vict. c. 46, which provides that all creditors, as well
by specialty as by simple contract, shall be treated as
standing in equal degree.
7. Astodis- 7, As to their discharge. — Though a simple contract
° ' may be discharged in various ways (e.g. by accord
and satisfaction) (c), a deed, speaking generally, can
at law only be discharged by an act of as high or of a
higher nature {d). But in equity a deed might some-
times have been put an end to by a new parol agree-
ment, and it must be remembered that the rules of
equity now prevail in all cases (c). This last distinc-
tion, therefore, with the previous one, may be put down
as of little practical importance, however valuable they
both may be considered by the student as points in the
history of the law.
With regard to the division of contracts into those
(a) 21 Jac. I, c. 16.
(b) 3 & 4 Will. 4, c. 42. See as to limitation generallj', post, pp. 269-
276.
(c) As to whicli, see jMst, pp. 26S, 269.
(d) Anson's Contracts, 2S0.
(e) Jud. Act, 1873, sect. 25 (11).
THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 21
expressed and those implied, it is not necessary to say Express and
much, as the very names, indeed, point out what is tracts.^
meant ; but it may be useful to enumerate, as instances,
a few cases in which a contract will be implied. If instances
in any trade or business there is some well-known contelcts'.
and established usage or custom, and two persons enter
into any contract which does not exclude such usage
or custom, and contains nothing antagonistic to it,
the usage or custom will be implied to be part of
their contract : so if between two persons there has
been a practice in past years for interest to be paid on
balances between them, a contract will continue to be
implied to that effect until something is said or done
to the contrary (/). Again, if a landlord gives his
tenant notice to quit or else pay an increased rent,
and the tenant says nothing, but continues to hold
on, his contract to pay such increased rent will
be implied ; and if any deed or other instrument
contains a recital, or any words shewing a clear
intention to do some act, a contract to do it is im-
plied (g). And it has been recently laid down in
general terms, that whenever circumstances arise in
the ordinary business of life in which, if two persons
were ordinarily honest and careful, the one of them
would make a promise to the other, it may properly
be inferred that both of them understood that such a
promise was given and accepted {h).
An express contract is, however, naturally more cer- Expressum
tain and definite than an implied contract, which indeed taciturn.
can only exist in the absence of an express contract, the
maxim being Expressum facit cessare taciturn.
Again, on the third division of contracts into those Executed and
, -1 T ., , ., . , executory cou-
executed and those executory, it is necessary to say tracts.
(/) See Chitty on Contracts, 59.
(g) See Knirjht v. Gravesend, d:c., 2 H. & N. 6.
{h) Per Lord Esher (M. II.) in Ex parte Ford, In re Chappell, 16
Q. B. D. 307 ; 55 L. J. Q. B. 406.
22
OF THE DIFFERENT KINDS OF CONTRACTS,
but little, the words almost explaining what is meant.
An executed contract is one in which the act has been
done, as if a contract is made for the sale and pur-
chase of goods, and the price paid and the goods
handed over ; an executory contract is one in which
the act contracted for is to be done at some future
time, as if a person agrees to supply another with
certain goods on the arrival of a ship in which they
are. Contracts may be entirely executed or entirely
executory, or in part executed and in part executory (i).
Breach of
executory
CO tract.
On an executory contract one important point may
be usefully noted. In such a contract, of course, it
must be apparent that, generally speaking, no action
can be brought for its breach until the day arrives for
its performance ; but it has been decided that where a
person before the day declares that he will not perform
his contract, or renders himself incapable of perform-
ing it, the action may be brought immediately without
waiting for the future day (k).
Consequences Where a valid contract has been entered into between
the breach of the parties, and there is a breach of it, certain con-
a contract. sequences flow from that breach. Looking at judg-
ments as contracts of record, if a judgment is not
complied with by the party against whom it is given,
there are various means pointed out by law for obtain-
ing satisfaction of it, the chief being by execution (I).
In the case of a breach of a specialt}' or a simple con-
tract a new obligation will in every case arise, a right
of action conferred upon the party injured by the
breach, that is to say, an action has to be brought
against the person committing the breach, and damages
(i) As to distinctions between contracts executed and executory, see
Campbell on the Law of Sale of Goods, 2.
{k) Hochstcr v. De la Tour, 2 Ell. & Bl. 678 ; Frost v. Kni;iht, L. R
7 Ex. 1 1 1. See, however, Johnstone v. ^filling, 16 Q. B. D. 460 ; 55 L,
J. Q. B. 162 ; 34 W. R. 238 ; 54 L. T. 629 ; and post, ch. viii. pp. 244-247.
(I) As to the different modes of enforcing a judgment, see Inder-
maur's Manual of Practice, 148-165.
THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 23
are awarded in such action for the breach, such damages
being estimated by a jury in accordance, as far as can
be, with the settled principles of what is the proper
measure of damage, a subject which will be discussed
later on in the present work (m). In some cases, also,
relief may be obtained beyond mere damages, e.g. in an
action for breach of a contract to deliver specific goods
sold, a plaintiff may, under the provisions of the Sale
of Goods Act, 1893 (^Oj ohtain an order for the delivery
to him of the specific goods themselves (0).
In some cases, also, the breach of a contract by one of Forfeiture of
the parties may cause him to forfeit his right to any com- p|;,siitk)u?"^
pensation for what he has done before breach. Thus,
if a servant hired by the month wrongfully leaves, or is
discharged on account of his misconduct, in the middle
of a month, he will lose the whole month's wages (p).
The last subject to be considered in the present Rules for the
chapter is that of the rules for construction of contracts, contracts.
a matter of considerable importance. In the first place,
it must be observed, that while the jury decide on
questions of fact, it is for the Court to put the correct
construction on any instrument ; and, to ensure uni-
formity in construction as far as possible, certain rules
have been framed and handed down from time to time.
Tliese rules are stated by Mr. Chitty in his work
upon Contracts very fully {(]), and the most important
of them are as follow : —
I. Every agreement shall have a reasonable construction i- Agreements
7. , n • 1 ,• /• ,7 ,• •/> to be construed
according to the intention oj the pai'ties : e.g. 11 a person reasonably,
borrows a horse, it will be considered a part of the
agreement that he shall feed it during the time it
(m) As to the measure of damages, see post, Part iii. ch. i.
(n) 56 & 57 Vict. c. 71, s. 52.
(o) See post, Part iii. ch. i.
(p) See hereon sAso post, ch. vi. p. 216.
(q) See Chitty on Contracts, 126-164, from which pages the following
remarks on the construction of contracts are mainly gathered.
24 OF THE DIFFERENT KINDS OF CONTRACTS,
remains in his possession. This is a great and important
rule of construction, but upon it two points must be
borne in mind : " First, that it is not enough for a party
to make out a possible intention favourable to his view,
but he must shew a reasonable certainty that the in-
tention was such as he suggests ; and, secondly, that
all latitude of construction must submit to this restric-
tion, viz. that the words and language of the instru-
ment will bear the sense sought to be put upon them ;
for the Court cannot put words in a deed which are
not there, or put a construction on the words of a deed
directly contrary to the plain sense of them " (?■).
2. Agreements 2. Agreements shall he construed liberally, e.g. the
liberally. word " men " used in a contract may often be held to
include both men and women (s).
3. Agreements 3. Agreements shall he construed favourahly ; which
tiivourabiy. meaus that such a construction shall be put that, if
possible, they may be supported : thus, if on an instru-
ment it is possible to put two constructions, one of
which is contrary to law and the other not, the latter
shall be adopted ; and it is upon this principle that
words sometimes have different meanings given to
them : thus the word " from " is inimd facie exclusive,
but it always depends on the context ; and the words
"on" or "upon" may mean either before the act to
which it relates, or simultaneously with the act done,
or after the act done ; and the word " to " may mean
" towards " {t).
4. Words arc to he understood in their ijlain, ordinary,
(r) Chitty on Contracts, 12S.
(s) See, as to the liberal construction of certain words in statutes, tlie
Interpretation Act, 18S9 (52 & 53 Vict. c. 63), and see also the Con-
veyancing Act, 1S81 (44 & 45 Vict. c. 41), sect. 66, which provides that
" in the construction of a covenant or proviso, or other provision implied
in a deed, by virtue of this Act, words importing the singular or plural
number, or the masculine gender, shall be read as also importing the plural
or singular number, or as extending to females, as the case ma}' require."
(0 Chitty on Contracts, 79.
THEIR BREACH, AND RULES FOR THEIR CONSTRUCTION. 25
and 2J0imlar sense ; but if words have by any usage of 4- Words are
trade or custom obtained a particular signification, then stood h? their
that meaning will generally be put upon them. ordinary
" '^ ./ X r nieaiiiiig.
5. The construction shall he jmt u])on the entire instru- 5. The con-
me7it, so that one imrt may assist another; and it is upon be on thl'^''''^
this rule that, to further the evident intention of the ^"*"'« instru-
-, . nient.
parties, words used in a contract may be transposed ;
and again, that where there are general words follow-
ing after certain particular words, they will be con-
strued as only ejusdem generis with the particular
words. This rule also has to be taken subject to the
maxim Fcdsa demonstratio nan nocct, the meaning o^ Fahadcmon-
which maxim has been well stated to be, " that if there S!°"""
is in the former part of an instrument an adequate and
sufficient description shewing with convenient certainty
the subject-matter to which it was intended to apply,
a subsequent erroneous addition will not vitiate that
description " {u). As regards differences between the
operative words used in a deed and the recitals, the Recitals,
following rules have been laid down: — ( i .) If the recitals
are clear, but the operative words ambiguous, the re-
citals govern. (2.) If the recitals are ambiguous, but
the operative words clear, the operative words govern.
(3.) If the recitals and the operative words are both clear,
but are inconsistent, the operative words govern {x).
6. A contract is to he construed according to the law 0/6. The icxiod
the country where made, except when the p)nrties at the preSuuies!"
time of malcing the contract had a view to a different ^''^ parties
■J^ lujide their
country. — From this it follows that if a contract is contract with
^„ 1 1 j_ f T-i 1 1 T . . reference to
made anywhere out of England, and an action is another
brought on it here, it will ordinarily be necessary to ^"^^"^'■y-
give evidence to shew what the law of the place where
it was made is as to it (?/) ; and with regard to the last
(w) Chitty on Contracts, 86.
(x) Ex parte Daives, In re Moon, 17 Q. B. D. 275 ; 34 W. R. 752 ; 55
L. T. 114.
{y) Per Lord Eldon in Smale v. Roberts, 3 Esp. 163, 164.
26
OF THE DIFFERENT KINDS OF CONTRACTS,
part of this rule, what is meant is, that although the
lex loci contractus generally applies, yet if the parties
have in contemplation, at the time, the performance of
the contract in another country, then the law of that
country will apply, e.g. if a bill of exchange is executed
here but made payable abroad (2). However, the rule
altogether only primarily holds good, and the Court
must look at the circumstances of each contract, and
consider, having regard to the nature of the contract,
and the other circumstances of the case, what law it
is to be governed by (a).
But ill bring- And notwithstanding the rule that the lex loci con-
ihe) ex loci fori tr actus governs, yet, although a contract is made
governs. abroad, as regards the proceedings to enforce it, the lex
loci fori (that is, the law of the country where the
action is brought) governs ; so that, for instance, al-
though a contract is made abroad in a country where
the period of limitation for bringing the action is diffe-
rent to what it is here, yet, if the action is brought here,
our Statute of Limitations will bind. Again, a contract
may be made abroad, and by the law of the country
where made may, perhaps, not be required to be in
writing, although here it may be otherwise by reason of
the provisions of the Statute of Frauds. Yet if such a
contract is made abroad without writing, and an action
is brought here upon it, such action cannot succeed,
the Statute of Frauds dealing with matter of procedure
only — that is, not invalidating the contract, but requir-
ing the evidence of writing (li).
7. Of two re- y. If there are tico repugnant claiiscs in a contract,
clauses the i^c frst is the one to he received (c).
first is to be
received. ■ — ~
(r) See also hereon Jacobs v. Credit Lycnnais, 12 Q. B. D. 589 ; 53
L. J. Q. B. 156 ; 32 W. R. 761.
(a) Re Missouri Steamship Co., 42 Ch. D. 321 ; 58 L. J. Ch. 721 ; 61
L. T. 316 ; Hamlyn v. TaUsker Distillery (iSg^), A. C. 202 ; 71 L. T. i.
(b) Leroux v. Broun, 12 C. B. 801.
(c) It may be noted that the contrary is the rule in the case of a will ;
THEIK BREACH, AND EULES FOR THEIR CONSTRUCTION. 27
8. The construction shall he taken most strongli/ 8. The con-
against the grantor or contractor ; but this is a rule not ^e taken
to be resorted to until after all other rules of con- a^gamst the
grantor.
struction fail ; and in some cases it will not apply at
all — thus it does not apply against the crown.
9. Parol evidence is never admissible to vary or con- 9- Parol evi-
tradict a ivritten contract, hut it is admissible to explain missible to
in the case of a latent, though not in the case of a patent 1°^^^^^^^^^ ^
ambiguity. — A patent ambiguity is one appearing on contract.
the face of the instrument ; a latent ambiguity is one
not so appearing, but raised by extraneous evidence ;
and the distinction between these two cases as to the
admissibility of parol evidence has been so well stated
by Lord Chief- Justice Tindal, that the author cannot
refrain from here giving his remarks, although some-
what lengthy. His lordship stated the matter as
follows ; —
" The general rule I take to be that where the words The distinc-
p •,, -i L n r \ • • L • tion as to the
or any written instrument are free irom ambiguity inadmissibility
themselves, and where external circumstances do not 'J^ i"^'""^ ®J'"
' _ _ dence in the
create any doubt or difficulty as to the proper applica- case of a patent
tion of those words to claimants under the instrument, ambiguity, as
or the subject-matter to which the instrument relates, chief-j,fstice
such instrument is always to be construed according to Tindal.
the strict, plain, common meaning of the words them-
selves ; and that, in such case, evidence dehors the
instrument for the purpose of explaining it according
to the surmised or alleged intention of the parties, is
utterly inadmissible. The true interpretation, however,
of every instrument being manifestly that which will
make the instrument speak the intention of the party
at the time it was made, it has always been considered
an exception, or, perhaps, to speak more precisely, not
so much an exception from, as a corollary to, the
for, as a subsequent will revokes a former, so a later clause will have
effect over an earlier.
OF THE DIFFERENT KINDS OF CONTRACTS,
general rule above stated, that where any doubt arises
upon the true sense and meaning of the words them-
selves, or any difficulty as to their application under
the surrounding circumstances, the sense and meaning
of the language may be investigated and ascertained
by evidence dehors the instrument itself ; for both
reason and common sense agree that by no other
means can the language of the instrument be made
to speak the real mind of the party. Such investi-
gation does of necessity take place in the interpre-
tation of instruments written in a foreij^n lanofuaore :
in the case of ancient instruments ; in cases where
terms of art or science occur ; in mercantile contracts,
which in many instances are in a peculiar language
employed by those who are conversant in trade and
commerce ; and in other instances in which the words
besides their general common meaning, have acquired,
by custom or otherwise, a well-known, peculiar, idiom-
atic meaning, in the particular county in which the
party using them Avas dwelling, or in the particular
society of which he formed a member, and in which
he passed his life " (d).
When a contract has once been reduced into writing,
evidence cannot be given to show that the parties
at the time agreed orally that some other term or
stipulation should be part and parcel of the contract,
for to admit any such evidence would be in effect to
vary the written instrument (e). If parties have made
an executory contract which is to be carried out by a
deed which is afterwards executed, the real complete
contract is to be found in the deed, and the parties
have no right to look at the contract, althouf^h it is
(d) SJwre v. Wilson, 9 C. & F. 565-567.
(e) Goss V. Lord Nugent, 5 B. & A. 58 ; Stott v. Fairlamh, 62 L. J.
Q. B. 420 ; 48 L. T. 574 ; Leduc v. Ward, 20 Q. B. D. 475 ; 57 L. J.
Q. B. 379 ; 58 L. T. 90S. Evidence which does not contradict a written
contract, but shews what was the subject-matter, is admissible (Clarke
V. Coleman, W. X. (1S95) ^'4 '■> Law Students' Journal, August 1S95,
p. 168).
THEIR BllEACH, AND RULES FOR THEIR CONSTRUCTION. 29
recited in the deed, except for the purpose of constru-
ing the deed itself ; it must not be looked to for the
purpose of enlarging, or diminishing, or modifying the
contract which is to be found in the deed itself (/).
In addition to the foregoing rules, it may be well Expressum
to refer to a few other points on the construction of^^^Lmf'^'*^
contracts. In mentioning the subject of implied con-
tracts, we have already stated that where there is some
well-known and established usage or custom in a trade,
persons may be taken in their contract to have had
that in view at the time ; and a contract may be
construed on that footing, provided, of course, that the
custom or usage does not clash with the contract ; for
it is an imperative principle of construction that when-
ever there is an implied contract, and the parties have
also expressly agreed on the point, the maxim JExpres-
811711 facit cessare tacitiLm will have effect {g).
When a contract is to be completed by a certain As to when
day, the rule at law formerly always was that time esTe^iceof a"''
was of the essence of the contract ; but in equity it contract.
was never so, unless expressly so stipulated, either at
the time of the contract, or by notice given after-
wards (li), or it appeared to be so intended from the
nature of the property, e.g. where a reversion was being
sold, as it might at any moment, through the falling
in of the life estate, become an estate in possession.
The Judicature Act, 1873 {%), however, now provides
that stipulations as to time shall receive in all courts
the same construction and effect as they would have
(/) Lerjfjott V. Barrett, 15 Ch. D. 306 ; 28 W, R. 962 ; 43 L. T. 641.
{g) Ante, p 21 ; and see hereon WiggU'S7vorth v. l)aUison. i S. L. C.
569 ; Dougl. 201 ; Johnson v. Rayllon, 7 Q. B. D. 43S ; 50 L. J. Q. B.
735 ; 45 L- T. 374-
(A) However, a party to a contract is not entitled in every case by
giving notice to make time of the essence of the contract ; there must
have been some unreasonable delay by the other party. Green v. Sevin,
13 Ch. D, 589 ; 49 L. J. Ch. 166.
(i) Jud. Act, 1873, s. 25 (7); Indermaur's Manual of Equity, 236.
30
OF THE DIFFERENT KINDS OF CONTRACTS.
theretofore received in equity. But notwithstanding
this enactment, in mercantile contracts stipulations as
to time are still of the essence of the contract (k),
subject to this, that with regard to contracts for the
sale of goods, it has now been provided that, unless a
different intention appears from the terms of the con-
tract, stipulations as to time of payment are not deemed
to be of the essence of the contract ; and whether any
other stipulation as to time is of the essence of the
contract or not depends on the terms of the contract (/).
Meaning of
the term
"month."
The term " month " in a contract signifies a lunar
month (?«), except in the case of mercantile contracts,
e.g. bills of exchange, when it signifies a calendar
month. In a statute passed before 1851, it means,
prirad facie, a lunar month, but after that time a
calendar month (?i).
{k) Renter v. Sola, 4 C. P. D. 249 ; 48 L. J. Q. B. 492.
\l) 56 & 57 Vict. c. 71, s. 10.
(m) Hulton v. Brovni, 29 W. R. 928 ; 45 L. T. 343.
[n) 52 & 53 Vict. c. 63, s. 3.
OF SIMPLE CONTRACTS. 3 I
CHAPTER 11.
OF SIMPLE CONTRACTS, AND PARTICULARLY OF CASES IN
WHICH WRITING IS REQUIRED FOR THEIR VALIDITY.
A SIMPLE contract may be defined as an agreement Definition of n
relating to some matter, and either made by word of tr'act.^ '^'^""
mouth or by writing not under seal ; and such contracts
have been said to be called simple because they subsist
by reason simply of the agreement of the parties, or
because their subject-matter is usually of a more simple
or of a less complex nature (a). Simple contracts have
four great essentials, which are — (i) Parties able to Four essentials
contract; (2) Such parties' mutual assent to the con- f^VctT'^ *"""
tract ; (3) A valuable consideration ; and (4) Something
to be done or omitted which forms the object of the con-
tract, and which must be neither illegal or immoral (6).
There are in certain cases other requirements, and
particularly writing is necessary in some cases, as will
presently be shewn ; but in these cases the form of
writing is not generally required to give efficacy to the
contract, as is the case as regards a deed, but as evidence
of its existence.
Firstly, then, as to the parties to contract. As a Generally
general rule, all persons are competent to contract, for personsli're
the law presumes this until the contraiw is shewn : competent to
. . . , " ' contract.
but inability to contract is liable to be shewn in
numerous cases, and it will be found that in some cases
the incompetency to contract is absolute, in others only
{a) Brown's Law Diet. 493.
(6) Chitty on Contracts, 9, 10.
32 OF SIMPLE CONTRACTS, AND CASES IN WHICH
limited, in some the contract is of no effect at all, in
others only so with regard to the incompetent party.
Cases of in- The chief cases of incompetency to contract, either
contract"*'^ ^° entire or limited, may be stated to be in the case of
infants, married women, persons of unsound mind,
intoxicated persons, persons under duress, and aliens ;
and as contracts with all these persons ai'e discussed
in a subsequent chapter, nothing further need here be
remarked as to them (c),
A person not Only a party to a contract can sue thereon, and a
contract cari- person taking a benefit under it, but not a party to it,
not sue on it. Q^j^not sue, unless indeed there is a provision in an Act
of Parliament enabling him to do so (d), or unless the
circumstances are such that he is entitled to say that
he is a cestui que trust of the benefit of the contract (e),
or unless he is an assignee of a party to the contract,
and thus entitled to stand in his shoes.
There must be Secondly, as to the mutual assent, it is essential
oiihti parties, that both the parties should agree to exactly the same
thing ; there must be mutuality in the contract, or
there can be no contract at all (/) ; thus if there is
a direct offer on the one side, and direct and unequi-
vocal acceptance on the other of exactly the same
thing, then there is a perfect contract ; but if the
acceptance is in any way conditional, or introduces any
fresh term of stipulation, then there is no complete
contract, unless that fresh stipulation is in its turn
directly acceded to by the other contracting party (g).
But even although there is an offer and a direct accept-
(c) See post, chap. vii.
(d) In re Rotherhdin Alum and Chemical Co., 25 Cii. T>. Ill ; 53 L-
J. Ch. 290; 32 W. R. 131.
(c) Gandi/ V, Gandy, 30 Ch. D. 57 ; 54 L. J. Ch. 1154; 33 W. R.
803 ; 53 L. T. 306.
(/) Jordan v. Norton, 4 M & W. 155.
((/) Foicle V. Freeman, 6 Ves. 351 ; Winn v. £/dl, 7 Ch. D. 29 ; 47
L. J. Ch. 139 ; Hussey v. Horn-Payne, 4 App. Cas. 311 ; 48 L. J. Ch.
846 ; Hawlcesivorth v. Chaffey, 55 L. J. Ch. 335 ; 54 L. T. 72.
WRITING IS liEQUIRED FOil THEIH VALIDITY. 33
aace, it sometimes happens that no contract is produced
thereby, for evidence may be given of extraneous facts
which shew that the parties did not in fact mean to
be bound. Thus, where matters generally are under dis-
cussion, and then there is a bare offer to sell for so much,
and an acceptance, and afterwards on further discussion
as to payment, and other terms, the parties disagree ;
here the fact of other matters having been at the time
under consideration, and there having been subsequent
negotiations with regard thereto, shews that there was
in fact no concluded contract {h). But if, in fact, no
other terms were under consideration, and there was a
simple offer and a direct acceptance, the circumstance
that the parties afterwards entered into further negotia-
tions cannot alter the fact that a concluded contract
has been actunlly made {i).
Where it is necessary, to satisfy the Statute of What is neces-
Frauds, that the contract should be in writing, there liTha* contract
is also another point to be observed if it is desired to f™"^ different
instruments.
make out a contract from different instruments, and
that is, that the different instruments offered as con-
stituting an entire contract must be connected inter
se — that is, by reference in themselves to each other —
without the necessity of any parol evidence to connect
them. This is well shewn by the case of Boydell v. Boydeii v.
Drummond (k), which was an action for alleged breach ^^«"*'"<"^-
of contract to take and pay for a set of prints from
some of the scenes in Shakespeare's plays, and which
contract, as it was not to be performed within a year,
was required to be in writing by section 4 of the
Statute of Frauds. The agreement in writing on which
it was sought to charge the defendant was this — that
printed copies of the prospectus containing the full
(A) Hussey v. Horn-Payne, 4 App. Cas. 311 ; 48 L. J. Ch. 846;
Bristol and Swansea Aerated Bread Co. Limited v. Muggs, 44 Ch. D.
616; 59 L. J. Ch. 472; 62 L. T. 416.
(i) Bellamy v. Bebenham, 45 Cli. D. 481 ; 63 L. T. 220.
(k) 11 East, 142.
34 OF SIMPLE CONTRACTS, AND CASES IN WHICH
particulars of the publication lay on the counter of the
plaintiff's shop for inspection, and that there was also
a book lying there, headed " Shakespeare Subscribers :
their signatures," and that the defendant had signed
his name in this book ; but it also appeared that there
was nothing in the book containing the signatures
referring to the prospectus, nor was there anything in
the prospectus referring to the book ; and upon this it
was held that there was no binding contract, the reason
being shewn in the following passage from one of the
judgments delivered : " If there had been anything in
the book which had referred to the particular prospectus,
that would have been sufficient ; if the title to the book
had been the same as the prospectus, it might perhaps
have done ; but as the signature now stands, without
reference of any sort to the prospectus, there was
nothing to prevent the plaintiff from substituting
any prospectus, and saying that it was the prospectus
exhibited in his shop at the time to which the signature
related " (/).
Modern relaxa- But the rule as thus laid down in Boydell v.
strict rule in Drummond must be taken to have been somewhat re-
^umvw'nd ^3,xed by modern cases, it having been held that parol
evidence is admissible to connect two documents where
each obviously refers to another document, and where
the two when thus connected make a contract without
further explanation (m). Thus in one case the de-
fendant agreed to sell to the plaintiff a freehold estate
for ;^2 37 5, and signed a memorandum which contained
all the essentials of the contract except that it omitted
to mention or refer to the property agreed to be sold.
Two days afterwards the plaintiff, pursuant to the con-
tract, sent the defendant a cheque for the deposit and
in part payment of the price, and the defendant replied
{I) Ptr Le Blanc, J., ii East, 158. See further /n^ram v. Little,
I C. & E. 186 ; Hiidds v. Watson, 33 W. R. 118, and the very recent
case of Potter v. Peters, 64 L. J. Ch. 357.
(m) See Anson's Contracts, 62.
WiUTING IS UEQUIRED KOli TJIEIK VALIDITY. 35
by letter, " I bei,^ to acknowledge receipt of cheque
on account of the purchase-money for the F. estate."
It was held that parol evidence was admissible to ex-
plain the circumstances under which the letter was
written, and that as such evidence connected the letter
and the memorandum, the two documents read to-
gether constituted a sufiicient memorandum under
the Statute of Frauds (n). It will be observed that
in this case there was an obvious reference in the
letter to another document, which was not the case in
Boydell v. Brummond, the rule in which case must still
be taken as holding good in its general terms, and which
has indeed been recently acted upon by the same Judge
who decided the case just referred to (0). It must,
however, be remembered that in the case of contracts
not required by law to be in writing, there is nothing
to prevent the connection of several documents by oral
evidence {p).
Any offer that is made by a person does not bind him, An offer is
and may be revoked by him, until it is accepted by "nf ^ice^tf j
the person to whom it is made, for until then he has
a locus pcenitentice allowed him (q) ; and this is true,
although the person making the offer expressly gives
the person to whom it is made a certain time to accept
ov reject it. There is nothing binding between the
parties until the offer is accepted; but then, when the
unconditional acceptance is once made, there is a per-
fect and binding contract. When an offer is made by Presumption
letter, which is to be accepted by a particular time, ofiXSor'"
there is a presumption that the intention to contract *° contract.
continues until that time arrives, unless the offer is before
then rescinded ; so that where in one case an offer was
made by the defendant to sell at a certain price,
(n) Oliver v. Hunting, 44 Ch. D. 205 ; 59 L. J. Ch. 255 ; 62 L. T.
108. See also Long v. Millar, 4 C. P. D. 450 ; 49 L. J. Q. B. 596.
(o) Mr. Justice Kekewich in Potter v. Peters, 64 L. J. Ch. 357.
(p) Edwards v. Aberayron Mutxial Insurance Company, i Q. B. D.
587-
(7) Routkdge v. Grant, 4 Bing. 653.
36 OF SIMPLE CONTRACTS, AND CASES IN WHICH
"receiving au answer by return of post," and through the
defendant's mistake the plaintiff did not get the letter at
the time he should have done, but when he did receive it
sent an answer by return of post, and the defendant had
in the meantime considered the bargain ofif, and sold
to some one else, it was held that there was a perfect
contract {r). In another case, an offer w^as made
which required an answer by return of post, and, by the
fault of the post-office officials, the letter did not reach
the plaintiff when it ought to have done, but directly
he did receive it he accepted the offer ; it was held
that there was a complete contract (s). And it has
been held that an offer by telegram is presumptive
evidence that a prompt reply is expected, and an
acceptance by letter may be evidence of such un-
reasonable delay as to justify a withdrawal of the
offer (t).
When a con- It has now been definitely decided with regard to
place thnrngli ^ Contract taking place through the post — that is,
the post IS where it is understood, either expressly or impliedlv.
complete. _ ' . i ^
between the parties that the acceptance is to be sent
by post — that such a contract is complete directly the
letter accepting the offer is posted, even although it
may never reach its destination (w). In fact, where
an offer is made under such circumstances that it must
have been within the contemplation of the parties that,
according to the ordinary usages of mankind, the post
might be used as a means of communicating the accep-
tance, the contract is complete as soon as the accep-
tance is posted (x). It had formerly been held that
such a contract is not complete until the letter of
(?•) Adams v. Lindsell, i B. & Aid. 68 1. See also Stevenson v. McLean,
5 Q. B. D. 356 ; 49 L. J. Q. B. 701 ; 28 W. R. 916.
(s) Dunlop V. Hi'jgins, i H. L. Cas. 381.
(() Quenerduaine v. Cole, 32 W. R. 185.
(«) Harris' Case, L. R. 7 Ch. Ap. 587; 41 L. J. Ch. 621 ; The
Household Fire and Carriage Accident Insurance Co. {Limited) v. Grant,
4 Ex. Div. (C. A.) 216 ; 48 L. J. Ex. 577.
(x) Henthorn v. Fruser, (1892), 2 Ch. 27 ; 61 L. J. Ch. 373 ; 66 L.
T. 439-
WRITING IS llEQUIRED FOR THEIR VALIDITY. 37
acceptance is received by the party making the off'er (y),
but this decision is now clearly overruled, and the law
is as just stated.
An offer made under seal cannot be withdrawn, Eevocation of
. T T , i T .1 ■ i.-i withdrawal or
but in other cases, as ah-eady stated, there is until an offer,
acceptance a locus ijcenitentim, and it may be withdrawn.
But no withdrawal or revocation of an offer is effective
until communicated, and though, as already stated, in
the case of contracts taking place through the post, an
acceptance is communicated when it is despatched, a
revocation or withdrawal is not communicated until it
is received {z). Therefore, where the defendant wrote
and posted an offer (which naturally indicates that the
acceptance may be communicated in the same way),
and the plaintifi' wrote accepting it, and posted such
acceptance, and in the meantime the defendant had
written withdrawing his offer, but such letter of with-
drawal had not been received by the plaintiff at the
time of posting his acceptance, it was held that there
was a complete contract (a). As stated in the case
just referred to below, both legal principles and practical
convenience require that a person who has accepted an
offer not known to hiui to have been revoked shall be
in a position safely to act upon the footing that the
offer and acceptance constitute a contract binding upon
both parties. Although a person makes an offer which
is to remain open for a certain time, he may retract or
withdraw the offer, even during that time, before it has
been accepted, and it appears that a sale to another
person is sufficient retractation or withdrawal if it comes
to the knowledge of the other party, either directly or
indirectly, under circumstances sufficient to induce such
other party to believe it (6).
(y) British American Telegraph Co. v. Colson, L. R. 6 Ex. io8 ; 40
L. J. Ex. 97.
(i) Heiithorn v. Frascr, (1S92), 2 Cli. 27 ; 61 L. J. Ch. 373 ; 66 L. T.
439-
(a) Byrne v. Von Tieiihorcn, 5 C. P. D. 344; 49 L. J. C. P. 316;
42L. T. 371.
(h) Dickinson v. Dodds, 2 Ch. D. 463 ; 45 L. J. Ch. 777.
38
OF SIMPLE CONTRACTS, AND CASES IN WHICH
Recovery of It bas been held that where a person offers by adver-
reward offered .• . i r ,i -. ■ c i
by advertise- tiSBHient a reward tor the doing or some act, any person
raent. doing such act has a right to recover the advertised
reward. This is at first only an offer to the whole
world at large, but any particular person doing the act
renders it the same as if the offer were made to and
accepted by him, and the doing of the act required
amounts to a valuable consideration, so that all the
essentials of a valid simple contract exist (c). It is
submitted that this principle does not apply if the
person doing the act did not at the time know of the
reward offered {d).
Conditions
on tickets,
receipts. &c.
If a person offers to sell or cai-ry goods, or do any
other act, on certain terms and conditions, and the party
to whom the offer is made buys the goods, or delivers the
goods to be carried, or suffers the other act to be done,
he is taken to have assented to the special terms and
conditions. Thus if A. puts up in his shop a notice
that he charges interest on the price of all goods sold
and not paid for within a certain time, and a person
having seen that notice buys goods, he has assented
to the condition as to interest, and it forms part of
the contract. Matters of this kind often arise in the
case of railway companies who make offers to carry or
receive goods on certain conditions, e.g. by giving a
receipt or ticket containing detailed terms and con-
ditions. The question then arises whether the party
is bound by such terms and conditions. If he read
the conditions, then of course he is bound by them, but
this is also the case if he saw there were certain conditions
but did not choose to read them, or they were so plainly
stated on the face of the document that he must be
(c) Per Lord Campbell, in Gtrhard v. Bates, 2 E. & B. 476 ; Carlill
V. Carbolic Smoke Ball Co., (1893), I Q- K- 256 ; 62 L. J. Q. B. 257 ; 67
L. T. 837.
(d) See this point and the case of Williams v. Carivardine (4 B. &
Ad. 621), which is sometimes quoted as an authority to the contrary,
dealt with in Anson's Contracts, p. 16. There appears to be no tiirect
]<]nglish autliority on the point.
WRITING IS REQUIRED FOR THEIR VALIDITY. 39
taken to have seen them, or is guilty of negligence in not
having read them (e). But if the conditions are stated
on the back of the document, or in very small type, so
that a person cannot be presumed to have seen them, and
is guilty of no negligence in not having done so, then
he is not bound unless it is proved that he did in fact
see them (/).
Thirdly, as to consideration. A valuable considera- The question
tion has already been defined (g), and upon it the first notfcoSi^ra-
point to be noticed is, that though some valuable con- **o° •» ^"ffi-
.-,,.. . , . , ^ ^ cient for what
sideration is an essential to a simple contract (h), yet the is agreed to be
question of whether or not the consideration is sufficient brcoSred.
for what is agreed to be done will not be entered into ;
thus the forbearance of legal proceedings for a very
short time is a perfectly satisfactory valuable considera-
tion for an agreement to pay a much larger sum (i),
and a bond fide compromise of a real claim is a valuable
consideration, whether the claim would have been suc-
cessful or not, but the plaintiff must believe that he has
a case, and must intend lond fide to maintain it {k) ;
and if the professed consideration is practically nothing
at all, but simply a nullity, as, for instance, the sur-
render of a tenancy at will, which may be determined
at any time, then it will not be sufficient. In other
words, consideration need not be adequate, but must
(e) Harris v. Great Western R//., i Q. B. D. 515 ; 45 L. J. Q. B.
729; Parker v. South- Eastern Ry., 2 C. P. D. 416 ; 46 L. J. C P
768.
(/) Henderson v. Steveiison, L. R. 2 Sc. App. 470 ; Rowntree v.
Richardson, 57 J. P. 533 ; 9 T. L. R. 297.
(g) See ante, p. 18.
[h) For some remarks 011 how consideration came to be the important
ingredient in simple contracts, the student is referred to Anson's Con-
tracts, 42-47 ; and it may be useful to here quote the following passage
from that work (p. 46) : "It is a hard matter to say how consideration
came to form the basis upon wliich the validity of informal promises
might rest. Perhaps it may suffice for our present purposes to say
that the ' quid pro quo,' as it is styled in some of the early reports,
was probably borrowed by the Common Law Courts from the Court of
Chancery."
(i) See, for instance, Smith v. Alf/ar, i B. & A. 603.
{k) Miles V. Neiv Zealand Alford Estate Company, 32 Ch. D. 266 ;
5^ L. J. Ch. 801 ; 34 W. R. 669 ; 54 L. T. 5S2.
■40
OF SIMPLE CONTRACTS, AND CASES IN WHICH
be real (/). It is also the rule in equity in cases of
most utter and unconscionable inadequacy of considera-
tion— such inadequacy, in fact, as to shock the conscience
— to give relief on the ground of some imposition or
fraud, and in the case of bargains with expectant heirs
it is generally necessary to shew that a full considera-
tion was paid (m) ; but this, though undoubtedly now
applying to all divisions of the High Court of Justice,
does not, nevertheless, do away with the correctness of
the general rule, that the question of adequacy or inade-
quacy of the consideration will not be entertained.
When writiu^
is used, it mus
shew the con-
siderntion as
well as the
promise.
Wain V.
Wnrlter!^.
Exceptions ti
the rule.
When writings is used it is not sufficient for the
t . .
writing to shew the promise, and then to shew by oral
evidence that there was a consideration for that promise,
but both the promise and the consideration must appear
on the face of the written contract or be capable of being
implied therefrom (n), or it will not be binding ; for the
consideration is part of the agreement (o), and this
is so even though writing was not necessary to the
validity of the instrument. To this rule there are ex-
ceptions in the case of bills of exchange and promissory
notes, in which the consideration is presumed until the
contrary is shewn, and also in the case of guarantees,
as to which it is provided by the Mercantile Law Amend-
ment Act, 1856 (p), as follows : " No special promise to
be made by any person after the passing of this Act, to
answer for the debt, default, or miscarriage of another
person, being in writing, and signed by the person to
{t) Anson's Contracts, 89-91.
(m) See hereon Indermaur's Manual of Equity, 194.
(n) Thus it is not necessar}' in a contract in writing for the sale of
goods that the price of the goods .should be actually named, if in fact
no specific fact has been agreed on, for it will be presumed that the
contract is to pay a reasonable price. But if a specific price is agreed
on, then that price must be mentioned in the contr.act, and oral evidence
would be inadmissible on the point : Iloadley v. M'Laine, 10 Bine 482.
(o) Wain v. Wurlters, 2 S. L. C. 266 ; 5 Eiist, 10. See, however,
the case of In re Barnstaple Second Annuitant Society, 50 L. T. 424,
where it was held that oral evidence might be admitted to shew that
there was another consideration besides the one mentioned in the
contract.
(p) 19 & 20 Vict. c. 97, s. 3.
WRITING IS REQUIEED FOK THEIR VALIDITY. 4 1
be charged therewith, or some other person thereunto
lawfully authorized, shall be deemed invalid to support
any action, suit, or other proceeding, to charge the
person by whom such promise shall have been made
by reason only that the consideration for such promise
does not appear in writing or by necessary inference
from a written document." The reason of this altera-
tion in the case of guarantees was because it was found
in practice that the rule led to many unjust and
technical defences to actions upon guarantees {q) ; but
the student will of course observe here that the statute
does not dispense with the necessity of a consideration
to a guarantee, but merely provides that it need not
appear on the face of the instrument.
Considerations with reference to the time of their Cuusiderations
performance may be either executed, i.e. something reference'to'
done before the making of the promise : exccutorii, i.e. ^Jie time of
, T ^ T their per-
somethmg to be done at a future day ; concurrent, i.e. formance.
taking place simultaneously ; or continuing, i.e. partly
performed, and partly yet to take place (r). A very
important question to be asked on this subject is, Will An executed
an executed consideration support a promise ? and the <=onBideration
' i i will only sup-
answer is mainly found in the leading case of Lamp- po^t a promise
leigh v. Braithivaite (s), which decides that "a mere by a precedent
voluntary courtesy will not uphold assumpsit, but 'd^z^mpleighv.
courtesy moved by a previous request will." An exe- braithivaite.
cuted or past consideration, therefore, to support a
promise, must be inoved by a precedent request, e.g. if
the plaintiff in his statement of claim alleges that in
consideration that he had done a certain act for the
defendant the defendant promised, this would be bad ;
but if he stated that in consideration that he had done
a certain act for the defendant at his reqiiest the defen-
dant promised, this would be good. This previous re-
(q) 2 S. L. C. 263.
(>•) Chitty <m Contracts, 45.
(s) I S. L. C. 153 ; Hobart, 105 ; and see Bradford v. Rouhton, 8 Ii
R. C. L. 468.
42 OF SIMPLE CONTllACTS, AND CASES IN WHICH
quest may be either express or implied, for it will be
implied in the following cases : —
Oases in which I . Where the plaintiff has been compelled to do that
reqn^esrw'iif be which the defendant was legally compellable to do and
implied. ought to have done, e.g. where the plaintiff was a surety
for the defendant, and has been called upon to pay and
has paid the amount for which he was surety.
2. Where the plaintiff has voluntarily done what the
defendant was compellable to do, and in consideration
thereof the defendant has afterwards expressly pro-
mised to reimburse him. A person cannot recover for
his spontaneous act unless there is such a subsequent
promise (t), but the promise being made, then the prior
request is implied.
3. Where the defendant has accepted the benefit of
the consideration, e.g. if a tradesman sends to a man
goods the latter never ordered, but he chooses to keep
them {u) ; and
Counsels'
services.
4. Where the plaintiff has voluntarily done some
act for the defendant which is for the public good,
e.g. in paying the expenses of burying a person'^ in
the absence of the one legally liable to pay such
expenses («).
There is one case even at the present day in
which, though there is actually an express previous
request, no action can be maintained, viz. in the case
of counsels' services, for any fee is here looked upon
as a honorarium.
Au executed In discussing executed considerations, there is an-
from^wWcir' o*^^®^ important point to be mentioned, and that is, that
{t) Stokes V. Lewis, i T. K. 20.
(it) I S. L. C. 160 ; Cliitty on Contracts, 47.
{x) Roscoe's Digest, 513.
WRITING IS RI:QUIK1-:D FOU THKIU VALIUirY. 43
where from the executed consideration the law implies the law im-
a promise, the force and strength of the consideration is wiiTmn sui!-"*
exhausted in producino^ the implied promise, and it will i"""*^ ?"J' <**''*^''
support no express promise in addition to it. Thus it
was held that where an account had been stated and
a sum found to be due thereon to the plaintiff, that
this fact would not support an express promise to pay
such sum in futii.ro, because the promise that the law
implied from it was to pay in prcesenti (v/). So again,
in the case of Roscorla v. Thovias (s), where, in con- n„scurla v.
sideration that the plaintiff had, at the defendant's ^''"""''■'*-
request, bought a horse of the defendant, the defendant
promised that the hoi'se was free from vice, it was held
that there was no consideration to support this promise,
for it was an executed consideration from which the
law had already implied a promise to deliver the horse,
and therefore it would not serve to support any other
promise.
There are many matters of a past nature which throw a merely
upon a person a moral obligation, but though there de'ratL^nwiii
have been cases to shew that a merely moral considera- ^^^ support a
.,, • V 1 , -, promise.
tion Will support a promise (a), they may be put aside
as undoubtedly not law at the present day, and it can
be definitely stated that a consideration only moral in
its nature will not be sufficient to support a contract.
This is well illustrated by the case oiBeaumontv. Eeeve{b), Beaumont v.
in which it was decided that a promise by a man that, "^^"^"
in consideration that he had seduced and cohabited
with a woman, he would make her a certain payment,
was merely nudum pactum, and could not be en-
forced : the seduction gave forth no obligation towards
the woman whicli, according to our laws, could be en-
forced, and therefore no promise could give a right of
action on it. The student must not confuse this with
(y) Hopkins v. Logan, 5 M. & W. 247.
(2) 3 Q. B. 234 ; 6 Jur. 929.
(a) Chitty on Contracts, 35.
(6) 8 Q. B. 4S3.
44
OF SIMPLE CONTRACTS, AND CASES IN WHICH
a promise by a man to pay a sum to the mother of
his illegitimate child towards its support, for this is
perfectly valid, as a mother by undertaking the entire
support of such child does more than by law she is
bound to, and this forms a sufficient consideration for
the promise (c).
But a moral
obligation
which was
once a legal
one will sup-
port a promise
But though a merely moral obligation will not con-
stitute a sufficient foundation to support a promise, yet,
if it is not entirely of a moral nature, but was once
a legal obligation, which has only become a moral one
by reason of having become devoid of legal remedy, it
may support a promise (d). The correct rule upon
the point has been well stated to be that " an express
promise can only revive a precedent good consideration
which might have been enforced at law through the
medium of an implied promise, had it not been sus-
pended by some positive rule of law ; but can give
no original right of action if the obligation on whicli.
it is founded coidd never have been enforced at lau\
though not barred by any legal maxim or statute pro-
vision " ((!). Thus in the case of an agreement to pay a
sum in consideration of past seduction, this is an obli-
gation which never could have been enforced at law,
but in the case of a debt which has been barred by
the Statute of Limitations, though, being so barred, the
obligation to pay is merely a moral one, yet it is an
obligation which could once have been enforced, and
has only been rendered simply moral by reason of its
having become devoid of legal remedy, and the promise
(c) Smith V. Roche, 28 L. J. C. P. 237.
{d) I S. L. C. 161.
(e) Note to Wennall v. Adiuy, 3 B. & P. 252. See also Chitty
on Contracts, 36. The following quotation from Anson's Conti-acts
(pp. lOi, 102) also puts the matter very plainly: — " Whei-e the con-
sideration was originally beneficial to the party promising, yet if
he be protected from liability by some provision of the Statute or
Common Law, meant for his advantage, he may renounce the bene-
fit of that law ; and if he promises to pay the debt, which is only
what an honest man ought to do, he is then bound by the law to
perform it."
WHITING IS REQUIRED FOR THEIR VALIDITY. 45
to pay such a debt is binding (/). This principle does
not, however, apply to a del)t from which a bankrupt is
released by his order of discharge, for no promise to
pay such a debt can be enforced unless supported by a
new and valuable consideration {g), for the debt is, in
fact, extinguished.
With regard to an executory consideration, as it An executory
consists of something to be done at a future day, of ^^^^^^f g'J'^^^J^'i^^.
course before an action can be maintained on the con- ^^^"^^ ^^^^^ p^''-
tract, the future act forming the consideration must an action can
have been done by the plaintiff, or he must at least thJ'contract"
have been always ready and willing to do it.
The doing by a person of an act which he was The doing of
already under a legal obligation to do cannot form a w°s^bounTto"
consideration ; thus a promise bv a master of a ship to ^"' '^ "° '^°"'
, . .-,,..", '■ sideratioii.
pay his seamen a sum in addition to their proper wao-es
as an incitement to extra exertion on sudden emergency
is not binding, for they are, as seamen, bound to do
everything in their power {h). This is an instance of
unreality of consideration (^). But it would be different
if risks had arisen which were not contemplated by
the contract, and the agreement was to make further
payments by reason of this (k).
If the consideration stated for a promise is of such a As to an im-
nature as to be either legally or morally impossible, no ^deraUon""'
promise founded on it will be binding (I). By a con-
sideration legally impossible, is meant where a person
agrees to do an act which is contrary to the law, or not
permitted by law to be done {m) ; and by a consideration
(/) As to limitation generally, see post, pp. 269-276.
{g) Jakcman v. Cook, 4 Ex. D. 26 ; 48 D. J. Ex. 165 ; 27 W. R. 171.
{h) Harris v. Carter, 3 E. & B. 559 ; Stilk v. Meyrick, 2 Camp. 317.
(i) See Anson's Contracts, 84, 85.
{k) Hartley v. Ponsonby, 7 E. & B. 870.
(l) Chitty on Contracts, 42, 43.
(ni) See Haslam v. Sherwood, 10 Bing. 540 ; Harvey v. Gibbons, 2
Lev. 161 ; Whitmorc v. Farley, 29 W. R. 825 ; 45 L. T. 99.
46
OF SIMPLE CONTRACTS, AND CASES IN WHICH
morally impossible, is meant where a person agrees to do
an act which is simply an absurdity as being naturally
and physically impossible, " as if the consideration be a
promise that A. shall go from Westminster to Rome in
three hours " (w). Here this is manifestly an absurdity
and an impossibility, and from such a promise no benefit
or advantage can result to the other party, so that it in
fact amounts to no consideration at all. And although
a consideration did not originally appear impossible, yet
if from circumstances it appears that it is so, the rule
equally applies, or if it is made impossible by statute (o).
Articled
clerk's or
apprentice's
premium.
If an apprentice or articled clerk pays a premium,
and the master dies before completion of the period
of the apprenticeship or articles, no portion of the
premium can be recovered (p), unless there is a stipu-
lation providing for it, or the master is a member of a
firm (§■). In the event of the bankruptcy of the master,
however, provision is made by the Bankruptcy Act,
1883, for a return of a portion of the premium (?•).
The object of a Fourthly, As to the object of the contract. This
iio°*be*^il™^f must be neither of an illegal nor immoral nature, either
or immoral. directly or indirectly, but if there are legal and illegal
acts stipulated for in a contract, and they are clearly
divisible, it will not render the whole contract void (s).
Oases in which
writing is
necessary.
To a deed, writing is, of course, an essential, for
to constitute a deed there must be a writing actually
sealed and delivered ; but for simple contracts at com-
mon law no writing was necessary, nor is it at the
present day, except in those cases in which it has been
rendered necessary either by statute or custom. Those
(«,) Chitty on Contracts, 42, 43.
(o) See Chanter v. Leese, 4 M. & W. 295 ; Chitty on Contracts, 44.
Ip) Whincup V. Hughes, 24 L. T. N. S. 76 ; Ferns v. Carr, 28 Ch. D
409 ; 54 L. J. Ch. 478.
(5) Ex parte Baylcy, 9 B. & C. 691.
(r) 46 & 47 Vict. c. 52, s. 41.
(s) See further as to illegal contracts, post, ch. ix.
WHITING IS REQUIRED FOR THEIR VALIDITY. 47
cases in which writing is necessary are mostly of
great practical importance, and may be stated to be
chiefly as follows : —
1 . In cases coming within the Statute of Frauds (t),
Lord Tenterden's Act (u), or the Sale of Goods Act,
1893 (v).
2. In the case of grants of annuities.
3. Contracts relating to sale or assignment of copy-
rights.
4. Contracts relating to sale or transfer of ships ;
and,
5. Bills of exchange, promissory notes, and other
like negotiable instruments.
Of the above cases, by far the most extensive is that
numbered I , and here it must be remembered that the
writing required by these statutes does not go to the
existence of the contract ; that the contract exists
though it may not be clothed with the necessary form,
and the effect of non-compHance with the statutory
provisions is simply that no action can be brought until
the omission is made good (x).
Of the Statute of Frauds the most important sections
are the ist, 2nd, 3rd, 4th, and 7th. The 17th section
has now been repealed and re-enacted by the Sale of
Goods Act, 1893.
The 1st section provides that <' all leases, estates,
{t) 29 Car. 2, c. 3.
(m) 9 Geo. 4, c. 14.
(v) 56 & 57 Vict. c. 71.
(x) Anson's Contracts, 67, 72 ; and see Bailey v. Sweetinq q C B
N. S. 843. y. y •
48
OF SIMPLE CONTEACTS, AND CASES IN WHICH
Provisions of
the ist, 2nd,
and 3rd sec-
tions of the
Statute of
Fraud><.
interest of freehold or term of years, or any uncertain
interest of, in, to, or out of, any messuages, manors,
lands, tenements, or hereditaments made or created
by livery and seisin only, or by parol, and not put in
writing, and signed by the parties so making or
creating the same, or their agents thereunto lawfully
authorized by writing, shall have the force and effect
of leases or estates at will only, and shall not, either
in law or equity, be deemed or taken to have any other
or greater force or effect, any consideration for making
any such parol leases or estates, or any former law
or usage to the contrary notwithstanding." The 2nd
section, however, goes on to provide, " Except, never-
theless, all leases not exceeding the term of three
years from the making thereof, whereupon the rent
reserved to the landlord during such term shall amount
unto two-third parts at least of the full improved value
of the thing demised." The effect, therefore, of these
two sections taken together is, that a lease by parol
can only be made where it does not exceed three years
from the making thereof, and the rent is at least two-
thirds of the annual value {y). By the 3rd section all
assignments and surrenders of leases must be in
writing, signed by the persons or their agents autho-
rized in writino-.
Provisions of
the 7th sec-
tion.
The 7th section, perhaps, should hardly be mentioned
in the present work. It may, however, be noticed
that it provides that trusts of land or any interest in
land must be in writing ; but it does not require any
writing to create a trust of purely personal property,
though under section 9 all grants and assignments
of any trust must be in writing. There then remain
the 4th and 17th sections to be considered.
Provisions of
the 4th sec-
tion.
The 4th section provides that " no action shall be
brought (l) to charge any executor or administrator
(?/) See further hereon, post, eh. iii. p. 64.
WEITING IS REQUIRED FOE THEIR VALIDITY. 49
upon any special promise to answer damages out of
his own estate, or (2) to charge the defendant upon
any special pi'omise to answer for the debt, default, or
miscarriage of another person, or (3) to charge any
person upon any agreement made upon consideration
of marriage, or (4) upon any contract or sale of lands,
tenements, or hereditaments, or any interest in or
concerning them, or (5) upon any agreement that is
not to be performed within the space of one year from
the making thereof, unless the agreement upon which
such action is brought, or some memorandum or note
thereof, shall be in writing, signed by the party to be
charged therewith, or some other person thereunto by
him lawfully authorized."
As to what is a sufficient " memorandum or note "to " Memo-
randuiu or
satisfy the statute, the recent case of Re Hoyle, Hoyle v. note."
Hoyle (z), may usefully be referred to. A testator had in '^^ ^^' ^
his lifetime verbally promised to guarantee payment of
debts due from his son to a certain firm, and he recited
this fact in his will and codicil. In the administration
of the estate, the firm made a claim against the estate
under the guarantee, and it was held by the Court of
Appeal that the reference in the will and codicil to
the guarantee was a " note or memorandum in writing,"
within the meaning of section 4 of the Statute of
Frauds, of a promise by the testator to answer for the
debt of his son, and therefore the testator's estate was
liable.
With regard to a promise by an executor or admini- As to contracts
,,, J L c ^ • ii_>, by executors or
strator to answer damages out 01 his own estate, it administrators
need only here be said that, although the writings re- \^ a»swer
•^ . damages out of
quired by the statute exists, yet there must also be tiieii" own
some valuable consideration for the promise ; thus the
mere fact of an executor or administrator statingr in
writing that he will see a certain debt paid, is not
(2) 41 W. R. 81.
50 OF SIMPLE CONTRACTS, AND CASES IN WHICH
sufficient to render him personally liable in the ab-
sence of some consideration, e.g. the giving of time
or forbearing of proceedings by the creditor.
As to guar- But the next kind of contract mentioned in the 4th
antees. . . , , , j.
section, VIZ. a guarantee or agreement to answer tor
the debt, default, or miscarriage of another person,
demands a more lengthened consideration.
Birhnyr v. In the first place must be observed the decision in
"''^^ ■ the leading case of Birkmyr v. Darnell (a), to the
effect that a promise to answer for the debt, default,
or miscarriage of another, for which that other person
remains liable, is within the statute, and must be in
writing ; but if that other does not remain liable, then
it is not within the statute, and need not be in writ-
ing. To illustrate this, the following example may be
given : — A. goes into a shop with B., and says to the
shopkeeper, " Supply goods to B., and if he does not
pay you for them, then I will." This is within the
statute, for it is a guarantee, and to render A. liable
it must be reduced into writing. But if A. goes
into a shop with B. and says, " Supply goods to B.
and charge them to me," this is not within the statute,
for it is no guarantee, but a direct sale to A., the
goods being by his direction sent to B., and therefore,
to render A. liable, there need be no writing (b).
Promise to the Again, if the promise is made to the debtor himself,
self. it is not within the statute, for the statute only ap-
plies to promises made to the person to whom another
is answerable (c).
(a) I S. L. C. 334 ; Salkeld, 27.
(b) Unless, indeed, it comes within section 4 of the Sale of Goods
Act, 1893 (formerly section 17 of the Statute of Frauds), as to which
see post, ch. iv. p. 99. The question as to whether words used do or
do not amount to a guarantee is one for the determination of the
Court, not the jury: Bank of Montreal v. Munstcr Bank, 11 Jr. Rep.
C. L. 47-
(c) Eastwood V. Kenyan, 11 A. & E. 446. See further as to what
are and what are not guarantees within the 4th section of the Statute
of Frauds, and the distinction between a contract of guarantee and a
contract to indemnify, post, p. 151.
WRITING IS REQUIRED FOR THEIR VALIDITY. 5 1
A guarantee formerly carae within the common Formerly
rule (d) that the consideration as well as the promise must appear in
must appear on the face of the instrument, but in *^'^ guarantee,
consequence of the difficulty of setting forth the con-
sideration in a sufficient manner to satisfy the courts
of law, this rule proved to be a grievance to the
mercantile community (c), and in consequence, the
Mercantile Law Amendment Act, 1856 (/), provides
that a guarantee shall be valid without the conside- The considera-
ration appearing on its face. The same statute (^) now lIppeaTon
provides that on a surety paying the principal's debt *'^^ f'^<=f ^^ ^
he shall be entitled to have assigned to him, or a
trustee for him, every judgment or other security held
by the creditor, notwithstanding the same may be
deemed at law satisfied by his payment or perfor- Rights of a
raance, and such person shall be entitled to stand in fng^hfs priucf-
the place of the creditor (h). Before this statute the ^^^'^ ''^^*-
surety only had a right to collateral securities, and
not to the principal scurity itself. The rule as to a
surety's right to securities equally applies, though he
did not know of the existence of such securities when
he became a surety, his right in no way depending on
contract, but being the result of the equity of indemni-
fication attendant on suretyship (i) ; and the right of
a co-surety who has satisfied a judgment obtained by
the creditor against the debtor and his sureties, to
stand in the place of the judgment creditor, is not
affected by the circumstance that such surety has not
obtained an actual assignment of the judgment (k).
If a person gives a continuing guarantee to a firm, Surety to or
, , 1 • T £ n '. • ^ .1 • for a firm, &c.
or to a third person tor a farm, it is, unless otherwise
(d) Stated ante, p. 40.
(e) I S. L. C. 330 ; ante, p. 41.
(/) 19 & 20 Vict. c. 97, s. 3.
(g) 19 & 20 Vict. c. 97, s. 5.
(h) Re Churchill, Manisty v. Churchill, 39 Ch. D. 174 ; 59 L. T. 597.
(i) Duncan Fox <£-• Co. v. North and South Wales Bank, L. R. 6 Ap.
Cases, I ; 50 L. J. Ch. 335 ; 29 W. R. 763 ; Forbes v. Jackson, 19
Ch. D. 615 ; 51 L. J. Ch. 690 ; 30 W. R. 652.
(k) In re M'Myn, Lighthound v. M'Myn, 33 Ch. D. 575 ; 55 L. J.
Ch. 845 ; 35 W. R. 179.
53 OF SIMPLE CONTRACTS, AND CASES IN WHICH
expressly or impliedly agreed, revoked as to future
transactions by any change in the firm (/).
Acts which The following acts will operate to discharge a surety :
(lischarge^a — (i) Any fraudulent misrepresentation or conceal-
surety. ment (m) ; (2) the failure of an intended co-surety to
execute (/i) ; (3) the creditor's connivance at the prin-
cipal's default, or his laches, but a mere voluntary forbear-
ance for a short period will not be sufficient laches (0) ;
(4) non-performance of conditions by the creditor ; (5)
the discharge of the principal (except as mentioned in
the next succeeding paragraph) ; (6) any alteration of
the terms of the contract between the creditor and the
principal debtor, which may have the effect of inter-
ference for a time with the creditor's remedies against
the principal debtor (2J); (7) a binding agreement by the
creditor with the debtor to give him time, unless the
creditor and the debtor also stipulate that it shall not
discharge the surety, wheu (even although not by his
consent) it will not discharge him (q) ; but a mere volun-
tary giving of time, without any obligation to do so,
will not operate to discharge a surety (r) ; (8) in the
case of a continuing guarantee, it may always be revoked
and the surety discharged from further liability. It is
not, however, i2)so facto revoked by the death of the
guarantor, but notice of the death of the guarantor
given to the holder of the guarantee is constructive
revocation as to future advances (s), unless the contract
of guarantee stipulates for a special notice (t).
{I) 53 & 54 Vict. c. 39, s. 18.
(m) Railton v. Matthews, lo C. & F. 934.
{n) Evans v. Brcmhrklgc, 25 L. J. Ch. 334
(o) Phillips V. Fordyce, 2 Chit. 676 ; Strong v. Foster, 25 L. J. (C. P.) 106,
(p) Watts V. Shuttleivorth, 10 W. R. 132 ; Tucker v. Laing, 2 Kay &
^. 745-
(q) Oiorn v. Homan, 4 H. of L. Cas. 997 ; Boalcr v. Mayor, 19 C. B.
(N. S.) 76 ; Green v. Wynn, L. R. 4 Ch. App. 204 ; Norman v. Bolt, i
C. & E. 77.
(r) Bell V. Banks, 3 M. & G. 258 ; Clarke v. Birlcy, 41 Ch. D. 422 ;
58 L. J. Ch. 616 ; 60 L. T. 948.
(s) Coidthart v. Clementson, 5 Q. B. D. 42 ; 49 L. J. Q. B. 204 ; 28
W. R. 355.
(t) Re Silvester, Mid. Ry. Co. v. Silvester, 64 L. J. Ch. 390 ; 72 L. T. 2S3.
WRITING IS REQUIRED FOR THEIR VALIDITY. 53
On a bill of exchange the party primarily liable is Position of
the acceptor, and the other persons liable thereon stand bill.
in the position of sureties for him, as is hereafter ex-
plained (^u), and the rule therefore as to what acts will
operate to discharge a surety applies to the persons
liable on a bill other than the acceptor. With regard
to the release of any principal debtor, it is enacted by
the Bankruptcy Act, 1883 {x), that the acceptance by
a creditor of a composition or scheme of arrangement
shall not release any person who under that Act would
not be released by an order of discharge if the debtor
had been adjudged bankrupt. This had been already
decided to be the case before, under the Bankruptcy
Act, 1 869 (y).
An agreement to give a guarantee is within the Agreement for
statute and must be in writing (z). °
An agreement made in consideration of marriage Meaning of an
T 1 , . (, . ,{, agreement
does not mean the actual promise 01 marriage (tor made in con-
that would be contrary to the general usages of man- ^airia^^e? ^
kind), but means contracts for the doing of collateral
acts in consideration of marriage (a). An action, there-
fore, for breach of promise of marriage may be brought,
although the promise is not evidenced by writing, so
only that it can be clearly proved, and the evidence
of the plaintiff (as is hereafter mentioned (&) ) is cor-
roborated in some material respect. Contracts as to
land are treated of in the next chapter (c).
The term, " an agreement not to be performed As to ngree-
within a year from the making thereof," seems on the be performed
face of it clear enough, but a more careful consideration ^^^*^"" ^ y^'^''-
(w) See post, p. 169.
(a;) 46 & 47 Vict. c. 52, s. 18 (15).
{y) Ex parte Jacobs, lO Ch. Apps. 21 1 ; 44 L. J. Bk. 34.
(s) Mallet V. Bateman, L. R. I C. P. 163.
(a) Vincent v. Vincent, 35 W. R. 7 ; 55 L. T. 181.
(6) See post. Part iii. ch. ii.
(c) See post, ch. iii. p. 60 et seq.
54 OF SIMPLE CONTRACTS, AND CASES IN WHICH
will shew the student that doubts may arise on its
meaning. There may be some contracts which it is
utterly impossible can be performed within the year,
and others which may or may not, according to cir-
cumstances, be carried out within the year — is the
statute to apply to all or which of these ? The ques-
Petcr V. tion is answered by the leading case of Peter v. Comp-
ton (d), which decides that this clause in the Statute
of Frauds only means and includes agreements which
from their terms are actually incapable of performance
within the year, and does not include contracts which
may or may not, according to circumstances, be per-
formed within that period. The facts in that case
were that the defendant had entered into an agree-
ment with the plaintiff that, in consideration of one
guinea, then paid him by the plaintiff, he would pay
the plaintiff a certain greater sum upon the day of
his marriage. The marriage did not happen within
the year, but it was decided that there was nothing
in this contract rendering it incapable of being per-
formed within the year, and that, therefore, an action
Where every- would He, although not reduced into writing. With
side fs to be per- regard to this kind of contract, however, it has also
formed within j^gen decided that an agreement is not within the
ji year. _ *=>
statute, provided that all that is to be done by one of
the parties is to be done within a year, so that where,
Donndlanv. under a lease, in consideration of ;^50 to be laid out
in alterations by the landlord, the tenant agreed to
pay an additional rent during the residue of the whole
term of the lease, it was held that as the laying out of
the £^0 was to be within a year, the agreement was
not within the statute and need not be in writing (e),
so that, had this been considered the law at the time
of the decision in Feier v. Compton, there would have
been no occasion to decide that case upon the ground
that the possibility that the marriage might happen
(d) I S. L. C. 359 ; Skinner, 353.
(e) DonneUan v. Read, 3 B. & Ad. 899.
WRITING IS REQUIRED FOR THEIR VALIDITY. ^5
within the year took it out of the statute. Where by
the terms of a contract one party can perforin his part
of it within a year, a subsequent request by the other
party that such performance should be postponed till
after a year, does not bring the case within the statute,
although such request be acceded to (/).
An instance, however, of a contract within the statute, A contract for
-, ., (. ■ • . ^ ' •j.' T-i'j a year's service
and therefore requiring to be m writing, may be lound fi-o^ ^ sub-
in an aofreement for a vear's service from a day sub- sequent day
o •^ ^ «' must always be
sequent to the date of the contract, even if only from in writing.
the next day (g) ; and if a contract appears on its face
to be intended to extend over a year, although it may
contain a condition by which it may be put an end to
within the year, yet it is within the statute, and must
be in writing (A). It is, however, sometimes very Conflict of
difficult to tell when a contract is or is not within the
statute, and with regard to some of the cases it is, in
the author's opinion, very difficult, if not impossible,
to reconcile them with each other (i).
The 1 7th section of the Statute of Frauds provided 29 Car. 2, c. 3,
for contracts for the sale of goods either being in ^*
writing or as therein mentioned : this enactment has
been repealed by the Sale of Goods Act, 1893, but is
substantially re-enacted by section 4 of that statute,
which section is given and dealt with fully in a sub-
sequent chapter (Z;).
(/) Bevan v. Carr, i C. & E. 499.
\g) Bracegirdle v. Heald, i B. & A. 722; Britain \. Rossiter, II
Q. k D. 123 ; 48 L. J. Ex. 362 ; 27 W. R. 482.
(A) Birch V. Liverpool, 9 B. & C. 392 ; Giraud v. Richmond, 2 C. B.
835-
(i) See particularly Murphy v. Sullivan, 11 Ir. Jiir. (N. S. ) iii,
where it was held that a contract to support a child during its life need
not be in writing, although in Sweet v. Lee (3 M. & Gr. 452) it had
been held that a contract for payment of an annuity must be in writ-
ing, though it might determine within the year by the death of the
annuitant. See also hereon Knowlman v. Bluett, L. R. 9 Ex. i. See
also the recent case of McGregor v. McGregor (21 Q. B. D. 424; 57
L. J. Q. B. 591 ; 37 W. R. 45), where it was held that an oral agree-
ment of separation between husband and wife under which the husband
agreed to pay his wife £1 s. week during her life was good.
{k) Post, ch. iv. pp. 99-102.
5 6 OF SIMPLE CONTEACTS, AND CASES IN WHICH
What is sufB- The Statute of Frauds by its provisions does not
cient to satisfy . p t j,/>n i j_ i • -n
the Statute of require any tormal contract lully and tecnnicaily
Frauds. precise, but anything is sufficient which contains,
either expressly or by reference, the terms of the
agreement, and any written memorandum must shew
not only who is the person to be charged, but also who
is the party in whose favour he is to be charged (/).
The memorandum must be a memorandum of an agree-
ment complete at the time the contract is made (wz) ;
and if there is any omission from it of a material term
of the contract, it is not a sufficient memorandum to
satisfy the statute (n). Tims an executory agreement
in writing to grant a lease for a term of years which
does not state the date from which the term is to
commence, is not sufficiently definite to satisfy the
Statute of Frauds, and cannot be enforced (o), unless,
indeed, it contains a reference to circumstances from
which such date can be clearly ascertained (^3). The
statute does not require that the contract or memo-
randum should be actually signed by both the parties
to it, for it will be sufficient if only signed by the
person to be charged, as that is all that is said by
the statute ; and although the foot or end is the most
proper place for the signature, yet it need not be there
— thus where a person drew up an agreement in his
own handwriting commencing " I, A. B., agree," it was
held that this was sufficient signature, although the
name A. B. was not subscribed at the end (</). Again,
it has been held that when a person has usually
printed his name — as, for instance, if there is a memo-
randum on a bill-head containing the party's printed
{I) Chitty on Contracts, 1 18 ; Benjamin's Sale of Personal Property,
231 ; Campbell on the Law of Sale of Goods, 207-215.
(7)i) Munday v. Asprey, L. R. 13 Ch. D. 855 ; 49 L. J. Ch. 216 ; 28
W. R. 347 ; Cave v. Hastings, L. R. 7 Q. B. D. 125 ; 50 L J. Q. B.
575 ; 45 L- T. 348.
(n) M' Mullen v. Helberg, 6 L. R. Ir. 463 ; Donnison v. People's Cafe
Co., 45 L. T. 187.
(o) Wyxe V. Russell, 11 L. R. Ir. 173.
(p) Phelan v. Tedcastle, 15 L. R. Ir. 169.
(q) Knight v. Crock/ord, I Esp. 190, referred to by Lord Eldou in
Saunderson v. Jackson, 2 B. & P. 138.
WRITING IS REQUIRED FOR THEIR VALIDITY. 57
name — this may be a sufficient signature (?■). It is,
of course, in all these cases a question of the inten-
tion of the party whether the name should operate as
a signature (s). The 4th section does not require an When an
agent who signs an agreement under it to be authorized 1,° authorized
by writing, nor did the 1 7th section, nor does the new "' writing,
enactment contained in section 4 of the Sale of Goods
Act, 1893, but the 1st and 3rd sections of the Statute
of Frauds do. An agent, to execute a deed, must
receive his authority by deed, but it has been held
that, in the case of two joint contractors by deed, one
may execute for himself and the other in the presence
of that other, without any authority from him in
writing (t). One party to a contract cannot be the
agent of the other, but one agent may sign for both
parties, as in the case of a broker or auctioneer.
By Lord Tenterden's Act (^11) it is provided that no 9 Geo. 4, c. 14.
acknowledgment by a debtor to take a case out of the
Statutes of Limitation shall be binding unless in writ- 19 & 20 Vict,
ing, signed by the debtor, or (by the Mercantile Law '^' ^'^'
Amendment Act, 1 85 6) (x), by his agent; audit may
be noticed here that any such acknowledgment must Nature of au
either contain a promise to pay, or be of such a nature ^^eut. ^ °
that a promise to pay may be implied, so that where
the defendant wrote, " I know that I owe the money,
but I will never pay it," this was held to be no
sufficient acknowledgment (y). In a recent case, where
a debtor wrote to his creditor saying, " I thank you for
your very kind intention to give up the rent next
Christmas, but I am happy to say at that time both
principal and interest will have been paid in full," it
was held that this was not such an acknowledgment
(r) Saunderaon v. Jackson, 2 B. & P. 138 ; Schneider v. Norris, 2
Maule & S. 280.
(s) Cat07i V. Caton, L. R. 2 H. of L. Cas. 127.
{t) Ball V. Dunsterville, 4 T. R. 313.
(u) 9 Geo. 4, c. 14, s. I.
\x) 19 & 20 Vict. c. 97, s. 13.
{y) A' Court v. Cross, 3 Bing. 328.
58 OF SIMPLE CONTRACTS, AND CASES IN WHICH
from which a promise to pay could be implied (z). It
seems that an unqualified admission of an account being
open, or one which either party is at liberty to examine,
implies a promise to pay the balance found due (a).
Eepresenta- Lord Tenterden's Act (b) also provides that no action
^°"^' shall be brought to charge any person by reason of
any representation as to the character, conduct, credit,
ability, trade, or dealing of any other person, made with
the view that he may obtain money or goods upon
credit, unless in writing, signed by the person to be
charged therewith.
As to an An annuity is a yearly payment of a certain sum of
annul y. money granted to another in fee, for life, or years, and
charging the person of the granter only, or his person
and estate, in which latter case it is usually termed a
rent-charge (c) ; and by the Annuity Act (d) writing
is required for the grant of an annuity.
As to copy- Copyright is the sole and exclusive liberty of mul-
tiplying copies of an original work or composition (e),
and by the Copyright Act (/) writing is necessary to
its transfer, it being assignable by an entry in the
registry in the manner prescribed by the Act.
As to ships. By the Merchant Shipping Act, 1 894 (g), a registered
ship, or any shares therein, must be transferred by bill
of sale in the form given, and attested by a witness
and registered.
(2) Green v. Humphreys, 26 Ch. D, 474 ; 53 L. J. Ch. 625 ; 51 L. T.
42 ; see also Jupp v. Powell, I C. & E. 349.
(a) Banner v. Berridge, 18 Ch. D. 254 ; 50 L. J. Ch. 630 ; 29 W. R.
844 ; see also post, pp. 273, 274.
(6) 9 Geo. 4, c. 14, s. 6 ; see also ^Jos^, p. 287.
(c) Brown's Law Diet. 36.
(d) 53 Geo. 3, e. 141. As to the peculiarities of a personal annuity,
see Williams' Personal Property, pp. 268, 269.
(e) Brown's Law Diet. 134 ; see further as to copyright, post, pp. 210-
212.
(/) 5 & 6 Vict. c. 45.
(g) 57 & 58 Vict. c. 60, s. 24 ; see also as to ships, post, pp. 198-
204.
WRITING IS REQUIRED FOR THEIR VALIDITY. 59
Bills of exchange, promissory notes, and other like Bills and other
negotiable instruments, have always been required to be instruments.
in writing and signed, by the custom of merchants, and
they are required now to be so by statute {h).
(h) 45 & 46 Vict. c. 61. As to sucli instruments generally, see fost,
ch. V. pp. 165-197.
60
OF CONTRACTS AS TO LAND, AND HEREIN
CHAPTEE III.
OF CONTRACTS AS TO LAND, AND HEREIN OF LANDLORD
AND TENANT.
Contracts for
sale of land
must always
be in writing
under 29 Car.
2, c. 3.
Chancery
would carry
out a parol
contract, how-
ever, in three
cases.
Effect of Judr
cature Act,
1S73.
It was stated in the previous chapter that contracts
for the sale of lands, tenements, or hereditaments, or
any interest in or concerning them, must be in writing,
this being one of the contracts specified by the 4th
section of the Statute of Frauds. Any sale of land,
even though by auction, must therefore be in con-
formity with the provisions of this section, as a
jreneral rule, though it should be mentioned that
sales under an order of the Chancery Division have
been held not to be within the statute (a) ; and as
Chancery has been in the habit of decreeing specific
performance of an oral contract in three cases, viz. :
(i) Where set out and admitted in the pleadings and
the defendant does not set up the statute as a bar ;
(2) Where prevented from being reduced into writing
by the fraud of the defendant; and (3) After certain
acts of part performance (h) ; now, in consequence of
the Judicature Act, 1873 (c)> ^^ ^^7 of such cases
effect would be given to the contract in all divisions
of the Hi<Th Court of Justice.
The statute But the Statute does not mention merely contracts
fnte^rest in '^*^"^ for the salc of lands, but also " any interest in or con-
land, cerning them ; " and it is frequently a point of some
nicety to determine what is and what is not an interest
(a) Attorney- General v. Day, i Ves. Sen. 2i8.
(b) Indermaur's Manual of Equity, 187-191.
(c) 36 & 37 Vict. c. 66, s. 25 (II).
OF LANDLORD AND TENANT. 6 1
in land within the statute. Good instances of what
have been held to be, and what have been held not to
be, an interest in land are found in the decisions
that a contract for the sale of growing grass is an
interest in land within the statute {d), but a con-
tract for the sale of growing potatoes is not {c). The what is au
rule on this point is stated in Mr. Chitty's work on }"uj'^'* ^"^
Contracts (/) as follows : — " With respect to emble-
ments, or fnidus industriahs, a contract for the sale
of them while growing, whether they have arrived at
maturity or not, and whether they are to be taken off
the ground by the buyer or seller, is not a contract
for the sale of an interest in land ; but a contract for
the sale of a crop which is the natural produce of the
land, if it be unripe at the time of the contract, and
is to be taken off the land by the buyer, is a contract
for the sale of an interest in laud within the statute."
To determine accurately what is an interest in land
within this section and what is not is, however,
frequently a most difficult matter ; indeed a learned
judge {g) once stated that there was no general rule
laid down in any of the cases that was not contradicted
by some other. It has been held that a contract for
the sale of growing timber, to be cut by the vendor
or vendee, if it is to be cut immediately, or as soon
as possible, does not confer any interest in land, and
therefore is not within the section now under discus-
sion, though if the price exceeds ;^io it is within the
17th section Qi), as being a contract for the sale of
goods {i). In the case of Marshall v. Green, Lord Marshall v.
Coleridge, in deciding that timber to be taken away ^''^^"'
immediately is not an interest in land within this
section, said : " Planted trees cannot in strictness be
[d) Crosby v. Wadsioorth, 6 East, 602.
(e) Evans v. Roberts, 5 B. & C. 829.
(/) Page 397.
{g) Lord Abinger, in RodweU v. Phillips, 9 M. & K. 501.
(h) Now the 4th section of the Sale of Goods Act, 1893, as to which
see post, ch. iv. p. 99.
(i) Smith V. Surman, 9 B. & C. 561 ; Marshall v. Green, i C. P D.
35; 45 L. J. C. P. 153.
()2 OF CONTRACTS AS TO LAND, AND HEREIN
said to be produced spontaneously, yet the labour
employed in their planting bears so small a proportion
to their natural growth that they cannot be considered
as f nidus industriales ; but treating them as not being
frudus industriales, the proposition is, that where the
thing sold is to derive no benefit from the land, and
is to be taken away immediately, the contract is not
for an interest in land. Here the contract was that
the trees should be got away as soon as possible, and
they were almost immediately cut down. Apart
from any decision on the subject, and as a matter of
common-sense, it would seem obvious that a sale of
twenty-two trees, to be taken away immediately, was
not a sale of an interest in land, but merely of so
much timber " {k). From these observations it would
seem that if timber is not to be immediately taken
away, but is to remain on the land and derive some
Particular benefit thcrcfrom, it will be an interest in land. The
the point."^ following contracts may also be mentioned as having
been decided not to be an interest in land within the
statute : —
A contract for the sale of railway shares.
A contract by a tenant in possession by which he
{k) Marshall v. Green, i C. P. D. 39, 40; 45 L. J. C. P. 153. In
the case of Scovell v. Boxall, i Y. & J. 396, it was held that a contract
for the sale of growing underwood was a contract or sale of an interest
in land within this section ; but in that case it did not appear when it
was to be cut, and probably had it been that the underwood was to
have been cut immediately, it would have been decided the other way.
As a further instance of a contract held to relate to an interest in land,
see Whitmore v. Farley, 28 W. R. 908 ; 43 L. T. 192 ; also Webher v.
Lee, 9 Q. B. D. 315 ; 51 L. J. Q. B. 485 ; 30 W. R. 4S6, where it was
held that a grant of a right to shoot over land, and to take away a part
of the game killed, comprised an interest in land ; also Lavery v. Purs-
sell, 39 Ch. D. 508 ; 57 L. J. Ch. 570 ; 58 L. T. 846, where it was held
that a contract for the sale of the materials of an old house to be pulled
down and taken away within two months was a contract for the sale of
an interest in land ; also Driver v. Broad, (1893), i Q. B. 744 ; 63 L. J.
Q. B. 12 ; 69 L. T. 169, where it was held that a contract for the sale
of debentures that created a floating charge on its property, consisting
in part of leaseholds, was a contract for the sale of an interest in land.
OF LANDLORD AND TENANT. 6^
agreed to pay an additional sum per annum in con-
sideration of improvements by the landlord.
An agreement for lodging and boarding in a
house (/).
An agreement by a landlord with a quitting tenant
to take the tenant's fixtures (vi).
On a contract for sale of land, in the absence of Title to i.e
stipulation to the contrary, the title was formerly
sixty years, but now, under the Vendor and Purchaser
Act, 1874 (71), as regards any contract made after
December 31, 1874, it is forty years (o), and if it is
a leasehold property the purchaser cannot now call
for the title to the reversion, whether freehold or lease-
hold (p). On a contract for the sale of land the vendor
is only bound to disclose to the purchaser facts relating
to the property which in the ordinary course of events
he could not discover for himself, and, generally speak-
ing, a purchaser is not under any obligation to disclose
to a vendor facts which he is aware of which enhance
the value of the property, e.g. his private knowledge of
the existence of minerals under the land (q).
With regard to what is a proj)er signature within the one party to
statute, one party to the contract cannot be the agent camTo^t si^^n for
of the other, but a third person — e.g. the auctioneer at a ^iie other.
(I) As to an agreement for the letting of apartments, if the tenant
actually enters and it is not for more than three years, no writing is
required, as it comes within the exception in section 2 of the Statute of
Frauds ; but until actual entry it is only a contract, and is not action-
able unless in writing : Inman v. Stamp, i Stark, 12 ; Edge v. Strafford,
I Tyrw. 295.
(m.) See Chitty on Contracts, 398. It has been held that an agree-
ment requires just as much to be in writing if the interest in the land
moves to the plaintiff as it would if it moved /rom him : Ronayne v.
Sherrard, II Irish Reps. (C. L. ) 146.
(n) 37 & 38 Vict. c. 78.
(0) Ibid., s. I.
Ip) Ibid., s. 2 ; 44 & 45 Vict. c. 41, s. 3 (i).
(q) See also Indermaur's Manual of Equity, 191, 192.
64
OF CONTRACTS AS TO LAND, AND HEREIN
sale — can be the agent of both parties. On a sale of
land the name of the vendor, or some sufficient descrip-
tion of the vendor, should be inserted before the contract
is signed. The mere term " vendor " is not a sufficient
description (r), but the word " proprietor " has been
held suflicient (s).
Different ways
in which a
tenancy may
exist.
Statute of
Frauds as to
leases,
and assign-
ments of
leases.
A tenancy may exist in various different ways, as
if one holds either for a fixed period, or simply from
year to year, or at will, or sufferance. By the ist sec-
tion of the Statute of Frauds, all leases, estates, interests
of freehold, or terms of years, or any uncertain interest
of, in, to, or out of land, must be in writing signed by
the parties or their agents authorized by writing, or they
have the force and effect of estates at will only {t).
The 2nd section excepts from this provision leases not
exceeding three years from the making thereof, at two-
thirds of the full improved value {u). And by the 3rd
section all assignments of leases (not being copyhold
or customary property) must in a like way, as is pro-
vided in the ist section as to leases, be in writing. By
8 & 9 Vict. c. 106 {x), every lease required by law to
be in writing, and assignments of leases (not being
copyhold), shall be void at law unless made by deed.
An agreement
for a leise
must always
be in writing.
The student will observe that though, under the
2nd section, leases not exceeding three years may be
made by word of mouth, yet, by force of the 4th
section, any agreement for a lease, for however short
a time, must be in writing.
As above stated, the strict provision of the statute
()•) Potter V. DuMeld, L. R. i8 Eq. 4 ; 43 L. J. Ch. 472 ; Jarrett v.
Hunter, 35 W. R. 132 ; Butcher v. Nash, 61 L. T. 72.
(s) Rossiter v. Miller, L. R. 3 App. Cas. 1124 ; 48 L. J. Ch. 10 ; Sale
V. Lambert, L. R. iS Eq. i ; 43 L. J. Ch. 470. See also Catling v. King,
5 Ch. Div. 660 ; 46 L. J. Ch. 3S4 ; Stolell v. Niven, 61 L. T. 18.
(t) This section is set out verbatim, ante, p. 48.
(u) This section is set out verbatim, ante, p. 48.
(x) Sect. 3.
OF LANDLORD AND TENANT. 65
is, that leases which it requires to be by writing, and statute pro-
which are not, are to have the force and effect of leases not in
estates at will only ; but although this is so, to simply ^avJ only' the
state that fact in answer to a question on the effect of effect of es-
such a lease would be useless. The well-known case of "
Clayton v. Blakey (y) decides the point that, notwith- ciaijton v.
standing the said enactment, yet if a tenant under " ^^'
such a lease enters and pays rent, it may serve as a
tenancy from year to year. In the first instance, no
doubt, all the tenant has is a tenancy at will in strict
conformity with the statute, but the court leans against
that tenancy and in favour of a tenancy from year to
year {z), and therefore it is afterwards converted into
that. Further, if a person holds under a lease which
from any cause is void under the Statute of Frauds,
or from not being, as now required to be {a), by deed,
or if a tenant holds over after the expiration of his me d. Ri<jye
lease, and continues to pay a yearly rent, he will hold ^' ^^^^'
under the terms of the lease in other respects so far as
they are applicable to the new tenancy from year to
year (h).
A yearly tenant is entitled to, and must give, a Notice on
reasonable notice to quit, which has been held to te^nanTy"'""
mean half a year's notice (c), ending at the period at
which his tenancy commenced. If, however, it is a
tenancy under the Agricultural Holdings Act, 1883, a
year's notice is necessary, expiring at the end of the
current year of the tenancy, unless the parties agree
in writing to the contrary (d). To determine a
monthly or a weekly tenancy, a reasonable notice is
required, and the safest plan is to give a month's or a
(2/) 2S. L. C. 118; 8T. R. 3.
(2) Richardson v. Langridge, Tudor's Con. Cases, 4; 4 Taunt. 1 28.
(a) 8 & 9 Viet. c. 106, s. 3.
(6) Doe d. Rigge v. Bell, 2 S. L. C. no; 5 T. R. 471.
(c) As to the distinction between half a year's notice and six months'
notice, see Barlow v. Teal, 15 Q. B. D. 501 ; 54 L. J. Q. B. 564; 54
L. T. 63 ; 34 W. R. 54.
(d) 46 & 47 Vict. c. 61, s. 33 ; and see Willinson v. Calvert, L. R. 3
C. P. Div. 360 ; 47 L. J. C. P. 679 ; Barlow v. Teal, supra.
E
66
OF CONTRACTS AS TO LAND, AND HEREIN
part of demised ^j-gj^^ggg
premises. piemibtib
week's notice, as the case may be, which will no doubt
always be sufficient (e). A notice to quit need not be
couched in technical language, it is sufficient if it clearly
conveys to the mind of the landlord that the tenant
does not desire that the relationship of landlord and
tenant shall continue (/) ; and though a written notice
to quit is always advisable, a parol tenancy may be
Notice to quit determined by a verbal notice {g). Where several
are let under one common rent, notice to
quit part of them only cannot be given (A), except to
a certain extent under the Agricultural Holdings Act,
1883, which provides (i) that a landlord may give
notice to quit a part only of the demised premises in
order to make certain improvements mentioned in the
Act ; but the tenant will be entitled to compensation,
and may within twenty-eight days accept the notice
for the entire holding. If a tenant holds under a lease
made by two or more joint lessors, they should properly
all join in giving notice to quit, but notice to quit by
one on behalf of all, whether authorized by the others
or not, will put an end to the tenancy {k). As stated,
if a tenant holds over after the expiration of his lease,
he may by payment of rent be converted into a yearly
tenant, and until then he is a tenant at sufferance ; but
if a term determines and the landlord has made a
demand and given notice in writing for possession, and
the tenant holds over, he is liable to pay double the
yearly value of the premises, unless he had a houd fide
belief that he had a right to so hold over (/) ; and if a
tenant gives notice of quitting to his landlord, and does
not quit at the proper time, he is liable to pay double
.loiut lessor?.
I'cnalty for
holding over.
(e) Boiocn v. Anderson, (1894), I Q. B. 164; 42 W. R. 236, explain-
ing and partly overruling Saiidjord v. Clark, 21 Q. B. D. 39S ; 57 L. J.
Q. B. 507 ; 59 L. T. 226.
(/) Bury V. Thompson, 64 L. J. Q. B. 257 ; 71 L. T. 846.
(q) Woddf all's Landlord and Tenant, 318.
(h) Ibid.
(i) 46 & 47 Vict. c. 61, s. 41.
{k) Tudor's Con. Cases, 29.
(/) 4 Geo. 2, c. 28, s. I.
OF LANDLORD AND TENANT. 6^
the yearly rent of the premises (?n). If a landlord
gives notice to his tenant to quit or pay an increased
rent, and the tenant does not quit, his agreement to
pay the increased rent will be implied (n).
A tenancy at will sometimes arises by the construe- Tenancy at
tion of the law, e.g. in the case of a mortgage, the construction
courts of law always considered the mortgagor as °^ ^^'^'
simply the tenant at will, or rather at sufferance, of the
mortgagee, and liable to be ejected at any time, so that he
could not bring any action in respect of the mortgaged
lands, nor make a lease of them to bind the mortfTao:ee
although he continued in possession of them. It is,
however, now provided by the Judicature Act, 1873
(o), that " a mortgagor entitled for the time being to Provision of
the possession or receipt of the rents and profits of any Act, 1873, as
land as to which no notice of his intention to take *" p°^i""° ^^
mortgagors.
possession or to enter into the receipts of the rents and
profits thereof shall have been given by the mortgagee,
may sue for such possession or for the recovery of such
rents or profits, or to prevent or recover datnages in
respect of any trespass or other wrong relative thereto
in his own name only, unless the cause of action arises
upon a lease or other contract made by him jointly
with any other person." And in addition to this the
Conveyancing Act, 1 88 1 (p), now allows of leases being
made by a mortgagor remaining in possession, on cer-
tain terms (q).
A tenant is estopped from disputing his lessor's title; A tenant is
therefore where a tenant acquires possession under a fusputLg hiT^
person who claims as devisee, it is not competent for lessor's title.
(m) II Geo. 2, c. 19, s. 18.
(n) See ante, p. 21. See further, as to a contract being implied
from silence and acquiescence, Wilcox v. Redhead, 49 L. J. Ch. 539 ;
28 W. R. 795.
(0) 36 & 37 Vict. c. 66, s. 25 (5).
(p) 44 & 45 Vict. c. 41.
(5) Sect. 18. See also hereon as to tenants' right to compensation
when holding under a lease from a mortgagor not in conformity with
this provision, 53 & 54 Vict. c. 57.
6S
OF CONTRACTS AS TO LAND, AND HEREIN
him to set up any objection to the devise. Payment
of rent impliedly admits a tenancy between the payer
and the payee, unless, indeed, the payment was pro-
cured by fraud, or was made in ignorance of circum-
stances which had the payer known of he would not
have made the payment (?-), and a tenancy may
indeed sometimes be implied from other acts (s).
Liability of
tenant from
year to year
for repairs.
Landlord
not bound to
repair.
A tenant from year to year in the absence of agree-
ment is only bound to keep the premises wind and
water tight, and is not bound to do any general
repairs, e.g. to made good accidental fire, wear and
tear of time, or the like, but an act arising from his
own voluntary negligence he is liable for, e.g. to repair
broken windows. Where a tenant covenants generally
to keep the premises in good repair, and to deliver
them up in good repair at the end of the term, it is
not sufficient to keep them in the same state of repair as
they were in at the commencement of the tenancy, if
they were then in bad repair. The class and descrip-
tion of the house may, however, be taken into account,
as whether it is an old or a new one, and it must be
kept and delivered up in good repair witli reference to
the class to which it belongs (t). If the premises are
burnt down, under such a covenant the tenant will
have to reinstate them unless the contrary has been
provided. If a fire is caused by any person's gross
negligence, such person is liable for it to the person
injured. In the absence of express agreement a land-
lord is not under any obligation to repair the demised
premises, and it seems that the fact of premises be-
coming uninhabitable from the want of proper repairs
will not entitle the tenant to quit without notice, and
is no answer to an action for the rent. With regard
to farms, a promise is implied by the law on the part
(r) Carlton v. Bowcock, 51 L. T. 659 ; Undo hay v. Heed, 20 Q. B. D.
209 ; 57 L. J. Q. B. 129 ; 58 L. T. 45.
. (s) O'Keefe v. Walsh, 8 L. R. Ir. 1S4.
{t) Prideaux, vol. ii. p. 14.
OF LANDLORD AND TENANT. 69
of a yearly tenant to use the farm in a husbandlike
manner, and cultivate it according to the custom of
the country (w). Where there is a covenant by the
landlord to do repairs, the tenant must give him
notice of any want of repair, so as to give him an
opportunity of doing the same ; and if the tenant
executes the repairs without notice to the landlord
that they needed doing, he cannot compel the land-
lord to pay for them (x).
As to the liability to pay rates and taxes, the Liability to
general rule is that they fall upon the tenant in the r^lel^ll^l^
absence of express agreement ; but property tax forms ^"*^ assesa-
an exception to this rule, and must always be allowed
by the landlord, even though the tenant has covenanted
to pay it, the rule being that the tenant should in the
first instance pay it, and is then entitled to have it
allowed to him out of his rent (y). The landlord is
ordinarily liable for the land tax, and for sewers rate
(unless indeed it is only for ordinary or annual re-
pairs), and if the tenant pays them under compulsion,
express or implied, he may deduct them from his
rent, but any others he cannot generally deduct (z).
Tithe rent charge, however, was never a charge upon Tithe rent
the person of the owner or occupier, but upon the ^^'^^^^'
land, and therefore, in the absence of agreement to
the contrary, a tenant paying it might always deduct
it from his rent, aud it is now expressly provided
that tithe rent charge issuing out of any lands shall
be payable by the owner of the lands, despite any
contract between the owner and the occupier (a).
Ordinarily in a lease there is an express covenant
that the tenant shall pay all rates, taxes, and assess-
ments, whether imposed on the landlord or the tenant.
(u) See generally hereon "VVoodfall's Landlord and Tenant, 639-641.
(as) HuyijaRy. M'Lean, 33 W. R. 588 ; 53 L. T. 94.
(y) S Sl 6 Vict. c. 35, ss. 60, 103.
(2) Woodfall's Landlord and Tenant, 596, 602.
(a) 54 Vict. c. 8.
70
OF CONTEACTS AS TO LAND, AND HEREIN
The addition of the word " assessments " makes the
covenant more comprehensive, and if the word " out-
goings " is added, this is perhaps even more so ; and
when such words are used some matters may be in-
cluded in the covenant which but for them the tenant
would not be liable for, e.g. land tax, sewers rate, and
the expense of paving a road (h).
A tenant may Although there maybe nothing in a lease to thateffect,
have rights by ^ tenant may sometimes by custom have certain rights,
custom. Qj^ ^-^Q ground that the parties have contracted with
reference to that custom, and an implied contract has
been thus created (c). This often occurs in the case
of farming tenants, with reference to the custom of the
country as to their rights on giving up possession of
their farms. If a lease contains any particular stipula-
tions as to the manner in which a tenant is to quit,
and what he is to be entitled to on quitting, then
the rule expressmn facit cessare taciturn applies, and
no custom can have any effect ; but if, though there is
a lease, it is silent on this point, then, as was decided
Wiggiesicorth in the case of JVigr/hsivorih v. Dallison (d), the tenant
v.baiiison. ^^^^^ ^^^^ advantage of the custom (e).
Fixtures.
Meaning of
the term.
Questions frequently arise between landlord and
tenant as to the right to fixtures. The term fixtures
is used sometimes with different meanings ; strictly
speaking, it signifies things affixed to the freehold, but
it may also be used as signifying chattels annexed to
the freehold, but which are removable at the will of the
person who annexed them (/). The rule at common
(6) Budd V. Marshall, 5 C. P. D. 4S1 ; 50 L. J. Q. B. 24 ; 42 L. T.
793 ; 29 W. R. 148 ; Allum v. Dickinson, 9 Q. B. D. 632 ; 52 L. J. Q.
B. 190 ; 47 L. T. 493 ; 30 W. K. 930; WilUnson v. Collyer, 13 Q. B.
D. I ; 53L. J. Q. B. 278 ; 51 L. T. 299 ; 32W. R. 614; Aldridrjev. Feme,
17 Q. B. D. 212 ; 55 L. J. Q. B. 587 ; 34 W. R. 578 ; Batchelor v. Bigcjer,
60 L. T. 416.
c) See ante, p. 21.
{d) I S. L. C. 569 ; Dougl. 201.
(e) Tucker v. Linger, 8 App. Cas. 508 ; 52 L. J. Ch. 941 ; 32 W. R.
40 ; 49 L. T. 373.
(/) 2 S. L. C. 202.
OF LANDLOKD AND TENANT. 71
law as to things affixed to the freehold is expressed
by the maxim of our law, Quicquid plantatur solo, solo
ccdit ; but this rule, being found to operate in dis-
couragement of trade, has been gradually much miti-
gated. It may be stated generally, that fixtures erected
for the purposes of trade, ornament, or domestic use,
and also agricultural fixtures {g), may be removed by a
tenant as against his landlord, and it may in particular
cases happen that custom gives a tenant a wider right
than he would ordinarily have. When a tenant has the Must be re-
right to remove fixtures, other than agricultural fixtures, tenancy.
the removal by him must be during his tenancy, or
such further period as he holds under a right to con-
sider himself tenant {h), i.e. whilst permitted by the
landlord to remain in possession; and if he does not
remove them during that time, he will lose his right to
them, for they then become a gift in law to the landlord,
unless indeed the landlord afterwards gives a licence to
the tenant to enter to remove the fixtures, and such a
licence would not be good unless under seal (t'). As
to agricultural fixtures, they may be removed within a
reasonable time of the expiration of the tenancy {]:).
As before stated, originally, under the maxim Quic- Originally no
quid plantatur solo, solo ccdit, nothing in the nature of i,e removed,
a fixture could be removed, and the mitigations of the ^^"i* *''*^ "^'^
' o _ rule now
old rule have arisen gradually ; the first was in favour mitigated.
of trndc fixtures, and subsequently other cases ex-
tended it to ornamented and domestic fixtures. There
have been a very great number of cases upon this sub-
ject, and amongst the articles that have been decided
to be removable by the tenant may be mentioned
as instances the following -.—Chimney-glasses, blinds,
ornamental chimney-pieces, wainscots, shelves, coun-
(g) 46 & 47 Vict. c. 61, s. 34.
(A) Weeton v. Woodcock, 7 ]SI. & W. 14 ; Ex parte Gould, lie Walker,
13Q. B. D. 454; 51 L. T. 368.
(i) Roffeij V. Henderson, 17 Q. B. 574.
[k) Post, p. 73.
72 or CONTRACTS AS TO LAND, AND HEREIN
ters, pumps, partitions, shrubs, and trees planted for
sale. The fixtures, if removable, must be taken away
without material damage to the inheritance, and the
right of removal is, of course, liable to be controlled by
express contract ; so that, for instance, if a tenant cove-
nants to keep in repair all erections built, or thereafter
to be built, and surrender them at the end of the term,
this will prevent him removing things which, but for
the covenant, he might have removed (/).
Eiwes V. Mane Under the exception to the common law rule in
tnrai fixtures, favour of trade fixtures, it was decided in JElioes v.
Mawe (m) (which is a case very generally quoted and
referred to on the subject of fixtures), that this would
not apply to allow tenants in agriculture to remove
things erected for the purposes of husbandry; but as
the rule undoubtedly often worked hardship on tenants,
it has been altered by the Legislature, it being provided
Provision of by 1 4 & I 5 Vict. c. 2 5 (>i), that all buildings, engines,
c.'^2s. * or the like, erected by the tenant for agricultural pur-
poses, with the consent in writing of the landlord, shall
remain the property of and be removable by the tenant,
so that he do no injury in the removal thereof ; pro-
vided that one month's notice in writing shall be given,
before removal, to the landlord, who within that time
is to have a right of purchasing at a value to be
ascertained by two referees or an umpire. The Agri-
Provision of cultural Holdings Act, 1883 (0), also now contains a
Holdings Act, provisiou ou this subject with regard to tenants under
^^^^" that Act, to the effect that where after the commence-
ment of that Act (p), a tenant affixes to his holding
any engine, machinery, fencing, or other fixture, or
erects any building for which he is not under that
Act or otherwise entitled to compensation, and which
(/) West V. Blakeway, 2 M. & G. 729 ; Penry v. Brown, 2 Stark, 403.
(m) 2 S. L. C. 1S2 ; 3 East, 38.
(n) Sect. 3.
(o) 46 & 47 Vict. c. 61, s. 34.
(■p) I Jan. 1884.
OF LANDLORD AND TENANT 73
is not SO aflixed in pursuance of some obligation in
that behalf, or instead of some fixture belonging to
the landlord, then such fixture or building shall be
the property of and removable by the tenant before or
within a reasonable time after the termination of the
tenancy. Provided as follows : — i . Before the removal
of any fixture the tenant shall pay all rent owing
by him, and shall perform or satisfy all other his
obligations to the landlord in respect of the holding.
2. In the removal of any fixture the tenant shall not
do any avoidable damage to any other building or
other part of the holding. 3. Immediately after the
removal of any fixture the tenant shall make good all
damage occasioned to any other building or other part
oFthe holding by the removal. 4. The tenant shall
not move any fixture without giving one month's
previous notice in writing to the landlord of the in-
tention of the tenant to remove it. 5. At any time
before the expiration of the notice of removal, the land-
lord by notice in writing given by him to the tenant
may elect to purchase any fixture or building com-
prised in the notice of removal, and any fixture or
building thus elected to be purchased shall be left by
the tenant, and shall become the property of the land-
lord, who shall pay the tenant the fair value thereof to
an incoming tenant of the holding ; and any difference
as to the value shall be settled by a reference under that
Act as in case of compensation, but without appeal (q).
The most noticeable difference between this provi- Difference
, , . , . ,, -^j-. , . between the
sion and the one contained in 14 & 15 Vict. c. 25, is two foregoing
that under the earlier statute only fixtures erected with Provisions,
the consent in writing of the landlord can be removed,
whilst no such consent is necessary under the latter.
It must not be forgotten, however, that the operation
{q) There was a provision almost identical with this in the now
repealed Agricultural Holdings Act, 1875 (3^ & 39 Vict- c. 92, s. 53),
but as a difference it may be noted that that Act specially exempted
a steam-engine, unless previous notice of intention to erect had been
given to the landlord and not objected to by him.
74
OF CONTRACTS AS TO LAND, AND HEREIN
of the Agricultural Holdings Act, 1883 (except as to
compensation for unexhausted improvements (r) ), may-
be excluded. The Act applies to all tenancies of an
agricultural or pastoral character, or partly one and
partly the other, or wholly or partly cultivated as a
market-garden ; but it does not apply to any holding
let to a tenant during his continuance in any office,
appointment, or employment held under the land-
lord (s).
On the sale or
mortgage of
land, fixtures
pass without
iiny special
words.
Mortgage
of pi'einises
with fixtures
thereon.
Upon a sale or mortgage of land, fixtures will pass
to the vendee or mortgagee in the absence of any con-
trary intention ; and with regard to the question of
whether a mortgage of land with fixtures requires to
be registered as a bill of sale, it was prior to the Bills
of Sale Act, 1878 (t), decided that it did so require,
if the mortgagee had power given him to deal with
the fixtures separately and apart from the land, but not
unless (u). Now, however, by that Act it is definitely
provided (x) that " personal chattels " (which are the
things as to which registration is required) shall in-
clude fixtures when separately assigned or charged by
a distinct instrument, but not fixtures when assigned
together with a freehold or leasehold interest in any
land or building to which they are affixed, except trade
machinery (y). And even as to trade machinery, it
has been decided that if it is not specially mentioned,
but merely passes as incidental to the conveyance of
the premises, no registration is necessary (z). If, how-
ever, it is specially mentioned, then it is otherwise (a).
(r) 46 & 47 Vict. c. 61, 8. 55.
(s) Sect. 62. See also now the Market Gardeners' Compensation
Act, 1895 (58 & 59 \ict. 0. 27), as to market gardens.
(<) 41 & 42 Vict. c. 31.
(m) Ex parte Barclai/, L. R. 9 Ch. App. 576 ; 43 L. J. Bk. 137 ; I.x
parte Daglish, L. B. 8 Ch. App. 1072. On the law of fixtures generally,
see Brown on Fixtures.
(x) Sects. 4, 7.
(y) See sect. 5. defining trade machinery.
(2) Re Yates, Batchelor v. Yates, 38 Ch. D. 112 ; 57 L. J. Ch. 697 ;
59 L- T. 47.
(a) Small V. National Provincial Bank of England, (1894), I Ch.
686 ; 63 L. J. Ch. 270 ; 70 L. T. 492.
OF LANDLOED AND TENANT.
Tiie most apt and proper remedy of a landlord for Distress.
the recovery from his tenant of the rent due is distress,
which is a remedy by the act of the party, being the What it is.
right the landlord has of entering and seizing goods for
the purpose of liquidating the amount due to him, the
word being derived from the Latin distringo. Besides
a distress for rent, such a right also exists in the case
of cattle taken damage feasant, and here the reason for
the remedy is tolerably plain, because the distrainor
may be said to be acting on the compulsion of the tres-
pass, but in the case of the distress for rent the reason
why it is allowed is by no means so clear.
The followmg seem to be the requisites to the exer- Requisites to
enablr ^ ■"
lord t
train.
<• , 1 n !• i. e L enable a land-
CISC oi the power of distress tor rent : — lord to dis-
1. There must be an actual demise, or an agreement
for a lease. If a tenant goes into possession under
an agreement for a lease, and holds thereunder with-
out any lease being actually granted, for all practical
purposes the tenant is in the same position as if the
lease had been made (6) ; his strict position, however,
is, that when he first enters into possession he is, — not-
withstanding his right to enforce the agreement, pro-
vided that he has observed the conditions thereof on
his part, — merely a tenant at will, but that as soon as
he pays an annual rent, or the proportionate part of an
annual rent, he becomes then strictly a tenant from
year to year on such of the terms of the agreement
as are applicable to a yearly tenancy (c).
2. The rent must be certain, that is, the premises
must be let at a fixed rent (f?) ; for if the tenant hold
(6) Walsh V. Lonsdale, 21 Ch. D. 9 ; 52 L. J. Ch, 2 ; 46 L. T. 858.
(c) Coatsworth v. Johnson, 55 L. J. Q, B. 220; 54 L. T. 520; Swain
V. Ayres, 21 Q. B. D. 289 ; 57 L. J. Q. B. 428 ; 36 W. R. 798.
(fZ) A distress may be made for the whole rent reserved on a letting
of furnished apartments, because in contemplation of law the rent issues
out of the premises only, and not out of the furniture (Woodfall's
Landlord and Tenant, 441).
76
OF CONTRACTS AS TO LAND, AND HEREIN
premises at a rent to be agreed on, or simply at their
fair value, the landlord has no right of distress, but
simply an action for use and occupation (e).
3. The rent must be in arrear; and rent does not
become due until the very end of the day on which it
is payable ; but in the case of rent payable in advance,
it has been decided to be in arrear directly the period
for which it is payable commences (/).
4. The distrainor must have the reversion in him,
either an actual reversion, or at the least a reversion
by estoppel (g).
All movable
chattels can
be distrained,
subject to
exceptions.
Simpson v.
Hartopp.
The general rule is that all movable chattels on
the demised premises at the time of the distress are
liable to be seized, whether they are the property of
the tenant or of a stranger ; but this rule is subject
to many exceptions. The leading case on the point
of the exemption of things from distress is Simpson
V. Hartopp (A) ; the case itself is only a direct decision
to the etfect that implements of trade are privileged
from distress for rent, if they be in actual use at the
time, or if there be any other sufficient distress on
the premises ; but in the judgment is contained a
summary of the authorities upon the matter generally.
Instead of going into this case, it will be best to give
a list of the principal things which at the present day
are exempted from being taken in distress, and they
are as follows : —
Things ex-
empted at the
present day
from being
taken in
distress.
1. Things in the personal use of a man.
2. Fixtures affixed to the freehold.
(e) Woodfall's Landlord and Tenant, 405, 567.
(/) Ex parte Hall, In re Binns, i Ch. D. 285 ; 45 L. J. Bk. 21.
(g) Brown, Law Diet. tit. Distress, p. 179.
(h) I S. L. C. 463 ; Willes, 512.
OF LANDLORD AND TENANT. Jl
3. Goods of a strauger delivered to the tenant to
be wrought on in the way of his ordinary trade.
4. Perishable articles.
5. kmvadXs, ferce naturce.
6. Goods in custodia legis {%).
7. Instruments of a man's trade or profession
(though not in actual use), if any other sufficient dis-
tress can be found.
8. Beasts of the plough, instruments of husbandry,
and beasts which improve the land, if any other suffi-
cient distress can be found,
9. Live stock belonging to another person and
taken in by the tenant to be fed at a price agreed
on, if any other sufficient distress to be found ; and
even if there is no other sufficient distress, they are
only distrainable to the extent of the amount of the
price agreed on for the feed remaining then unpaid,
and the owner may redeem on paying this (Ic).
10. Agricultural or other machinery the hond fide
property of a person other than the tenant, and only
hired by the tenant (/).
I I. Live stock of all kinds the hond fide property
of a person other than the tenant, and on the tenant's
premises solely for breeding purposes (??i).
12. Loose money.
(i) See hereon Ex parte PoUen's Trustees, In re Davis, 55 L. J. Q. B.
217 ; 34 W. R. 442 ; 54 L. T. 304.
{k) 46 & 47 Vict. c. 61, 8. 45.
(1) Ibid.
(m) Ibid.
78
Dilfereuce
between
distress and
execution as
to goods of a
stranger.
Lodger's goods
never could
be taken in
execution,
but could in
distress.
Provisions of
Lodgers'
Goods Pro-
tection Act,
1871.
OF CONTRACTS AS TO LAXD, AND HEREIN
13. Lodgers' goods (n).
14. Wearing apparel and bedding of the tenant
and his family, and the tools and implements of his
trade to the value of ^5 (0),
On the above the student's attention is particularly
called to the exception numbered 3, for the purpose
of his observing the difference on that point between
an execution issued against goods and a distress. No
floods of a stranger are liable to be taken in execution,
but in distress they are so liable unless they have been
delivered to be wrought upon in the course of the tenant's
ordinary employment (p). Thus, if a book is lent, and
a distress or an execution is put into the lendee's house,
the book is liable to be taken in the distress though
not in the execution ; but if the book is delivered to
a bookbinder to be bound, it is not liable to be taken
either in distress or execution, for here the bookbinder
has it to work upon in the way of his ordinary calling.
Again, upon this point the student must particularly
notice the exception numbered i 3, being lodgers' goods.
A lodger's goods, being goods of a stranger, were never
liable to be taken in execution, but in the case of
distress they were formerly so liable ; and the excep-
tion in this latter case is contained in the Lodgers'
Goods Protection Act, 1871 (q), which provides that
on any distress by a superior landlord upon a lodger's
(n) 34 & 35 Vict. c. 79.
(0) 51 & 52 Vict. c. 21, s. 4; and see as to power of a court of
summary jurisdiction to order return of goods in this case, 58 & 59
Vict. c. 24. See also further statutory exceptions, 6 & 7 Vict. c. 40,
S3. iS. as to hired machines in factories, and 35 & 36 Vict. c. 50, s. 3,
as to rolling stock ; and see hereon East07i Estate Company v. Wester7i
Waggon Co., 50 L. T. 735 ; 50 J. P. 790. For the purpose of compari-
son note the following list of things exempt from being taken in exe-
cution : — I. Wearing apparel and bedding and implements of trade of
any judgment debtor not exceeding ,^5. 2. Goods of a stranger. 3.
Goods in custodia legis. 4. Fixtures affixed to the freehold. 5. (In the
case of an elegit) advowson in gross and glebe land.
(p) Clark V. MiUwall Dock Co., 17 Q. B. D. 494 ; 55 L. J. Q. B.
378 ; 54 L. T. 814.
(9) 34 & 35 Vict. c. 79.
OF LANDLORD AND TENANT.
79
furniture or goods for rent due to the landlord from
his immediate tenant, the lodger may serve the land-
lord or his bailiff with a declaration (r) (to which must
be annexed an inventory of the furniture) that the
immediate tenant has no property or beneficial interest
in the goods, and that the same are the property of
him, the lodger, and also setting forth whether any
and what rent is due from the lodger to his immediate
landlord, and the lodger may pay to the superior
landlord, or his bailiff, the rent (if any) so due, or so
much of it as may be sufficient to discharge the claim
of such superior landlord ; and if the landlord proceeds
with the distress after the tenant has complied with
these provisions, he is to be guilty of an illegal dis-
tress ; and the lodger may apply to a justice of the
peace for restoration of the goods. The question of what consti-
whether the relationship of landlord and lodger actually ^"^^^ * lodger,
exists is one of fact (s), the general rule being that to
constitute a person a lodger there must be a possession
or control retained over the premises by the landlord,
e.ff. having a room in the house (t).
If a landlord takes a bill, note, or bond for his rent. Bill or note
this is no extinguishment of his original right to the dirnoText""*
rent, for the rent is of a higher nature than either of tiuguish the
,, -i- / \ 1 • 1 ■, , right of dis-
those securities (%) ; but it has recently been held that tress.
if a landlord take a bill of exchange for rent due, that
fact is evidence from which a jury may infer an agree-
ment by the landlord to suspend his right of distress
during the currency of the bill (x). If, therefore, a
landlord take a bill or note for his rent, it appears
(r) As to the sufficiency of the declaration see Thwaiies v. Wilding,
12 Q. B. D. 4 ; 53 L. J. Q. B. I ; 32 W. R. So ; 49 L. T. 396 ; £x parte
Harris, 34 W. K. 132 ; 50 J. P. 7.
(s) Ness V. Hephenson, 9 Q. B. D. 245 ; 47 J. P. 134.
(t) Philips V. Henson, 3 C. P. D. 26 ; 47 L. J. C. P. 273 ; Martin
V. Palmer, 50 L. J. Q. E. 7 ; 30 W. R. 1 15 ; Ness v. Stephenson, supra ;
see also Ueaxoood v. Bone, 13 Q. B. D. 179; 32 W. R. 752 • 51 L T
125.
(u) Harris v. Shipway, and Exver v. Lady Clifton, Bui. X. P. 182.
(x) Palmer v. Bradley, {1895), 2 Q. B. 405.
8o OF CONTEACTS AS TO LAND, AND HEREIN
that he caunot safely distrain during its currency, but
that upon its dishonour he may do so.
Semayne''s It is Said that "every man's house is his castle" (?/),
MTxim: and therefore to make a distress, the landlord or his
'' ^^^'7 P^.**" ^ bailiff must not break the house, and by breakiug the
house 13 his ' '' °
castle," house is meant not only the forcing open the door, but
even the opening of an unbolted window, though if the
window is already partially open it is justifiable to
open it further to efi'ect an entrance (z). And where
a landlord's bailiff, being employed to distrain for rent,
climbed over a wall surrounding the yard of the house,
and entered the house by an open window, it was held
that the climbing over the wall was not illegal, and
that the distress was lawful (a). A landlord, in making
a distress, is justified in opening an outer door in the
way in which other persons are accustomed to use it ;
and when entry has once properly been obtained into
a house, inner doors may be forced open. If a dis-
trainor, having properly entered, is afterwards turned
out of possession, he has a right to break the house to
re-enter (b).
Provisions of It was formerly considered that if a tenant gave his
Richard II. landlord special leave and licence to break and enter
premises, tliis would justify the landlord in so doing ;
but the law must now be taken to be otherwise by
reason of recent decisions on the effect of an old statute
of the reign of Eichard II. (c), which enacts as follows :
(y) Semayne's Case, I S. L. C. I15 ; 5 Coke, 91.
(2) Crabtree v. Robinson, 15 Q. B. D. 312 ; 54 L. J. Q. B. 544; 33
W. R. 936.
(«) Long V. Clarke, (1894), i Q. B. 119; 63 L. J. Q. P. 108 ; 69 L.
T. 654.
(6) See hereon notes to iSeTOaz/ne's Case, I S. L. C. 125. The principle
of Semayne's Case applies equally to the levying of executions, but
note that in executing a writ of attachment for contempt of court, the
officer charged with the execution of the writ may break open even an
outer door to execute it : Harvey v. Harvey, 26 Ch. D. 644 ; 51 L. T.
508 ; 33 W. R. 76 ; 48 J. P. 468.
(c) 5 Rich. 2, St. I, c. 8.
OF LANDLORD AND TENANT. 8 1
" And also the king enjoineth that none from hence-
forth make entry into any lands and tenements but in
case where entry is given by law, and in such case not
with strong hand nor with multitude of people, but
only: in lawful, peaceable, and easy manner. And if
any man from henceforth do to the contrary, and
thereof be duly convicted, he shall be punished by
imprisonment of his body, and thereof be ransomed at
the king's will." On this statute it has been held that
any leave and licence to break and enter premises is
void in its inception, and that any forcible ejection by
the act of the party is illegal (d).
A landlord can, if his title still continues, and the A lanaiord
.,, . . ,. , . - i p 1 may distrain
tenant is still in possession, distrain for rent after the after exi)ira-
expiration of the lease, provided he makes the distress ^'^^^^g^^^^^^f'
within six months of such expiration (e). An executor c^tor or admi-
... » , ,. . . ,., nistrator may
or administrator of any lessor may distrain in like distrain.
manner for rent as his testator or intestate might have
done, but such distress must be within six calendar
months after the determination of the term or lease (/).
It is provided by statute (g), that if a tenant fraudu- Landlord may
lently or clandestinely removes his goods after rent ciaiXsfhieiy
has become due, in order to avoid their being seized yemoved by
' . . > teuaut.
in a distress, the landlord may, if there is not a suffi-
cient amount of other distrainable property left, within
thirty days follow and distrain on the goods if they
have not been sold bond fide for value and without
notice in the meantime, and a penalty for such an act
may be recovered of double the value of the goods.
A landlord is not, under this provision, justified \n (irmj \. staiu
following and seizing after the expiration of the
[d) Edridge v. Hawkes or Edwiek v. Hawhes or Edridge v. Hawker,
18 Ch. D. 199 ; 50 L. J. Ch. 577 ; 45 L. T. 168 ; 29 W. R. 913 ; Beddall
V. Maitland, L. R. 17 Ch. D. 174 ; 50 L. J. Ch. 401 ; 29 W. R. 484 ;
44 L. T. 248.
(c) 8 Anne, c. 14, ss. 6, 7.
(/) 3 & 4 Win. 4, c. 42, ss. 37, 38.
{(/) II Geo. 2, c. 19, ss. I, 2
F
82 OF CONTRACTS AS TO LAND, AND HEREIN
tenancy, and after the tenant has given up possession,
goods which have been fraudulently removed from the
demised premises for the purpose of defeating the
landlord's right to distrain for the rent, for this enact-
ment applies only to a case where the landlord has a
risht to distrain either at common law or under the
statute 8 Anne, c. 14, referred to in the last preceding
paragraph, and it is a condition of that statute, in
order to make it applicable, that the tenant must be
in actual possession (A). If a tenant has given a bill
of sale, and the holder thereof, being entitled to do so,
seizes and removes the goods, although such removal
is made with the view of preventing the landloid
distraining on the goods, yet the landlord cannot
follow them under the above provision, and this is so
even although the only right on the part of the bill
of sale holder to so seize and remove was the consent
of the tenant to his so doing (i).
Manner of The manner of making a distress is as follows : —
distresl^ Tlie landlord, either personally or by his duly certified
bailiff (who need not necessarily be authorized by writ-
ing), enters and makes a seizure at any time between
sunrise and sunset. He then makes an inventory of
the goods, and leaves the same, with a written notice
of the amount of rent due and of the things distrained,
on the premises : after five days from making the distress
— which period is allowed for the tenant to have an
opportunity of replevying — the chattels are usually
appraised by two appraisers, and they are then sold,
and any balance beyond the rent and expenses is after-
wards paid to the owner (J). All necessity for appraise-
ment prior to selling is, however, now dispensed with,
and the period for replevying is, if the tenant so requests,
(h) Gray v. Stait, II Q. B. D. 668 ; 52 L. J. Q. B. 412 ; 49 L. T.
2S8 ; 31 W. R. 662.
(i) Tomlinson v. Consolidated Credit Corporation, 24 Q. B. D. 135 ;
62 L. T. 162; 38 W. R. 118.
(;■) 2 Wm. and Mary, sess. i, c. 5, s. 2 ; 35 & 36 Vict. c. 92, s. 13.
OF LANDLORD AND TENANT. 83
and gives security for any additional costs that may be
thereby occasioned, extended to fifteen days (k).
The well-known case called "ThejSix Carpenters The Six
Case" (I) decides the point that where an ^ authority g^Jf "*""''
or power is given to a person by the law, which
authority or power is abused by such person, he be^
comes a trespasser ah initio, and a distress being such
an authority or power, it followed from this deci-
sion that if there was any irregularity in making
the distress, the distrainor was from the moment of
distraining a trespasser. This hardship has been The effect of
remedied by statute {m), which provides that if any a jltreLTiow
rent is justly due, in the case of irregularity the '^'tered by
J. . . " •' II Geo. 2,
distranior is not to be a trespasser ah initio. But if c. 19, s. 19.
a landlord is not merely guilty of some irregularity,
but distrains in an unauthorized way, he is then a
trespasser from the commencement ; and if he makes
an excessive distress, an action may be brought against
him for so doing. If the tenant tenders (?i) the amount Tender of rent
of the rent, this will make the distress tortious, and tresJ^toltious.
although a warrant has been delivered to a bailiff, a
tender without expenses is good before the distress is
put in ; if a tender is made after seizure, but before the
impounding (0) of the distress, it makes the detaining,
and not the original taking, wrongful. Any person
guilty of pound-breach or rescue of goods distrained Pound-breach.
on, is by statute {p) liable for treble the damages
suffered by the distrainor.
The usual proceeding on a wrongful distress is by Replevin,
replevin, the first step in which is to enter into
{k) 51 & 52 Vict. 0. 21, s. 5-7. See also as regards distress the Law
of Distress Amendment Act, 1895 (58 & 59 Vict. c. 24).
(I) I S. L. C. 144 ; 8 Coke, 146 a.
{m) II Geo. 2, c. 19, s. 19,
(n) See as to a tender, post, ch. viii. pp. 266-268.
(o) As to what will amount to " impounding," see Woodfall's Land-
lord and Tenant, 444. Seizing and making an inventory and giving
notice to the tenant of the distress appears to be sufficient.
{p) 2 Wm. and Mary, sess. i, c. 5, s. 4.
84
OF CONTKACTS AS TO LAND, AND HEREIN
a replevin bond before the registrar of the district
county court, with two sureties ; and on this being
entered into, the goods are redelivered to the owner,
who subsequently has to commence an action to try
the validity of the distress, and if it goes against him,
he has to return the goods to the distrainor {q).
Other reme-
dies of a land-
lord besides
distress.
Action of
ejectment at
common law,
and under
IS & i6 Vict,
c. 76, s. 210.
Beyond his remedy to recover rent by the summary
process of distress, the landlord has another remedy,
viz. by simply bringing an action to recover it ; and
besides this he may also proceed, on the condition of
re-entry, to eject his tenant (r). At common law,
before commencing an action of ejectment for non-
payment of rent, it was necessary to make a demand
for the rent at some convenient time before sunset on
the last day limited for payment of the rent. The
necessity of making this demand being a great incon-
venience, it was provided by the Common Law Procedure
Act, 1852 (s), that if half a year's rent is in arrear, and
there is no sufficient distress to be found upon the pre-
mises, the landlord may bring ejectment without the
necessity of making any previous demand. If half a
year's rent is not due, or there is a sufficient distress
on the premises, it will be observed that this provision
is inapplicable, and if ejectment is resorted to, it must
be as at the common law, quite irrespective of the
statute, with the formality of a demand, unless indeed
the proviso for re-entry expressly dispenses with the
necessity for it, which is usually the case.
Amount of A landlord may distrain for six years' rent (except
entitied\o"^ in the One case of a holding under the Agricultural
sue and Holdings Act, 1883, presently mentioned), and if the
distrain for. ® ' ^' ^ -^ ,. .
demise be under seal, though he has no claim to distrain
{q) See hereon Indermaur's Manual of Practice, 58.
(r) This subject is unaffected by sect. 14 of the Conveyancing Act,
1S81 (44 & 45 Vict. c. 41), which provision should, however, be referred
to on the general subject of forfeiture by tenants. See post, pp. 88, 89.
(s) 15 & 16 Vict. c. 76, s. 210.
OF LANDLORD AND TENANT. 85
beyond the six years, yet he has a right of action
against the person for the full period of twenty years
(t). If a landlord distrains before the goods are taken
in execution for a debt, he has a right to the full amount
he is entitled to distrain for out of the goods, notwith-
standing the subsequent execution ; and in the case of
the goods on the demised premises being taken in execu-
tion before he has distrained, he has even then a right to Has a right
be paid one year's rent (if so much is due), before the execution
goods are removed under the execution, and the sheriff'^''®'^'*"'' f"""
o ' one year s
is empowered to levy out of the goods and pay the reut.
execution creditor not only the amount of the execution,
but also such one year's rent which he has had to pay
the landlord (u). Tlie landlord has no right as against
an execution creditor to more than the one year's rent,
although more may be due to him, if the execution
{t) 3 & 4 Will. 4, c. 27, s. 42 ; 3 & 4 Wm. 4, c. 42, s. 3 ; and see
further generally as to limitation of action, 2wst, pp. 269-276. I have
carefully considered the point of whether an action for arrears of rent on
a covenant can still be brought within twenty years, and am of opinion
that it can. I arrive at this result thus : Sect. I of 37 & 38 Vict. c.
57 is in place of sect. 2 of 3 & 4 Wm. 4, c. 27, now repealed, and it
provides that an action for rent must be brought within twelve years ;
lout on the authority of Grant v. Ellis (9 M. & W. 1 13), decided under
the repealed provision, this does not extend to rent between landlord
and tenant, and this case has been recently followed (Lewis v. Graham,
80 L. T. Newspaper, 66 ; Darley v. Tennant, 53 L. T. 257). By 3 &
4 Wm. 4, c. 27, s. 42, only six years' arrears of rent can be recovered,
but under 3 & 4 Wm. 4, c. 42. s. 3, an action for debt upon a covenant
to pay rent may be brought within twenty years. The idiotic confusion
between these two enactments, passed within three weeks of each
other, was, in Hunter v. Nockolds (i Mac. & G. 640), explained in this
way, that 3 & 4 Wm. 4, c. 27, must be considered as only determining
what could be recovered against the land, and 3 & 4 Wm. 4, c. 42,
what could be recovered against the person. Therefore plainly, before
37 & 38 Vict. c. 57, the periods of limitation were stated in the text.
I can find nothing in that Act which alters the law. Section 9, it is
true, whilst expressly keeping on foot sect. 42 of 3 & 4 Wm. 4, c. 27,
makes no mention of 3 & 4 Wm. 4, c. 42, s. 3 ; but surely that cannot
produce any repeal by iniplication. Lastly, I do not recognise that
Sutton V. Sutton (22 Ch. D. 511; 52 L. J. Ch. 333 ; 48 L. T. 95 ; 31
W. R. 369) affects the point, for that was distinctly decided on sect. 8
of 37 & 38 Vict. c. 57, which section has nothing whatever to do with
an action to recover rent, though it has with money charged on rent.
There really is so much confusion amongst writers on this subject, and
so much careful evasion of stating anything definite as to it (see for
in.stance, Prideaux, vol. ii. pp. 8, 9), that I have thought it best to leave
it as it is in the text, and give my readers the reasons thus fully.
(u) 8 Anne, c. 14, s. i.
86 OF CONTRACTS AS TO LAND, AND HEREIN
has been levied before he has distrained for his rent (x).
With regard to a holding governed by the Agricultural
Holdings Act, 1883 (1/), a distress for rent is only
allowed to the extent of one year before the making
of the distress, except that where the ordinary custom
between landlord and tenant has been to defer pay-
ment of rent until the expiration of a quarter or half
a year after the same became due, then the rent is
only deemed, for the purposes of distress, to have be-
come due at the expiration of such quarter or half year,
and not at the date at which it legally became due (z).
Also in the jn the casc of bankruptcy also, a landlord has an
bankruptcy, advantage over other creditors, it being provided that
the landlord or other person to whom any rent is due
from the bankrupt, may at any time, either before or
after the commencement of the bankruptcy, distrain
upon the goods or effects of the bankrupt for the
rent due to him from the bankrupt, with this limita-
tion, that if such distress be levied afj^r the com-
mencement of the bankruptcy, it shall be available
only for six months' rent accrued due prior to the date
of the order of adjudication, but the landlord or other
person to whom the rent may be due from the bank-
rupt may prove in the bankruptcy fur the surplus
due for which the distress may not have been avail-
able (ft). It is, however, also provided that if a land-
lord distrains on the goods of a bankrupt, or of a company
being wound up, within three months next before the
date of the receiving order, or the winding up order,
certain debts to which priority is given in bankruptcy
(x) 8 Anne, c. 14, s. I.
(y) 46 & 47 Vict. c. 61.
(r) 46 & 47 Vict. c. 61, s. 44. On the construction of this section
see £x parte Bull, In re Bew, 18 Q. B. D. 642 ; 56 L. J. Q. B. 270;
56L. T. 571; 35W. R. 455.
(a) 46 & 47 Vict. c. 52, s. 42, as amended by 53 & 54 Vict. c. 71,
s. 28. The Act 46 & 47 Vict. c. 52, s. 42, also goes on to provide that
the term "order of adjudication" shall be deemed to include an order
for the administration of the estate of a debtor whose debts do not
exceed ^50, or of a dead person who dies insolvent.
OF LANDLORD AND TENANT. 87
— c.f}. twelve months' rates andtaxes, and wages of a clerk
or servant during the previous four months, and not
exceeding ^^50 — shall be a first charge on the goods so
distrained or the proceeds thereof, but the landlord is
then to have tlie same rights of priority as the person to
whom such payment is made (Jj).
If, during the continuance of a lease, the lessee On bankruptcy
becomes bankrupt, the position of his landlord for the aisciaini lease
remainder of the term is, that the trustee in bankruptcy ^j^o^per'ty?''
may take the lease and hold it, or deal with it gene-
rally for the benefit of the creditors, or may, by leave
of the court (c), disclaim it, as being onerous property,
in which case the lease will be deemed determined from
the date of disclaimer, and the landlord may then prove
against the bankrupt's estate for any injury or loss
caused him by such disclaimer {d). This disclaimer Time for dis-
must be made within twelve months from the trustee's
appointment, unless the property shall not have come
to the trustee's knowledge within one month after his
appointment, when he may disclaim at any time within
twelve months after he first became aware thereof ; and
in addition it is provided that the landlord may make
an application in writing to the trustee to decide
whether or not he will disclaim, and if the trustee
does not then disclaim within twenty-eight days, or
such further time as may be allow^ed by the Bankruptcy
Court having jurisdiction, he cannot afterwards do so (e).
If a tenant is evicted, or his term is surrendered by
operation of law during the continuance of a current
year or half-year or quarter, an apportionment of the
(h) 51 & 52 Vict. c. 62, s. I (4).
(c) There are certain cases in which the trustee may disclaim without
leave. See Bankruptcy Rules, 18S6 and 1890, Rule 320.
{d) 46 & 47 Vict. c. 52, s. 55 (i, 7).
(e) 46 & 47 Vict. c. 52, s. 55 (I, 7) ; 53 & 54 Vict. c. 71, s. 13. These
provisions as to disclaimer do not only apply to the relation of landlord
and tenant, but to all cases of onerous property. As to the effect of
disclaimer and the power of the court to make a vesting order, see 46
& 47 Vict. c. 52, s. 55 (2), and 53 & 54 Vict. c. 71, s. 13.
88
OF CONTRACTS AS TO LAND, AND HEREIN
Apportion-
ment Act,
1870.
Tenant is
liable to lie
ejected on
breach of
covenants.
But relief Ion;
given in two
cases.
rent is now, under the Apportionment Act, 1870 (/),
made in all cases. On the breach by a tenant of the
covenants contained in his lease, he is liable to be ejected
by his landlord under the ordinary condition of re-entry
contained in the lease ; but in the two cases of covenants
to pay rent and to insure, the Court has long had power
to relieve on the payment of the rent and costs in the
one case {g), and in the other case, if shewn that the
; omission to insure arose through accident or mistake,
or otherwise than from fraud or gross neglect, that no
loss or damage by fire had happened, that there was at
the time of the applicaiion an insurance on foot in
conformity with the terms of the covenant, and also
provided relief had not been previously given, or a pre-
vious breach waived by the landlord out of court. A
memorandum of the fact of the relief had, however, to
be indorsed on the lease {h).
Provisions of The law as to relief on non-payment of rent remains
Conveyancing ^^ formerly, but the provisions just referred to as to
Act, lool, as •' ' ■■• " 1 J
relief against breach of a covenant to insure are repealed
by the Conveyancing Act, 1881 (i), which contains a
much wider enactment on the subject of relief against
breaches of covenants in leases generally, it being pro-
vided (/.■) that a right of re-entry or forfeiture under
, any proviso or stipulation in a lease for a breach of any
covenant or condition in the lease, shall not be enforce-
able by action or otherwise, unless and until the lessor
serves on the lessee a notice specifying the particular
breach complained of, and, if the breach is capable of
remedy, requiring the lessee to remedy the breach, and
in any case requiring the lessee to make compensation
to relief
against forfei
tures under
leases.
(/) 33 & 34 Vict. c. 35.
(</) Ttiis was always so in Equity, and as to the Courts of Law was so
provided by 15 & 16 Vict. c. 76, s. 211. It has recently been held that
a mortgagee of a lease has the same right to relief as the lessee (Ncicholt
V. Bimjham, 99 Law Times Newspaper 117 ; Law Students' Journal,
June 1895, p. 117).
(h) This power was given to Equity by 22 & 23 Vict. c. 35, ss. 4-6,
and to law by 23 & 24 Vict. c. 126, s. 2.
(0 44 & 45 Vict. c. 41, s. 14 (7).
(A) Sect. 14.
OF LANDLORD AND TENANT 89
in money for the breach, aud the lessee fails within a
reasonable time thereafter to remedy the bieach, if it
is capable of remedy, aud to make reasonable compen-
sation in money to the satisfaction of the lessor fur
the breach (I). Also that where a lessor is proceeding
by^ction or otherwise to enforce such a right of re-entry
or forfeiture, the lessee may in the lessor's action, if any,
or in any action brought by himself, apply to the court
foj^ relief ; and the court may grant or refuse relief as
it thinks fit, or grant it on any terms it thinks fit (jn).
It is, however, expressly enacted that this provision shall Proviso,
not extend to a covenant or condition against assigning,
underletting, parting with the possession or disposing
of the land leased, or to a condition for forfeiture on
the bankruptcy of the lessee (n), or on the taking in
execution of the lessee's interest, or in the case of a
mimng lease, to a covenant or condition allowing the
lessor to have access to or inspect books, accounts,
records, weighing-machines or other things, or to enter
or inspect the mines or the workings thereof. This
enactment is retrospective, and applies notwithstand-
ing any stipulation in the lease to the contrary. If a
tenant commits a breach of one of the excepted cove-
nants, e.ff. a covenant not to assign without licence, he
is absolutely liable to be ejected, and the Court has no
pawer to give any relief (0).
The relation of landlord and tenant creates an im- Tenant has a
plied consent by the landlord that the tenant may !;ify burden on
appropriate such part of his rent as shall be necessary *^": ^'^^'^ '^^^
. ^ . „ , . . . *' of his rent.
to indemnity him against prior charges, and that the
money so appropriated shall be considered as paid, on
account of the rent ; so that if a tenant discharges some
(I) A notice is not invalid because it does not contain a claim for
compensation in money for the breach : Lock v. Pearce, (1893), 2 Ch.
271 ; 62 L. J. Ch. 582 ; 68 L. T. 569.
(m) See Mitchison v. Thompson, i C. & E. 72.
{n) This is, however, to a certain very limited extent somewhat
modified by the Conveyancing Act, 1892 (55 & 56 Vict. c. 13, sect. 2,
Bub-sect. 2).
(0) Barrow v. Isaacs, 60 L J. Q. B. 179 ; 64 L. T. 686.
liouse or
apaitmeuts.
90 OF CONTEACTS AS TO LAND, ETC.
burden upon the premises prior to his own interest
therein, it is considered as an actual payment of so
much rent, and need not be set up as a set-off, but as
an actual payment (2?).
Implied coikH- It has been decided that though there is no implied
afuruished"" Warranty on the letting of an unfurnished house (q),
yet if a person agrees to take a furnished house or apart-
ments for some short period, as it is naturally intended for
immediate occupation, there is an implied condition that
it is fit for habitation ; so that if, by reason of defective
drains, or through the house or apartments being in-
fected with some complaint, or otherwise, it is not so fit,
the tenant is justified in repudiating the agreement, and
is not liable upon it (?■). But this implied warranty
only exists as regards defects existing at the commence-
ment of the tenancy (s), and only when the house is
properly speaking a furnished house, so that where a
house and land were let, and the house was partly
furnished, it was held that there was no implied
warranty (t).
The Housing It is provided by the Housing of the Working
oftlie^Vorkiiig / "^ . ° , „
Classes Act, Classcs Act, 1890, that m any contract made after
^°' 1 4th August 1885 for letting for liabitation by persons
of the working classes a house or part of a house, there
shall be implied a condition that the house is at the
commencement of the holding in all respects reason-
ably fit for human liabitation. This, however, only
applies in England where the annual letting rent does
not exceed the following amounts respectively, viz.
;^20 in London, ;^I3 in Liverpool, ;^io in Manchester
or Birmingham, and ;^8 elsewhere (n).
(p) I S. L. C. 177, 178.
(g) Manchester Bonded Warehouse Co. v. Carr, 5 C. P. D. 507 ; 49
L. J. C. P. 809 ; 29 W. R. 354.
(r) Wilson v. Finch Hatton, 2 Ex. D. 337 ; 46 L. J. Ex. 4S9 ; Smith
V. Marrahle, 11 M. & W. 5 ; Bird v. Lord Greville, I C. & E. 317.
(s) Maclean v. Currie, i C. & E. 361 ; Sarson v. Roberts, (1895), 2
Q. B. 395 ; 43 W. R. 690.
{t) Chester v. Pouell, 52 L. T. 722.
(«) 53 & 54 Vict. c. 70, s. 75.
OF CONTRACTS AS TO GOODS. 9 1
CHAPTER IV.
OF CONTRACTS AS TO GOODS, AND HEREIN OF BAILMENTS,
INCLUDING CARRIERS AND INNKEEPERS («).
The most usual, and therefore most important, kind of Sale and agree-
contracts as to goods are for their sale, and the whole '"®"* *^° ^^^ '
law on the subject of the sale of goods has recently
been codified by the Sale of Goods Act, 1893 (&). A
contract of sale of goods is defined as a contract
whereby the seller transfers, or agrees to transfer, the
property in goods to the buyer for a money consideration,
called the price. Where under a contract of sale the
property in the goods is transferred from the seller to
the buyer, the contract is called a sale. Where the
transfer of the property in the goods is to take place
at a future time, or subject to some condition there-
after to be fulfilled, the contract is called an agreement
to sell ; and an agreement to sell becomes a sale when
the time elapses, or the conditions are fulfilled, subject
to which the property in the goods is to be transferred (c).
When a contract of sale of goods is entered into, it Points as to
is the duty of the seller to deliver them, and of the acc'e^ta^ice of
buyer to accept and pay for them, in accordance with s^^^^.
the terms of the contract (d), and delivery of the goods
and payment of the price are concurrent conditions (e).
Whether it is for the buyer to take possession of the
goods, or for the seller to send them to the buyer, is a
question depending in each case on the contract, but
(a) As to the title to goods, see post, Part ii., "Torts," ch. lii.
(h) 56 & 57 Vict. c. 71. (c) Sect. I.
(d) Sect. 27. (e) Sect. 28.
92
or CONTRACTS AS TO GOODS,
Delivery to
a carrier.
Deterioration
(luring transit,
Examination
of goods
by buyer.
Rejection
of goods.
apart from this the place of delivery is the seller's place
of business, if he has one, and if not, his residence, except
that if the contract is for the sale of specific goods,
which to the knowledge of the parties when the contract
is made are in some other place, then that place is the
place for delivery (/). Where under the contract the
seller is authorised or required to send the goods to the
buyer, delivery to a carrier for the purpose of trans-
mission to the buyer, is prim d facie a delivery to the
buyer ; but when goods are sent by the seller to the
buyer by a route involving sea transit, under circum-
stances in which it is usual to insure, the seller must
give such notice to the buyer as may enable him to
insure them during their sea transit ; and if he fails to
do so, the goods are deemed to be at his risk during
such sea transit {[/). Where the seller agrees to deliver
goodsathisown risk,the buyer nevertheless takes any risk
of deterioration in the goods necessarily incident to the
course of transit (A). When goods are delivered, the buyer
should examine them, and reject or accept them, and he
cannot be deemed to have accepted them until he has
had a reasonable opportunity of examining them, to see
if they are in conformity with the contract, and he will
be deemed to have accepted them when he so intimates
to the seller, or when he does any act in relation to the
goods which is inconsistent with the ownership of the
seller, or when, after the lapse of a reasonable time, he
retains the goods without intimating to the seller that
he has rejected them (i). If the buyer, being entitled
to do so, rejects the goods, he is not bound to return
them to the seller, but it is sufficient if he intimates
to the seller that he refuses to accept them (k).
The majority of contracts for the sale of goods are
(/) 56 & 57 Vict. c. 71, s. 29.
{g) Sect. 32.
(A) Sect. 33.
(i) Sect. 34, 35.
{k) Sect 36
AND IIEKEIN OF BAILMENTS. 93
undoubtedly simple and plain in their nature, but in "Whether the
very many such contracts intricate and difficult points ,looiU has
arise as to the passing of the property in the goods and pa-^sed.
the relative rights of the vendor and vendee in the sub-
ject-matter of the contract ; and whether the property
in goods has passed under a contract is frequently a
question of intention, to be gathered from the expres-
sions made use of in the contract, and the surrounding
circumstances (/). Of course, if goods, on being sold,
are actually delivered over to the purchaser, there can
ordinarily be no doubt whatever of the property at once
passing to Mm ; but in many cases the goods may remain
in the possession of the vendor whilst the property in
them has passed to and is vested in the purchaser, so
that any loss happening to them would have to be borne
by the latter. It is necessary, therefore, to specially
consider the question as to when the property passes in
goods on a contract for their sale being entered into,
bearing in mind that the goods are at the risk of the
person in whom the property is vested (vi).
The Sale of Goods Act, 1893 (n), provides that, with As to property
regard to a contract for the sale of unascertained goods, a^cei'tfiiVed"'^"
no property in the ofoods is transferred to the buyer and specific
I 1. J c> ^ J goods respec-
unless and until the goods are ascertained (0) ; but tively.
that with regard to specific goods, the property in
them is transferred to the buyer at such time as the
parties to the contract intend it to be transferred ; and
to arrive at this intention, regard is to be had to the
terms of the contract, the conduct of the parties, and
the circumstances of the case (2^). The Act then goes
on to provide (§'), that unless a different intention appears,
the following rules are to be observed for ascertaining
(Z) Broom's Coins. 382.
(m) 56 & 57 Vict. c. 71,
(n) 56 & 57 Vict. c. 71.
(0) Sect. 16.
{j)) Sect. 17.
(2) Sect. liJ.
94
Rules for
ascertaining
intention as
regards
property
passing.
OF CONTRACTS AS TO GOODS,
the intention of the parties as to the time at which the
property in the goods is to pass to the buyer : —
I, Where there is an unconditional contract for the
sale of specific goods in a deliverable state, the property
in the goods passes to the buyer when the contract is
made, and it is immaterial whether the time of payment,
or the time of delivery, or both, be postponed.
II. Where there is a contract for the sale of specific
goods, and the seller is bound to do something_ to the
<TOods for the purpose of putting them into a deliverable
state, the property does not pass until such thing be
done and the buver has notice thereof.
III. Where there is a contract for sale of specific
gfoods in a deliverable state, but the seller is bound to
weigh, measure, test, or do some other act or thing
with reference to the goods for the purpose of ascer-
taining the price, the property does not pass until such
act or thing be done, and the buyer has notice thereof.
IV. When goods are delivered to the buyer on
approval or " on sale or return," or other similar terms,
the property therein passes to the buyer : — (a.) When
he signifies his approval or acceptance to the seller, or
does any other act adopting the transaction, (h.) If
he does not signify his approval or acceptance to the
seller, but retains the goods without giving notice of
rejection, then, if a time has been fixed for the return
of the goods, on the expiration of such time, and, if
no time has been fixed, on the expiration of a reason-
able time. What is a reasonable time is a question
of fact.
V. (l.) Where there is a contract for sale of unas-
certained or future goods by description, and goods of
that description, and in a deliverable state, are uncon-
ditionally appropriated to the contract, either by the
AND HEREIN OF BAILMENTS. 9.5
seller witli the assent of the buyer, or by tlie buyer
with the assent of the seller, the property in the goods
thereupon passes to the buyer. Such assent may be
express or implied, and may be given either before or
after the appropriation is made. (2.) Where, in pur-
suance of the contract, the seller delivers the goods
to the buyer, or to a carrier or other bailee (whether
named by the buyer or not), for the purpose of trans-
mission to the buyer, and does not reserve the right
of disposal, he is deemed to have unconditionally
appropriated the goods to the contract.
These rules, thus specifically formulated by the Instances of
Sale of Goods Act, 1893, are in substance the result prop^eny^in
of a number of decisions to which it is now neces- ^'°°''^ '^^^^ "°'
puss.
sary to refer ; but with regard to them it may be
well to specially notice some instances of cases in
which the transaction may be simply inchoate and in-
complete, and not pass any property in the goods, by
reason of the contract shewing that there is no present
intention to pass the property. Thus, in one case,
where, on a contract for the sale of goods, it was,
according to the usage of trade, the duty of the seller
to count them out, and before he did so the goods
were destroyed by fire, it was held that the loss fell
on the vendor (?•). In another case, turpentine was
bought at an auction, which, according to the con-
ditions of sale, was to be weighed, and before it was
entirely weighed it was destroyed by fire ; the court
held that the property had not passed in that portion
of the goods which had not been weighed (s). And
where the defendant had contracted for the purchase
of the trunks of certain trees, and the custom of the
trade was that he should measure and mark the portions
he wanted, and that the vendor should then cut off the
rejected parts, it was held that no property had passed
(r) Zagury v. Furnell, 2 Camp. 240.
(s) Rugg V. Minett, 11 East, 210.
g6 OF CONTRACTS AS TO GOODS,
in the goods until such rejected parts had been actually
severed (/). In another case a horse was sold by the
plaintiff to the defendant, upon condition that it should
be taken away by the defendant and tried by him for
eight days, and returned at the end of eight days if the
defendant did not think it suitable for his purposes.
The horse died on the third day after it was placed in
the defendant's stable, without fault of either party.
It was held that the property had not passed, and
therefore that the plaintiff could not maintain an action
for the price («).
"When pro- Where goods, part of an entire bulk, are sold, no
^'ood^ parro/"^ property passes in them until separated and set apart
an entire bulk, fj-om the bulk and absolutely appropriated to the pur-
chaser (x). It is sometimes the vendor, and sometimes
the purchaser, who has the right of selecting the par-
ticular goods from the entire bulk ; and the rule is,
that " the party who by the agreement is to do the
first act which, from its nature, cannot be done until
the election is determined, has authority to make the
choice in order that he may be able to do that first
act ; and, when once he has done that act, the election
has been irrevocably determined, but till then he may
change his mind " (//). An instance of when the right
of appropriation will be in the purchaser may be found
in the case of the sale of a certain number of bricks
out of a stack of bricks, and it being provided that the
purchaser shall send his cart to take them away. Here
the first act has to be done by the purchaser, and he,
therefore, has the right of appropriation. He may
choose which of them he likes, but as soon as he has
once put them in his cart to be fetched away, the
(i) Acraman v. Morris, S C. B. 449.
[u) Elphick V. Barries, 5 C. P. 1). 321 ; 49 L. J. C. P. 698 ; 29 W.
R. 139.
(x) See Dixon v. Yates, 5 B. & Ad. 313 ; Campbell on the Law of
Sale of Goods, 277.
(y) Benjamin's Sale of Personal Property, 319 ; Campbell on the Law
of Sale of Goods, 230.
AND HEREIN OF BAILMENTti. 97
appropriation is complete and the property has passed.
But if in such a case the contract was that the vendor
should load thera on the purchaser's cart, here the
right of appropriation would be in the vendor, for the
first act is to be done by him ; and in all cases of
appropriation by the vendor such appropriation must
be assented to by the vendee before the property will
pass ; but if it is made in pursuance of and as a term
of the contract, the assent is presumed, and it is con-
clusive (z). In the case also of a contract to make when the
any article (though an action would of course lie for ^^ssSn goods
the breach of the contract), the property therein will ^^ ^^ i"*<^«
not pass until there has been a subsequent appropria-:
tion thereof made by the vendor, and such appropria-,
tion has been assented to by the purchaser. And so
also a grant of goods not in existence, or not belong-
ing either actually or potentially to the grantor at the
time, is of no effect unless the grant is afterwards in
some way ratified by him after acquiring a property ■
in them (a). Tlie mere fact of the price not being
mentioned in the contract does not prevent the pro-
perty passing, for it may be either a price to be
thereafter agreed on, or determined in the course of
dealing between the parties, or what the things are
reasonably worth (b). If, however, there is an agree-
ment to sell goods at a price to be fixed by the valua-
tion of a third party who cannot or does not make such
valuation, then the agreement is avoided, except that if
the goods, or any part of them, have been delivered to
and appropriated by the buyer, he must pay a reason-
able price for them. If, however, such third party is
prevented from making the valuation by the fault of
the seller or buyer, the party not in fault may maintain
an action for damages against the party in fault (c).
(2) Benjamin's Sale of Personal Property, 319, 320.
(a) Robinson v. Macdonnel, 5 M. & S. 228.
(6) 56 & 57 Vict. c. 71, 8. 8; Acehal v. Levy, 10 Bing. 376;
Hoadly v. M'Laine, 10 Bing. 482 ; Jcyyce v. Swann, 17 C. B. N. S. 84.
(c) 56 & 57 Vict. 0. 71, s. 8.
G
98
OF CONTRACTS AS TO GOODS,
Reservation
of right of
disposal.
The Sale of Goods Act, i 893, also provides (d) that
on any contract for the sale of goods the seller may
specially reserve the right of disposal of the goods
until certain conditions are fulfilled, and in such a case,
notwithstanding the delivery of the goods to the buyer,
the property does not pass until the conditions are ful-
filled. Thus, when goods are shipped, and by the bill
of lading the goods are deliverable to the order of the
seller or agent, the seller is primd facie deemed to re-
serve the right of disposal (e) ; and when the seller of
goods draws on the buyer for the price and transmits
the bill of exchange and bill of lading to the buyer
together, to secure acceptance or payment of the bill
of exchange, the buyer is bound to return the bill of
lading if he does not honour the bill of exchange, and
if he wrongfully retains the bill of lading the property
in the goods does not pass to him (/).
General Upou the question of when the property in goods
question of passes, it will be found that it is a fairly correct
^^^'^ ^'^''P^'"*'^ answer to say that, as a general rule, the property ivill
passes. pass whire there is a valid and complete contract,
provided that the goods are in existence, and no act
remains to he done to them, or the vendee has acquired
possession of the goods (g).
The effect of
goods perish-
ing.
Where there is a contract for the sale of specific
goods, and the goods, without the knowledge of the
seller, have perished at the time when the contract is
made, the contract is void (h) ; and where there is an
agreement to sell specific goods, and subsequently the
goods, without any fault of the buyer or seller, perish
before the risk passes to the buyer, the agreement is there-
by avoided (i).
id) 56 & 57 Vict. 0. 71, s. 19 (i).
(e) Sect. 19 (2).
(/) Sect. 19 (3).
{g) See hereon Campbell on the Law of Sale of Goods, 225-274.
(h) 56 & 57 Vict. c. 71, s. 6.
(i) Sect. 7.
AND iif:rein of hailmknts, 99
Contracts as to jj^oods are in many cases required by
statute to be by writing.
By the 4th section of the Statute of Frauds (k) it is 4th section of
r, , 7 • 1 1, , T 1 11 statute of
provided that no action shall be brought whereby to Frauds as
charge any defendant upon {Inter alia) any contract |I/,','tracfs for
n^~to be performed within one year from the making s^le of goods,
thereof. This section has already been discussed (/),
and with regard to this portion of it, it is sufficient here
to say that, applying to all contracts not to be per-
formed within a year, it includes contracts as to goods. ,
With regard, however, specially to contracts for the sale
oi goods, the 1 7th section of the Statute of Frauds, and
the amendment thereof contained in the 7th section
•of Lord Tenterden's Act (//?), were until lately the im-
portant enactments, but these provisions have been re-
pealed and substantially re-enacted by the Sale of Goods
Act, 1893 (sect. 4), which provides as follows: —
( I .) A contract for the sale of any goods of the value Sale of Goods
■of ^ I O or upwards shall not be enforceable by action 4, \n subs'tif u-
unless the buyer shall accept part of the goods so sold, ^J,^" ofVta^ute
and actually receive the same, or gfive something: in "^ Frauds as
■; . ^ - ' . ° ^ amended by
earnest to bind the contract, or in part payment, or Lord Tenter-
unless some note or memorandum in writing of the'®"' '^^'
contract be made, and signed by the party to be charged,
-or his agent in that behalf.
(2.) The provisions of this section apply to every such
■contract, although the goods may be intended to be
delivered at some future time, or may not at the time !
of such contract be actually made, procured, or provided,
or fit or ready for delivery, or some act may be requi-
site for the making or completing thereof or rendering
the same fit for delivery.
(A) 29 Car. 2, c. 3.
(I) Ante, pp. 48, 49.
(m) 9 Geo. .-J, c. 14, s. 7.
it>o
OF CON TK ACTS AS TO GOODS,
(3.) There is an acceptance of the goods within the
meaning of this section when the buyer does any act
in relation to the goods which recognizes a pre-existing
contract of sale, whether there be an acceptance in per-
formance of the contract or not.
Writing not
absolutely
necessary.
The memorandum required as sufficient evidence of
a contract has been before touched on in treating of the
Statute of Frauds generally (n). What has been there
remarked is equal h" applicable to the 4th section of
the Sale of Goods Act, 1893, ^^^ the student will
note that writing is not under that enactment an
absolute essential (as neither was it under the i /tb
section of the Statute of Frauds), as there may be
instead either part payment, earnest, or acceptance and
receipt.
Distinction Earnest is a matter quite distinct from part payment,
nest and parr being some gift or token given by a buyer to a seller,
payment. ^^^ ^^ account, but quite irrespective of the price ;
part payment is simply an actual paj^ment of money
on account of the price. The giving of earnest is not
a course adopted often now. though, of course, part
payment is frequently (o).
What will On the point of part payment or earnest, it may
eaine^t^or ^^ noticed that an actual payment is necessary, so
part payment, ^j^at what is Called in the north of England " striking
off" a bargain, i.e. drawing the edge of a shilling over
the hand of the vendor and not paying him the money,
is not sufficient Q)) ; but delivery of a bill of exchange
or promissory note is, because it amounts to payment
until dishonoured (ry).
(n) Ante, pp. 56, 57.
(0) See Benjamin's Sale of Personal Property, 172, 173; Campbell
on the Law of Sale of Goods, 195 ; ffotve v. Smith, 27 Ch. D. 89 ; 32
W. R. 302 ; 53 L. J. Ch. 1055 ; 50 L. T. 373.
(p) Blenkinsop v. Clayton. 7 Taunt. 597.
[q) Chamberlyn v. Delarive, 2 Wils. 253 ; see Benjamin's Sale of
Personal Property, 175.
AND HEREIN OF IJAILMENTS. lOI
The acceptance and receipt require a slightly more As to accejit-
detailed explanation. receipt.
The words of the statute are, " accept part of the Recognition .jf
goods so sold and actually receive the same ; " and it ie,|uired.
is provided that there is to be a sufficient accept-
ance when the buyer does any act in relation to the
goods which recognizes a pre-existing contract of sale,
whether there is an acceptance in performance of the
contract or not : thus there may be an acceptance and
receipt as evidentiary matter to satisfy the statute,
although the buyer may still have the right to reject
the goods as not in accordance with sample. The
enactment is well illustrated by the case of Page v. Poyt v. Mor
Morgan (r). There the plaintiff had sold to the ^""'
defendant certain wheat which was put into a barge
and sent to the defendant's mill, where it arrived in
the evening, and on the following morning was, by
order of the defendant's foreman, taken into the mill
and there examined with the sample. The defendant
then rejected it as not being equal to sample, and it
was put back into the barge and remained there for
some weeks, when it was sold by order of the court.
It was not the custom at the defendant's mill to
examine wheat whilst it was in the barges. The
plaintiff sued to recover damages from the defendant
for not accepting the wheat, and the defendant objected
that the requirements of the 17th section of the
Statute of Frauds had not been complied with, and
the judge directed the jury that the taking of the
wheat into the mill to see if it was equal to sample
constituted " acceptance and receipt " to satisfy the
statute. The Divisional Court, and subsequently the
Court of Appeal, upheld this direction, laying down
that what is required by the statute is a recognition 1
of the contract, and that though acceptance and receipt '
are two distinct things, yet receipt under such cir- 1
(r) 15 Q. B. 1). 228 ; 54 L. J. (,). B. 434 ; 53 L. T. 126: 33 W. K. 793.
I02
OF CONTRACTS AS TO GOODS,
not sufficient.
Summary on
this point.
cumstances as to import a recognition of a contract
is also the acceptance contemplated by the statute (.s).
Every delivery Thls case appears to be an exact illustration of what is
meant by the enactment on the subject in the Sale of
Goods Act, 1893; but notwithstanding this, the student
must not think that every mere delivery is sufficient,
for there may be many a delivery without there being
in any way a recognition of the contract, and that is
what is wanted (t). However clearly the principle
may be put, it must ever in some cases be difficult of
application.
To endeavour to sum up an answer to the question
of what will amount to a sufficient " acceptance and
actual receipt " within the statute, we shall be tolerably
correct in stating that there must he a delivery actual or
constructive, and the vendee must hy his ads, either prior
to or conteinporaneously with the rcccijA, have signified
his acccptaiice in some ivay, hut that what is or is not an
acceptance is a question, principally of fact, depending on
the different circumstances of each particular case, and
that all that is really required is an admission or recog-
nition of the contract.
Where goods are sold not by private contract but
by auction, the sale is complete when the auctioneer's
hammer falls, and until then a bidder may retract his
bid. A sale by auction may be notified to be subject
to a reserved or upset price, and a right to bid
may also be expressly reserved, in which case, but not
otherwise, the seller or any person may bid at the
auction. Subject to this, it is not lawful for the seller
to bid or to employ persons to bid at the sale, and if
the seller or some one on his behalf does so bid, the
sale may be held as fraudulent by the buyer (ji).
(s) See also Kibble v. Oouqh, 38 L. T. (N. S.) 206 ; Morton v. Tibbitt,
15 Q. B. 42S ; 19 L. J. Q. B. 328; and the very recent case of
Abbott V. Wolsey, (1895), 2 Q. B. 97 ; 64 L. J. Q. B. 587 ; 72 L. T. 581 ;
43 W. R. 513.
{t) Taylor V. Smith, (1S93), 2 Q. B. 65 ; 61 L. J. Q. B. 331 ; 67 L. T. 39.
(m) 56 & 57 Vict. c. 71, .«. 58. '
Sales by
auction.
AND HEREIN OF BAILMENTS. IQJ
The vendor of goods may maintain an action against Remedies of
the vendee to recover their price where the property purchaser,
has passed to the buyer, who wrongfully neglects or
refuses to pay for the goods according to the contract ;
and where under a contract for sale the price is payable
on a day certain irrespective of delivery, and the buyer
wrongfully neglects or refuses to pay such price, the
seller may also maintain an action for the price,
although the property in the goods has not passed and
the goods have not been appropriated to the contract (x).
In other cases, where the buyer wrongfully neglects or
refuses to accept and pay for the goods, the seller may
maintain an action against him for damages (//). Where
the seller wrongfully neglects or refuses to deliver
goods contracted to be sold, the buyer may maintain
an action against the seller for damages for non-
delivery (z), but the vendee before he can sue for non- '\
delivery of the goods must have paid or tendered the
price, unless some period of credit was agreed upon, |
for, subject to this, the vendor has a lien upon them
for the price until actual possession by the vendee (a).
A lien may be defined as a qualified right of property Definition
which a person has in a thing arising from such person
having a claim upon its owner (b) ; and it may be
either general, e.g. the right of a solicitor to retain his
client's papers for a general balance due to him, or
'particular, e.g. the ordinary right of a vendor to retain
particular goods until payment of their price. The law
leans in favour of a particular, but against a general
lien, which will only be allowed when there is a custom
or contract to justify it. The lien in both cases can
only be commensurate with the interest of the person
through whom it arises, and it may be lost by the How lien loat.
vendor taking a security for payment, e.g. a bill of
{x) 56 & 57 Vict. c. 71, s. 49.
{y) Sect. so.
(2) Sect. 51. As to getting specific delivery of the goods themselves,
see pout, p. 109. As to the measure of damages, see post, part iii. oh. i.
(a) Sect. 39.
(6) Brown's Law Diet. 318.
104
OF CONTKACTS AS TO GOODS,
exchange or promissory note ; but if such instrument
is dishonoured, the right of lien will revive if the
instrument is still in the hands of the vendor, though
not if outstanding in a third person's hands (c).
Where goods are sold expressly on credit, though, as
has been already stated, the vendor has no right of
sold oiTcredit. Hen, yet if, before delivery of the goods, the vendee
becomes insolvent, the vendor may refuse to deliver,
and may withhold them until payment ; and if the
vendee of goods sold on credit permits them to remain
in the vendor's possession till the period of credit has
expired, the right of lien revives and attaches (d).
No lien
generally
where goods
A lieu can A Hen can, of course, only exist before the goods
fore delTvery ^^y^ been delivered to the purchaser (e), but the mere
marking by the purchaser of goods remaining in the
vendor's possession, or putting his name upon them,
or other like acts, will not constitute a delivery suffi-
cient to deprive the vendor of his right of lien (/).
When an unpaid vendor has made part delivery of the
goods, he may exercise his right of lien on the remainder,
unless such part delivery has been made under such
circumstances as to shew an agreement to waive the
lien (g).
A lieu is a A lien is a right of a passive nature, and does not
except in°the' Ordinarily confer on the person possessing such right
case of an inn- jj^jjy power to Sell the goods {h). But an unpaid vendor
of goods has a right of re-sale in certain cases, as
presently mentioned (i) ; and as regards an innkeeper,
it has been provided by the Innkeepers' Act, 1878 (j),
(c) Chitty on Contracts, 473, 475 ; Ginin v. Bolckoic, L. R. lO Ch.
App. 491 ; 44 L. J. Ch. 732.
(d) 56 & 57 Vict. c. 71, s. 41.
(e) Sect. 43.
(/) Dixon V. Yates, £ B. & Ad. 313; Marvin v. Wallace, 25 L. J.
iQ. B.) 369.
(,7) 56 & 57 Vict. c. 71, s. 42.
(h) Per Alderson, B., White v. Speitigiie, 13 M. & W. 60S.
(t) See post, p. 107.
\j) 41 & 42 Vict. c. 38.
AND HEREIN OF BAILMENTS. IO5
that if n guest shall become indebted to him, and shall
deposit or leave any personal effects with him or in his
inn or adjacent premises for the space of six weeks,
the innkeeper, after having advertised a month pre-
viously in one London newspaper and one country
newspaper circulating in the district a notice describing
the goods, and giving (if known) the name of the owner
or person who deposited the goods, and of his inten-
tion to sell, may duly sell the same by public auction.
Any surplus after paying the debts and expenses is to
be paid to the person who left or deposited such goods.
To a certain extent also a solicitor has, under the And in one
provisions of the Solicitors' Act, i860 {k), a lien of an solicitor.
active kind, as mentioned hereafter (I).
Closely akin to the right of lien is a further right of Definition of
1 1 (. T • • J -J 1 ■ 1 • stoppage hi
the vendor of goods, viz., stoppage in transitu, which is transitu.
the prevention of wrong by a mere personal act, being
the right of the vendor to stop the goods after they have
left his possession, but are in course of transit to the
vendee, on hearing of the vendee's bankruptcy or insol-l
vency (m). The doctrine of stoppage in transitu seems The doctrine
to have been borrowed from equity (71), and the right, equity.
as its name imports, only exists while the goods are
in transit, and directly they come into the actual or
constructive possession of the vendee the right is gone.
It is not always easy to decide whether goods are m
transitu or not, for there may be cases of constructive
possession of the vendee not always very apparent.
The subject is now dealt with by the Sale of Goods Act,! Duration of
1893, which (embodying the result of a number of!
decisions now unnecessary to be referred to) enacts as|
follows : —
(k) 23 & 24 Vict. c. 127, ;;. 28.
{I) Post, p. 218.
(m) 56 & 57 Vict. c. 71, .s. 44.
(n) Wiseman v. Vandcrput, 2 Vern. 203, seems to be the first case
in which it was acted upon. The doctrine was clearly established by
Lickbarrow v. Mason, i S. L. C. 737 ; 2 T. R. 93.
I06 OF CONTRACTS AS TO GOODS,
( I .) Goods are deemed to be in course of transit from
the time when they are delivered to a carrier by land
or water, or other bailee, for the purpose of transmission
to the buyer, until the buyer, or his agent in that be-
half, takes delivery of them from such carrier or other
bailee.
(2.) If the buyer or his agent in that behalf obtains
delivery of the goods before their arrival at the appointed
destination, the transit is at an end.
(3.) If, after the arrival of the goods at the appointed
destination, the carrier or other bailee acknowledges to
the buyer or his agent that he holds the goods on his
behalf, and continues in possession of them as bailee
for the buyer or his agent, the transit is at an end,
and it is immaterial that a further destination for the
goods may have been indicated by the buyer.
(4.) If the goods are rejected by the buyer, and the
carrier or other bailee continues in possession of them^
the transit is not deemed to be at an end, even if the
seller has refused to receive them back.
(5 .) When goods are delivered to a ship chartered by
the buyer, it is a question depending on the circum-
stances of the particular case whether they are in the
possession of the master as a carrier or as agent to the
buyer.
(6.) Where the carrier or other bailee wrongfully
refuses to deliver the goods to the buyer, or his agent
in that behalf, the transit is deemed to be at an end.
K (7.) Where part delivery of the goods has been made
to the buyer, or his agent in that behalf, the remainder
of the goods may be stopped in transitu, unless such
part delivery has been made under such circumstances
AND IlKliKIN OF BAILMENTS. lO/
as to show an agreement to give up possession of the
whole of the goods (o).
For the vendor to exercise the right of stoppage m JJow^ the ^^
transitu it is not essential that he should actually seize tramitu may
the goods, but the stoppage may be effected by givmg
a notice to the carrier or other forwarding agent. If
a servant of the carrier is conveying the goods, notice
may be given to tlie servant or tlie principal; but if
to the principal, it must be given in time to enable
him to inform the servant before he delivers them {p).
Notice of stoppage in transitu given to a shipowner
imposes no duty on him to communicate tlie notice to
the master of the ship, and the notice is not effectual
until it is communicated to the master {q).
The mere exercise of a ri^ht of lien or a right of ^ff«=ct of exer-
^ _ cise ot right or
stoppage in transitu by an unpaid vendor does not lien or stop-
rescind the contract of sale (r), although where an "trinsUv.
unpaid vendor has exercised such a right and re-sells
the goods, a buyer (taking lond fide without notice)
acquires a good title as against the original buyer (s).
This, of course, means notwithstanding the vendor has,
in fact, no such right to re-sell ; but although the
contract is not rescinded, he has such a right of re-sale Right of re-
where the goods are perishable, or where he has given
notice to the buyer of his intention to re-sell, and the
buyer has not within a reasonable time paid or tendered
the price {t). And where the vendor has expressly
reserved a right of re-sale in case the buyer makes
default, and on such a default he accordingly re-sells.
(o) 56 & 57 Vict. c. 71, s. 45.
{p) 56 & 57 Vict. c. 71, s. 46.
[q) Ex parte Folk, In re Kiell, 14 Ch. D. 446 ; 28 W. R. 785 ; 42
L. T. 780. Affirnned in House of Lords, suh nom. Kemp v. Falk; 7
App. Cas. 573 ; 52 L. J. Ch. 167 ; 31 W. K. 125 ; 47 L. T. 454.
(r) 56 & 57 Vict. c. 71, s. 48 (1). This enactment is; in accordance
with the opinion expressed in Wcntirorlh v. Outhvxiite, lO M. & W.
451-
(s) 56 & 57 Vict. c. 71, s. 48 (2).
(0 Sect. 4813).
ro8
OF CONTRACTS AS TO GOODS,
the original contract is in that case rescinded, but
without prejudice to any claim the vendor may have
for damages (it).
Effect of sale
oi goods
iluring course
of transit.
As to right
against a sub-
purchaser.
If, whilst the goods are in course of transit and yet
unpaid for, the buyer sells them to another without the
vendor's consent, the right of stoppage in transiiv
nevertheless remains in the vendor, subject to this,
that if a document of title to the goods, e.g. a bill of
lading (a;), has been lawfully transferred to the buyer,
who transfers such document to a person who takes
the same in good faith and for valuable consideration,
then if such last-mentioned transfer was by way of
sale, the unpaid vendor's right is defeated, and if by
way of pledge or other disposition for value, the
vendor's right can only be exercised subject to the
rights of the transferee (y). It will be observed
that in the case of sale accompanied by a transfer
of the bill of lading or other document of title,
the vendor's right is absolutely defeated, and there-
fore, even if the sub-purchase-money has not been
paid, it appears that the unpaid vendor has no
right to intercept that, or a sufficient ])art of it, to
satisfy what is owing to him. The contrary was
decided before the Act (z), but those decisions were
dissented from by Lord Selborne in Kemp v. Fallc
ia), and Lord Selborne's opinion has apv'arently been
adopted by the Sale of Goods Act, 1893, which, as
(u) 56 & 57 Vict. c. 71,8.48(4).
[x) Any bill of lailiny, dock warrant, warehouse keeper's certificate,
Mnd warrant or order for the delivery of goods, and any other docu
inent used in the ordinary course of business as proof of the possession
or control of goods, and authorising or purporting to authorise, either
by indorsement or by delivery, the possessor of the document to transfer
or receive goods thereby represented, is a " document of title " (56 & 57
Vict. c. 71, s. 62 ; 52 & 53 Vict. c. 45, s. i (4)).
fjl) 56 & 57 Vict. c. 71, .s. 47. This enactment embodies the effect
of the case of Lickbarrow v. Mason (i S. L. C. 737) and the Factors'
Act, 1S89 (52 & 53 Vict. c. 45, s. 10).
(z) Ex parte Goldinq, 13 Ch. D. 628 ; 42 L. T. 220 ; 48 W. R. 481 ;
Ex parte Falk, 14 Ch. D. 446 ; 42 L. T. 7S0 ; 28 W. R. 785.
(a) 7 App. Cas. 573 ; 52 L. J. Ch. 167 ; 31 W. R. 325 ; 47 L. T. 454.
AND HEKEIN OF IJAILMKNTS. IO9
above stated, speaks of the vendor's right as being
defeated (b).
The respective rights of the vendor and purchaser Specific pei-
of goods on breach of a contract for the sale of goods e-ontract to
have already been noticed (e), but in addition it is ^''^^ go"*!'*-
provided by the Sale of (4oods Act, 1893 (d), that <-v
in any action for breach of contract to deliver specific
or ascertained goods, the court may, if it thinks fit,
on the application of the plaintiff, by its judgment or
decree direct that the contract shall be performed
specifically, without giving the defendant the option
of retaining the goods on payment of damages. The '
judgment or decree may be unconditional, or upon
such terms and conditions as to damages, payment
of price, and otherwise as to the court may seem just,
and the application by the plaintiff may be made at
any time before judgment or decree.
A warranty is sometimes given by a vendor of Deiinitioii of
goods on their sale. A warranty is defined as ^j^ ■'■^^"''*" J-
agreement with reference to goods which are the sub-
ject of a contract of sale, but collateral to the main
purpose of such contract, the breach of which gives
rise to a claim for damages, but not to a right to reject
the goods and treat the contract as repudiated (e). A
warranty must be carefully distinguished both from Distinctions
a condition and from misrepresentation. A warranty ^*^'^^*^"
■t _ -J warranty,
is made contemporaneously with the contract, and its condition, ;uui
breach does not vitiate the contract, but the buyer may tion.
set up against the seller the breach of warranty in
diminution or extinction of the price, or may maintain
an action against the seller for damages for the breach
(b) See Ker and Pearson-Gee's Sale of Goods Act, 1893, P- 262.
(c) Ante, p. 103.
(rf) 56 & 57 Vict. c. 71, s. 52. This is ^Imost identical with the
former provision of 19 & 20 Vict. c. 97, s. 2.
(e) 56 & 57 Vict. c. 71, s. 62.
no OF CONTRACTS AS TO GOODS,
of warranty, and if necessary he has both such rights (/).
A condition is, however, an essential term of a con-
tract, a breach of which entitles the buyer to reject
the goods and treat the contract as at an end. It
is not always easy to determine whether a certain
term in a contract is a warranty or a condition, and,
as was stated in a recent case, " There is no way of
deciding the question except by looking at the contract
in the light of the surrounding circumstances, and then
making up one's mind whether the intention of the
parties will best be carried out by treating the promise
as a warranty, sounding only in damages, or as a con-
dition precedent, by the faihire to peribrm which tlie
Provisions of othcr party is relieved of his liability " {g). This is
A'!;t^,i893,'^as to substantially the effect also of the provisions upon the
conditions ami gubject uow contained in the Sale of Goods Act, i 893 (A),
warranties. J ^ ^ ^ \ /'
which enacts that the matter must depend in each
case on the construction of the contract, and that
a stipulation may be a condition, though called a
warranty in the contract. It is also provided by this
statute (i), that where a contract of sale is subject to
any condition to be fulfilled by the seller, the buyer
may waive the condition, or may elect to treat the
breach of such condition as a breach of warranty, and
not as a ground for its repudiation ; and that where
a contract of sale is not severable, and the buyer has
accepted the goods or part thereof, or where the con-
tract is for specific goods, the property in which has
passed to the buyer, the breach of any contract to be
fulfilled by the seller can only be treated as a breach
of warranty, and not as a ground for rejecting the
goods and treating the contract as repudiated, unless
there be a term of the contract, express or implied, to
(/) Sect. 53.
(gr) Per Bowen, L.J., in Bentsen v. Taylor, (1893), 2 Q. B. 274 ; 63
L. J. Q. B. 15 ; 69 L. T. 487. See also on the distinction between
warranty and condition, Behn v. Burness, 3 B. & S. 751 ; 32 L. J.
Q. B. 204.
(A) 56 & 57 Vict. c. 71, s. II.
(i) Ibid.
AND HEKEIN OF BAILMENTS. II J
that effect. As regards misrepresentation, that is a Misiepresenta-
matter that precedes and induces the contract, and '°"'
gives the person to whom it is made the right to
repudiate it.
On an express warranty, it must be noticed that if AVananty
made subsequently to the contract, it will be void and '"leH"^ *"
of no effect for want of consideration {k) ; and as to
what will, and what will not, amount to a warranty, AVhat will
the rule at the present day has been well stated to be aT^ranty.
that " every affirmation at the time of sale of personal
chattels is a warranty, provided it appears to have been
so intended " (I). It would appear, upon this rule, that
the well-known case of Chandelor v. Lopus {m) would chanddor v.
now be decided differently, for there, on the sale of a ^''^'*-
stone, it was affirmed that it was a bezoar stone, and
yet it was held no action lay. However, if, on any
contract for sale, the words used are merely the ordinary
puffiug of the articles, no action will lie ; and though
the above rule is plain, yet the most that can be said
on it is that it must be a question of intention in each
particular case. As an instance of an implied warranty implied
may be mentioned the fact that on the sale of certain '^■"™"*y-
goods there is an implied warranty that they exist and
are capable of transfer ; and again an implied warranty
may arise sometimes by the mere custom or usage of
some particular trade or business, or from the necessities
of the case. Implied warranty is in all cases founded
on the presumed intention of the parties and on reason.
The implication which the law draws from what must
obviously have been the intention of the parties is
drawn with the object of giving efficacy to the trans-
action, and preventing such a failure of consideration
as cannot have been within the contemplation of either
side. Probably in all cases of implied warranties it
will be found that the law is raising an implication
(fc) Roscorla v. Thomas, 3 Q. B, 234.
(I) Per Buller, J., in JPasley v. Freeman, 3 T. R. 37.
(m) I S. L. C. 186; 2 Coke, 2.
112
Warninty
of title.
As to warranty
of quantity.
OF CONTRACTS AS TO GOODS,
from the presumed intention of the parties, with the
object of giving to the transaction such efficacy as
both parties must have intended that at all events it
should have (n).
Where a person sells goods, unless the circum-
stances of the case show a contrary intention (o), he
impliedly undertakes that he has a right to sell the
goods — that is, that he has a good title thereto, and
that the buyer shall have and enjoy quiet possession
of the goods, free from any charge or incumbrance in
favour of any third party, not declared or known to
the buyer (p).
On a sale of goods words may be used which will
amount to a warranty of quantity, but many cases of
statement as to quantity amount to nothing more than
words of estimate or expectancy (q). Where the
seller delivers to the buyer a quantity of goods less
than he contracted to sell, the buyer may reject them ;
but if he accepts the goods so delivered, he must pay
for them at the contract rate ; and if the seller delivers
a quantity of goods larger than he contracted to sell,
the buyer may accept the goods included in the con-
tract and reject the rest, or he may reject the whole,
or he may accept the whole of the goods so delivered,
in which case he must pay for them at the contract
rate (r).
Warranty of
quality, &:c.
There is, generally, no implied condition or warranty
of the quality of goods, the maxim of caveat emptor
(n) Per Bowen, L. J., in The Moorcock, 14 P.;D. 64 ; 58 L. J. P. 73 ;
60 L. T. 654.
(0) As, for example, a sale by a sheriff, who is only bound by an
implied warranty that he is not aware of any defect of title : Peto v.
Blades, 5 Taunt. 657.
(p) 56 & 57 Vict. c. 71, s. 12.
(q) See M'Lay v. Pei-ry, 44 L. T. 152.
(r) 56 & 57 Vict. c. 71, s. 30.
AND HEKEIN OF BAILMENTS.
(let the buyer beware) applying (s) ; but to this general
rule there are various exceptions, the chief of which
are as follows : —
1. Where there is a contract for the sale of goods
by description, there is an implied condition that the
goods shall correspond with the description (f).
2. "Where the buyer expressly or by implication
made known to the seller the particular purpose for
which the goods are required, so as to show that he
relies on the seller's skill or judgment, and the goods
are of a description which it is the course of the
seller's business to supply, there is an implied con-
dition that the goods shall be reasonably fit for such
purpose (w).
3. Where goods are bought by description from a
seller who deals in goods of that description, there is
an implied condition that they shall be of merchant-
able quality, subject to this, that if the buyer has
examined the goods, there is no implied condition as
regards defects which such examination ought to have
revealed (x).
4. Where goods are sold by sample, there are implied
conditions that the bulk shall correspond with the
sample in quality, that the buyer shall have a reason-
able opportunity of comparing the bulk with the
sample, and that the goods shall be free from any
defect rendering them unmerchantable, which would
not be apparent on reasonable examination of the
sample (y).
(s) 56 & 57 Vict. c. 71, s. 14.
(() Sect. 13.
(u) Sect. 14.
{x) Sect. 14.
(2/) Sect. 15.
113
114
OF CONTRACTS AS TO GOODS,
5. Where any article is sold with a trade-mark,
label, or ticket, &c., thereon, or any statement thereon
of the weight, quantity, or quality thereof, a warranty
is implied that the trade-mark, label, or ticket, &c.,
is genuine and true, and that any such statement
is not in any material respect false, unless the con-
trary is expressed in writing, signed by or on behalf
of the vendor, and delivered to and accepted by the
vendee (s).
A warranty
does not ex-
tend to
appai'ent
defects.
If a fact is known to a purchaser at the time of
the sale, or might have been so known to him (take,
for instance, the familiar example of a horse being
warranted sound, and wanting an ear or a tail), a
warranty will not protect the purchaser (a) ; and
where an article is sold expressly " with all faults,"
the only case of defect for which the purchaser can
sue the vendor is where the vendor has used artifice
to prevent the purchaser discovering it. It is not
sufficient to merely show that the vendor knew of the
defect (b).
Bills of sale. A Very frequent and common mode of dealing with
goods is by bill of sale, which is an instrument used
for the purpose of effecting a transfer of personal
chattels from one person to another. The Acts now
governing the subject of these instruments are the
Bills of Sale Act, 1878 (c), which now only applies to
bills of sale given otherwise than as security for money,
and the Bills of Sale Act Amendment Act, 1882 (d),
which applies to all bills of sale given by way of
security for money, and which came into operation on
Whatinciuded ist November 1882. The Act of 1878 under the
don^'*^'bm^of" term "bill of sale" includes assignments, transfers,
(z) 50 & 51 Vict. c. 28, s. 17. As to trade-marks generally, see
post, pp. 213-216.
(a) Chitty on Contracts, 502.
(b) Ibid. 503.
(c) 41 & 42 Vict. c. 31.
(d) 45 & 46 Vict. c. 43.
AND HEREIN OF BAILMENTS. II5
declarations of trust without transfer, and other assur-
ances of personal chattels, also powers of attorney and
authorities or licences to take possession of personal
chattels as security for any debt ; but it does not
include assignments for the benefit of creditors, mar-
riage settlements (that is, ante -nuptial settlements
or settlements made in pursuance of an ante-nuptial
agreement (e) ), transfers of goods in the ordinary
course of business of any trade or calling, or bills of
sale of goods in foreign ports or at sea, bills of lading,
delivery orders, or any other documents used in the
ordinary course of business, as the proof of the pos-
session or control of goods (/). Difficulty sometimes
arises as to whether a document is or is not a bill of
sale. An inventory and receipt for the purchase of inventories
goods may amount to a bill of sale if thereby the ^^ ^eceip s.
property passes, or the terms of agreement are therein
contained ; but if a title can be made out by the
payment of the money quite apart from the inventory
and receipt, then it is otherwise. Thus if a landlord
distrains and then sells the goods to a purchaser who
pays his money and takes a receipt on the inventory,
here ordinarily the inventory and receipt do not con-
stitute a bill of sale (g). Where goods are pledged as Document re-
security for a loan and delivered to the pledgee, a pledge? ^
document signed by the pledgor recording the trans-
action and regulating the rights of the pledgee as to
the sale of the goods is not a bill of sale (h). But
any inventory, or invoice and receipt, or other document
really used as the means of conferring the title to,
and passing the property in the goods, does constitute
(c) Ashton V. BlachsTiaio, L. R. 9 Eq. 510.
(/) 41 & 42 Vict. c. 31, s. 4.
{g) Marsden v. Meadows, 7 Q. B. D. So ; 50 L. J. Q. B. 536 ; Preece
V. Oilling, 53 L. T. 763 ; Haydon v. Brown, 59 L. T. 330 ; Ramsay v.
Margrett, (1894), 2 Q. B. 18 ; 63 L. J. Q. B. 513 ; 70 L. T. 788.
(h) Ex parte Hubbard, In re Hardwick, 17 Q. B. D. 690; 55 L. J.
Q. B. 490 ; 35 W. R. 2. See also, as to certain instruments of hypo-
thecation which are not to be deemed bills of sale, 53 & 54 Vict. c. 53,
and 54 & 55 Vict. c. 35.
jj5 of contracts as to goods,
Attornment a bill of Sale (i). An attornment clause in a mort- ,
«i*"««- gage is in effect a bill of sale, as it practically confers \
a power to seize personal chattels (Jc), and so also is ]
a clause in any instrument which practically gives a ;
Hiring agree- powcr of distrcss (/)• A genuine hiring agreement is
ment. ° ^q^ ^ bill of sale (m), but it is a bill of sale, if, though
nominally a hiring agreement, it is really a device to
secure money, and the court in considering this point
is not bound merely to look at the form of the docu-
ment itself, but is entitled to go outside it and inquire
into the facts of the case to see what is the real
Debenture. transaction (n). A debenture issued by a company,
and secured upon the capital, stock, or goods, chattels,
and effects of such company is not a bill of sale (o).
Attestation of It was provided by the Act of 1878 that every
^'loiieitOT ^ ^' bill of sale must be attested by a solicitor, and the
attestation was required to state that before execu-
tion its effect had been explained to the grantor by
the attesting witness (p); but it was held that if this
was not so, the instrument was not void as between
the parties themselves, but only as against execution
creditors and trustees in bankruptcy and liquidation
(i) Ex parte Parsons, In re Townsend, l6 Q. B. D. 532 ; 55 L. J.
Q. B. 137 ; 53 L. T. 897 ; 34 W. R. 329 ; In re Roberts, Evans v.
Roberts, 36 Ch. D. 196 ; 56 L. J. Ch. 952 ; 57 L. T. 79 ; 35 W. R. 684 ;
Re Hood, Ex parte Burgess, 42 W. R. 23.
(/t) In re Willis, Ex jiarte Kennedy, 21 Q. B. D. 384 ; 57 L. J. Q. B.
634 ; 59 L. T. 749 ; 36 W. R. 793. But such an attornment clause may
be of value as constituting the relationship of landlord and tenant, so as
to enable a mortgagee on suing his mortgagor in ejectment to speciallj'
indorse his writ as against a tenant holding over after the expiration of
his tenancy, and proceed by means of a summons under Order I4.
Mumford v. Collier, 25 Q. B. D. 279 ; 59 L. J. Q. B. 552 ; 38 W. R.
716. See further, as to the exact effect of an attornment claim, Green
V. Marsh, (1892), 2 Q. B. 330 ; 61 L. J. Q. B. 442 ; 66 L. T. 480.
{I) Stevens v. Marston, 39 W. R. 129.
(m) M. S. tt- L. Ri/. Co. v. North Central Waggon Co., 13 App. Cas.
554 ; 58 L. J. Ch. 219 ; 59 L. T. 730.
(n) In re Watson, Ex parte Official Receiver, 25 Q. B. D. 27 ; 59
L. J. Q. B. 394 ; 63 L. T. 209 ; Beckett v. Tower Assets Co., (1891), i
q". B. 638 ; 60 L. J. Q. B. 493 ; 64 L. T. 497.
(0) Re Standard Manufacturing Co. Ltd., Ex parte Lowe, (1891),
I Ch. 627 ; 60 L. J. Q. B. 292 ; 64 L. T. 487 ; 45 & 46 Vict. c. 43. s. 17.
(j>) 41 & 42 "Vict. c. 31, s. 10.
AND HEKEIN OF BAILMENTS. II7
proceedings, aud under assignments for benefit of
creditors (5). And now by the Act of 1882 (r), as
regards bills of sale given by way of security for money,
the above requirement as to attestation by a solicitor
is repealed, and it is simply provided that the in-
strument shall be attested by some credible witness,
and that if not thus duly attested it shall be absolutely
void (s). The witness must give his name, address, and
description in the attestation clause (t).
Bills of sale governed by the Act of 1882 are required The form of
also to be in a certain form, and any substantial depar- '^ ^ ^ ^^ ^'
ture therefrom renders them void. The rule to be col-
lected from all the cases is that substantial departure \
from the form will vitiate the instrument, and this even \
though it may be practically impossible from the nature
of the transaction to make tlie instrument in the
prescribed form (it). Thus the form provides for the ^'^
repayment of the money with interest at per cent,
per annum, and it has been held that to provide for
payment of a lump sum by way of interest or bonus is
invalid, for the actual rate of interest must be stated (x).
It has also been lield that a bill of sale which is
in its terms so complicated as to substantially differ
from the form is void (?/). The form gives no covenants f
for title, and therefore when the grantor was expressed
(q) Davis V. Goodman, L. R. 5 C. P. Div. 128 ; 49 L. J. C. P. 344.
(r) 45 & 46 Vict. c. 43, s. 10.
(s) Sect. 8.
(t) Parsons v. Brand, 25 Q. B. D. IIO; 59 L. J. Q. B. 189 ; 62
L. T. 479 ; Blankcnstcin v. Robertson, 24 Q. B. D. 543 ; 59 L. J. Q. B.
315 ; 62 L. T. 732 ; Bird v. Bavey, 60 L. J. Q. B. 8 ; 63 L. T. 741 ;
39 W. R. 40 ; Simmons v. Woodward, (1892), A. C. ico ; 6i L. J. Ch.
252 ; 66 L. T. 534.
(tt) Bx parte Parsons, In re Townsend, 16 Q. B. D. 532 ; 55 L. J. Q.
B. 137 ; 34 W. R. 329 ; 53 L. T. 897.
(x) Davis V. Burton, 11 Q. B. D. 537 ; 52 L. J. Q. B. 636 ; 32 W. R.
423 ; Myers v. Elliott, 16 Q. B. D. 526 ; 55 L. J. Q. B. 233 : 54 L. T.
552 ; 34 W. R. 338 ; Blankenstcin v. Jiobcrtson, 24 Q. B. D. 543 ; 59 L.
J. Q. B. 315 ; 62 L. T. 732.
[y) Melville v. Strinqer, 13 Q. B. D. 392 ; 53 L. J. Q. B. 482 ; 32
W. R. 890 ; 50 L. T. 774.
I 1 8 OF CONTRACTS AS TO GOODS,
to convey and assign " as beneficial owner,"' it was held
this invalidated the instrument, as these words would
under the Conveyancing Act, 1 88 1 {z), imply covenants
for title {a). So, again, a bill of sale providing for
/payment of the money secured " on demand" has been
held void (h), and instances might be multiplied in
which a very slight departure from the prescribed form
has been held fatal (c). On the other hand, provisions
which are properly for the maintenance of the security
are allowable, and do not vitiate the instrument, e.g.
provisions relating to the replacing of chattels by the
grantor, and to the disposal by the grantee of the
purchase-money {d), or empowering the grantee to
sell privately or by auction (c). Where a bill of sale
is void as not being in accordance with the prescribed
form, it is void not merely as regards the right to the
chattels comprised therein, but in toto, so that no
action can be brought on a covenant contained therein
for payment of principal and interest (/). If the
document is a security not merely on personal chattels,
but also on other property not personal chattels within
the meaning of the Act (g), e.g. tenant-right, valuation,
and goodwill, this will vitiate the instrument as a bill
of sale (h), but still it is only void in so far as it deals
(:) 44 & 45 Vict. c. 41, s. 7.
(a) Ex parte Stanford. In re Barber, 17 Q. B. D. 259 ; 55 L. J. Q. B.
341 ; 34 W. R. 507 ; 54 L. T. 894.
(b) Hetherington v. Groome, 13 Q. B. D. 789 ; 53 L. J. Q. B. 577 ;
33 W. E. 103 ; Mackay v. Merritt, 34 W. R. 483.
(c) See Furhcr v. Cohh, 17 Q. B. D. 459 ; 55 L. J, Q. B. 487 ; 55 L.
T. 359; Bianchi v. Offord, 17 Q. B. D. 484; 55 L. J. Q. B. 486;
Calvert v. Thomas, 19 Q. B. D. 204 ; 56 L. J. Q. B. 470 ; 57 L. T. 441 ;
35 W. R. 616 ; Watson v, Strickland, 19 Q. B. D. 391 ; 56 L. J. Q. B.
594 ; 35 W. R. 769 ; Real and Personal Advance Co. v. Clears, 57 L.
J. Q. B. 164; 58 L. T. 610; Thomas v. Kelly, 13 App. Cas. 506; 58
L. J. Q. B. 66; 60 L. T. 114.
{d) Consolidated Credit and Mortgage Co. v. Gosney, 16 Q. B. D. 24 ;
55 L. J. Q. B. 61 ; 34 W. R. 106.
(e) Bourne v. Wall, 64 L. T. 530 ; 39 W. R. 510.
(f)Davies v. Rces, 17 Q. B. D. 40S ; 55 L. J. Q. B. 363 ; 34 W. R.
573; 54L. T. 813.
{g) As to which see 41 & 42 Vict. c. 31, s. 7, ante, p. 74.
(h) Cochrane v. Entioistle, 25 Q. B. D. 116 ; 59 L. J. Q. B. 418 ; 62
L. T. 852.
AND HEREIN OF BAILMENTS. II 9
with the personal chattels, and the residue of the
security is good (i).
The Bills of Sale Act, 1882, also provides (Z;) that other points
the amount of a bill of sale must not be less than 1882.
-^30, and that it must have a schedule annexed to it,
which schedule must be specific and not general in its Speciac de-
character, so that a description in the schedule of " 450 ^"^^^ ^°""
i)il paintings in gilt frames " was held insufficient (/),
as also was the description, "21 milch cows " (m). It
is also provided by the Act (n) that a bill of sale shall
not, except as against the grantor, pass future acquired
property, with two exceptions, viz. (i) growing crops
vhich are actually growing at the time, and (2) fix-
tires, plant, &c., to be brought on to the premises in
sibstitution for others specifically described in the
sthedule. But although the Act does, therefore, to
a certain extent, contemplate assignments of future Future
• 1 1 1 1 1 1 j_ j.-\ c acquired
acquired property, it has been held that as the form property.
01 bill of sale prescribed by the Act contains nothing
w.th regard to it, to insert a clause in the body of the
dccument dealing with future acquired property will be
a departure from the form, and will therefore vitiate
tb instrument (0). The proper course, if it is desired
to affect any future acquired property, is to deal with
it in the inventory or schedule, and not in the body of
tht instrument. It is also provided (2:') that seizure Seizure.
shill only be made on any of five certain events speci-
fiel in the Act (q), and that the grantee on seizing
0 Ex parte Byrne, He Burdett, 20 Q. B. D. 310; 57 L. J. Q. B.
26, ; 58 L. T. 708.
i:) 41 & 42 Vict. c. 31, s. 4.
0 Witt V. Banner, 20 Q. B. D. 1 14 ; 57 L. J. Q. B. 141 ; 58 L. T. 34.
m) Carpenter v. Deen, 23 Q. B. D. 566 ; 6 1 L. T. 860. See, however,
anl compare Davidson v. Carlton Bank, (1893), i Q. B. 82 ; 62 L. J. Q.
B.lll ; 67L. T. 641.
n) Sects. 5, 6.
0) Thomas v. Kelly, 13 App. Cas. 506 ; 58 L. J. Q. B. 66 ; 60 L. T.
14.
(p) 45 & 46 Vict. c. 43, s. 7.
(q) And this provision applies, though it is a bill of sale before the
Alt of 18S2, if seizure is not made until after then {Ex parte Cotton, 1 1
C B. D. 301 ; 49 L. T. 52 ; 32 W. R. 58).
I20 OF CONTEACTS AS TO GOODS,
shall not at once remove, but must wait five days, and
that within that period the grantor may apply to a
judge at chambers, who, if satisfied that the cause of
seizure no longer exists, may restrain the grantee fron;
removing or selling, or may make such other order as
seems just. The Act does not give any special power
of sale to the grantee of a bill of sale, but it has been
held that after due seizure he has naturally a power of
sale existing in him, on reasonable notice, in the same
way that a pledgee of goods has (r).
Consideration In Order to make a bill of sale effectual, it mus;
trati^, &c^,'of truly set forth the consideration for which it is
bills of sale, g^yen (s), and an affidavit of the time of the bil
of sale having been given, of its due execution ani
attestation, of the residence and description (t) of tie
person giving it, and of the attesting witness, must Ib
made, and the bill of sale, together with any defeai-
ance or condition affecting the same (w), must be regii-
tered and the affidavit filed in the Central Office >f
the High Court of Justice within seven clear da;s
after giving it (unless the seven days expire on a
Sunday or other day on which the office is closed,
when registration is good if made on the next f<l-
lowing day on which the office is open) ; or if the ii-
strument is executed abroad, then within seven cl«ar
days after the time at which it would in the ordinary
course of post arrive in England if posted immediatdy
after the execution thereof, otherwise it is absolutdy
void in respect of the personal chattels comprisd
(r) Ex parte Official Jiecr., In re Morritt, l8 Q. B. D. 222 ; 56 L.J.
il. B. 139 ; 35 W. R. 277 ; 56 L. T. 42.
(s) Ex parte Firth, Re Coichurn, 19 Ch. D. 419; 51 L. J. Ch. 43.
See also Ex jtai'te Nelson, In re HocJcaday, 35 W. R. 264 ; 55 L. P.
819 ; Cochrane v. Moore, 25 Q. B. D. 57 ; 59 L. J. Q. B. 377 ; (3
L. T. 153.
(t) Strict accuracy must be observed here {Cooper v. Davis, 32 W. \.
329)-
{u) See Edwards v. Marcus, (1894), i Q. B. 587; 63 L. J. Q. }.
363; 70L. T. 182.
AND HEREIN OF BAILMENTS. 121
therein (x), though not actually void between the
parties, as is the case if the bill of sale is not in
the statutory form (y). Eegistration must be re-
newed every five years (z), otherwise the instrument
becomes absolutely void even between the parties (a).
A transfer or assignment of a bill of sale does not .
require to be registered (h).
To prevent evasion of the Act by the execution of Former
fresh bills of sale within seven days from time to registration,
time, it is provided that any such subsequent bill of
sale executed within seven days of an unregistered
bill of sale for the same debt, or any part thereof, is to
be void unless proved that it was given bond fide for
the purpose of correcting some material error in the
prior bill of sale, and not for the purpose of evading
the Act (c). Omissions to register and re-register omission to
within the proper time, or omissions or mis-statements '^^^^ ^^' ^'
of name, residence, or occupation of any person, may
be rectified by any judge of the High Court, on his
being satisfied that the omission or mis-statement was
accidental or due to inadvertence, on such terms or
conditions (if any) as he may think fit {d). Upon
evidence of the discharge of the debt for which any
bill of sale has been given, a memorandum of satisfac-
tion may be ordered to be written upon any copy of a
bill of sale {e).
I It was enacted by the Act of 1878 that chattels order and
comprised in a bill of sale duly registered under that clause of^"
Act should not be deemed to be in the order or dis- ^••'"^"'"pt'cy
Act. 1883.
{x) 41 & 42 Vict. c. 31, s. 10; 45 & 46 Vict. c. 43, s. 8.
(y) Beseltine v. Simmons, (1892), 2 Q. B. 547 ; 62 L. J. Q. B. 5 ; 67
L. T. 611.
(z) 41 & 42 Vict. c. 31, s. II.
(a) Fe7itoa v. Blyth, 25 Q. B. D. 417 ; 59 L. J. Q. B. 589 ; 63 L. T.
453-
(b) 41 & 42 Vict. c. 31, s. 10.
(c) Sect. 9.
(d) Sect. 14.
(e) Sect. 15.
122
Bailments.
Definition of
u bailment.
Division of
bailments by
Lord Holt in
Cogga v.
Bernard.
OF CONTRACTS AS TO GOODS,
position of the grantor of a bill of sale in llie event
of his bankruptcy (/) ; but as to bills of sale exe-
cuted by a person on or after ist November 1882
as regards goods used by him in his trade or business,
this is no longer so, as the provision in the Act of
1878 is repealed by the Act of 1882 {g). It has,
however, been decided that this repeal does not apply
to bills of sale governed by the Act of 1878 {h).
Goods are frequently delivered to some person not
their absolute owner, and a bailment thus constituted.
A bailment has been defined as " a delivery of a thing
in trust for some special object or purpose, and upon
an undertaking express or implied to conform to the
object or purpose of the trust " {%). Different classi-
fications of bailments have been given, but perhaps the
best is found in the judgment of Lord Holt in the
leading case of Cogrjs v. Bernard (k), where they are
divided as follows : —
1 . Bcpositum — where goods are delivered to be kept
by the depositee without reward for a bailor ;
2. Coriimodatwn — where goods are lent to some
pm-son to be used by him gratis ;
3. Locatio rei — where goods are lent out to a person
for hire ;
4. Vadium — where goods are pawned or pledged ;
5. Locatio o'pcris facicndi — where something is to
be done to goods, or they are to be carried for reward ;
and
(/) 41 & 42 Vict. c. 31, s. 20.
\(j) 45 & 46 Vict. c. 43, s. 15. As to bills of sale executed before 1st
January 1879, see 17 & iS Vict. c. 36, and 29 & 30 Vict. c. 96.
(h) Sivift V. PanneU, 24 Ch. D. 210; 31 W. R. 543.
(i) Broom's Corns. 881.
(A) I S. L. C. 201 ; Lord Raymond, 909.
AND HEREIN OF BAILMENTS. 1 23
6. Mandatum — where goods are to be carried gratis.
Of the above, let us first deal with those bailments DeposUum and
called respectively depositum and mandatum, they being
exactly similar to each other in respect that each is the
doing of some act by the bailee voluntarily and without
reward. Now, in any contract or bailment of a merely
voluntary nature a person cannot be compelled to do
the act required, for a simple contract requires a valu-
able consideration (I) ; and therefore it is said that a
voluntary bailee is not liable for nonfeasance, so that
thougli, from his not doing what he has contracted to
do, damage may have arisen to the other party, yet he
is not liable {m). But if a bailee enters upon the
bailment, as by accepting a deposit of goods, there is
said to be sufficient consideration by reason of the
intrusting him with the goods, to create a duty in him
to perform the matter properly, and if lie does not do
so, he is liable if he is guilty of such default as to
amount to gross negligence ; and the before-mentioned
case of Coggs v. Bernard is a direct decision to this
effect. The facts in that case were, that the defendant Facts Iq Corjfjs
had promised the plaintiff to take up several hogsheads ^' ■^"■""™-
of brandy then in a certain cellar, and lay them down
again in a certain other cellar safely and securely;
and by the default of the defendant one of the casks
was staved and a quantity of the brandy spilt. It
was decided that the plaintiff was entitled to recover
notwithstanding the defendant was not to be paid, but
that a voluntary bailee was only liable for gross negli-
gence. This, then, is the general principle of law
governing the liability of voluntary bailees, but it has
been in some slight degree altered, it being now de-
cided that if a voluntary bailee is in such a situation
as to imply skill in what he undertakes to do, an
omission to use that skill is imputable to him as gross
(I) Ante, p. 39.
{m) Elsee v. Catward, 5 T. R. 143.
124
Wilson V.
Brett.
OF CONTRACTS AS TO GOODS,
negligeuce (/i). Thus iu the case of Wilson v. Brett
(cited below), it was held that a person who rode a
horse for the purpose of exhibiting and offering him
for sale, though he was to receive no reward for doing
so, was yet bound to use such skill as he possessed,
and that he being proved to be conversant with and
skilled in horses, was equally liable with a borrower
for any injury done to the horse on account of his
omission to use such skill.
In the above cases of mandatain and depositum, the
reason of the bailee being only liable for his gross
neglect is the fact of the bailment being practically
altogether for the bailor's benefit ; but in the case of the
Commodatuiii. bailment called commodatura, as the whole benefit is
received by the bailee, the liability is different, for here
the bailee is strictly bound to use the utmost care, and
will be liable for even slight neglect; so that if a person
lends a horse to another, and the lendee lets his servant
ride it, and it is injured without his fault or the fault
of his servant, that will nevertheless be quite sufficient
slight neglect on his part to render him liable, for the
horse was lent to him, and he had no right to let his
servant ride it (o).
Locatio rei. In the bailment locatio rei, or hiring of goods, the
bailee is bound to use ordinary diligence, and is liable
for ordinary neglect, for here the bailment operates for
the benefit of both parties ; for that of the bailee in
that he has the use of the goods, and for that of the
bailor in that he has the amount agreed to be paid for
the hire.
Vadium, or
pignori
acceptuiH.
So also the bailment vadiuvi, otherwise known as
piijnori acceptum, or pawn, is for the benefit of both
parties, the pawner getting a loan of money, and the
(7i) Wilson V. £7-ett, ii M. & W. 113.
(o) I S. L. C. 22S.
AND HEREIN OF BAILMENTS. 1 25
pawnee getting the use of the chattel, or interest, or
both, and so the liability of the pawnee is only to use
ordinary diligence. To constitute a valid pledge there
must be either an actual or constructive delivery of
the article to the pawnee, and the bailee here looks
not only to the property but to the person of the
bailor ; and if the subject of the bailment is lost and
the bailee has used a proper amount of diligence, and
the loss has occurred without any fault on his part,
he may sue the bailor for the amount of the debt (7?).
It is not sufficient to exonerate a bailee from responsi-
bility for the loss of the subject of the bailment to shew
that it was stolen, but he must also shew that he used
due care to protect it {q). As to the right of the ^vhether the
bailee in this kind of bailment, it was stated by Lord {jg Jthe dhattei
Holt, in his judgment in Coggs v. Bernard (r), that if it p^^wned.
will do the article no harm, he may use it (as, for in-
stance, the wearing of a jewel pawned), but such user
will be at the peril of the bailee ; but if the article will
be the worse for using, then it must not be used, and
the law now seems to be that the pawnee is generally
never justified in so using tiie article pawned, except it
be of such a nature that the bailee is at some expense
to maintain it (as, for instance, a horse, which naturally
requires to be fed), for in such a case as this the bailee
may use it in a reasonable way to recompense him for
his expenditure (s).
A pawn or pledge requires to be carefully dis- Distinctions
tinguished from a lien, and from a mortgage of per- pfi^n^^a Hen
sonal estate (t). A lien, generallv speakinjj, gives but ^^^ -^ ?'<"'*"
. / °°., gage of
a right to retam property, and no active right in personal
respect of it (-?/); a mortgage passes the actual pro- ^™^^^ ^'
perty in the goods to the mortgagee ; but a pawn or
(p) I S. L. C. 229.
(q) Chitty on Cimtracts, 51S.
(r) I S. L. C. 213, 214.
(s) Chitt}' on Contracts, 519.
(t) See I S. L. C. 230.
(«) See ante, p. 104.
126
OF CONTKACTS AS TO GOODS,
pledge simply gives a special or qualified property,
and a limited right of possession. The proper remedy
of a pawnee to recover his money is on reasonable
notice to sell the subject of the pledge, or to sue, or
if necessary he may adopt both remedies (x), and if
he sells the subject of the pledge, and it does not
produce sufficient to satisfy the debt, he may sue for
the deficiency (y).
Pawnbrokers.
Pawubrokers'
Act, 1872.
A certain practically very important kind of pawnees
or pledgees are pawnbrokers, and at common law
they stood on the same footing as other bailees of
that class, and liable, therefore, as before stated. But
it is evident that the system of pawning is open to
many abuses, both from the necessities persons may
be under to induce them to pledge, the desire of
others to part with things to which they have no right
beyond that of possession, and the opportunities that
pawnbrokers may have of advantaging themselves to
the injury of the pawners, and accordingly the Legis-
lature has specially dealt with the subject. The
present statute governing the matter is the Pawn-
brokers' Act, 1872 (2), which, however, only deals with
loans up to the sum of ^10, and as to loans beyond
that amount the ordinary law of pawn applies (a).
By this statute every pledge must be redeemed within
twelve months from the day of pawning, with seven
additional days of grace (h), and if not redeemed
within that time, and the amount for which the article
is pledged does not exceed los., it becomes the pawn-
broker's absolute property (c) ; but if for above los.,
(x) I S. L. C. 228. A pledgee of a chattel cannot foreclose {Eraser v,
Byas, "W. N. (1895) 112 ; Law Students' Journal, August 1895, P- 168).
As to a pledge of title-deeds, which constitutes an equitable mortgage,
and as to the remedies of an equitable mortgagee, see Indermaur's
Manual of Equity, 135, 136.
{y) Jones v, Marshall, 24 Q. B. D. 269 ; 59 L. J. Q. B. 123 ; 61 L. T.
721.
(2) 35 & 36 Vict. c. 93.
(a) On the old law, see Pennell v. Attenboroitgh, 4 Q. B. 868.
(6) 35 & 36 Vict. c. 93, s. 16.
(c) Sect. 17.
AND HEEEIN OF BAILMENTS. 1 27
then it is still redeemable until actual sale (d), and
any such sale is only to be by public auction, and the
surplus after the costs of the sale and the amount
of the pledge is to be accounted for (c). As to an Pawubroker is
injury to the subject of the pledge by fire, formerly --^^^-^^^^^J^
the pawnbroker was not liable unless it was proved ^>y fire,
that the fire took place through his default or neglect,
but now he is absolutely so liable, and, to protect
himself, is empowered to insure to the extent of the
value of the goods (/). Formerly, also, as to goods
which had been stolen, neither the pawnbroker nor a
purchaser from him had a right to retain the goods as
against the true owner ; but now, upon conviction of
the thief, the court has a discretion to allow the pawn-
broker to retain the goods as a security for the money
advanced, or to order them to be returned to the true
owner (g). If by the default or neglect of the pawn-
broker the pledge suffers any injury or depreciation,
the owner may recover summarily a reasonable satis-
faction for the same (h). It is also provided (i), that Right to
the holder for the time being of a pawn-ticket shall pioducti*^on of
be presumed to be the person entitled to redeem the p^wn-ticket.
pledge, and that the pawnbroker shall accordingly, on
payment of the loan and profit, deliver the pledge to
the person producing the pawn-ticket, and he is there-
by indemnified for so doing. It has, however, been
decided that this enactment only applies as between
the pawnbroker and the pawner, or the owner who
has authorized the pledge, and that it does not affect
the common law rights of the owner of property which
is pledged against his will (k).
There remains but to consider that kind of bailment
{d) 35 & 36 Vict. c. 93, s. 18.
(e) Sect. 19.
(/) Sect. 27.
{g) Sect. 30.
(h) Sect. 28.
{{) Sect. 25.
(k) Singer Manufacturing Co. v. Clark, 5 Ex. D. 37 ; 49 L. J. Ex.
224 ; 28 W. R. 170.
128
OF CONTRACTS AS TO GOODS,
Locatio operis
fariendi.
lu the case of
private per-
sons, and those
exercising
a public
employment.
Reason of
common law-
liability of
carriers.
classified by Lord Holt as locatio operis faeicndi, and
as to this it is of two kinds ; either a delivery to one
exercising a public employment, e.g. a carrier, or a
delivery to a private person, e.g. a factor or wharfinger.
As to this latter kind, they are only liable to do the
best they can, or, in other words, are bound only to
use ordinary diligence, so that such a bailee would
not be liable for a robbery of goods happening without
his fault, but in such a case it would have to be very
clearly shewn that no care on his part could have
prevented the robbery. On the other hand, as to the
former kind, such a bailee stands in the position of
an insurer liable for all losses except those occurring
by the act of God (/) or the Queen's enemies, and
the reason on which this rule is founded has been
stated with regard to carriers as follows : " This is a
politic establishment contrived by the policy of the
law for the safety of all persons, the necessity of whose
affairs oblige them to trust these sort of persons, that
they may be safe in their ways of dealing ; for else
these carriers miglit have an opportunity of undoing
all persons that had any dealing with them by com-
bining with thieves, &c., and yet doing it in such a
clandestine manner as would not be possible to be
discovered " (w). But the above, though formerly the
correct rule at common law, is not so now, and it will
be best to consider, firstly, the law of carriers, and then
pass on to the law of innkeepers.
{I) As to what will amount to an "act of God," see Nugent v.
Smith (I C. P. D. 423 ; 45 L. J. C. P. 697). In that case the defen-
dant, a common carrier, received from the plaintiff a mare to be carried
by sea. In the course of the voyage, the weather being rough and the
mare being frightened, she struggled violently, and received injuries
from which she died. It was held by the Court of Appeal that no facts
being proved but these, the defendant was not liable, that this was in
effect an "act of God," and that it was not necessary to prove that
it was absolutely impossible for the carrier to prevent the injury, but
that it was enough to prove that by no reasonable precaution under
the circumstances could it have been prevented.
(m) Per Lord Holt, in his judgment in Coggs v. Bernard, i S. L. C.
217,.
AND HEREIN OF BAILMENTS.
129
A common carrier has been defined as one who im- Definition
dertakes to transport from place to place for hire the canier!'^*^"
goods of such persons as choose to employ him ()i), and
the rule is that to constitute a person a common car-
rier he must hold himself out, expressly or by course
of conduct, as ready to engage in the transportation of
goods for hire as a business, not merely as a casual
occupation jj?-o Jiac vice, and that a person who merely
undertakes chance jobs is not a common carrier (0) ;
also that he must be a person plying from one fixed
terminus to another. It has, however, been held that
a barge-owner who lets out a barge to different persons
for different voyages is a common carrier, and liable
as such, although he does not ply between any fixed
termini, and the customer in each particular case fixes
the point of arrival and departure (p). Railway com-
panies, as to goods which they ordinarily carry, are
common carriers.
The liability of a carrier at common law was for every Liability c.f
loss, unless it arose by the act of God or the Kino's '^^"'^'"^ ^.^
' _ ^ v^i »/ V. -i»-iiio o common law.
enemies, and the reason of this extraordinary liability
was as has been stated by Lord Holt in his remarks
on the subject already set out (q). It was fully in the
power of carriers, however, to make any special contracts
with their customers, in which their liability might be
limited in any way agreed upon, and it became their
practice to put up in their warehouses notices limitiu;--
their liability, and then, if it could be proved that such
a notice was brought to the knowledge of any particular
customer, it was held to constitute a special contract
with him, but if it could not be brought to his know-
ledge it was utterly ineffectual. No such notice, how-
ever, exonerated the carrier from liability for gross
negligence (r),
(n) Palmer v. Grand Junction Ry. Co., 4 M. & W. 247.
(0) Chitty on Contracts, 529, 530 ; Brind v. Dale, 2 M. & Rob. 80.
{p) Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338 ; 43 L J Ex 216 •
31 L. T. 95.
(q) Ante, p. 128.
(r) Wyld V. Pick/ord, 8 M. & W. 443.
I
I30 OF CONTRACTS AS TO GOODS,
Difficulties at It was evident that this state of things could not
common law. ^,^^^^^^6, for it was Constantly a difficult thing to
determine whether in each particular case notice had
been brought to the customer's knowledge. Accord-
The Carriers iugly the Carriers Act (s) was passed, which provides (t)
t'^m ^^"^' '^' that no carrier by land shall be liable for any loss
of or injury to any valuable articles of the nature
there specified, — such as gold, silver, watches, clocks,
bills, notes, title-deeds, stamps, engravings, silks, &c., —
contained in any parcel, which shall have been de-
livered, either to be carried for hire or to accompany
the person of any passenger, where the value of such
article shall exceed ;^io, unless, at the time of the
delivery of such article to be carried, its value and
nature shall have been declared, and an increased rate
Notice of in- ot charge paid, or agreed to be paid, which increased
trbrexhiijTtId c^^^g^ i^^y ^^ received, provided it is legibly notified
by carrier. m a conspicuous part of the office or warehouse, and
such notification is to bind without proof of its having
come to any customer's knowledge (//). Carriers who
omit to affix such notification are precluded from the
benefit of the Act so far as any right to extra charge
is concerned, but it seems that in any event they
are entitled to a declaration of the nature and value of
Xo public the goods (.v). The statute also provides (y) that no
liabTiity™^ ^"^ public uoticc or declaration shall have any binding
allowed. effect, but nothing in the Act is to be construed to
annul or in anywise affect any special contract between
the carrier and the customer (z) ; and nothing in the
Act is to extend to protect any carrier from any loss
(s) 1 1 Geo. 4 & I Wm. 4, c. 68. This Act only applies to carriers
by land. As to carriers by sea, see post, pp. 203, 204.
(t) Sect. I.
(w) II Geo. 4 & I Wm. 4, c. 68. This Act not only protects the
carrier in respect of the loss of the articles themselves, but also from
any damages consequential to such loss, MUlen v. Brasch, 10 Q. B. D.
142 ; 52 L. J. Q. B. 127 ; 31 W. R. 190 ; 47 L. T. 685.
(x) 1 1 Geo. 4 & I Wm. 4, c. 68, s. 3 ; see cases cited in note (c),
on page 131.
(y) Sect. 4.
{z) Sect. 6.
AND HEREIN" OF BAILMENTS.
131
arising from the felonious acts of any person in his
employ, or to protect any employee from any loss
arising from his own personal misconduct or neglect («).
Although a customer may declare a package to be of Dedaratiou of
some particular value, in the event of its loss the "''''^"^ °^ ^°'''^'-
carrier is not bound by that value, but may demand
proof of the actual value, which is all he is liable
for (&), and, as already stated, even although the carrier
has omitted to put up any notification as to extra
charge, it appears he is entitled to a declaration of the
value and nature of the goods (c).
In cases of goods not of the kind mentioned in the Where this
Act, or when the value is not above £10, then, in the ^°<^ does not
^ w, ^iiv^ii, iii uiii^ apply carrier s
absence of any special contract, and subject to the Act common law
next mentioned, the carrier's common law liability reVains.
remains by the express provision of the Act, notwith-
standing any public notice (d).
Eailway and canal companies frequently escaped Evasion of the
the provisions of this Act by putting notices on the fj",^ ^[J^^^'^'^y
receipts given to persons delivering goods to be carried,
and this was held to constitute a special contract
between the parties. The Eailway and Canal Traffic The Railway
Act, 1854 (e), therefore provides (/), that no such TrJffieTct,
notice given by any such company shall have any '^54-
effect, but that the company shall be liable for all loss
or injury to goods which are being carried by them,
occasioned by the neglect or default of the company
or its servants. It is, however, also provided that
nothing therein contained is to prevent companies
from making such conditions with respect to the for-
(a) Sect. S. As to " felonious acts," see Gocjarty v. Great S. tO W.
By. Co., 9 Irish Reports (C. L.) 233.
(b) Sect. 9.
(c) Hart V. Baxendale, 6 Ex. 769 ; Pinciani v. L. <£; S. W. Ry iS
C. B. 226.
(d) 1 1 Geo. 4 & I Wm. 4, c. 68, s. 4.
(e) 17 & 18 Vict. c. 31.
(/) Sect. 7.
132
OF CONTRACTS AS TO GOODS,
Difficulties in
construing
this Act.
Burden of
jiroviug
condition
reasonable.
warding and delivering of any goods as shall be
adjudged by the Court or judge before whom any
question relating thereto shall be tried, to be just and
reasonable, and no special contract as to the forward-
ing and delivering of any goods shall be binding upon
any one unless signed by him or the person deliver-
ing the goods to be carried. Very great difficulty has
arisen on the construction of this provision, as to
whether the statute only requires that there should be
some special contract, and requires nothing as to the
conditions to be contained in it, and also whether, in
addition to a special contract in writing signed, reason-
able conditions may bind which are not made part of
a contract, but only given notice of — or to put the
matter more directly in the shape of two questions :
I. When a condition is reasonable, does it require
also to be reduced into writing and signed ? and 2.
When there is a special contract, can the question
of its reasonableness be gone into ? However, the
weight of authority is certainly to answer both ques-
tions in the affirmative, and to treat the words
" special contract " and " conditions," used in the Act,
as synonymous terms {g), so that there must always,
to comply with the Act, be a special contract in
writing signed, and reasonable conditions contained
therein (li). The burden of proving that a condition
inserted in a special contract is a reasonable condition
is on the company setting it up ({), and it has been de-
cided that an ordinary contract exempting a company
from liability for injuries to goods does not protect them
(gr) Simmons v. Great Western Ry. Co., i8 C. B. 805 ; McManus v.
Lancashire Ry. Co. , 2 H. & X. 693 ; North Stafford Ry. Co. v. Peek, E.
B. & E. 986, and on appeal to the House of Lords, 32 L. J. (Q. B.)
241, in which the judges were divided in their opinion.
{h) As to what is a reasonable condition, see Corrigan v. Great
Northern and Manchester, Sheffield, and Lincolnshh-e Ry. Cos., 6 L. R.
Ir. 90; Ashendcn v. Z. B. cb S. C. Ry. Co., 5 Ex. D. 190; 28 W. R.
511 ; 42 L. T. 586 ; M'Nally v. Lane, and Yoi-hs. Ri/., 8 L. R. Ir. 81 ;
Manchester and Sheffield Ry. Co. v. Brown, 8 App. Cas. 703 ; 53 L. J.
Q. B. 124 ; 50 L. T. 2S1 ; bicJcson v. G. N. Ry. Co., 18 Q. B. D. 176 ;
56 L. J. Q. B. 1 1 1 ; 55 L. T. 868. See also hereon, i S. L. C. 252-254.
{{) Ruddy V. Midland Great Western Ry. Co., 8 L. R. Ir. 224.
AND HEKEIN OF BAILMENTS. 1 33
from acts of wilful misconduct on the part of their
servants, and that, even if it professed to, such a con-
dition would be unreasonable and bad (k). It has,
however, been held that the Act does not apply to
contracts made by railway companies exempting them-
selves from liability by loss or detention beyond the
limits of their own lines (l) ; and it has also been
recently held that it does not include theft by the
company's servants ivithout negligence, and therefore
that by any contract, or notice brought home to the
consignor, a company can exempt itself from liability
for such loss {m). The same Act {ii) also exempts Limit of
companies from liability for loss beyond — ( i ) for horsesTcattie,
horses the sum of ^50, (2) neat cattle £is, and (3) and sheep,
sheep and pigs £2 per head, unless a higher value is
declared, and an increased rate paid or agreed to be
paid, to be notified as under the Carriers Act, and if
this is not done the liability of a company is limited
to the amount specified in the Act without there being
any written contract or any special declaration of
value (0).
The Eailway Eegulations Act, 1868 (2?), also provides Liability when
that where a company by through booking contracts carry'partiy
to carry partly by rail or canal and sea, a condition ^^ ®®*-
exempting such company from liability from any loss
by danger of seas and navigation, published in a con-
spicuous manner in the office where the booking is
effected, and printed in a legible manner on the
receipt note, shall be perfectly valid. It is also
provided {q) that where any railway company, under
(^•) Ronan v. Midland By. Co., 14 L. R. Ir. 157.
(I) Zunz V. South-Eastern Ry. Co., L. R. 4 Q. B. 539 ; Doolan v. Mid-
land Ry. Co., 10 Irish Reps. (C. L.) 47. See further as to the effect of
a special contract, Tattersall v. National Steamship Co., Limited, 12 Q.
B. D. 297 ; 53 L. J. Q. B. 332 ; 32 W. R. 566 ; 50 L. T. 299.
(m) Shaiv v. Great Western Ry. Co., (1894), I Q. B. 373 ; 70 L. T.
218.
(n) 17 & 18 Vict. c. 31, s. 7.
(o) Hill V. London and North- Western Ry. Co., 42 L. T. 513.
(p) 31 & 32 Vict. c. 119, s. 14.
(7) 34 & 35 Vict. c. 78, s. 12.
134 °^' CONTRACTS AS TO GOODS,
a contract for carrying persons, animals, or goods by
sea, procures the same to be carried in a vessel not
belonging to the railway company, their liability is
to be the same as though the vessel had belonged to
the company.
The duty of The carrier's duty is to carry all goods delivered to
a carrier. j^.^^ ^^ ^^^ ^,.^^ ^-^^^ j^^ usually carries, provided that
he has room in his carriage and the person delivering
them is ready to pay his proper charge, such carrying
to be by his ordinary route and with reasonable dili-
gence (r). "With regard to a carrier's charges for
carrying, though he is entitled to be paid beforehand,
yet he is not entitled to be paid before he has re-
ceived the goods for carriage, so that in an action
against him for not carrying, it is sufficient to allege
readiness and willingness to pay the amount of the
Carriage by a Carriage witliout proving actual tender of it (s). His
railway com- liability ccascs at the termination of the carrying, and
patiy over J ./ o'
their own and where goods delivered to a railway company to be
another com- . , . . , ^i ^ i i.i
pany's line. camcd, are partly carried on that and partly on
another line, the original company will generally be
liable unless they restrict their liability by a condition
The person to to that effect, which they are entitled to do (t). As a
gene'ranyUm general rule, the person to sue the carrier is the con-
consignee, signee, for the contract is really with him, the con-
signor being his agent to retain the carrier ; but if
the consignee has not acquired any property in the
As to dan- goods, then the consignor is the person to sue. It is
gerous goods, ^j^g ^^^y ^f j^^^y person delivering goods of a dangerous
character to be carried, to give notice of their dangerous
character (w), and where goods of a specially dangerous
character are delivered to be warehoused or carried,
the true name or description of such goods, with the
words " specially dangerous," must be marked on them,
(r) Jameson v. Midland Ry. Co., 50 L. T. 426.
(s) Pickford v. Grand Junction Ry. Co., S M. & W. 372.
(t) Zunz V. South-Eastern Ry. Co., L. R. 4 Q. B. 539.
(«) Farrant v. Barnes, 31 L. J. (C. P.) 137.
AND HEREIN OF BAILMENTS. 135
and a notice thereof in writing given to the warehouse-
man or carrier, or the person so delivering them is
subject to imprisonment or fine (x).
Eailway companies are bound to carry passengers' As to railway
,, • -liP c i. I passengers
personal luggage to a certam weight, tree ot extra charge, personal
and if duly labelled and put in the luggage van in the i«gs»s"^-
ordinary way, their liability as to it is that of common
carriers ; and it seems that a railway company accepting
a passenger's luggage to be carried in a carriage with
the passenger stands in the same position, subject
only to this modification, that in respect of his inter-
ference with their exclusive control of his luggage,
the company are not liable for any loss or injury
occurring during its transit, to which the act or default
of the passenser has been contributory (y). As to what is _
*- -, , , passengers
what will be comprehended under the term passengers personal
personal luggage, it may be stated to mean not only ^"ssage.
wearing apparel, but all things which under the par-
ticular circumstances of the case, for convenience,
a passenger would ordinarily carry with him (z).
Where luggage is left in the custody of a porter
under such circumstances as to make the porter the
agent of the passenger, the company are not liable at
all for its loss ; thus where a passenger, having missed
his train, left his luggage on the platform in charge of
a porter, saying he would travel by the next train, and
went to an hotel during the interval, and the luggage
was lost, it was held that the company were not
liable (a). But if a passenger, having arrived at a G. w. Rii. Co.
station a reasonable time before the advertised hour for
(a;) 29 & 30 Vict. c. 69, s. 3.
(y) Great Western Ry. Co. v. Bunch, 13 App. Cas. 31 ; 57 L. J. Q. B.
361; 58 L. T. 128.
(j) See on this point, Phelps v. London and North- Western Ry. Co.,
34 L. J. (C. P.) 259 ; Macrow v. Great Western Ry. Co., L. R. 6 Q. B
612 ; 40 L. J. Q. B. 300 ; Hudston v. Midland Ry. Co., L. R. 4 Q. B.-
366; 38 L. J. Q. B. 213.
(a) Welch V. London and North-Western Ry. Co., 34 W. R. 166 ; see
also Hodkinson v. London and North-Western Ry. Co., 14 Q. B. D. 228 ;
33 W. R. 622.
136
OF CONTEACTS AS TO GOODS,
Goods de-
posited in a
cloak-room.
the departure of the train, merely goes to another part
of the station for a purpose strictly necessary for travel-
ling, leaving his luggage with a porter, the company
are liable if it is lost (h). If articles are deposited in
the cloak-room of a railway company, then the com-
pany's position is that of an ordinary bailee, subject to
the terms of any notices they may have issued which
may be held to constitute a contract and limit the
liability which would otherwise exist (c) ; and where
goods are delivered addressed to a consignee at a cer-
tain station "to be called for," the liability of the
company as common carriers continues for a reason-
able time after the goods arrive at the station, but
after this their liability as common carriers ceases,
and they are merely liable as bailees for hire, that is,
some negligence in their part must be shewn ; and this
principle applies generally to all goods delivered to be
carried, whether ordinary goods or passengers' personal
luggage, for the company are bound to keep them at their
own risk as common carriers for a reasonable time (d).
AVhenthe Directly the goods are delivered to the owner or his
[iabiiityfor agent, however, all liability on the part of the com-
passengers' ^^ ^^^j ceascs, and a porter of the railway company may
be such an agent. Thus, where a passenger on arriving
at her destination had her luggage taken from the van
by a porter, and said she would walk to her house
and then send for her luggage, and the porter said he
would put it aside and take care of it until then, and
the luggage was lost, it was held that the company
were not responsible for the loss {e). But if an en-
(b) Bichards v. London, Brighton, and South Coast Ry. Co., 7 C. B.
. 839 ; Talley v. Great Western Ry. Co., L. R. 6 C. P. 44; 40 L. J. C. P.
9 ; Great Western Ry. Co. v. Bunch, 13 App. Cas. 31 ; 57 L. J. Q. B.
361 ; 58 L. T. 128 ; 34 W. R. 574.
(c) Chapiwin v. Great Western Ry. Co., 5 Q. B. D. 278 ; 49 L. J. Q.
B. 420 ; 28 W. R. 566 ; Harris v. Great Western Ry. Co., I Q. B. D.
515 ; 45 L. J. Q. B. 729. As to when notice on receipt or ticket binds,
see ante, p. 38.
(d) Chapman v. Great Western Ry. Co., 5 Q. B. D. 278 ; 49 L. J. Q. B.
420 ; 28 W. R. 566 ; Patscheiderv. Great Western Ry. Co., 3 Ex. D. 153.
(e) Hodkinson v. L. <C- A'.- IF. Ry. Co., 14 Q. B, D. 22S ; 33 W, R.
662.
AND HEEEIN OF BAILMENTS. 1 37
trustment to a porter is made for the ordinary purposes
of transit, and not to be taken charge of an unreasonable
time before the journey has commenced, or while the
journey is suspended, or when it has actually ended,
then the company are liable (/).
By what are known as the " equality clauses " in the Duty of
Railway Clauses Consolidation Act, 1845 (9)i ^^^ in panies as to
various special Acts relating to particular companies, equality,
railway companies are bound to charge equally to all
persons in respect of all goods, and by the Railway and
Canal Traffic Act, 1854 (h), the Court of Common
Pleas or any judge of that Court was empowered to
restrain by injunction any railway or canal company
from giving undue or unreasonable preference to any
particular persons or description of traffic. By the
Railway and Canal Traffic Act, 1888 (i), a new Court
of record called " The Railway and Canal Commission " The Railway
has been established, consisting of two ordinary com- commission.
missioners and one ex officio commissioner (being a
judge of a superior Court in the United Kingdom), and
all matters of this kind, and various other matters
mentioned in the Act, are now to be adjudicated upon
by this Court Qi). If a railway or canal company
demands and receives payment in excess, in disregard
of the " equality clauses," it can also be recovered back
in an ordinary action for money had and received (/)•
(/) G. W. Ry. Co. V. Bunch, 13 App. Cas. 31 ; 57 L. J. Q. B. 361 ;
58 L. T, 128.
(g) 8 & 9 Vict. c. 20, s. 90.
[h) 17 & 18 Vict. c. 31, ss. 2, 3, 6.
(i) 51 & 52 Vict. c. 25.
\lc) Sects. 8-13.
[l] Sutton V. Great Western Ry. Co., L. R. 4 H. L. Cases, 226 ; 38 L.
J. Ex. 177. As to what constitutes an undue preference, see Denaby
Main Colliery Co. v. M. S. and L. Ry. Co., 11 App. Cas. 97 ; 55 L. J.
Q. B. 181 ; 54 L. T. I ; in which case it was held by the House of
Lords that the provision of 8 & 9 Vict. c. 20, s. 90, requiring equality
of rates, applies only to goods passing between the same points of
departure and arrival, and passing over no other part of the line, so
that although the railway company had carried coals from a group of
collieries situated at different points along their line, and charged all
the collieries one uniform set of rates in respect of such carriage, yet
they had not infringed the provision.
138
OF CONTRACTS AS TO GOODS,
It is the duty of a railway company to afford all reason-
able facilities for the receiving, forwarding, and delivery
of traffic upon its railway (vi), and if this is not done
application may be made to the Eailway and Canal
Commission for an order to compel it ; and generally
as regards the power of this Court it may also give
damages in addition to, or substitution for, other relief
if proceedings are commenced within one year from the
discovery of the matter complained of.
Liability of
carriers
of passengers
for injury to
jiassengers.
With regard to the subject of the liability of carriers
of passengers for injuries done to them, although it
cannot be considered under the heading of the present
chapter, yet it may be here convenient to remind the
student that it is very different to that of common
carriers of goods, who, as we have seen, are, at common
law, insurers. The contract of a carrier of passengers
is only to carry safely and securely as far as reason-
able care and forethought on his part can go, and if
an accident which he could not possibly have pre-
vented takes place, he is under no liability. There
must be some negligence on his part shewn, and there
must be no contributory negligence on the part of
the passenger ; a primd facie case of neglect on the
carrier's part will, however, be always made out by
shewing that the vehicle was under his absolute con-
trol. This subject is considered hereafter under the
division " Torts " (?i).
Definition of
an innlceeper.
His duty.
An innkeeper may be defined as one who keeps a
house where the traveller is supplied with everything
that he has occasion for while on his way (o). He
(m) 17 & t8 Vict. c. 31, s. 2.
(11) Post, Part ii. ch. vi..
(0) Thompson v. Lacy, 2 B & A. 283. A restaurant-keeper is not
an " innkeeper," but yet he may be liable on the ordinary principle.s
applying to bailment. Thus where the plaintiff went into the Cafe
Royal for the purpose of dining, and gave his overcoat to a waiter who
hung it on a peg. and it was stolen, it was held that the jury were
justified in finding that there was a bailment and such negligence
AND HEREIN OF BAILMENTS. 139
stands to a certain extent in a public capacity, and it
is his duty to receive all guests, with their goods, who
come to him, provided they are not drunk or dis-
orderly, or suffering from any infectious disorder, and
that they tender to him a proper and fair amount for
his charge ; and if an innkeeper fail in this his duty,
he is liable to be indicted, or to have an action for
damages brought against him (j^). By the common His liability
law the liability of an innkeeper is very extensive, j^*^^''''"^""^''
being for all losses except those arising by the act of
God, the King's enemies, or the fault of the guest, for
very much the same reason as has been before stated
with regard to carriers (q). It is not necessary, to Who is a
make a man a guest within the meaning of the an°inu.
common or statute law as to innkeepers' liability,
that he should have come to the inn for more than
temporary refreshment; the length of time for which
a person resides at an inn does not seem to affect his
position as such, provided he live there in the transi-
tory condition of a guest, but if he came to the inn
on a special contract to board and lodge there, the law
does not consider him as a guest, but as a boarder (r).
The leading case on the liability of innkeepers is
Calye's Case (s), in which it was laid down that to Caiycs Case.
charge an innkeeper the following circumstances are
necessary : —
1, Tiie inn ought to be a common inn, so that in
the case of lodging at some private person's house,
and a robbery there occurring, the landlord would not
necessarily be liable.
2. The party ought to be a traveller or passenger.
as rendered the defendant, the proprieter of the restaurant, liable
{Ultzen V. Nichols, (1894), i Q. B. 93; 63 L. J. Q. B. 289 ; 70 L. T.
140).
{p) Fell V. Knight, 10 L. J. (Ex.) 277.
(q) See ante, p. 128.
(r) I S. L. C. 141, 142.
(s) I S. L. C. 132 ; 8 Coke, 32.
140 OF CONTEACTS AS TO GOODS,
3. The goods must be in the inn, and for this
reason the innkeeper is not bound to answer for a
horse put out to pasture.
4. There must be a default on the part of the inn-
keeper or his servants ; and,
5. The loss must be to movables, and therefore if
a guest be beaten at an inn, the innkeeper shall not
answer for it.
The Inn- The liability of innkeepers being, as above stated,
("2^6 fe^'vL. so extensive, it was only natural that, in course of
"^^ 41)- time, it should be restricted in like manner as has
been shewn the liability of carriers was restricted ; and
by the Innkeepers Act, 1863 (t), it is provided («) that
no innkeeper shall be liable to make good any loss or
injury to goods or property brought to his inn (not
being a horse or other live animal, or any gear ap-
pertaining thereto, or any carriage), to a greater amount
than ^30, except (i) where the goods are stolen, lost,
or injured through the wilful act, neglect, or default
of the innkeeper or any person in his employ ; or (2)
where the goods are deposited with him expressly for
safe custody, in which latter case he may demand that
the goods shall be placed in a sealed box or other re-
ceptacle. If an innkeeper refuses to receive goods for
safe custody, or if by his default the guest is unable
to so deposit them, he is not to have the benefit of
the Act (x), and he must cause at least one printed
copy of sect, i to be exhibited in a conspicuous part
of the hall or entrance to the inn, and will only be
entitled to the benefit of the Act whilst so exhibited (y).
Tiie copy should be an exact one, and if there is any
material omission the innkeeper is not protected (z).
{t) 26 & 27 Vict. c. 41.
(m) Sect. I.
(x) Sect. 2.
(y) Sect. 3.
(z) Spice V. Bacon, 2 Q. B. D. 463 ; 46 L. J. Q. B. 713 ; 25 W. R.
840.
AND HEREIN OF BAILMENTS. I4I
We may gather from Calye's Case that an innkeeper injuries to
does not warrant the safety of his guests, but neverthe- persons,
less he is liable if an injury happens to them through
his neglect, as if a guest falls and injures himself
through a defective staircase, carpet, or the like ; but
some evidence of negligence on the part of the inn-
keeper must here be given (a).
An innkeeper has no right to detain his guest's innkeeper may
person till his bill is paid, but he has a right of lien property, but
on property brought by the guest to the inn, notwith- '^"^ ^"^ person,
standing even that the property does not belong to the
guest, e.g. if a husband and wife come together to an
inn (when of course credit is given to the husband),
yet the innkeeper's lien exists on property brought
with them, although it is the separate property of the
wife (6). The lien also exists over property, though
it may not be ordinary traveller's luggage (c), but
there is no lien in respect of goods the property of a
third person sent to the guest in the inn for a tempo-
rary purpose, e.g. a piano or other article on hire {d).
When an innkeeper is entitled to a lien over carriages
and horses, such lien is not limited to the charge for
the keep of the horses and the care of the carriages,
but extends to the whole charges against the guest (c).
An innkeeper who accepts security does not thereby
waive his common law lien on the goods of his guest,
unless the nature of the security or the circumstances
under which it is given are inconsistent with the re-
tention of the lien (/). The Innkeepers Act, 1878, Liability of
as before noticed {g), now gives the innkeeper a right or'boaniing-^^
of actively enforcing his lien. As before observed, on ^"^^^ keeper.
(«) Walker v. Midland Ry. Co., 55 L. T. 489 ; 51 J. P. 116.
(6) Gordon v. Silher, 25 Q. B. D. 491 ; 59 L. J. Q. B. 507 ; 63 L. T.
283.
(c) Snead v. Watkins, I C. B. (N. S.) 267 ; Threlfall v. Barwick, L.
R. 10 Q. B. 210 ; 44 L. J. Q. B. 87.
{d) Broadtoood v. Granara, 10 Ex. 417-
(e) Mulliwjer v. Florence, 26 W. R. 385 ; 38 L. T. 167.
(/) Angus v. M'Lachlan, 23 Ch. D. 331 ; 52 L. J. Ch. 587 ; 31 W.
R. 641 ; 48 L. T. 863.
{g) Ante, pp. 104, 105.
142
OF CONTRACTS AS TO GOODS.
Another
classification
of bailments.
General
position of
bailor and
bailee.
the decision in Calye's Case, a lodging-house or boarding-
house keeper is not liable as an innkeeper ; he is liable
only in a less degree, his duty being to use an ordinary
amount of care with regard both to his guest and his
guest's goods {h) ; and to render such a person liable
for the wrongful acts of a servant, he must have been
guilty of such a misfeasance or gross misconduct as an
ordinary person would not have been guilty of {%).
We have now gone through the different kinds of
bailments according to Lord Holt's division in Coggs v.
Bernard (Ic), on which it is apparent that another
classification (which has been stated in various text-
books) may be given. It has the advantage of sim-
plicity, and is as follows : —
1 . Bailments exclusively for the benefit of the bailor.
(This will include those &iy\Qdiclepositum and mandatuvi.)
2. Bailments exclusively for the benefit of the
bailee. (This will include that styled coiiimodatum.)
3. Bailments partly for the benefit of the bailor
and partly for the benefit of the bailee. (This will
include those styled locatio rei, vadium or pignori
acceptum, and locatio operis faciendi.)
There being a property in the case of goods bailed
both in the bailor and bailee, generally speaking either
may maintain an action in respect of the same {I).
As between a bailor and bailee under an ordinary
contract of bailment, if the bailor sues the bailee for
delivery of the goods or their value, the bailee is
estopped from disputing the title of the bailor (m).
(h) Danscy v. Richardson, 3 E. & B. 144 ; Bolder v. Soidbi/, 8 C. B.
(N.S.) 254.
(i) Clench v, D'Arenherg, i C. & E. 42.
(^-) See ante, p. 122.
h) See also post, Part ii. ch. iii.
(m) Rogers v. Lambert, (1S91), i Q. B. 318; 60 L. J. Q. B. 1S7 ; 64
L. T. 406; 39 W. R. 114-
OF MERCANTILE CONTRACTS. I43
CHAPTER V.
OF MERCANTILE CONTRACTS, AND HEREIN OF BILLS OF
EXCHANGE, PROMISSORY NOTES, AND CHEQUES.
Although for convenience the title given to this Matters
chapter is " Mercantile Contracts," &c., it must not be jM^JbapIi"
understood that the matters treated of in it are ex- "°* exclusively
mercautile.
clusively mercantile, but only more generally so ; for
instance, both agencies and partnerships may, of
course, occur in matters not strictly mercantile.
It must be manifest that in many matters of ordi-
nary business, persons may be unable to do personally
all acts coming within the scope of their transactions,
and for this reason they employ other persons to act
for them, and such persons are called agents for them
the principals, and acts done by the agents are con- Who are
sidered to be done by the principals by force of the '^°'"^*^*-
maxim Qici facit per alium facit per se. Generally ^'"/""'^^fi''
,. , J1-1P1 11 alium facit
speaking, what a person can do himselt he may do by perse,
an agent, and, ordinarily speaking, an agent may be
authorized by mere word of mouth ; but to execute a
deed an agent must be authorized by deed, and the
agent who is allowed under the 1st and 3rd sections
of the Statute of Frauds (a) must be authorized by
writing. The relation of principal and agent requires
the consensus of both parties ; there must be an express
or implied assent to, or a subsequent ratification of, that
relation (6). No person can authorize another to do for
(a) 29 Car. 2, c. 3 ; ante, p. 48. All instruments under these sec-
tions have now, under 8 & 9 Vict. c. 106, s. 3, to be by deed, and there-
fore such an agent must be appointed now by deed.
(&) Markivick v. Hardingham, 15 Ch. D. 349 ; 29 W. R. 361 ; 43 L.
T. 647.
144
OF MERCANTILE CON TE ACTS, AND
him what he cannot do himself, for naturally he can-
not pass to another a power which he never possessed ;
Persons not but though tliis is SO, persons who cannot do acts for
nevirtheiTss^ thcmselves are, generally speaking, competent to act as
act as agents, agents, e.g. infants, for they are exercising not their
own but another person's powers (c).
Delegatus
non potest
cieler/are.
An agent cannot delegate his authority to another,
the maxim being Delegatus non potest delegare (d),
except, indeed, in the ordinary way of business, — as
when a man in business is employed to do an act, and
his clerk does it by his directions, — and except by the
principal's assent express or implied {c). An agent
employing a sub-agent, even though with the knowledge
of his principal, is always liable to the principal for
money received by the sub-agent (/).
The powers of an agent vary according to the
authority he is invested with, and there are said to
be three kinds of agencies : —
Three kinds
of agencies.
I . Universal agency, which is the largest and widest
kind, being a general authority to do any acts without
reference to their character, and this is not of constant
occurrence.
2. General agency, which is the next largest, signify-
ing a power to do all acts in some particular trade,
business, or employment, e.g. the authority that is
usually vested in a wife to bind her husband for
necessaries without any particular sanction on each
occasion from him.
(c) See Story on Agency, p. 6 ; Co. Litt. 52 a.
{d) See as a recent instance of this as regards Torts, Gwilliam v.
Twist, (1895), 2 Q. B. 84 ; 72 L. T. 579 ; 64 L. J. Q. B. 474.
(e) De Bussche v. Alt, 8 Ch. D. 286 ; 47 L. J. Ch. 381.
(/) Ex parte James, Re Mutual and Permanent Benefit Building
Society, 48 J. P. 54 ; Skinner v. Weguelin, i C. & E. 12.
HEREIN OF BILLS OF EXCHANGE, ETC. I45
3. Special agencij, wliicli is the most limited and
usual case of agency, being where a person has simply
an authority to do some particular act for the prin-
cipal {fj).
There is a very important difference to be noted Differences
between universal and general agencies on the one Jniv^rsai
hand, and special agencies on the other, with regard ''"'^ general
. ' o agencies on
to the power to bind the principal. In the former, ti^e one hand,
even although the act exceeds the agent's authority agenci'eson
in the particular instance, and is contrary to the ^'^^ ^*^^'^*
principal's instructions, yet if it comes within the scope
of his ordinanj authority the principal is liable (A) ;
thus, for instance, supposing a servant to have a
general authority to order goods for his master,
and the master one day withdraws that authority,
yet if the servant orders goods as theretofore, the
tradesman not knowing of such withdrawal, the
master will be liable, because the act comes within
the scope of the agent's ordinary authority. In the
case of special agency this will not be so, for it is the
duty of the party contracting with such an agent to
inquire and see as to the extent of his authority, and
if he exceeds it the principal cannot be liable {i). But Omwi
although an act may be done without any authority ^etrotrakLr
from the principal, and therefore not bind him, yet if ^^ mandato
,..,., '' prion aqui-
at the time of doing tlie act the agent professed i\i2X paratur.
he was acting for the principal (/), it may be subse-
quently ratified by the principal, and become his act
just as much as if he had authorized it beforehand ;
for the maxim is, oniiiis ratihahitio retrotrahitur et
(g) See Story on A<jency, p. 23 et seq.
(h) Smethurst v. Taylor, 12 M. & W. 545 ; Natioiml Bolivian Navi-
gation Co. V. Wilson, L. R. 5 App. Cas. 290 ; 43 L. T. 70 ; Chapleo v.
Brunswick Building Society, 6 Q. B. D. 696 ; 50 L. J. Q. B. 372 ;
29 W. E,. 529 ; Brooks v. Hassell, 49 L. T. 568 ; Stein v. Cope, I C. &
E. 63.
(i) East India Co. v. Hensley, i Esp. 1 1 1 ; Graves v. Masters, l C.
& E. 73.
(;■ ) Per Parker, J., Verc v. Ashby, 10 B. k C. 288.
K
146
OF MERCANTILE CONTRACTS, AND
mandato 2^'i"iori aquiparatur {k), and this is so even
although the other party has before the ratification
repudiated the contract (l).
As to the effect An important point on the law of principal and
to an agent, agent is as to the efTect of a person contracting with
an a<Tent, oivincf credit to the aijrent. Of course, gene-
rally speaking, an agent incurs no personal liability,
and the person contracting with him will charge his
principal ; but it may be that ( i ) it is not known that
he is an agent, or (2) though known that he is an
agent, it is not known who his principal is, or (3)
thougli both the above facts are known, the agent not
contracting as agent, it may be preferred to charge
liim rather than his principal. The law is, that if the
fact of the person being an agent is not known, or
though the agency is known the name of the principal
is not, though credit is first given to the agent, the
principal on being discovered may be sued (m) ; but
that if the principal is known, and credit has yet been
given to the agent, who has made himself personally
liable, the principal cannot afterwards be charged, for
Paterson v. the pcrson has made his election (n). The leading
Acmsoi^v'' ^^^^^y referred to below, of Paterson v. Gandcsequi,
Gandesequi ; Addison V. Gaiulcsequi, and Thomson v. Davenport^ are
Thomson v. ....
Davenport. usually quoted together upon tins subject.
Effect of pay-
ment to a
broker or
agent.
Where a broker or agent buys goods in that capacity
for his principal, though he does not at the time dis-
close his principal, yet the principal is, on being
discovered, liable for the price, and this although he
has paid the broker or agent, unless indeed before
payment to the broker or agent the vendor has by
[k) Maclean v. Dunn, 4 Bing. 722.
[1] Bolton V. Lambert, 41 Ch. D. 295 ; 58 L. J. Ch. 425 ; 60 L. T.
6S7 ; Re Portitynese Consolidated Copper Mines, 45 Ch. D. 16; 63 L.
T. 423 ; 39 W. R. 25.
(m) 'Ihomson v. Davenport, 2 S. L. C. 395 ; 9 B. & C. 7S.
(n) Paterson v. Gandesequi, 2 S. L. C. 378 ; 15 East, 62 ; Addison v.
Gandesequi, 2 S. L. C. 387 ; 4 Taunt, 574.
HEREIN OF BILLS OF EXCHANGE, ETC. 147
his conduct led the principal to believe that he had
been already paid by the broker (o).
The cases in which, contrary to the general rule, Cases in which
the agent incurs personal liability may be stated to be souaiiy liable,
as follows : —
1. Where the agent conceals or does not disclose
his principal, and does not contract merely as agent {})).
Here, though the agent is liable, it is in the option of
the other contracting party on discovering the principal
to sue either principal or agent,
2. Where he acts without authority, or after his
authority has determined. If, however, he could not
have known of the determination of his authority, this
will not be so ; thus, an action was brought for neces-
saries supplied to a woman after her husband's death,
whilst on a foreign voyage, but before she knew of his
decease, and it was decided that she was not liable (q).
If an agent acts without authority, but yet honestly
believing that he had authority, he may be sued ex
contractu upon a warrant of authority (r), but if the
professed agent knew that he had not the authority he
assumed to possess, he may be sued ex delicto in an
action for deceit (s).
(o) Heald v. Kemvovthy, L. R. lO Ex. 739 ; 24 L. J. Ex. 76 ; Irvine
V. WaUon, 5 Q. B. D. 414 ; 49 L. J. Q. B. 531 ; 42 L. T. Sio.
(p) Fleet V. Murton, L. K. 7 Q. B. 126; 41 L. J. Q. B. 49. But
where a person contracts specially "as agent," his principal being un-
disclosed, evidence is admissible to show a custom that he shall be
personally liable, if he does not disclose his principal's name within
a reasonable time, Hutchinson v. Tatham, L. R. 8 C. P. 482 ; 42 L. J.
C. P. 260.
(7) Sinovt V. Ilhery, 10 ]M. & W. i. And it has been held that the
husband's estate would not be liable in such a case [Blades v. Free, 9
B. & C. 167). However, with regard to this point, see the case of
Dreiv V. Nunn, 4 Q. B. D. 661 ; 48 L. J. Q. B. 591, where the defen-
dant having held out his wife to the plaintiff as having authority to
pledge his credit, afterwards became insane. The plaintiff being un-
aware of the insanity, continued to supply the wife with goods on
credit, and it was held that the defendant was liable to the plaintiff
for the price of the goods so supplied.
()•) Richardson v. Williavison, L. R. 6 Q. B. 276
(s) Polhill V. Walter, 3 B. & Ad. 114.
148
OF MERCANTILE CONTRACTS, AND
3. Where, though having authority, he exceeds that
authority, or fraudulently misrepresents its extent.
4. Where he specially pledges his own credit.
5. Where, though contracting as agent, he uses
words to bind himself, e.g. if he covenants personally
for himself and his heirs {t).
Kiitish agent
contracting
for forei<;n
principal.
It was formerly considered that where a British
agent contracted for a foreign principal, the British
agent was necessarily the person liable, and not the
foreign principal, because it was said there was no
responsible employer; but this, though still generally
the case, cannot be taken to be now a perfectly correct
statement of the law (u). It is really a question of
fact in each particular case as to wlio is liable, and
the circumstance of the principal being a foreign one
may sometimes be considered as of great weight in the
determination of that question. Thus, in the case of
an ordinary sale and purchase of goods in this country,
it is perhaps not an unreasonable inference of fact that
the parties residing here are looked to as principals
where there is no stipulation to the contrary. The
usage of trade, or the conduct of the parties, will pro-
bably in most cases furnish a guide to the decision of
this question (x).
An agent's authority may be determined in any of
The different
ways in which , « n •
an agent's the following wavs. I.e. : —
authority may
be determined.
(t) See hereon Thomas v. Edwards, 2 M. & W. 216, and cases there
cited.
(m) See Maleolm Flinn dr Co. v. Jloitle, 63 L. J. Q. B. I, where it
was held that the circumstances excluded the application of the ordinary
rule.
(a-) 2 S. L. C. 438 ; Gree7i v. Koplce, 25 L. J. (C. P.) 297 ; Armstrong
V. titohes, L. R. 7 Q. B. 598 ; 41 L. J. Q. B. 253 ; Elbinger v. Kaye, L.
R. 8 Q. B. 313 ; 43 L. J. Q. B. 211 ; Button v. Bullock, L. R. 9 Q. B.
572. See as to the rights of an undisclosed foreign principal, Kaltenhach
V. Lewis, 24 Ch. D. 54 ; 52 L. J. Ch, 881 ; 48 L. T. 844 ; 31 W. R.
731 ; Malcolm Flinn <L- Co. v. Hoyle, supra.
HEREIN OF BILLS OF EXCHANGE, ETC. I49
1. By the principal's revocation of it, and death will
operate as a revocation {y). If by the act of the prin-
cipal the agency is revoked, in the case of a special
agency nothing further done by the agent will bind the
principal, but in the case of a general or universal
agency the revocation will not bind third persons until
made known to them {z) ; for, as we have seen, in these
agencies tlie principal may be bound if the act comes
within the scope of the agent's usual authority {a).
In ordinary cases, special notice should be given by
the principal to all persons who have been in the
habit of dealing with the agent, and in addition he
should give a general notice in the Gazette.
2. By the agent's renunciation with the principal's
consent.
3. By the principal's bankruptcy.
4. By the object of the agency being accomplished,
5. By the effluxion of time; and
6. Formerly by the marriage of a femme sole
agent {h), but now, since the Married Women's Pro-
perty Act, 1882 (c), this is no longer so.
Unless a contrary intention appears, the authority An agent"*
given to an agent must be taken to include all iuci- fnciud"! di
dental acts necessary for accomplishing the principal incidental
object ; for instance, a person sending another to a
shop to buy goods without giving him the money
(y) With regard, however, to powers of attorney, see the Con-
veyancing Act, 1881 (44 & 45 Vict, c 41, s. 47), and the Conveyancing
Act, 1S82 (45 & 46 Vict. c. 39, ss. 8, 9).
(;) Monk v. Clayton, Moll. 270, cited in Nickson v. Brohan, 10 Mod.
no.
(o) Ante, p. 145.
(6) See hereon Story on Agency, 481.
(c) 45 & 46 Vict. c. 75.
150 OF MEECANTILE CONTRACTS, AND
to pay for them, gives to him the necessary incidental
power of pledging his credit {cl).
The principal "^^^^ proper person to sue on a contract is, generally
not the agent, speakinfj, the principal, and not the agent, unless indeed
should f 1 • ^ . ■ . ^ • ^1,
generally sue. the agent has somc special property or interest m the
subject-matter of the contract by way of commission
His liability or Otherwise, e.g. a carrier or an auctioneer (e), and
and duty. generally an undisclosed principal has an equal right
to sue as if he had been disclosed (/). If an agent
is remunerated, he is bound to use ordinary diligence ;
if unremunerated, then, by analogy to the case of a
voluntary bailee {g), he is only liable for gross negli-
gence, unless he is possessed of any special skill or
knowledge, when an omission to use it will be im-
putable to him as gross negligence Qi) ; his .duty is
always to act fairly and honestly, and keep proper
accounts and vouchers, and he may lose his right to
any commission he might otherwise be entitled to by
Bribing agent, uot doing SO (i). If an agent takes a bribe the prin-
cipal may sue him to recover the amount of it, and he
may also sue the person who bribed the agent for any
loss he has suffered, e.g. excess of price which he has
paid for goods Qc).
Del credere A cUl cTcdcre agent is one who agrees with his
principal, in consideration of some additional compen-
sation, to be responsible to the principal for due pay-
ment of the purchase-money of goods to be sold by
him, the agent. It has been decided that this engage-
{d) Story on Agency, p. 77. See as to the extent of the power vested
in an auctioneer, Saunders v. Dence^ 52 L. T. 644.
(e) Jiobinson v. Rutter, 4 E. & B. 954. —
(/) Mildred v. Maspons, 8 App. Cas. 874 ; 53 L. J. Q. B. 33 ; 49
L. T. 685; 32W. R. 125.
(g) As to which see aiitc, pp. 123, 124.
I A) See Coggs v. Bernard, I S. L. C. 201 ; Lord Raymond, 909 ;
WUson V. Brett, 11 M. & W. 1 1 3 ; a nte, pp. 1 23, 1 24.
{i) See hereon Stainton v. The Carron Co., 24 Beav. 353.
\k) Mayor of Salford v. Lever, (1S91), i Q. B. 168; 03 L. T. 658 ;
60 L. J. Q. B. 39 ; 39 W. R. 85.
HEEEIN OF BILLS OF EXCHANGE, ETC. I5I
ment need not be in writing (/), as is necessary, as we
have seen, in the case of guarantees {m). The reason His contract
of this is that the contract of the del credere agent is !JuaraiTtee.
not really to guarantee the solvency of those who
purchase from him, but rather a promise of indemnity
to his employer against his own inadvertence or ill
fortune in making contracts for him with persons who
cannot or will not perform them {n). A contract of Difference
indemnity must in fact be distinguished from a (jgl^^Tty "'"
guarantee. Thus in a recent case the plaintiffs, a ^^"^ guarantee.
firm of stockbrokers, had orally agreed with the de-
fendant to transact ordinary business, and be answer-
able upon the Stock Exchange for customers whom the
defendant should introduce, upon the terms that tlie
defendant should receive half the commission earned
upon, and be liable to the plaintiffs for half the losses
arising from such transactions. Owing to the default
of a customer a loss was incurred by the plaintiffs,
the half of which they sought to recover. It was
held that the promise to answer for the losses was the
ulterior consequence only of the above agreement, the
main object of which was to regulate the terms of the
employment, and that therefore the contract was one
of indemnity, and not a promise to guarantee the debt
of another person, and that sect. 4 of the Statute of
Frauds did not apply (0).
Factors and brokers are peculiarly mercantile agents. Difference
being employed constantly to effect sales ; the differ- fact'^rs and
ence between them being that the broker has not the ^^'o^^^^-
possession of the goods he is selling for his principal,
whilst the factor has (p). At common law, if goods
[l) Coutourier v. Ilastie, 8 Ex. 40 ; Wickha7n v. Wickham, 2 K. & J.
478.
(m) Ante, p. 50.
(n) Anson's Contracts, 346.
(o) Sutton V. Grey, {1804), i Q. B. 285 ; 63 L. J. Q. B. 633 ; 69 L. T.
673. See also Guild v. Conrad, (1S94), 2 Q. B. 885 ; 63 L. J. Q. B.
721 ; 71 L. T. 140.
(p) Baring v. Corrie, 2 B. Aid. 137 ; Campbell on the Law of Sale
of GoocU, 408, 424.
152
OF MERCANTILE CONTRACTS, AND
Siile or pledj
V)y factor
without
aiithoritv.
Factors Act,
Pledge for
antecedent
debt.
were placed in a factor's hands for sale, he, having
only a power to sell and not to pledge, could not give
any title by way of pledge, that not being within the
usual scope of his authority ; and this being considered
by the mercantile community as an undue restriction
on the operations of commerce, certain Acts (q) were
passed to effect an alteration of the law ; but these Acts
have lately been repealed by the Factors Act, 1889 (?■),
which now deals with the entire subject. By this
statute it is provided (s) that where a mercantile agent (0
is with the owner's consent in possession of goods or
documents of title (u) thereto, any sale, pledge, or other
disposition made by him when acting in the ordinary
course of a mercantile agent's business, shall be as
valid as if made with the owner's authority, and this
notwithstanding the owner's consent may since have
been determined, provided that the person taking does
so in good faith and without notice of the agent's want
of authority, or of the determination of such consent.
Where, however, the mercantile agent pledges goods
as security for an antecedent debt, then the pledgee
is to acquire no further right to the goods than the
pledgor had at the time of the pledge (x) ; and if the
pledge is made in consideration of the delivery or
transfer of other goods, or of a negotiable security, the
pledgee is to acquire no right to the goods pledged
beyond the value of what has been so given (y).
Position of
vendor or
vendee in
possession of
goods or
documents
of title.
It was formerly held that where a vendor had been
left by his vendee in possession of goods or the docu-
ments of title thereto, he could not confer a good title
{q) 6 & 7 Geo. 4, c. 94 ; 5 & 6 Vict. c. 39 ; 40 & 41 Vict. 39.
(r) 52 & 53 Viet. 0. 45.
(s) Sect. 2.
(t) See Basthi'/s v. Pearson, (1893), I Q. B. 62 ; 62 L. J. Q. B. 75 ;
67 L. T. 553.
(u) As to the ineaninpf of this expression see ante, p. 108, note i^x).
(x) 52 & 53 Vict. c. 45, s. 4.
(y) Sect. 5.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 53
upon a bond fide purchaser or pledgee {z), but under
the provisions of tlie Factors Act, 1889 {a), and the
Sale of Goods Act, 1893 (b), he can now do so to any
person taking in good faith and without notice. And
with regard to the possession of a vendee, it is also
provided (c), that where any goods have been sold or
contracted to be sold, and the vendee or any person
on his behalf obtains with the vendor's consent the
possession of the goods or the documents of title thereto
from the vendor or his agent, any sale, pledge, or dis-
position of such goods or documents by such vendee
or his agent to a person taking in good faith and
without notice of any lien or other right of the vendor,
shall be valid and effectual {d). The effect of this Hire-purchase
1 . 1 4. • • i. i. agreements.
enactment on hire-purchase agreements is important.
A person agrees to buy furniture under this system
and is by the agreement to pay so much a month for
a certain period, and the property is to vest in him
only when he has paid so many monthly instalments
as make up the iull price. If he being in possession
of the furniture under the agreement, before he has
made all the payments, sells to a purchaser, or pledges
with a pledgee, who takes hond fide without notice of
the circumstances, is the title of such purchaser or
pledgee good ? The answer to this question depends
upon the way in which the hire-purchase agreement is
worded. If it is an absolute contract under which the
purchaser is bound to carry out the transaction, then
the question must be answered in the affirmative (e) ;
but if the hiring agreement contains a provision that
the hirer may at any time determine the transaction
{z) Johnson v. Credit Lyonnais Co., 3 C. P. D. 32 ; 47 L. J. C. P.
241.
(a) 52 & 53 Vict. 0. 45, s. 8. _
(b) 56 & 57 Vict. 0. 71, s. 25 (i). This provision is practically the
same as that in the Factors Act, 1889, which is, however, not repealed.
(c) 52 & 53 Vict. c. 45. s. 9 ; 56 & 57 Vict. c. 71, s. 25 (2).
{d) See HugiU v. Masker, 22 Q. B. D. 364 ; 58 L. J. Q. B. 171 ; 60
L. T. 774.
(e) Lee v. Butler, (1893), 2 Q. B. 318 ; 62 L. J. Q. B. 591 ; 69 L.
T. 370.
154
OF MERCAXTILE CONTEACTS, AND
by reJeliveriug the furniture, then tlie question must
be answered in the negative (/)• This distinction was
drawn in the recent case of Helhy v. Matthcivs (cited
below) in the House of Lords, and naturally, therefore,
in future hire-purchase agreements will be drawn in
this way, so that practically the provisions of the
Factors Act, 1889, and the Sale of Goods Act, 1893,
will not operate to protect a purchaser.
set-off of
inone\' owin
by factor
allowed.
When in If goods are bought of a factor, the buyer not knowing
priiTdpal for that he is only a factor, but believing that he is selling
Fet-ofr'of^""'^^' ^^s own goods, and the principal then declares himself
and sues, the buyer may set off against him any claim
he miiiht have set off afrainst the factor had the action
been brought by him ; but if the buyer knew that the
person selling was a factor, then he cannot {g) ; subject
to this, that if, though possessed of this knowledge, yet
he honestly believed that the factor was entitled to sell
and was in fact selling to repay himself advances made
for his principal, then he may set off (A). If the buyer
had clearly the means of knowing that the person with
whom he contracted was only a factor, and ought to
have availed himself of his means of knowledge, he is
considered in the same position as if he had actually
known {i).
Partnership.
"What is a
partnership.
The subject of partnership has recently been specially
dealt with by the legislature, a codifying statute having
been passed known as the Partnership Act, 1890 {h),
which contains the general law on the subject. Partner-
ship is the relation which subsists between persons
carrying on a business in common with a view of
profit, but does not include a company or association
(/) Helby v. Matthews, (1895), ^- C. 471 ; 64 L. J. Q. B. 465 ; 72
L. T. 841.
{g) George v. Clagett, 2 S. L. C. 130 ; 7 T. R. 359 ; Cooke v. £shdhy,
12 App. Cas. 271 ; 56 L. J. Q. B. 505 ; 56 L. T. 673.
(/t) Warner v. M'Kay, i M. &. W. 595.
({) Baring V. Corrie, 2 B. & A. 137; Borries v. Imperial Ottoman
Bank, L. R. 9 C. P. 38 ; 43 L. J. C. P. 3 ; see also 2 S. L. C. 133, 134.
(^•) 53 & 54 Vict. c. 39.
HEKEIN OF BILLS OF EXCHANGE, ETC. I 55
registered under the Companies Act, 1862, or other
statute, or under letters patent or royal charter, nor a
company engaged in working mines within and subject
to the jurisdiction of the Stannaries (/).
A partnership may be either actual or nominal, the Actual nnd
former depending on the agreement and intention of partners,
the parties, and the latter occurring where a person
allows his name to be held out to the world as a
partner without having any real interest in the con-
cern (m). Whoever by words either spoken or written, Holding out.
or by conduct, represents himself or knowingly suffers
himself to be represented as a partner, is, on principles
of estoppel, liable as a partner to any one who, on the
faith of such representation, gives credit to the firm,
whether the representation was or was not communi-
cated to the person giving credit with the knowledge
of the apparent partner. But where after a partner's
death the business is continued in the old firm's name,
the continued use of that name, or of the dead partner's
name, does not of itself make his estate liable for debts
contracted after his death (n).
With regard to what will be sufficient to constitute What will
, ,1 ^ ^ ■ 4.1^ i. -i. • ■ constitute
persons partners, the general rule is that it is m every persons
case a question of intention (0), and though when P^rtneis.
persons are found sharing both the profits and losses
of a concern it is generally true that they are partners,
it is not necessarily so, for it is quite possible that
the real intention may not have been that the parties
should be partners (p). The Partnership Act, 1890, Provisions of
now lays down certain rules on the subject to which Act, T89V,^
special attention must be paid, but it must still be ^^'"^<^"-
(1) 53 & 54 Vict. c. 39, s. I.
(m) Wau[/h v. Carver, I S. L. C. 877 ; 2 Hen. Blackstone, 235.
(n) 53 & 54 Vict. c. 39, 8. 14.
(0) Cox V. Hichnan, 8 H. of L. Cas. 268 ; Walker v. Ilirsch, 27 Ch.
D. 460; 54 L. J. Ch. 315 ; 51 L. T. 581 ; 33 W. R. 992 ; Adams v.
Neivbigging, 13 App. Cas. 308 ; 57 L. J. Ch. 1066 ; 59 L. T. 267.
{p) Walker v. Ilirsch, supra.
156 OF MERCANTILE CONTRACTS, AND
borne in mind that the rules only state the weight
which is to be attached to the facts mentioned when
such facts stand alone. The Act (q) lays down the
following rules : —
1. Joint tenancy, tenancy in common, joint pro-
perty, common property or part ownership, does not
of itself create a partnership, even though the owners
share profits by using the property.
2. Sharing "ros3 returns does not of itself create a
partnership, whether the persons so sharing have or
have not a common interest in the property from
which the returns are derived.
3. Eeceipt of a share of profits is ininid facie evi-
dence of partnership, but the receipt of such a share
does not of itself constitute a partnership, and in par-
ticular this is so in the following five cases : —
(a) Where a debt or other liquidated sum is re-
ceived by instalments or otherwise, out of the
accruing profits of a business.
{h) Where a servant or agent is remunerated by
a share of the profits of the business.
{c) Where a widow or child of a deceased partner
receives by way of an annuity a portion of
the profits made in the business in which the
deceased person was a partner.
(rf) Where money is lent, under a contract in
writincr duly sitrned, to receive a rate of in-
terest varying with the profits.
(e) Where a person receives, by way of annuity or
otherwise, a portion of the profits of a busi-
ness in consideration of the sale by him of
the goodwill (7-).
(?) 53 & 54 Vict. c. 39, s. 2.
('■) 53 ^ 54 Vict. c. 39, s. 2. This section is in place of Bovill's Act,
28 & 29 Vict. c. 86, which is repealed (s. 48). It is practically iden-
tical, except that the case (a) given above is new.
HEEEIN OF BILLS OF EXCHANGE, ETC. 1 57
With regard, however, to paragraphs (d) and (e), rostpouement
• , . • 1 1 ii J. • ii J. c 11 in the event of
it IS provided that m the event oi any sucli bor- bankruptcy in
rower of money, or purchaser of a goodwill, becom- certain cases,
ing bankrupt, or entering into an arrangement to pay
less than 20s. in the £, or dying insolvent, the
lender of any such loan or the vendor of any such
goodwill shall not be entitled to recover anything
in respect of the share of profits contracted for,
until the claims of the other creditors for valuable
consideration in money or money's worth have been
satisfied (s).
Where there is no actual partnership between the Quasi-partner-
parties, but only a liability as partners, which may ^ ^^'
occur, as we have seen, by holding oneself out as a
partner, this is styled a quasi-partnership.
A person, although an actual partner, may not be Dormnnt
, . , . , . . , . , partner.
an ordinary partner taking his active share m the
business, but may be a dormant partner, who may be
defined as one who, though an actual partner, does not
take any active part in the firm's business, and may
perhaps not appear to the world as a partner in the
concern. A dormant partner when discovered is liable
in the same way as any other actual partner.
Each partner is an agent of the firm and the other Liability of
partners for the purposes of the partnership business, |.o^,j^'.'J^^Y'^
and on general principles of agency his acts done for
carrying on such business in the usual way bind the
film and his partners, unless he had in fact no authority
in the particular matter, and the party with whom he
was dealing either knew that he had no authority,
or did not know or believe him to be a partner (/).
Thus a bill of exchange given in the firm's name by Bill given
, . J. J' J? i .■ p by a partner
one partner m a trading concern tor a transaction oi in the firm's
name.
(s) 53 & 54 Vict. c. 39, s. 4. Compare herewith tiie repealed portion
of 28 & 29 Vict. c. 86, s. 5.
(0 53 & 54 Vict. c. 39, s. 5.
158
OF MERCANTILE CONTRACTS, AND
Cheque.
Otlier cases.
Effect of
agreement
restricting
powers of
partners.
the firm will ordinarily bind the firm {u) ; but it would
not be so if the concern were a non- mercantile one, c.r/.
a firm of solicitors, unless of course there was direct
authority, the reason being that the giving of bills is
not within the scope of such a business (x). But
a cheque given by one partner in the name of the
firm, in the ordinary manner and not post dated, will
in all cases bind the firm (?/). One partner cannot
bind his firm by a submission to arbitration (z), nor
by borrowing money (a), nor by giving a guaran-
tee (5), nor by executing a deed unless authoiized by
deed (except indeed as to releases) ; but it has been
decided that if a partner executes a deed in the
presence of and by the express consent of his co-
partners in a matter in which they are commonly
interested, it binds all (c). If a partner pledges the
credit of the firm for a purpose apparently not con-
nected with the firm's ordinary course of business, the
firm is not bound, unless he is in fact specially
authorized by the other partners (d). If there is any
agreement between partners restricting their ordinary
power of binding the others, this agreement is value-
less as regards persons not having notice of it ; but
no act done in contravention of the agreement is
binding on the firm with regard to persons having
notice thereof {e).
Partnership
liability is
joint.
Where debts or liabilities are incurred by or on
behalf of a partnership firm, every partner is jointly
(u) Kirlc V. Blurton, 9 M. & W. 284.
(x) Harman v. Johison, 2 El. & Bl. 61. As to the power of a
member of a firm of solicitors to bind his partners, see Rhodes v. Monies,
(1895), I Ch. 236 ; 64 L. J. Ch. 122 ; 71 L. T. 599.
{y) Forster v. Mackrcth, L. R. 2 Ex. 163.
(r) Stead v. Scdt, 3 Bing. loi.
((() Fisher V. Taylor, 2 Hare, 2 1 8.
(b) Hasleham v. Young, L. R,. 5 Q. B. S33.
(c) Bull V. Dunstervdle, 4 T. R. 313.
{d) 53 & 54 Vict. c. 39, s. 7.
(e) Sect. 8.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 59
liable with the other partners (/), and after his death
his estate is also severally liable in a due course of
administration, hut subject to the prior payment of his
separate debts {g). Where a judgment is obtained
against two or more partners or other joint contractors
in their individual names, such judgment is a bar to
any subsequent action against another partner or joint
contractor (Ji).
Where a loss or injury is caused to a person by the Liability of
wrongful act or omission of a member of a partnership StL^a * ^^
tirm acting in the course of the firm's business, or
with the authority of his co-partners, the firm and
every partner are liable both jointly and severally (i).
And if one partner, acting within the scope of his
apparent autiiority, receives money or property of a
third person and misapplies it, or if a firm in the
course of its business receives money or property of
a thi-rd person which is misapplied by one or more
of the partners while in the custody of the firm, the
firm and every partner are liable both jointly and
severally (/j).
No new member can in the absence of stipulation introduction
in the partnership articles (/), be introduced into a, p.,^t"g,^.j„j
partnership firm without the consent of all the members, retirement of
1 . . . ^^ ^ ^ c i • i ""' partner.
and an incoming partner is not liable for anything done
before he became a partner (m). Where no fixed term
has been agreed upon, any partnership may be deter-
(/) 53 '^ 54 Vict. c. 39, s. 9. This enactment is in accordance with
the previous decision of the House of Lords in Kendall v. Hamilton, 4
App. Cas. 504 ; 48 L. J. C. P. 705 ; 41 L, T. 418.
(fj) Sect. 9.
(A) Kendall v. Hamilton, svpra ; Hoarc v. Niblett, G/^Jj. T. 659. As
to the suing of partners in the name of their partnership firm, and the
service of the writ, and execution on a judgment so obtained against a
partnership firm, and generally, see Oi'der xlviii^.
(i) 53 k 54 Vict. c. 39, ss. 10, 12.
(A-) 53 & 54 Vict. c. 39, s. II ; Rhodes v. Monies, (1S95), i Ch. 236 ;
64 L. J. Ch. 122 ; 71 L. T. 599.
(/) Cuffc V. Murtarjh, 7 L. R. Ir. 411.
(m) 53 & 54 Vict. c. 39, s. 17.
l6o OF MERCANTILE CONTEACTS, AND
miued by notice (n), but a person dealing with a firm
after a change in its constitution, is entitled to treat
all apparent members of the old firm as still being
members until he has notice of the change. An
advertisement in the London Gazette is notice to persons
who had no dealings with the firm before the change
occurred (o), but a particular notice must be given to
persons who had been in the habit of dealing with the
firm. And although when a partner retires of course
liis liability continues in respect of debts incurred
whilst he was a member of the firm, yet if any creditors
expressly or impliedly accept the credit of the new
instead of the old firm — that is to say, if there is
a novation — this exonerates him from liability {p).
As to a dormant partner, it will always be sufficient
for him to give notice only to the persons who knew
of his connection with the firm (q).
Dissolution of A partnership may be dissolved in any of the
partnership. „ ,,
following ways : —
1. By efHuxion of time.
2. By mutual consent.
3. By notice, if the partnership is for an undefined
time.
4. By death of a partner.
5. By bankruptcy of a partner.
6. By the happening of any event which makes
the carrying on of the business by the partners un-
lawful.
(«) 53 & 54 Vict. c. 39, s. 26.
(0) Sect. 36.
(p) Sect. 17.
(9) Evans v. Drummond, 4 Esp. 89.
HEKEIN OF BILLS OF EXCHANGE, ETC. l6l
7. By judgment of the Chancery Division of the
High Court of Justice, which may be obtained on
various grounds, e.g. lunacy of a partner, permanent
incapability of a partner from performing his duties,
conduct of a partner calculated to prejudice the carry-
ing on of the business, a partner wilfully committing
a breach of the partnership articles, the business being
only capable of being carried on at a loss, and that
it is just and equitable to dissolve (r).
8. It is also provided that a partnership may at
the option of the other partners be dissolved if any
partner's share of the partnership property is charged
for his separate debt under an order of the court
obtained by a judgment creditor against the individual
partner (s).
After dissolution the authority of each partner to Partnere'
bind the firm, and the other rights and obligations SuUou""
of the partners, continue so far as may be necessary
to wind up the partnership affairs, and to complete
transactions begun but not finished at the date of the
dissolution, but not otherwise, A firm is in no case
bound by the act of a partner who has become bank-
rupt, but this does not affect the liability of any
person who has after the bankruptcy represented him-
self, or knowingly suffered himself to be represented,
as a partner of a bankrupt (t).
All partners must be competent to contract, so that As to infants
an infant cannot properly be a partner. Still, if an being partners.
infant does professedly become a partner, he may be
entitled to benefits, though not liable for debts, arising
during the partnership and whilst he was an infant ;
but in taking accounts the court will not allow him
to be credited with profits and not debited with
(»•) 53 & 54 Vict. c. 39, ss. 32-35.
(s) Sects. 23, 33.
(0 Sect. 38.
l62 OF MERCANTILE CONTRACTS, AND
losses. And if an infant who is professedly a partner
does not on attainment of his majority expressly
rescind and disclaim the partnership, he will be liable
for losses accruing after he comes of age. An alien
may now be a partner, unless the partnership embraces
the holding of a British ship or any share therein (u) ;
and so also a married woman may now, since the
Married Women's Property Act, 1S82 (x), be a part-
ner. An executor of a deceased partner may be let
in as a partner under a provision to that effect in
the partnership articles ; but even if there is such a
provision he cannot be compelled to become a part-
ner (y), for if let in he becomes personally liable as
any other partner, though he is simply acting in trust,
and not himself taking any benefit (z).
Remedies At couimou law, as a general rule, one partner
panners. could not suc another. This rule was, however, sub-
ject to these exceptions, viz. : (i) Where an account
had been gone through between the parties, and a
balance struck and agreed on; (2) where money had
been received by one partner for the private use
of the other, and wrongfully carried to the partner-
ship account ; and (3) where one partner had im-
properly used the partnership name in making a
promissory note for his own private debt, and it had
been paid by the other (a). The proper remedy be-
tween partners was formerly in the Court of Chancery
for a dissolution and account, and now, where formerly
a bill in Chancery would have been necessary, the
plaintiff, by his writ in the High Court of Justice,
must claim an account, and the proper Division for
such accounts is the Chancery Division, such matters
(u) 33 Vict. c. 14, 8. 14.
(x) 45 & 46 Vict. c. 75.
(y) Lancaster v. JUsup, 57 L. T. 53.
(s) Wightman v. Townroe, 1 M. & S. 412. Of course, however, he is
entitled to indemnity out of his testator's estate, if it is suflBcient,
provided he has acted properly.
(a) Chitty on Contracts, 334-337-
HEREIN OF BILLS OF EXCHANGE, ETC. 1 63
being specially assigned to that Division (h), so that
for all practical purposes this stands on the same
footing as before.
Bills of exchange, promissory notes, and cheques
being all choses in action, it will be well to first devote
a few lines to the explanation of that term. A cliose choscs in
in action may be defined as signifying some outstand- *^''^-
iug thing, and the right of action in respect of that
thing (c), e.g. where a debt is owing to a person ; and
originally choses in action could not be assigned or choses in
transferred, the policy of our laws being to prevent not a^si^mfbie
the springing up of litigation (d), and the only way of ^^ law.
effecting such an object was by giving to any assignee
a power of attorney to sue in the assignor's name.
But such assignments were allowed in equity, and to
the original common law rule there have grown up Exceptions to
exceptions, of which the chief are as follows : — ^ ™ ^'
1 . Contracts made with the sovereign (e) ;
2. Bills of exchange, promissory notes, and cheques
by force of the custom of merchants and statute (/),
and now by force of the Bills of Exchange Act,
1882 (^);
3. Bills of lading by force of 1 8 & 19 Vict. c. i 1 1 ;
4. Bail bonds (A) ;
5. Life policies by force of 30 & 31 Vict. c. 144,
provided notice in writing is given to the insurance
office ;
(b) Judicature Act, 1873, s- 34-
(c) Brown's Law Diet. 90, title "Chose."
(d) See Co. Litt. 214 a.
(e) See Broom's Corns. 426.
(/) Promissory notes were made negotiable by 3 & 4 Anne, c. 9.
(7) 45 & 46 Vict. c. 61.
{h) See stat. of 4 & 5 Anne, c. 16, s. 20.
i64
Provision of
Judicature
Act, 1873,
on the sub-
ject.
OF MERCANTILE CONTEACTS, AND
6. Marine policies by force of 31 & 32 Vict. c. 86 ;
7. By the Judicature Act, 1S73 (i), it is now pro-
vided that " any absolute assignment by writing under
the hand of the assignor (not purporting to be by way
of charge only), of any debt or other legal chose v/t
action, of which express notice in writing shall have
been given to the debtor, trustee, or other person, from
whom the assignor would have been entitled to receive
or claim such del)t or chose in actio7i, shall be, and be
deemed to have been, effectual in law (subject to all
equities which would have been entitled to priority over
the right of the assignee if this Act had not passed),
to pass and transfer the legal right to such debt or
chose in action from the date of such notice, and all legal
and other remedies for the same, and the power to give
a good discharge for the same, without the concurrence
of the assignor: Provided always, that if the debtor,
trustee, or other person liable in respect of such debt
or chose in action shall have had notice that such
assignment is disputed by the assignor or any one
claiming under him, or of any other opposing or con-
flicting claim to such debt or chose in action, he shall
be entitled, if he thinks fit, to call upon the several
persons making claims thereto to interplead concerning
the same, or he may, if he thinks fit, pay the same
into the High Court of Justice under and in confor-
mity with the provisions of the Acts for the relief of
trustees."
Remarks oil The effect of this provision is now to make it the
"" P' ■■ • general rule that choses in action are assignable so as
to enable the assignee to sue in his own name if notice
in writing is given to the holder of the chose, and such
notice is good though not given until after the assignor's
death (U). It should be noticed that the enactment
(i) 36 & 37 Vict. 0. 66, s. 25 (6).
(A:) Walker v. Bradford Old Bank, I2 Q. B. D. 511 ; 53 L. J. Q. B.
280 ; 32 W. R. 645.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 65
does not extend to assignments merely by way of charge,
but only to absolute assignments (I). It may here be
observed, whilst on the subject of the assignment of Assignment of
choses in action, that future as well as present debts ^^*^^® ^^^^^
may be assigned, and it has been held that an assign-
ment of future book debts, though not limited to book
debts in any particular business, is sufficiently defined,
and will pass the equitable interest in book debts
incurred after the assignment, M-hether in the business
carried on by the assignor at the time of the assign-
ment, or in any other business {m).
Bills of exchange, promissory notes, and cheques The origin of
owe their origin to the law merchant. The system of eicSe.
of exchange did not originate in England, but was
anciently made use of in Athens, some provinces of
France, and some few other places, and brought to
perfection in Italy, from whence it appears to have
been introduced to our country. Bills, notes, and
cheques have until recently been mainly governed by
the custom of merchants, such custom forming the
common law thereon ; but the subject is now governed
by the Bills of Exchange Act, 1882 {n), which codifies
the whole law with regard to such instruments. By
that Act a bill of exchange is defined as " an uncon- Definitions of
ditional order in writing, addressed by one person to and chequ^e's.
another, signed by the person giving it, requiring the
person to whom it is addressed to pay on demand, or
at a fixed or determinable future time, a sum certain
in money to, or to the order of, a specified person, or
{I) A deed by which debts were assigned to the plaintiff upon trust
that he should receive them, thereout pay himself a sum due to him
from the assignor, and pay the surplus to the assignor, was held to be
an absolute assignment, and not by way of charge only, and therefore
that the plaintiff might sue in his own name for the debts. Burlinson v.
HalJ, 12 Q. B. D. 347 ; 53 L. J. Q. B. 222 ; 50 L. T. 723 ; 32 W. R. 492.
See also Tancred v. Dclagoa Bay Co. Limited, 2X Q. B. I). 2^0 ; qS L.
J. Q. B. 459; 61 L. T. 229.
(m) Tailhy v. Official liecvr., 13 App. Cas. 523 ; 58 L. J. Q. B. 75 ;
60 L. T. 162.
(a) 45 & 46 Vict. c. 61.
1 66 OF MERCANTILE CONTRACTS, AND
to bearer " (o). A promissory note is defined as '' an
imconditional promise in writing, made by one person
to another, signed by the maker, engaging to pay on
demand, or at a fixed or determinable future time, a
sum certain in money to, or to the order of, a speci-
fied person, or to bearer " (p). A cheque is defined as
" a bill of exchange drawn on a banker payable on
Explanation demand" {q). For those not conversant with such
dL^ivir/r^on? matters, to properly understand the subject, it seems
the use of necessary to first explain the advantages to be derived
bills of ex- •' - , r,, . , i i • • i i.
change. by the means or bills of exchange, and this is best
shewn by an example. Suppose B. to owe money to
A., but it has been arranged that payment shall not
be made for, say, three months ; in the ordinary course
of things A. would simply have to wait that time for
his money, which he would be deprived of using for
that period. But A. may draw a bill of exchange,
directed to B., requesting him to pay to him or his
order the amount due three months after date ; and A.
would here be called the drawer and also the payee,
as it is payable to him, and B. would be called the
drawee. At first this would not have full effect, but
B., the drawee, then signifies his acquiescence in it
by — as it is called — accepting it, and it is then handed
back to the drawer and payee, A. (r). The advantage
to A. is that he can then transfer it over to any one
to whom he in his turn may owe money, who will at
the proper time get payment from the acceptor, and
thus the original drawer quickly turns his money over.
If the bill is payable to him or bearer, the transfer is
effected by simply handing it over ; if to him simply,
or to him or order, by his indorsing his name on the
back, when he, in addition to being the drawer, be-
comes an indorser, and the person to whom he indorses
(o) 45 & 46 Vict. c. 61, s. 3.
(p) Sect. 83. A bank-note is in effect a promissory note payable to
bearer on demand ; see Byles on Bills, 9.
{q) Sect. 73.
(r) As to acceptance, see now 45 & 46 Vict. c. 61, s. 17, post, p. 169.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 67
it an indorsee, who in his turn may indorse it over to
some one else, and so it may pass on to any extent.
When the time mentioned in the bill is up and the
bill therefore becomes due, then the holder of it
presents it to the person who really originated it, viz.
the acceptor; and if he pays it, the bill has operated
and been used as money, and served as such between
the different parties, though actually no money has
passed. The bill might even have a still more ex-
tended operation, for it need not necessarily be made
payable to the drawer. Say B. in India owes money
to A. here, who in his turn owes money to 0, in India ;
A. can draw a bill on B. payable to 0. and send it
to India to C, who presents it for acceptance to B., and
B. duly accepting, then when it is due C, or any person
into whose hands it has come, presents it for payment
and obtains payment from B., and A.'s debt to C. is
thus liquidated without the actual transmission of
money from England to India, A promissory note is Promissory
not quite so practically useful as a bill of exchange, but
nearly so, and remarks as to the one will generally
apply to the other. To take an example of one : If
B. owes money to A., he can sign a promissory note,
of which he will be called the maker, in which he
engages to pay at a certain time to A. (who will be
called the payee), or order, or bearer, and A. can then
transfer it over to any one to whom he owes money,
becoming if he indorses it an indorser, and the person
to whom he indorses it an indorsee, and, when due, it
will be presented to the maker, and payment obtained.
Of course in both a bill of exchange and a promissory
note the ultimate holder's claim is not only against the
originator of the bill or note, but if he acts properly
(as is hereafter detailed) he has a claim against every Form of
prior party. The following are forms of a bill of ex- change, and of
change and of a promissory note respectively : — notr^^*"'^'^
i68
OF MERCANTILE CONTRACTS, AND
Stamp Tarying mon
!1'^!:1'°^*° months afte
Form of a Bill of Exchange.
fter date [or on demand, or at sight, 07-
it, 07- at some other period] pay to my order
[or pay to E.S^. or order, or pay to E. F. or bearer] Five hun-
dred poundsisfor value received.
A. B.
To Mr. C. D., of &c.
Form of a Promissory Note.
months after date [or on demand, or at sight, or
Stamp varying
according to months after sight, or at some other period] I promise to pay
amount.
to C. D. or order [or to C. D. or bearer] Five hundred pounds
for value received.
A. B.
On these forms it should be remarked that there is uo
virtue in the words at the end of each, " for value re-
ceived," and that the instruments would be just as
valid if those words were omitted. If the words " or
order " or " or bearer " are not inserted, the instrument
formerly would not have been negotiable as a bill of
exchange or promissory note (s), but now if such words
are omitted or struck out the instrument will be deemed
payable to order and negotiable by indorsement, unless
it contains in the body words prohibiting transfer or
indicating an intention that it shall not be transfer-
able (t). And even if its negotiability is thus re-
stricted, the amount comprised in the instrument may
be assigned in the ordinary way in which chases in
action may be assigned, in consequence of the provisions
of the Judicature Act, 1873 (?/)• Where a bill is made
payable to order, the blank never having been
filled in, the instrument is not void, but must be con-
strued as being payable to the order of the drawer,
(s) Byles on Bills, 93.
{t) 45 & 46 Vict. c. 61, s. 8 ; Decroix v. Meyer, 25 Q. B. D. 343 ;
59 L. J. Q. B. 538 ; 63 L. T. 414.
(«) See ante, p. 1 55.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 69
and the instrument having been indorsed by him is
perfectly valid (x).
Bills of excliange and promissory notes were always Bills and notes
by the custom of merchants required to be in writing, writing^ smd
and it is now expressly provided by the Bills of ^° ™"^* ^^
i^ •/ ^ J acceptance
Exchange Act, 1882, that an acceptance must be in on a bill,
writing on the bill and be signed by the drawee {y).
With regard to such acceptance, it was held that the
mere writing by the drawee of his name across the
instrument without adding the word "accepted" was
not a sufficient acceptance to satisfy the statute {z),
but it is now provided that the simple signature of the
drawee across the bill is sufficient (a).
From the foregoing remarks the student will have Two classes
observed — as indeed has been expressly pointed out — liabktm bills
that there are two classes of persons liable on bills of "°*^ "°*^^-
exchange and promissory notes, viz.: (i) those pri-
marily liable, who on a bill are tlie acceptor or acceptors,
and on a note the maker or makers ; and (2) those
not so primarily liable, who are the drawer and the
indorser or indorsers, and therefore the positions of
the parties are similar to that of creditor, principal
debtor, and surety, the holder for the time being the
creditor, the acceptor of a bill or maker of a note the
principal debtor, and all other parties the sureties.
The engagement of the acceptor is to pay the bill The engage-
according to the tenor of his acceptance (6), and as a acceptor of
general rule only he can accept a bill to whom it is pay^icwrdinc
to its tenor.
(x) Chamberlain v. I'oung, (1S93), 2 Q. B. 206 ; 63 L. J. Q. B. 28 ;
69 L. T. 332.
(y) 45 & 46 Vict. c. 61, s. 17. Sect, 96 of this Act repeals the
former provisions on this point which were contained in i & 2 Geo. 4,
c. 78, ss. 2, 19, and 19 & 20 Vict. c. 97, s. 6.
(z) Ilindehaugh v. Blakey, 3 C. P. D. 136 ; 47 L. J. C. P. 345 ; 26
W. R. 480.
(a) 45 & 46 Vict. c. 61, s. 17, Sect. 96 of this Act repeals the
former provision to the same effect contained in 41 Vict. c. 13.
(6) 45 & 46 Vict. c. 61, 8. 54.
I/O
OF MERCANTILE CONTRACTS, AND
Acceptance
for honour,
or supra
protest.
Referee in
case of need.
addressed ; but to this rule there is an exception, for
suppose the person to whom the bill is directed cannot
be found, or through infancy or any other cause cannot
accept, or he refuses to accept, some other person may
accept for him to prevent his being sued, and such an
acceptance is called an acceptance for honour (c), and
such an acceptor an acceptor for honour {d). An
acceptance for honour is not of constant occurrence.
In addition to this, the drawer of a bill and any
indorser may insert therein the name of a person to
whom the holder may resort in case of need, that is to
say, in case the bill is dishonoured by non-acceptance
or non-payment, and such person is called the referee
in case of need. It is in the option of the holder to
resort to the referee in case of need, or not, as he may
think fit (c). The benefit of this course is well shewn
by reference to the practical instance already given of
a bill sent out to India (/), for to meet the possible
event of B. not accepting, some correspondent or
agent can by arrangement be made the referee in
case of need, to whom on B.'s default the holder would
apply, either for acceptance or payment as the case
mifrht be.
Uiffex-ent
kinds of ac-
ceptors.
The person to whom the bill is directed, and who
becomes the acceptor, maybe either an ordinary acceptor,
who owes money to the drawer, or an accommodation
acceptor, i.e. one who accepts without consideration for
the convenience of the diawer, and with a view to
his raising money upon it, or otherwise using it. An
Liability of an accommodation acceptor is equally liable as any ordi-
nary acceptor to pay the bill to any holder except the
drawer, and it is no defence to an action by an indorsee
for value against an accommodation acceptor who has
{c) It is sometimes also called an acceptance supra protest, because
it can only be so accepted after the bill has been protested. See Byles
on Bills, 269.
(rf) Byles on Bills, 269.
(c) 45 & 46 Vict. c. 61, s. 15.
(/) Ante, p. 167.
accommoda-
tion acceptor.
HEREIN OF BILLS OF EXCHANGE, ETC. I/l
received no consideration, that at the time the plaintiff
took the bill he knew the defendant had received no
value {g) ; unless, indeed, the plaintiff took it of a
person who held it for a particular purpose, and was
therefore guilty of a breach of trust in transferring it
to him, and the plaintiff at the time of taking it was
cognizant of the circumstances {h). The drawer of a prawer must
bill for whose accommodation it has been accepted is hlnf.'"'^' ^
bound to indemnify the accommodation acceptor (i),
against whom he can have no claim {k) ; but if an
accommodation acceptor in an action brought against
him on the bill to which he evidently has no defence,
yet does defend it, he cannot recover the costs of the
action against the person accommodated {I). Parol evi-
dence may always be given to shew that as between
the original parties to a bill there was no consideration, '
or that the consideration has failed, or that a fraud
has been practised on the defendant. Following, how-
ever, the general rule that oral evidence may never
be given to contradict or vary a written contract {m),
evidence of some contemporaneous oral agreement en-
tered into between the parties cannot be admitted to
contradict or vary the contract which appears on the
face of the bill (n).
The acceptance to a bill may be made in two dif- General and
ferent ways ; it may be either a general or absolute acceptances,
acceptance (and the party presenting the instrument
for acceptance is not bound to receive any accep-
tance other than this (o), or it may be a qualified
(fi) 45 & 46 Vict. c. 61, s. 28.
(h) Byles on Bills, 149.
(i) Ibid. 150.
{k) Solomon v. Davis, r C & E. 83.
(l) Beech V. Jones, 5 C. B. 696.
(?/t) See ante, pp. 27, 28.
(n) Young v. Austen, L. R. 4 C. P. 553 ; Aubrey v. Crux, L. R. 5
C. P. 37.
(0) 45 & 46 Vict. c. 61, s. 44. Thus refer again to instance of bill
sent out to India, given on page 167. C. has a right on presenting
the instrument to B. to expect from him an absolute and unqualified
acceptance.
172 OF MERCANTILE CONTEACTS, AND
acceptance. A general acceptance assents without
When an ac- qualification to the order of the drawer. A qualified
quSified/^ acceptance in express terms varies the effect of the
bill as drawn. In particular, an acceptance is quali-
fied which is (i) conditional, that is to say, which
makes payment by the acceptor dependent on the
fulfilment of a condition therein stated ; (2) partial,
that is to say, an acceptance to pay part only of the
amount for which the bill is drawn ; (3) local, that
is to say, an acceptance to pay only at a particular
specified place. An acceptance to pay at a particular
place is a general acceptance unless it expressly states
that the bill is to be paid there only, and not else-
where {p).
The rules as to The maker of a note may also simply promise to
genendiy^to *' pay generally, or in some qualified way. If he has
promissory j^ia.^Q the notc without consideration, he will stand
notes.
in the same position as an accommodation acceptor,
and, generally speaking, the rules as to bills of ex-
change apply equally to promissory notes {q).
An iudorse- A pcrsou endorsing a bill or note may either make
ment of a bill ,..- .'',, .^. ,• iij
or note may be his indorsement specially, or, as it is sometimes cailed,
Wank^^'^"' in full, i.e. to some particular person, or in blank, by
simply signing his name ; and when this latter course
is taken, it may be transferred by mere delivery, al-
though originally payable to order (r). The holder of
a bill payable to his order must indorse it, but if he
hands it over for value without indorsing it, it operates
as an equitable assignment, and the transferee acquires
rights in the instrument, and is entitled to call for the
indorsement (s). When a bill has been indorsed in
blank, any holder may convert the blank indorsement
(p) 45 & 46 Vict. c. 61, s. 19, which enactment is in substitution for
the provisions of the repealed statute of I & 2 Geo. 4, c. 78.
[q) 45 & 46 Vict. c. 6r, s. 89.
(r) Sects. 34, 31-
(s) Sect. 31 (4).
HEREIN OF BILLS OF EXCHANGE, ETC. 1 73
into a special indorsement by writing above the in-
dorser's signature a direction to pay the bill to, or to
the order of, himself or some other person (t). Any
indorsement may be made restrictive, that is, the in-
dorsement may prohibit the further negotiation of the
bill (u). Although, as has been said, parties other than Position of
the acceptor of a bill and maker of a note stand but in ^^ °"^"-
the position of sureties for those persons respectively,
yet as between each other they stand in the relation
of principals, every indorser being looked upon in the
light of a new drawer (x). Ordinarily every prior in-
dorser must indemnify a subsequent one, but this is
not always so, for the whole circumstances attendant
on the transaction may be referred to for the purpose
of ascertaining the true relation to each other of the
parties who indorse, or indeed are parties in any way.
Therefore, where the directors of a company mutually
agreed with each other to become sureties for the
company's debt, and indorsed a note accordingly, it
was held that they were entitled and liable to equal
contributions intei- se, and were not liable to indemnify
each other successively according to priority of their
respective indorsements (y). Any indorser may so in-
dorse a bill as to be under no liability on it by putting
after his name the words " sans recours," or " without indorsement
recourse to me," or words to the like effect (s) ; *°^"'' recours.
e.g. if A. has a bill payable to his order and accepted
by B., and C. is willing to purchase it of him and look
only to B. to pay it, the transaction might be effected
safely in this way. With regard also to a person Sale of a bill
transferring a bill or note, if it is payable to bearer ^^ ^'^^^'
and he transfers it — as he may do — without indorse-
ment, this, generally speaking, operates as a sale of
the security, and no action will in such a case lie
(0 45 & 46 Vict. c. 615, 34(4).
(m) Sect. 35.
(x) Byles on Bills, 174.
(y) Macdonald v. Whitfield, 8 App. Cas. 733 ; 52 L. J. P. C. 70 ; 49
L. T. 446 ; 32 W. R. 730.
(3) Byles on Bills 175, and see now 45 & 46 Vict. c. 61, s. 16.
174
OF MERCANTILE CONTEACTS, AND
Holder in
due course.
against the transferor in the event of the dishonour
of the instrument (a).
Any person into whose hands a bill or note comes
is styled the holder, and under certain circumstances
a "holder in due course." A "holder in due course"
is defined by the Bills of Exchange Act, 1882 (6), to be
a holder who has taken a bill complete and regular
on the face of it, before it was overdue, and without
notice of any prior dishonour, in good faith, for value,
without notice of any defect in title. As to defect
in title, it is also provided (c) that the title of a
person who negotiates a bill is defective when he
obtained the bill or the acceptance thereof by fraud,
duress, or unlawful means, or for illegal consideration,
or when he negotiates it in breach of faith or under
circumstances amounting to a fraud. It is also pro-
vided (d) that any holder who derives his title to a
bill through a holder in due course, and who is not
himself a party to any fraud or illegality affecting it,
shall have all the rights of that holder in due course
as regards the acceptor, and all parties to the bill prior
to that holder.
Acceptiug,
makiug, or
indorsing
per procura-
tion.
A bill may be accepted, or a note made, or either
may be indorsed, by an agent ''per procuration" and
as these words shew that he is acting under some
particular authority, it is the duty of the taker of
any such instrument to inquire into the extent of it,
and if the agent has no authority, or has exceeded it,
the principal will not be liable (e). On the other hand,
when a person, being duly authorized, either draws,
accepts, or indorses in this manner, he is not himself
liable, but the mere addition to his signature of words
(a) 45 & 46 Vict. c. 61, s. 31.
(6) Sect. 29.
(c) Ibid.
(d) Ibid.
(e) Sect. 25.
HEEEIN OF BILLS OF EXCHANGE, ETC. 1 75
describing himself as an agent does not exempt him from
personal liability (/). If a person, knowing that he iiesuit of
has no authority to do so, thus draws, accepts, or t?t?iout
indorses, he may be sued for the misrepresentation authority,
which is contained in such a signature, even although
he had no fraudulent intention, but he cannot himself
be charged as the acceptor of the bill, because no one
can be liable as acceptor but the person to whom the
bill is addressed, except an acceptor for honour, or as
having been a referee in case of need {g).
If an executor or administrator, or any other person Liability of
in a like capacity, draws, accepts, or indorses a bill adnTnrstrator.
(which includes a cheque), without restricting his
liability, he will incur personal responsibility on it;
if he does not desire to do this, he should indorse " sans
recours" or expressly sign in his representative capacity.
The mere addition to the signature of words describ-
ing him as filling a representative capacity will not
exempt him from personal liability ; thus if an executor
signs, adding after his signature the word " executor,"
this is not sufficient ; he should add " executor of
A. B., deceased " Qi).
Bills and notes may be made payable at different The ways in
times, i.e. on demand, at sight, on presentation, or n^tes^^ay be*^
so many days, weeks, or months after a certain time, ^^^^ payable,
the most usual kind being those payable a certain
fixed time after date, and it should be noticed that
the term " month " here signifies a calendar month {i).
These instruments are not payable at the exact end
of the time named in them, but in addition to that
time there are allowed, by the custom of merchants,
three further days which are called " days of grace," Days of giace.
(/) 45 & 46 Vict. c. 61, s. 26 (1).
(g) Polhill V. Walter, 3 B. & A. 114 ; West LoiuLon Commercial Bank
V. Kitson , 1 3 Q. B. D. 360 ; 53 L. J. Q. B. 345 ; 32 W. R. 757 ; 50 L. T. 656.
(A) 45 & 46 Vict. c. 61, s. 26 (i).
(t) Ibid. 8. 14 (4).
1/6
OF MERCANTILE CONTRACTS, AND
SO that a bill dated the ist of January, and payable
three months after date, is not actually due and payable
until the 4th of April (k). These " days of grace " do
not, of course, exist in bills or notes payable on de-
Whatisabili mand (I); and with regard to what is a bill payable
denmnd.°" 0° demand, it is provided that a bill is so payable
which is expressed to be payable on demand, or at
sight, or on presentation, or in which no time for pay-
ment is expressed (m).
Where no
time named,
bill or note
deemed pay-
able on
demand.
Limitation.
As just stated, all bills or notes in which no time
for payment is specified are deemed payable on demand,
and with regard to instruments on demand, or at sight,
or on presentation, it should be noticed that it is not
necessary before bringing an action thereon that any
demand should actually be made, and the Statute of
Limitations will run from the date of making the
instrument, and not from the time of demand (n) ; but
if an instrument is made payable a certain time after
demand, e.g. one month after demand, then the statute
does not commence to run until a demand has been
made, and the period named after such demand has
expired (o).
Usance. Foreign bills are often drawn payable at an
" usance " or two or more " usances," which signifies
the period or periods customary for payment between
(^■) 45 & 46 Vict. c. 61, s. 14 (i). Days of grace were .so called
because they were formerly only allowed as a favour ; but the laws
of commercial countries long since recognized them as a right, and
see now the above statutory provision.
(I) 45 & 46 Vict. c. 61, s. 14.
(m) Sect. 10. Sect. 96 of this Act repeals the former provisions to
the same effect contained in 34 & 35 Vict. c. 74, s. 2.
(n) Byles on Bills, 356. This is the rule as regards all principal debts
payable on demand, but where a sum is payable by a collateral debtor
on demand, such demand is a condition precedent, and the statute will
not commence to run against the collateral debtor until demand. Re
Brown, Brown v. Brown, (1893), 2 Ch. 300; 63 L. J. Ch. 695 ; 69 L.
T. 12. As regards payment of interest on a bill or note payable on
demand, that does not run until demand (45 & 46 Vict. c. 61, s. 57).
(o) Thorpe v. Coombe, R. & M. 388 ; 45 & 46 Vict. c. 61, s. 14 (3).
HEREIN OF BILLS OF EXCHANGE, ETC. 1 77
the two countries where the bills are drawn and pay-
able respectively (p).
Where a bill, expressed to be payable at a fixed Non-dating or
period after date, is issued undated, or where the ^ bmf ^^^'''°
acceptance of a bill payable at a fixed period after
sight is undated, any holder may insert therein the
true date of issue or acceptance, and the bill will '
be payable accordingly, and parol evidence will be
admissible to account for the omission of date.
Where the holder in good faith and by mistake inserts
a wrong date, or in fact in every case where a wrong
date is inserted, if the bill subsequently comes into
the hands of a holder in due course, the bill is not
avoided, but operates and is payable, as if the date so
inserted had been the true date (q). Where a bill or
an acceptance or any indorsement on a bill is dated,
the date is, unless the contrary is proved, to be deemed
to be the true date of the drawing, acceptance, or
indorsement, as the case may be. A bill is not invalid
by reason only that it is ante-dated or post-dated, or
that it bears date on a Sunday (r).
A person who without qualification accepts a bill As to present-
of exchange or makes a promissory note payable on a noSeTf^
given day, is liable to pay it when that day arrives, <iislionour.
though no demand is made. He must be aware of
the contract he has entered into, and he has no right
to say that he is taken by surprise, for he is bound to
provide for payment on the day when the instrument
becomes due (s) ; but of course this does not apply to
a bill or note payable at a certain time after sight or
on presentation, for in such cases it cannot become
payable unless and until it is so presented ; nor does
it apply in the case of a qualified acceptance of a
(p) Byles on Bills, 277.
(q) 45 & 46 Vict. c. 61, s. 12.
(r) Sect. 13.
(s) Per Channel!, B., in Maltbi/ v. Murrell, 5 H. & N. 82^
M
178 OF MERCANTILE CONTRACTS, AND
local kind, which has been already dealt with {{).
As to a promissory note, if in the body of it it is
made payable at a particular place, it must be pre-
sented for payment at that place in order to render
the maker liable {it). The law on this point, there-
fore, is, that to charge an acceptor, presentment is not
necessary unless accepted payable 07ily at a particular
place ; but to charge the maker of a note, if in its
body it is expressed to be payable at a certain place,
though not only at that place, yet presentment is
necessary ; but in both cases it may be observed that
it is not essential that presentment should be made
on the exact day.
To charge But what has just been stated applies only to the
indOTserTtiiere parties primary liable, i.e. the acceptor of a bill and
must always |-|^q maker of a note ; as to the parties not so primarily
be present- ' •'■ •*■ _ "^
mentand liable, i.c. the drawer or indorsers of a bill, or the in-
dishouour. dorscrs of a note, it has no application, for they are only
liable on the default of the party primarily responsible ;
it is necessary with regard to them that the holder
should present the instrument to the person primarily
liable on the very day it becomes due, and if dishonoured,
give notice of its dishonour, unless the notice of dis-
honour is waived (x). As to the presentment, even
when necessary to charge the acceptor or maker, we
have seen that it need not be on the actual day of the
instrument becoming due (?/), but to charge the other
parties the presentment must be on the exact day (z).
Instrument "When, howcver, a bill or note becomes due on a Sun-
ona^lundly, ^^^y, Christmas Day, Good Friday, or public fast or
&c., or a bank thanksgiving day, the instrument is presentable and
payable on the day preceding such day; but if it
(i) Ante, p. 172.
(m) 45 & 46 Vict. c. 61, s. S7.
(z) Ibid. s. 48,
(y) Supj'a.
(z) Byles on Bills, 276, 28S.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 79
becomes due on a bank holiday, it is presentable and
payable on the day following such day (a).
As to notice of dishonour, the law requires it to be Reason why
given for this reason, " because it is presumed that the aiVnonour is
bill is drawn on account of the drawee's having effects required.
of the drawer in his hands ; and if the latter has notice
that the bill is not paid, he may withdraw them
immediately " (b). Upon this point of notice of dis-
honour three matters require attention : —
Firstly, What will be sufficient notice of dishonour ? What will be
And the answer to this question is, that though no notice of
formal notice is required, yet mere knowledge of the "^isiionour.
probability that a bill or note will be dishonoured, or
even actual knowledge of the dishonour, will not be
sufficient, but there must be some intimation given
by or on behalf of the holder or an indorsee, either
verbally or in writing, which sufficiently identifies the
bill or note, and clearly intimates that it has been
dishonoured (c).
Secondly, To whom must the notice of dishonour be To whom
given ? The answer to which question is that notice jishc
lonour
must be given to all persons the holder intends to ™"^* ^® given,
charge ; but if he gives notice to the one preceding
him, who in his turn gives notice to the one preceding
him, and so on throughout, these notices will all operate
for the benefit of the holder, each person having his
day to give notice ; but if this link of notices is once
broken, then the liability of the other persons to
whom notice has not been given is gone. The pro-
per covirse is, therefore, for the holder to always give
notice to every prior party he intends to charge (d).
In case of death, notice may be given to the personal
(a) 45 & 46 Vict. c. 61, s. 14.
(6) Per BuUer, J., in Bieherdike v. Bollman, 2 S. L. C. 55.
(c) 45 & 46 Vict. c. 61, s. 49.
(d) Byles on Bills, 234 ; 45 & 46 Vict. c. 61, s, 49.
l80 OF MERCANTILE CONTUACTS, AND
representative, and if the party be a bankrupt, either
to him personally or to his trustee. Where there are
two or more drawers or indorsers not partners, notice
must be given to each, unless one has authority to
receive it on behalf of all (c).
\yithin what Thirdly, Within what time is notice of dishonour
dishonouT ° to be givcu ? The answer to which question is, that
must be given. ^-^^ notice may be given as soon as the bill is dis-
honoured (/), and that it must be given within a
reasonable time thereafter ; and the rule is that where
the person giving and tlie person to receive notice reside
in the same place, the notice must be given or sent off
in time to reach the latter on the day after the dishonour
of the instrument, and when the person giving and the
person to receive notice reside in different places, the
notice must be sent off on the day after the dishonour of
the instrument, if there be a post at a convenient hour
on that day, and if there be no such post on that day,
then by the next post thereafter. Where an instru-
ment when dishonoured is in the hands of an agent,
lie may either himself give notice to the parties liable
on the bill, or he may give notice to his principal ;
and if he give notice to his principal, he must do so
within the same time as if he were a holder, and the
principal, upon the receipt of such notice, has himself
the same time for giving notice as if the agent had
been an independent holder (g). If the notice is
received on a " non-business day " (//), it is deemed
as received on the day following (i). Delay in giving
(e) Broom's Corns. 443.
(/) Even on the very day, although there is a possibility of its yet
being taken up ; but the bill cannot be sued on until the next day, and
a writ issued on the due day, although after dishonour, is preujature.
Kennedy v. Thomas, (1894), 2 Q. B. 759 ; 63 L. J. Q. B. 861 ; 71 L.
T. 144-
(f/) 45 & 46 Vict. c. 61, s. 49 (12, 13).
(h) That is, a Sunday, Good Friday, Christmas Day, bank holiday,
or a day appointed by royal proclamation as a public fast or thanks-
giving day (45 & 46 Vict. c. 61, s. 92).
(i) 45 & 46 Vict. c. 61, s. 92.
HEREIN OF BILLS OF EXCHANGE, ETC. l8l
notice of dishonour is excused when the delay is Delay iu giving
caused by circumstances beyond the control of the
party giving notice, and not imputable to his default,
misconduct, or negligence, but when the cause of
delay ceases to operate, the notice must be given with
reasonable diligence (k).
However, under the Bills of Exchange Act, 1882 (I), when notice
certain cases are expressly enumerated in which notice di/Zensed*^'^
of dishonour is to be dispensed with, viz. : ( i ) Where ^i*^-
the notice cannot be given, or does not reach the party.
(2) Where notice is expressly or impliedly waived. (3)
As regards the drawer, where the drawer and drawee
are the same person, or the drawee is a fictitious
person or a person not having capacity to contract,
or where the drawer is the person to whom the bill
is presented for payment, or where the drawee or
acceptor is, as between himself and the drawer, under
no obligation to accept or pay the bill (??i), or where
the drawer has countermanded payment. (4) As
regards the indorser, where the drawee is a fictitious
person or a person not having capacity to contract,
and the indorser was aware of the fact when he
indorsed, or where the indorser is the person to whom
the bill is presented for payment, or when the bill
was accepted or made for his accommodation.
It has long been a rule not only as to bills and Effect of
notes, but as to all instruments generally, that any bms™nToti"er
material alteration after execution will vitiate the instruments,
instrument, except as to persons consenting to such
alteration (n). This is particularly shewn in the lead-
(Jc) 45 & 46 Vict. c. 61, s. 50 ; Sluddy v. Beesty, 60 L. T. 647.
(I) 45 & 46 Vict. c. 61, s. 50.
(m) This would comprise an accommodation acceptance, and is as was
formerly decided in Bkkerdike v. BoUman, 2 S. L. C. 55 ; I T. E. 406.
in) PigoVs Case, 11 Rep. at fol. 27a; Master v. Miller, i S. L. C.
825 ; 4 T. R. 320 ; Vance v. Lo^other, i Ex. D. 176 ; 45 L. J. Ex. 200.
I82
OF MEliCANTILE CONTKACTS, AND
Master v.
Miller.
Provisions of
Bills of Ex-
change Act,
1882, hereon.
ino' case of Master v. Miller (0), where it was held that
an unauthorized alteration of the date of a bill of ex-
change after acceptance, whereby the payment would
be accelerated, avoids the instrument, and no action
can afterwards be brought upon it, even by an innocent
holder for valuable consideration. To a certain extent,
however, the law on this subject has been altered by
the Bills of Exchange Act, 1882, which provides that
where a bill or note is materially altered without the
assent of all parties liable thereon, it is avoided except
as against a party who has himself made, authorized,
or assented to the alteration, and subsequent indorsers ;
provided, however, that where a bill has been materially
altered, but the alteration is not apparent, and the bill
is in the hands of a "holder in due course," such
holder may avail himself of the bill as if it had not
been altered, and may enforce payment of it according
to its original tenor (^j»). This provision therefore con-
siderably mitigates the rigour of the common law, and
with regard to a non-apparent alteration the position
has been held to be the same, even although a party
has, by the way in which he has drawn or accepted the
bill, placed it in the power of a holder to make the
alteration. Thus in a recent case {q) a bill of exchange
was drawn for ^^500 on a bill stamp sufficient to cover
i^4000, and blanks were left before the amount of the
bill both in the words and figures, and it was accepted in
this state, and then the drawer fraudulently altered the
bill into one for ^^3500 and circulated it as a bill for
that amount. It was held that a holder in due course
could only recover the ^500 for which the bill was
originally drawn, there being no duty on the acceptor
to take reasonable care that the bill is so framed as
(0) 2 S. L. C. 55. See also Suffell v. The Bank of England, 9 Q. B. D.
555 ; 51 L. J. Q. B. 401 ; 47 L. T. 146, where it was held that the
altering of the number on a Bank of England note invalidated it.
(p) 45 & 46 Vict. c. 61, ss. 64 (i), S9 (i). This provision is not
retrospective, and has been held not to apply to Bank of England notes
[Leeds Bank v. Walker, ii Q. B. D. 84 ; 52 L. J. Q. B. 590).
(5) Scholfield V. Earl of Londeshorough, (1895), I Q. B. 536 ; 64 L. J.
Q. B. 293 ; 72 L. T. 46 ; 43 W. R. 331.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 83
to offer no obvious opportunities for committing a
crime.
But if an alteration is made in an instrument which immaterial
is not material, such alteration will have no effect ;
thus where a promissory note expressed no time for
payment (and therefore, as we have seen (r), was pay-
able on demand), and the holder inserted the words
" on demand," it was held such alteration did not
affect the validity of the instrument, for it, in fact,
made it nothing more than it was before (s). As to
what are material alterations, the following in particu- What are
lar are deemed so, viz. : Any alteration of the date, the alterations,
sum payable, the time of payment, the place of pay-
ment, and, where a bill has been accepted generally,
the addition of a place of payment without the acceptor's
assent {t).
A person who takes a bill or note after it has Difference
become due is not a holder in due course, but takes it a^biifor note
subject to any defect of title affecting it at its maturity, ^®^°^''^^^"'^
and thenceforward no person who takes it can acquire becomes due.
or give a better title than that which the person from
whom he took it had {u) ; but such an instrument
transferred before it becomes overdue has, in common
with other negotiable securities {x), certain advantages
annexed to it, from the principle of the law merchant
to give the fullest currency and effect to it (y). One MiUer v. Race.
of the chief of these advantages is that, although a
person has found such an instrument, or acquired it by
(r) Ante, p. 176.
(s) Aldous V. Cornwell, L. R. 3 Q. B. 575.
(<) 45 & 46 Vict. c. 61, s. 64 (2).
[u) 45 & 46 Vict. 0. 61, s. 36 (2).
(x) As to what are negotiable securities, it must be remembered that
this depends almost entirely on the custom of merchants (see hereon
Goodwin V. Roharts, I App. Cas. 476 ; 44 L. J. Ex. 157).
{y) It may be noticed that if a bill or note is transferred to another
on the day it becomes due, it is considered as assigned before it became
due. See Byles on Bills, 191.
184 OF MEKCANTILE CONTRACTS, AND
means of fraud, or even stolen it, yet, provided it is
payable to bearer or to order, and has been indorsed in
blank, it will pass like cash by mere delivery, so that
the holder, though his own title to it is bad, yet may
confer a good title to it on a person taking bo7id fide
for value (2). But it must be carefully borne in mind,
that if the instrument is payable to order, and not
indorsed, the thief or finder cannot pass any title to
it by forging the indorsement («), except, indeed, as
against himself, nor in the case of a cheque crossed
" not negotiable " can a person pass any better title
When the than he had himself (b). And to enable the principle
thisSse °^ above stated to apply, it is absolutely necessary that
applies. the instrument should have been taken for valuable
consideration and homl fide, for if there is any mala
fides, then being in the nature of specific property,
the true owner has a right to recover ; but any mala
fides must be alleged and clearly proved (c), and the
mere fact of a person not having exercised the fullest
caution in taking such an instrument will not be
sufficient to deprive him of his rights as a transferee.
To do this, actual mala fides must exist, and even gross
ne"lio-ence and want of caution in taking the instru-
DO ,
ment are not sufficient to deprive the transferee of his
rights, and can simply operate as evidence of mala
fides. If, however, a transferee of a bill, or note, or
other negotiable security, wilfully shuts his eyes to
manifest circumstances of suspicion in a case in which
he must have concluded there was something wrong,
and has purposely forborne from inquiry, then this is
equivalent to 7nala fides, or, in other words, if there were
circumstances sufficient to put a person upon inquiry
which, if made, would probably have led to the dis-
covery of a defect, neglect to make such inquiry is suffi-
(2) Miller v. Race, i S. L. C. 491 ; I Burr. 452.
(a) Byles on Bills, 346.
(6) As to crossing a cheque "not negotiable," see post, pp. 196, 197.
(c) Goodman v, Harvey, 4 A. & E. 870 ; Usher v. Rich, 10 A. & E.
.784-
HEREIN OF BILLS OF EXCHANGE, ETC. 1 85
cient to constitute constructive notice of the defect (d).
It is in some cases by no means easy to determine London Joint
, , 1 • . • , 1 • T i- u 1 Stock Bank v.
when this principle applies, in a recent case, a broker, simmons.
in fraud of the owner, pledged negotiable instruments
belonging to other persons with his bankers, who did not
know whether they belonged to the broker or to other
persons, or whether the broker had any authority to deal
with them, and they made no inquiries. The broker
having absconded, the bankers realised the securities, and
in an action brought by the real owner, who had merely
in the ordinary way of business intrusted the securities
to the broker, it was held that there being, as a matter
of fact, no circumstances to create suspicion, — although
the bankers knew their customer was a broker, and as
such might very likely have securities of clients in his
possession, — the bankers were entitled to retain and
realise the securities (c).
With regard to the point of what will be sufficient What consti-
111 -J i* r i.1 i. c r i,*n tutes valuable
valuable consideration lor the transfer 01 a bill or consideration
note, the Bills of Exchange Act, 1882 (/), provides J'J^^ ^'" *"^
as follows : " Valuable consideration for a bill may
be constituted by (i) any consideration sufficient to
support a simple contract ; (2) an antecedent debt
or liability, and such a debt or liability is deemed
valuable consideration whether the bill is payable on
demand or at a future time. Where value has at
any time been given for a bill, the holder is deemed
to be a holder for value as regards the acceptor and
all parties to the bill who became parties prior to
(d) Goodman v. Harvey, 4 A. & E. 870 ; Raphael v. Bank of England,
17 C. B. 161 ; Jones v. Gordon, 2 App. Cas. 616 ; 47 L. J. Bk. i ;
Sheffield v. London Joint Stock Bank, 13 App. Cas. 333; 57 L. J. Ch.
986 ; 58 L. T. 735 ; Colonial Bank v. Cady, 15 App. Cas. 267 ; 63 L.
T. 27; 39 W. R. 17.
(c) London Joint Stock Bank v. Simmons, (1892), A. C. 201 ; 61 L. J.
Ch. 723 ; 66 L. T. 625. It is no doubt somewhat difficult to reconcile
this case with Sheffield v. London Joint Stock Bank {supra), but the
principle is the same in each, and the real difficulty is the application
of the principle to the particular facts.
(/) 45 & 46 Vict. c. 61, s. 27.
1 86 OF MERCANTILE CONTRACTS, AND
such time {g). Where the holder of a bill has a lien
on it arising either from contract or by implication of
law, he is deemed to be a holder for value to the
extent of the sum for which he has a lien " Qi).
No title can The general rule has always been that no title can
through'^ "^ be obtained through a forgery, and this is also expressly
forgery. provided by the Bills of Exchange Act, 1882 (^). A
forged signature cannot be ratified, but if a person
whose signature has been forged so conducts himself
as to induce the holder to take it to be genuine he is
estopped from afterwards setting up the forgery {h).
If a bill or note bearing a forged indorsement is paid
by a banker, the loss will fall on him, and not on
the customer {l), in which respect it is now different
to a cheque, as is hereafter noticed {m).
Bank of The important recent case of Bank of England
v7'uan</' "^- Vagliano (n) may here be conveniently noticed.
Vagliauo had a large banking account with the Bank
of England. One of Vagliano's clerks from time to
time drew out bills, to which he forged the name of a
well-known customer of Vagliano's, put them amongst
Vagliano's ordinary bills, and thus got his acceptance
to a number of such forged bills, amounting in all
to about ;^70,ooo. To further deceive Vagliano, the
clerk had taken care to draw these bills in favour of
a person the customer was in the habit of drawing in
favour of. The clerk also took care that the Bank
was from time to time advised of these bills, and they
were duly paid and debited in Vaghano's pass-book.
(0) Thus suppose a holder for value indorses a bill to an agent for
collection, the agent can sue the acceptor, but could not sue his own
principal.
(h) As to sufficiency of consideration, see also Stott v. Fairlamb, 53
L. J. Q. B. 47 ; 32 W. R. 354 ; 49 L- T. 525.
(i) 45 & 56 Vict. c. 61, s. 24.
{k) Byles on Bills, 268.
(1) Robart v. Tucker, 16 Q. B. 560.
(m) See post, p. 194.
(n) (iS9i)A. C. 107 ;6oL.J.Q.B. 145; 64 L. T. 353 ; 39 W. R. 657.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 8/
At last the fraud was discovered, and Vagliano souglit
to recover from the Bank the total amount of these
fraudulent bills, with which his account had been
debited. He succeeded originally, and before the
Court of Appeal, but failed in the House of Lords.
It will be observed that there was here a forgery of Grounds of
the indorsement of the payee, and therefore, haviug in^the House
reference to what has been stated at the end of the °^ ^°^<^^-
last paragraph, primarily the loss would have had to be
borne by the banker; but amongst other provisions
in the Bills of Exchange Act, 1882, is the following: —
" Where the payee is a fictitious or non-existent per-
son, the bill may be treated as payable to bearer " (0).
The House of Lords held that a person is fictitious
when he is named by way of pretence only, and with-
out the intention that he shall be the person who is
to receive payment, and that it makes no difference
whether the name of such payee is that of an actually
existing person or not. This is sufficient in itself to
explain the decision to the student ; but further, it was
held that Vagliano had been guilty of negligence, and
that he must be the person to bear the loss, and not
the Bank ; for where one of two innocent parties must
suffer by the fraud of the third, he who by his con-
duct, however innocently, enables the fraud to be com-
mitted must be the sufferer (00).
The liability on bills and notes may be discharged How the
,.„^ 1 • n ^Tcf . i.- liability on
m different ways, and especially as to dmerent parties a bill or note
to them. If the person primarily liable on such an °J,^J.ggd.*^'^"
instrument pays the amount, that necessarily dis-
charges all the other parties ; but if a person not so
primarily liable pays it, then only he and parties sub-
sequent to him are discharged, and the liability of
prior parties remains (p). Irrespective of payment, the
(0) 45 & 46 Vict. c. 61, s. 3 (7).
(00) See also the very recent case of Clutton v. Attenhorough, (1895),
2 Q. B. 306.
(_p) Sect. 59.
1 88
OF MERCANTILE CONTRACTS, AND
Acts which
will operate
to discharge
drawer or
indorsers.
Noting and
protesting
necessary for
a foreign, but
not for an
inland bill.
"What is an
inland and
what is a
foreign bill.
obligation on such an instrument may be discharged
by the acceptor becoming the holder of it in his own
right (q) ; or by the holder absolutely and uncondi-
tionally renouncing his right against the acceptor, which
renunciation must either be effected by writing or
by delivering up the bill to the acceptor (r) ; or by
intentional cancellation of the instrument apparent on
its face (s) ; or by any material alteration (t) ; also, as
to parties not primarily liable, by omission to present
and give due notice of dishonour («)• -A.nd as (as has
been pointed out (x)) the position of the parties is
similar to that of creditor, principal debtor, and surety ;
any act that will operate to discharge sureties will
operate to discharge parties not primarily liable on
bills and notes (y). Noting or protesting is not
necessary to entitle a person to sue on an inland bill
or note, although even as to them noting is very
usual, but in the case of a foreign bill both noting and
protesting are generally necessary (z). By the noting
is meant a minute made by a notary public or consul
of the fact of the presentment and dishonour of the
instrument ; and by the protesting is meant a solemn
declaration by the same official that the instrument
has been presented for payment and dishonoured. An
inland bill is one which on its face purports to be
both drawn and payable in the United Kingdom, or
the Islands of Man, Guernsey, Jersey, Alderney, and
Sark, and the islands adjacent to any of them, being
part of the dominions of Her Majesty, or drawn within
those limits on some person resident therein, and any
other bill is a foreign bill (a). The chief peculiarities
{q) 45 «& 46 Vict. c. 61, s. 61.
(r) Sect. 62 ; Re George, Francis v. Bruce, 44 Ch. D. 627 ; 59 L. J. Ch,
709 ; 63 L. T. 49.
(s) Sect. 63.
{t) Sect. 64. See ante, pp. 181, 182.
(u) See ante, pp. 179, 180.
(x) Ante, p. 169, 173.
(y) For the acts that will operate to discharge sureties, see aiite,
P- 52-
(z) 45 & 46 Vict. c. 61, s. 51.
(a) Sect. 4.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 89
of a foreign bill in which it differs from an inland one Peculiarities
are, that it may be stamped after execution; it j-g. <»f ^<"^"S" ^'i^^-
quires noting and protesting ; it is most usually drawn
in parts ; and it is frequently drawn at one or more
" usance " (b).
With regard to the law which governs bills drawn Rules of Con-
or payable abroad, the Bills of Exchange Act, i 883, regards foreign
contains full provisions on the subject. It declares ["^^^ ^g^jffl?.^.
that the validity as regards requisites in form is de-
termined by the law of the place of issue, and the
validity, as regards requisites in form of the super-
vening contracts, such as acceptance or indorsement,
or acceptance su2)ra ijrotest, is determined by the law
of the place where such contract was made, provided
that where a bill is issued abroad, it is not invalid by
reason only that it is not stamped in accordance with
the law of the place of issue, and that where a bill
issued abroad conforms as regards requisites in form
to the law here, it may, for the purpose of enforcing
payment thereof, be treated as valid as regards every
one here. The interpretation of the drawing, indorse-
ment, or acceptance is determined by the law of the
place where made ; but when an inland bill is indorsed
in a foreign country, the indorsement as regards the
payer is interpreted according to the law here. The
duties of the holder with regard to presentment, pro-
test, and notice of dishonour are determined by the
law of the place where the act is done or the bill is
dishonoured ; and where the bill is drawn abroad and
payable here, the amount of the bill, in the absence of
stipulation, is calculated according to the rate of ex-
change for sight drafts at the place of payment on the
day the bill is payable. Where a bill is drawn in one
country and payable in another, the point of when it is
due, having reference to the existence or non-existence
(6) As to meaning of "usance," see ante, p. 176.
190 OF MERCANTILE CONTRACTS, AND
of days of grace, is determined by the law of the place
where it is payable (c).
Receipt on A receipt for the money given on the back of a bill
or*?oti re^'^^ or notc did not formerly require a receipt stamp, but
quires no [^ (Jqcs now (d). A pcrson paying a negotiable in-
strument has a right to the possession of it (e).
stamp.
Ambiguous If an instrument is on its face so ambiguous that
instrument. -^ -^ (jo^^tf^i whether it is meant as a bill or a note,
it is in the election of the holder to treat it as either ;
and where a person gave a note for money borrowed,
" which I promise 7ievcr to pay," it was held that the
word " never " might be rejected (/). A corporation
cannot bind itself by a bill or note unless incorporated
for the very purpose of trade (g).
Position if The effect of losing a negotiable instrument formerly
SSnient was, that no action could be brought in respect of the
^°^*- amount payable thereon, because there was always the
possibility that it might have got into the hands of
a bond fide holder for value ; but equity would have
given relief on a proper indemnity being given, on the
principle of an accident; and by the Common Law
Procedure Act, 1854 {h), power was given at law for
the court or a judge to order that the loss should not
be set up on a like indemnity being given. It is also
now provided by the Bills of Exchange Act, 1882,
that where a bill has been lost before it is overdue,
the person who was the holder of it may apply to the
drawer to give him another bill of the same tenor,
giving security to the drawer, if required, to indemnify
him against all persons whatever, in case the bill
(c) 45 & 46 Vict. c. 61, s. 72.
\d) Formerly see 54 & 55 Vict. c. 39, schedule I, title "Receipt,
Exemptions ;" but now see Finance Act, 1895 (58 Vict. c. 16, s. 9).
(e) Byles on Bills, 305.
{/) Chitty on Contracts, 149.
(g) Ibid. 365.
{h) 17 & 18 Vict. c. 125, s. 87.
HEREIN OF BILLS OF EXCHANGE, ETC. 19I
alleged to have been lost shall be found again, and
that if the drawer on such request refuses to give such
duplicate bill, he may be compelled to do so (i). This
Act also contains a further provision to the effect that
in any action or proceeding upon a bill, the court or
judge may order that the loss of the instrument shall
not be set up, provided that an indemnity be given,
to the satisfaction of the court or judge, against the
claim of any other person upon the instrument in
question (Jc).
A bill or note carries interest from the time of Bill or note
dishonour as regards the acceptor or maker thereof, I'nterest.
and as regards any other party liable thereon from the
time of notice of dishonour having been given to such
other party, and it has been decided that when a per-
son guarantees payment of a bill or note, he is liable
not only for the principal amount of it, but also for
interest (/).
It is not technically, though it must nearly always Tender after
be practically, a defence to an action brought on a ^^^ '^^^'
bill or note that after the day for payment the de-
fendant tendered the amount to the plaintiff, for he
has committed a breach in not paying on the day,
and the plaintiff's claim may possibly, under special
circumstances, be for damages beyond the mere amount
of the bill (m).
To sum up as to bills and notes, the following may Summary of
be stated as the chief points in which they difler from Jetwe^e'n biUs
other ordinary simple contracts : — and notes
and other
I. They must always be in writing.
simple
contracts.
(i) 45 & 46 Vict. c. 61, s. 69.
(k) Sect. 70.
{I) Ackerman v. Mrensperger, 16 M. & W. 99. See also 45 & 46
Vict. c. 61, s. 57.
(m) Hume v. Peplow, 8 East, 168.
192 OF MERCANTILE CONTRACTS, AND
2. They must always be stamped, and as to inland
bills, before execution (n).
3. They import a consideration, so that it need not
appear on the face of the instrument (0).
4. They carry interest.
5. They are negotiable.
Relation exist- The relation existing between a banker and his
bankerliiT customer is not that of trustee and cestui que trust,
customer. j^^^ " \\^q customer Icuds money to the banker, and
the banker promises to repay that money, and, whilst
indebted, to pay the whole or any part of the debt
to any person to whom his creditor, the customer,
in the ordinary way requires him to pay it " {jp), and
this debt is paid by the banker duly honouring his
customer's bills, notes, and cheques.
Cheques. A cheque has already been defined as a bill of
exchange drawn on a banker payable on demand {q).
The drawer of the cheque is the person primarily
liable, and it is the duty of a banker to cash his
customer's cheques if he has sufiicient assets of that
customer, and if he fails in this duty an action will
lie against him, even although the customer has sus-
The rules as to tained no actual loss or damage by his act (?•). Cheques
appiygenewfiy are uot intended, like bills and notes, for circulation,
to cheques. ^^^ ^^^ ^^^ entitled to any days of grace, but, gene-
(11) It has lately been held that a bill or note not properly stamped
cannot be admitted even as evidence of the receipt of the money
alleged to have been lent {Ashling v. Boon, (1891), i Oh. 601 ; 64 L. T.
193)-
(0) A guarantee is the same on this point ; see 19 & 20 \ ict. c. 97,
s. 3, ante, p. ^l.
(p) Per Alderson, B., in Roharts v. Tucker, 16 Q. B. 575 ; HUl v.
Foley, 2 H. L. Ca. 28 ; Broom's Corns. 468.
{q) Ante, p. 166.
()•) Marzetti v. Williams, I B. & A. 415. This furnishes an instance
of the truth of the rule that injuria sine damno will entitle a person to
maintain an action, as to which see ante, pp. 3, 4.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 93
rally speaking, the rules as to bills and notes apply-
to them, and in particular they are negotiable (.s).
A person receiving a cheque should present it for Time within
payment within a reasonable time {t) ; and in deter- ^ouid^be pre-^
mining what is a reasonable time, regard must be rented.
had to the nature of the instrument, the usage of
trade and of bankers, and the facts of the particular
case {u). Ordinarily, however, if the banker is in
the same place, it should be presented during the next
day, and if in a different place, forwarded for present-
ment within that time, and presented by the person
to whom so forwarded within the day after he receives
it {x). Where a cheque is not presented for payment Consequence
within such reasonable time, and the drawer or person me^nTw^thTn^
on whose account it is drawn had the right at the *!^^ proper
° time.
time of such presentment, as between him and the
banker, to have the cheque paid, and suffers actual
damage through the delay, he is discharged to the
extent of such damage, that is to say, to the extent
to which such drawer or person is a creditor of such
banker to a larger amount than he would have been
had such cheque been paid. The holder of such
cheque as to which such drawer or person is dis-
charged is, however, a creditor of the banker in lieu
of such drawer or person to the extent of such dis-
charge, and is entitled to recover the amount from
him (y). Thus, suppose A. draws a cheque on his
bankers for £$0, and pays it to B., who neglects to
present it within a reasonable time, and meanwhile
the banker fails, A. having at the time sufficient
money to his credit to meet the cheque, here A.
is discharged, but B. can prove for ^50 against the
banker's estate.
(s) M'Lean v. Clydesdale Banking Co., 9 App. Cas. 95 ; 50 L. T.
457-
(t) 45 & 46 Vict. c. 61, s. 45.
(«) Sect. 74 (2).
(x) Byles on Bills, 21.
\y) 45 & 46 Vict. c. 61, s. 74 (I, 3).
N
194
OF MERCANTILE CONTKAGTS, AND
Overdue It bas been already stated tbat a person taking a
cheque. |^j^ ^^ ^^^^ ^^^^^ jj- ^^ecomes due takes it subject to
all faults it was subject to in tbe transferor's bands (z).
It bas been, bowever, decided tbat tbis rule does not
primarily apply to cheques (a), but tbat if a cbeque bas
been overdue for au unreasonable length of time, then
it does (b). A person, therefore, who takes a stale
cbeque, takes it at his peril ; if it is all right, he can
enforce it against the drawer, but if it is affected by
Post-dated fraud or illegality, be cannot recover on it. A post-
cheque, dated cbeque bearing merely an ordinary penny stamp
is a valid and negotiable instrument, and is complete
and regular upon tbe face of it, so that a person
taking such a cheque before its date bas nevertheless
a good title (c).
A banker pay- If a banker pays a cbeque to which the drawer's
c'^eqJe°beaL signature has been forged, he (tbe banker) must bear
the loss. ^YiQ loss incurred thereby, unless it has been causei.1
by the customer's negligence (d). The liability of a
banker in the case of his paying a cheque bearing a
forged indorsement was formerly tbe same ; but tbis
being considered a hardship on bankers, — who, whilst
they may reasonably be supposed to know their cus-
tomers' signatures, cannot possibly be expected to know
tbe signatures of payees, — it bas been provided, with
But not so if regard to indorsement, that the banker shall be dis-
it is a forged ^baroed if the cbeque purports to be duly indorsed, so
indorsement. ^ t. r r ^ i ii
that in tbe case of a forged indorsement of a cbeque the
loss now falls on the customer (c). But though a banker
(z) Ante, pp. 1S3, 184.
(a) London and Count}/ Banking Co. v. Groome, 8 Q. B. D. 378 ; 51
L. J. Q. B. 224 ; 30 W. R. 382. X
(h) 45 & 46 Vict. c. 61, s. 36 (3), and s. 73. "What is an un-
reasonable length of time for this purpose is a question of fact."
(c) Hitchcock v, Edioards, 60 L. T. 636 ; Royal Bank of Scotland v.
Tottenham, {1894), 2 Q. B. 715 ; 64 L. J. Q. B. 99 ; 71 L. T. 168.
{d) Eobarts v. Tucker, 16 Q. B. 560 ; Young v. Groie, 4 Bmg. 253 ;
and see Baxendale v. Bcnnet, 3 Q. B. D. 525 ; 47 L. J. Q. B. 624.^
(e) 16 & 17 Vict. c. 59 ; amended and re-enacted by 45 & 46 Vict,
c. 61, s. 6o.
HEREIN OF BILLS OF EXCHANGE, ETC. 1 95
is thus protected, yet a third person who cashes a
cheque bearing a forged indorsement is not, and iu
such an event will be liable to refund to the rightful
owner of the cheque the money which he received on
it when it was honoured by the banker on whom it was
drawn (/). If a banker pays money on a customer's Customer
cheque to some third person, he cannot, on discovering ^''^^ rawmg.
that such customer has overdrawn his account, recover
back the sum he has paid ((/).
Cheques are frequently crossed, that is, they have Crossing
the name of some banker written across them, or *^ '^i"®^-
simply two transverse lines with or without the words
" & Co.," leaving the name of the particular banker to
be filled in or not, but at any rate rendering it neces-
sary that it should be paid through some banker. The Meaning,
subject of crossed cheques, irrespective of any statute, gfridioF"
is well dealt with in " Byles on Bills," as follows : " It crossing a
•' _ •' _ _ cheque at
has long been a common practice, not only in the city common law.
of London, but throughout England, to write across a
cheque the name of a banker. The meaning of this
crossing was to direct the drawees to pay the cheque
only to the banker whose name was written across ;
and the object was to invalidate the payment to a
w-rongf ul holder in case of loss ; but it has been held
that at common law the effect is to direct the drawees
to pay the cheque, not to any particular banker, but
only to some banker, and not to restrict its negoti-
ability. Therefore, as between the banker and his
customer, the circumstance of the banker paying a
crossed cheque otherwise than through another banker
is at common law strong evidence of negligence on the
part of the banker, rendering him responsible to his
customer. The holder may at common law erase the
name of the banker, and either substitute that of
another banker or leave the words ' & Co.' remaining
(/■) Oc/den v. Benas, L. R. 9 C. P. 513 ; 43 L, J. C. P. 259 ; 22 W.
R. 805.
((/) Chambers v. Miller, 13 C. B. (N. S.) 125.
196 OF MERCANTILE CONTRACTS, AND
alone. It is also not unusual to write the words
' & Co.' only in the first instance, leaving the parti-
cular banker's name to be filled up afterwards or not,
so as to insure the presentment by some banker or
other " (h).
Provisions of The law on the subject of crossed cheques is now
Ex'changelct, contained in the Bills of Exchange Act, 1882 (i).
1882, as to gy ^-j^jg ^ct, a cheque may be crossed qrnerally by
crossed •' ^ " . " . ,
cheques. putting across it two transverse hnes, with or without
the words " and Company," or any abbreviation thereof,
or it may be crossed siiecially by writing across it the
name of a banker, and it may in either case be so
crossed with the addition of the words " not negoti-
able " (/t). Any lawful holder may cross a cheque, but
may not alter it, though he may add to it the words "not
negotiable," and a banker to whom a cheque is crossed
may again cross it specially to another banker for collec-
tion (/). Where a cheque is crossed generally, the
banker on whom it is drawn must only pay it to a
banker, and where crossed specially, then only to the
particular banker or his agent ; and if so paid, then the
banker is protected by the payment, as also is the
drawer if the cheque came to the hands of the payee ;
but if the banker pays the cheque otherwise than
according to the crossing, then he is liable to the true
owner for any loss sustained owing to the cheque having
been so paid. In the case of any alteration or oblitera-
tion in the crossing, the banker is not liable if the
alteration or obliteration is not apparent {m).
Crossing With regard to the crossing of a cheque "not
negothible. negotiable," this does not restrain its transfer, but it is
provided {n) that a person taking a cheque so crossed
(h) Byles on Bills, 28.
(i) 45 & 46 Vict. c. 61.
{h) Sect. 76.
{I) Sects. 77, 78.
(m) Sects. 79, 80.
(n) Sect. 81.
HEKEIN OF BILLS OF EXCHANGE, ETC. 1 97
shall not have, and shall not be capable of giving, a
better title to the cheque than that which the person
from whom he took it had. Thus, if A. steals a crossed
cheque payable to bearer, or to order and indorsed, and
which cheque is crossed " not negotiable," and gets it
cashed by B,, who acts honestly, yet B. has no title
because of the crossing " not negotiable," and cannot
retain the cheque as against the true owner. A banker Protection of
who has in good faith and without negligence (0) ^^"^^'■^•
received payment for a customer of a cheque crossed
generally or specially to his bank, does not, in case the
title to the cheque proves defective, incur any liability
to the true owner of the cheque by reason only of
having received such payment (p).
(0) See as an instance of a case in which the bankers were held to
have acted with negligence, and therefore not protected, Bissdl v. Fox,
53 L. T. 193.
{p) 45 & 46 Vict. c. 6r, s. ?>2. And see Mathieson v, London and
County Bank, 5 C. P. D. 7 ; 41 L. J. C. P. 529. With regard to the
subject of crossed cheques, the first statvitory provision on the subject
was contained in 21 & 22 Vict. c. 79. The insufficiency of this statute
was shewn by the case of Smith v. Union Bank of London (l Q. B. D.
31 ; 45 L. J. Q. B. 149), and it was repealed by 39 & 40 Vict. c. 81,
which contained new and more precise provisions on the subject. This
Act has now, in its turn, been repealed by 45 & 46 Vict. c. 61, s. 96,
except as to anything done or suffered before i8th August 1882, and
the law is — as stated in the text — now governed by that statute.
198
OF SOME PAKTICULA.R CONTRACTS IRRESPECTIVE OF
CHAPTER VI.
Matters con-
sidered in
this chapter.
OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF ANY
DISABILITY OF THE CONTRACTING PARTIES.
Under this heading it is proposed to consider shortly
contracts as to ships, insurance, patents, copyrights,
and trade-marks ; contracts with legal practitioners,
medical men, dentists, witnesses, corporations, com-
panies, and institutions ; and contracts in the relation
of master and servant.
I. Ships. The statute containing provisions as to the regis-
tration and ownership of ships, and generally as to
merchant shipping, is the Merchant Shipping Act,
1894 (a). One important provision in that statute
has been already incidentally noticed (b), viz. that a
How a ship or registered ship, or any share therein, must be transferred
tlwerred!" hy bill of sale, in the form given therein, and attested
by a witness, and registered by the registrar of the port
at which the ship is registered (c) ; and this registra-
tion is of great importance, for in the case of several
mortgages, they will have priority, not according to the
date of execution, but according to the date of regis-
tration (d). On the discharge of a mortgage, satisfac-
tion thereof has to be entered on the register (c).
Merchant
Shipping Act,
As to owner-
ship.
As to ownership in a British ship, it is considered
(a) 57 & 58 Vict. c. 60.
(6) Ante, p. 58.
(c) 57 & 5S Vict. c. 60, ss. 24, 26. This transfer is exempted from
stamp duty, as also are all agreements between masters of ships and
seamen, if made in the proper form, 57 & 58 Vict. c. 60, s. 721.
(d) 57 & 58 Vict. c. 60, s. 33.
(e) Sect. 320.
AXY DISABILITY OF THE CONTRACTING PARTIES. ^99
as being divided into sixty-four equal parts, and
persons may hold one or more shares, so only that
the total number of registered holders does not exceed
sixty-four; but five or less persons may register as
joint-owners of one or more shares, and as such be
considered as one person (/). Ships, to have the
privileges of British vessels, must be duly registered,
and a certificate of the registry is given ; and certifi-
cates may also be given by the registrar of ships autho-
rizing the same to be disposed of, or mortgaged, out
of the United Kingdom {g).
The conduct of a ship during its voyage is intrusted Power of
-,•,11 , 11 •• i.i-j-T master of ship
to a person called the master, and he is mvested with j^^rjug voyage.
a power to do everything necessary to bring the
voyage to the best terniiuation he can ; and in de-
termining what he shall do, he must consider the
interests of all parties concerned Qi). If it becomes
necessary to sell or hypothecate the ship, the master
should, if he has the opportunity, obtain the owner's
consent thereto ; but if he is at a distant English port,
or at a foreign port where the owner has no agent,
and immediate payments are required, he has power
to borrow money on the owner's credit, or even to sell
or hypothecate the ship and cargo ; and if the cargo
is dealt with, the owner must indemnify the merchant,
who will have a right either to take what his goods
actually fetched, or what they would have fetched
had they been brought to their destination (i). The
master has also power to pledge the shipowner's
credit for stores or other necessaries for the ship,
under like circumstances as above mentioned with
regard to borrowing money on it (Jc).
if) 57 & 58 Vict. c. 60, 8. 5.
(g) Sects. 2, 14, 39.
(/() The Rona, 51 L. T. 28.
[i) Smith's Mercantile Law, 358, 359 ; Gunn v. Roberts, L. R. 9 C.
P. 331 ; 43 L. J. C. P. 223 ; The Fanny, The Mathilda, 48 L. T. 771 ;
5 Asp. M. C. 75.
(k) Gunn v. Roberts, supra.
200
OF SOME PARTICDLAi; CONTRACTS IRRESPECTIVE OF
Master has
unlimited
discretion.
Jettison.
General and
particular
average.
It must necessarily be that the master of a ship
has an unlimited discretion how to act in times of
peril during the voyage, and it may be sometimes
necessary for the safety of all to incur some loss, e.g.
by jettison, which is the throwing of goods overboard
to lighten the ship, so that they are lost ; in such
cases it would be manifestly unfair that the particular
owner should bear the whole burthen of what has
been done as much for others' benefit as his own, and
the loss is therefore rateably adjusted between all
owners, which adjustment is called general average,
and appears to be founded not upon contract or the
relation created by a contract, but upon a rule of the
common law, and upon the principle of the ancient
maritime law (/). As distinguished from this, parti-
cular average is sometimes spoken of, which simply
arises when some particular injury is done, by accident
or otherwise, not voluntarily for the benefit of all;
and here no contribution to the loss is made, but it
has wholly to be borne by the person to whom the
injured property belongs (m).
Salvage. When some special and extraordinary assistance is
rendered, whereby a ship, the persons on it, or its
cargo are saved, the persons rendering such successful
assistance, who are called salvors, are entitled to a
compensation, which is called salvage (w). As to the
persons who may become entitled to salvage, it may
be particularly noticed that neither the passengers
nor crew of a rescued ship can so claim unless circum-
stances have put an end to the common duty of both
to do their best to save the ship, e.g. the hond fide
{I) Pirie v. Middle Dock Co., 44 L. T. 426. See further on the sub-
ject of general average, Attivood v. Sellar, 5 Q. B. D. 2S6 ; 49 L. J. Q. B.
515; 28 W. R. 604 ; Gordon v. Manoood, 7 Q. B. D. 62 ; 50 L. J. Q. B.
634 ; 29 W. R. 673.
(m) See the distinction between general and particular average well
stated by Lord Kenyon in Birheley v. Presrjrave, I East, 226, 227.
(n) See Brown's Law Diet. 472, 473.
ANY DISABILITY OF THE CONTRACTING PARTIES. 20I
abandonment of the ship at sea (o) ; and with reference
to the salvage itself, it is only allowed in the case of
success ; and the practice is rarely to allow more than
a moiety for salvage (jp). A pilot who simply performs
ordinary pilot services is not entitled to anything for
salvage, or even for extraordinary pilot reward, but he
is entitled to something extra in this respect if he per-
forms extraordinary services, more than a pilot for his
ordinary fees could be expected to do (q). In the case Rule as to
of a collision between two ships, the rule in the Court t^e^c^seof
of Admiralty has always been that where both ships |^,g^^^^gg^ ^^^
are in fault the damage shall be borne in this way : ships,
the loss sustained by the two vessels is added together
and divided between them (r), and the Judicature Act,
1873 (s), specially provides that this rule is still to
continue. Where, however, one ship has by wrong
manoeuvres placed another ship in a position of ex-
treme danger, the latter will not be held to blame in
the event of her doing something wrong, and not
having manoeuvred with perfect skill and presence of
mind (t).
A bottomry bond, strictly speaking, is a mortgage Bottomry
or pledge of a ship by the owner or agent to secure
the repayment of money lent for the use of the ship ;
and the conditions of it are, that if the ship is lost the
lender loses his money ; but if it arrives, then not only
the ship itself is liable, but also the person of the
borrower. A security given on the cargo, and not on Respondentia
the ship, is also now generally called a bottomry bond
(o) The Vreda, 30 L. J. Ad. 209 ; The Florence, 16 Jur. 572. The
chief statutory provisions as to salvage are contaiued in 57 & 58 Vict.
c. 60, part ix.
(p) The Inca, Sw. 370; The Killeena, 6 P. D. 193 ; 45 L. T. 621 ;
The Crahjs, 5 P. D. 186 ; 29 W. R. 446.
(q) Akerhlom v. Price, 7 Q. B. D. 129 ; 50 L. J. Q. B. 629 ; 29 W.
R. 797 ; 44 L. T. 837.
(r) See Williams and Bruce's Admiralty Practice, 86.
(s) 36 & 37 Vict. c. 66, s. 25 (9). See hereon Chartered Mercantile
Bank of India v. Netherlands India Steam Navigation Co., 10 Q. B. D.
521 ; 52 L. J. Q. B. 220 ; 48 L. T. 546 ; 31 W. R. 445.
(«) The Bywcll Castle, 4 P. D. 219 ; 28 W. R. 293 ; 41 L. T. 747.
202 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
indiscriminately with the above, though formerly dis-
tinguished as a respondentia bond. Because of the
risk the lender runs of losing his money entirely by
the loss of the ship or cargo, it has always been legal,
even when the usury laws were in force, to reserve any
amount of interest on such a loan ; and if there are
several of these securities given during a voyage, the
last will generally be paid first, because, without the
last, possibly the vessel might have been lost alto-
gether {u). It has been held that a person who has
advanced money for the purpose of discharging dock
dues stands in tiie same position as the dock company,
and his claim ranks with pilotage and towage claims,
and has priority over the claim of a holder of a bottomry
bond of a previous date {x).
^.„ The owner of a ship sometimes lets it, or some part
Difference . . ^ _ _ ' ^
between a of it, for a particular voyage, which is done by means
aiuiabiir of au agreement called a charter-party {y), and some-
of lading. times he simply agrees to carry any one's goods therein
without letting any particular part of the ship, which
agreement is carried out by means of a bill of lading,
which is in form a receipt for the goods and an under-
taking to carry them, given by the owner or master {z).
A bill of lading may be transferred by indorsement, and
this will pass the property in the goods, and all lia-
bilities and all rights of action in respect thereof, and
the indorsee may sue thereon in his own name (a) ;
and such an indorsement for value hond fide without
notice deprives the vendor of any right of stoppage in
transitu (h), unless the person through whom the bill
of lading comes had no authority to put it in circula-
(m) See hereon Smith's Mercantile Law, 512-519.
{x) The St. Lawrence, 5 P. D. 250 ; 49 L. J. P. 82.
{y) See Brown's Law Diet. 87.
(;) Ibid. 66. The ordinary principles of contract apply to a bill of
lading, so that, for instance, parol evidence cannot be admitted to vary
its terms. {Leduc v. Ward, 20 Q. B. D. 475 ; 57 L. J. Q. B. 379 ; 58
L. T. 908.)
(a) 18 & 19 Vict. 0. Ill, s. I.
(6) As to stoppage in transitu, see a7itc, pp. 105-108 ; 56 & 57 Vict.
c. 71, s. 47.
ANY DISABILITY OF THE CONTRACTING PARTIES. 20;
tion (c). Within these limits, therefore, a bill of lading
is negotiable, but it must be borne in mind that, beyond
what has just been stated, the indorsement of a bill of
lading cannot confer a better title than was possessed
by the indorser (d). In respect of the carriage of Freight,
goods either by means of a charter-party or a bill of
lading, a certain reward is payable, which is called the
freight, and for which the shipowner can sue, and for
which he has a lien on the goods, provided they are
in his possession ; if, however, he has actually let out
the whole ship, he has thus parted with possession of
her and her cargo, and has no lien (e). The owner
of goods does not by simply indorsing the bill of lading,
and delivering it to the indorsee by way of security for
money advanced by him, pass the property in the goods
to such indorsee so as to make him directly liable to
the shipowner for freight (/).
In the case of loss of goods during a voyage, the Liability of
° *-' 1 ■ shipowners
question arises. What is the liability of the shipowner for loss
or person carrying the goods ? At common law such ^J^^^ I
persons were, like carriers by land (g), liable for all losses voyage,
except acts of God and the king's enemies, and the
charter-party or bill of lading always contains a stipula-
tion exonerating them from such losses, and from those
occasioned by perils or accident of the seas (h), and
(c) Gurncy v. Belirend, 3 E. & B. 622.
{d) Anson's Contracts, 247, 248.
(e) Brown's Law Diet. 245, title " Freight."
(/) Scwcll V. Burdich, 10 App. Cas. 74 ; 54 L. J. Q. B. 156 ; 52 L.
T. 445-
(g) As to whose liability, see ante, pp. I2b-I37.
[h) As to what is a " peril of the sea," see Wilson v. The Xantho, 12
App. Cas. 503 ; 56 L. J. P. 116, where it was held that foundering
caused by collision with another vessel is within the exception " dangers
and accidents of the sea" in a bill of lading, and excuses the ship-
owner for non-delivery of the goods if it occurs without fault on the part
of the carrying ship. See also Hamilton v. Pandorf, 12 App. Cas.
518 ; 57 L. J. Q. B. 24 ; 57 L. T. 726 ; where rice was shipped under a
charter-party which excepted "dangers and accidents of the sea," and
during the Voyage rats gnawed a hole in a pipe on board the ship,
whereby sea-water escaped and damaged the rice, without neglect or
default on the part of the .shipowners or their servants, and it was held
that the damage was within the exception and the shipowners were not
liable.
204 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
navigation, or by fire ; and now with regard to any
loss or damage arising from fire, and with regard also
to any loss of valuable articles, such as gold, silver, and
jewels, occurring by reason of robbery, embezzlement,
making away with or secreting the same, it is specially
provided that the shipowner is not to be liable (provided
such losses respectively arise without his actual fault
or privity) unless notice in writing of the true nature
and the value of such goods has been given (t). Ship-
owners are in addition exempted from liability for any
loss or damage occasioned by the fault or incapacity of
any pilot where the employment of such pilot is com-
pulsory by law and the vessel is under the control of
such pilot (k). They also are not liable in respect of
any personal injuries, either alone or with loss to ships
or goods to an aggregate amount beyond ;^I5 per ton
of their ship's tonnage, nor in respect of injuries to ships
or goods (whether there be in addition personal injuries
or not), to an aggregate amount beyond ;^8 per ton of
the ship's tonnage, where the loss or damage arises with-
out their default or privity (/). This provision may,
however, be excluded by express contract (711).
II. Insurance. Insurance (or assurance) lias been defined as a
security or indemnification, given in consideration of a
sum of money, against the risk of loss from the hap-
pening of certain events (?i) ; but this definition, though
explaining the primary object, cannot be considered
as accurate when applied to life insurance, as will be
Three kinds, presently explained. Insurance may be of three kinds,
viz. life, fire, and marine ; and as we have just con-
sidered the subject of ships, it will be convenient to
consider marine insurance first, as relating thereto.
(i) 57 & 58 Vict. c. 60, s. 502.
(^•) Ibid. s. 633 ; The Rigborgs Minde, 8 P. D. 132; 52 L. J. P.
74 ; 49 L. T. 232 ; The Guy Mannering, 7 P. D. 132 ; 51 L. J. P. 57 ;
4b L. T. 905 ; '1 he Oakfield, 1 1 P. D. 34 ; 55 L. J. P. 1 1 ; 34 W. R. 687 ;
54 L. T. 578.
(I) 57 & 58 Vict. c. 60, s. 503. As to the construction of this
provision, see The Victoria, 13 P. D. 125 ; 57 L. J. P. 103 ; 59 L. T. 728.
(m) TheSatanita,72'L. T. 316; 64 L. J. (P. D. & A.) 96; 43 W. R. 498.
(n) Brown's Lasv Diet. 280.
ANY DISABILITY OF THE CONTRACTING PARTIES. 205
Marine insurance is generally undertaken by certain iMnrine
persons who are called underwriters, who subscribe the '°'*"'*"c®-
policy, each indemnifying the insured to the amount
set opposite his name. The policy is a very ancient
form (there seems no object in setting it out in a work
like the present), and the insurance may be either for
a particular voyage or for a certain period, in which
latter case it is called a time policy. There are gene- Time policy.
rally in policies certain things expressly warranted, e.g.
the time of sailing and the safety of the ship, and if
there is any untruth in any of such warranties the
insured cannot recover, even although the point war-
ranted was not of any material importance. There are
also three things ordinarily impliedly warranted in
every policy, viz. (i) that no deviation shall be made Three thin-s
from the proper course of the voyage ; (2) that the ^^"arrauted in
vessel is seaworthy at that time (0); and (3) that « "l^rine
reasonable care shall be taken to guard against risks ;
and a breach of any of these three implied warranties
will furnish a good defence to an action on the policy.
On a total actual loss occurring, the underwriters are Liability of
liable for the whole amount for which they have ^^
underwritten the policy ; but if the ship or cargo is
not totally destroyed, but may become so, then they
are only liable for the whole amount if the owner
abandons it within a reasonable time, when there is
said to be a total constructive loss (^j).
A contract of marine insurance is, therefore, simply Contracts of
and purely a contract of indemnity. So, also is fire'^lusu ranee
equally a contract of fire insurance; it is simply a '^^^ ^^^^^f*"'-^,
^ •' _ , ^ ^ '' contracts or
contract, in consideration of certain annual sums paid indemnity,
by way of premium, to indemnify the person insuring
(o) In the case, however, of a time policy there is no implied
warranty of seaworthiness {Dudgeon v. Pembroke, 2 App. Cas. 284 ;
46 L. J. Q. B. 409). As to the meaning of "seaworthy," see Surges
V. Wickham, 3 B. & S. 669, shewing that the nature of the voyage
must be considered, so that a vessel which may be "seaworthy" for
some purposes may not be for others.
(p) See hereon generally Arnould on Marine Insurance (6th edit.).
2o6 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
against any loss that may happen from fire, and if
no loss happens, there can be no claim under the
policy {q). Where a person has insured property, and
then contracts to sell it, and a fire occurs, the purchaser
cannot claim the benefit of the insurance (r) ; nor, on
the other hand, on the principle of its being a contract
of indemnity, can the vendor recover from the insur-
ance ofiice. If in such a case the insurance company
has unwittingly paid the vendor the amount of the
insurance, the company can recover back the amount
Subrogation. SO paid. lu Other words, a case of subrogation or sub-
stitution arises, by which is meant that the insurance
company is entitled to be placed in the position of the
insured (s).
Contracts of But a coutract of life insurance is in its nature
life insuiauce different from that of fire or marine insurance ;
not contracts J . . , .
of indemnity for it is not a mere contract of indemnity, but is a
merely. contract to pay a certain sum of money on the death
of a person in consideration of the due payment of a
certain annuity for his life, so that if one person has
insured another's life, although by that other's death
he may not have sustained the slightest damage, he
To enable a is yet entitled to recover on the policy {t). A mere
Mu'ranotiier's ^agcr poHcy, howcvcr, cannot be good, for it is neces-
life he must gj^^y ^hat cvcry person insuring another's life should
intlrest ill it. have an interest therein at the time of effecting the
insurance (w)> ^^^ the name of the person interested
therein must be inserted in it {x) ; but although that
interest afterwards terminates, the policy may be kept
{q) Darrell v. Tibbitts, $ Q- B. D. 560 ; 50 L. J. Q. B. 33 ; 42 L.
T. 797 ; 29 W. R. 66.
(r) Mi/ner v. Preston, 18 Ch. D. i ; 50 L. J. Ch. 472 ; 44 L. T.
787 ; 29 W. R. 546.
(s) CastcUain v. Preston, 11 Q. B. D. 3S0 ; 52 L. J. Q. B. 366; 49
L. T. 29; 31 W. R. 557.
{t) Dalby v. India and London Life Insurance Co., 15 C. B. 365;
overruling Godsall v. Boldero, 9 East, 72.
(u) 14660. 3, c. 48, s. I. A like provision is nnade as to marine
insurance by 19 Geo. 2, c. 37, which, however, does not apply to foreign
ships. Premiums paid under a wager policy cannot be recovered back
(Howard v. Refuge Friendly Society, 54 L. T. 644).
(a-) 14 Geo. 3, c. 48, s. 2.
ANY DISABILITY OF THE CONTRACTING PARTIES. 20/
up and recovered ou. Thus if a creditor insures his
debtor's life, though he is afterwards paid, yet he can,
if he has kept up the policy, recover from the insur-
ance office. No more than the insurable interest at
the time of effecting a policy can be recovered, and if
several policies are effected with different offices, the
insured can recover no more from the insurers, whether
on one policy or many, than the amount of his original
insurable interest {y).
The statute (z) which requires a person to have A person may
an insurable interest in the life he insures, does not ^^{^^^ '^ "^"^
at all prevent persons insuring their own lives to
any amount, and though a husband, parent, or child has
not (unless he or she has some interest in property
dependent on his, her, or their life) an insurable interest
in the lives of a wife, child, or parent, yet a wife has Policy by
always an insurable interest in her husband's life (a), woman^on
By the Married Women's Property Act, 1882 (&), it is j^er husband's
provided that a married woman may effect a policy of
insurance upon her own life or the life of her husband
for her separate use ; and a policy of insurance by a
married man on his own life, if so expressed on its face,
may enure as a trust for the benefit of his wife and
children or any of them, and as a trust not be sub-
ject to the control of the husband or his creditors {Tjb) ;
but if it has been effected for the purpose of defraud-
ing creditors, they are entitled to receive out of the
sum secured an amount equal to the premiums paid.
In effecting any policy of marine, fire, or life in- Contrncts of
surance, it is material that there should be no conceal- SX'.™;"*'^/'"*'
ment on the part of the person effecting the insurance, -^f^^^-
[y) Hebdon v. West, 3 B. & S. 579.
\z) 14 Geo. 3, c. 48.
(a) Reed v. Royal Exchange Co., Peake Add. Ca. 70.
(6) 45 & 46 Vict. c. 75, s. II. This Act (sect. 22) repeals the pro-
vision to a like effect contained in 33 & 34 Vict. c. 93, s. 10, except
as to anything done thereunder prior to January i, 1883.
{bb) As to position when husband meets with his death through the
act of his wife, see Cleaver v. Mutual Reserve Fund, (i8g2), i O. B.
147 ; 61 L. J. Q. B. 128 ; 66 L. T. 220.
208
OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
or through wliose instrumentality the insurance is
effected (c). Concealment in the law of insurance has
been defined as "the suppression of a material fact
within the knowledge of one of the parties which the
other has not the means of knowing, or is not pre-
sumed to know " (d). The maxim of caveat emptor (e)
does not apply to contracts of insurance, which are
uherrimae ficlei, and there seems to be no substantial
difference with regard to this whether the contract is
for life, fire, or marine insurance (/). Of course, if
there are any false representations made in effecting
Disclosure of a poHcy, it is a fortiori vitiated {g). And when an
cumstan'c'es insurance company on a certain state of facts offers
to issue a policy of insurance, and then any fresh
material circumstances occur before the granting of
the policy, they must be disclosed ; and the insurance
company has the right, by reason of such new circum-
stances, to refuse to grant a policy which they have
previously offered to grant ih).
Effect of
suicide on a
life policy.
Irrespective of any condition in a policy of life
insurance, on principles of public policy, if a person
who has effected a policy of insurance on his own life
afterwards dies by the hands of justice or commits
suicide — unless, in the latter case, he was insane and
not accountable for his acts — the policy is vitiated,
and no action can be brought to recover the amount
thereof, unless indeed there is a special condition
to the contrary. In addition to this, it is a very
frequent practice of insurance companies to insert in
(c) Blackburn v. Haslam, 21 Q. B. D. 144 ; 57 L. J. Q. B. 479; 59
L. T. 407 ; and see and distinguish Blackburn v. Vigors, 12 App. Cas.
531 ; 57 L. J. Q. B. 114 ; 57 L- T. 730.
(d) Arnould on Marine Insurance, 548 ; Rivatz v. Gerussi, 6 Q. B. D.
222 ; 50 L. J. Q. B. 176.
(e) As to which, see ante, pp. 112, 1 1 3.
(f) London Assurance Co. v. Mansel, II Ch. D. 363; Anson 3
Contracts, 158, 159. nr , t
(g) Thomson v. Weems, 9 App. Cas. 671 ; Hamborough v. Mutual
Life Insurance Co. of New York, 72 L. T. 140.
(A) Canning v. Farquhar, 16 Q. B. D. 727 ; 55 L. J. Q. B. 225 ; 54
L. T. 350 ; 34 W. R. 423-
ANY DISABILITY OF THE CONTRACTING PARTIES. 209
their policies conditions vitiating them on such events,
except to the extent of any bo7id fide interest which at
the time of the death would be vested in any other
person for valuable consideration (i). And if this is
done it makes no difference, in the case of death by a
person's own hand, whether he was sane or insane at
the time. It is important, however, to note that, in
the absence of any condition on the point, the rule of the
common law is, that whether the amount of the policy
can be recovered depends on the question of whether
or not the person was at the time responsible for his
own acts {k).
That life and marine policies may now be assigned
has been previously noticed {I).
A Patent may be defined as a grant from the iii. Patents.
Crown, by letters-patent, of the exclusive privilege
of making, using, exercising, and vending some new
invention (m). Anciently the prerogative that was
vested in the Crown of granting such an exclusive
right was much abused (%), and in consequence an Act
was passed, known as the Statute of Monopolies (0), statute of
whereby the granting of such monopolies was de- ^^onopohes.
clared illegal, with certain exceptions; and the law
now is that a patent may be granted in respect of a
new manufacture for a period of fourteen years, and, Term for
if advisable, that term may be prolonged for a further ^ay noT*'"'
period of seven, or even fourteen years {p). The tyrant ^^ granted,
must be to the true and first inventor, subject to this,
that it may be to several persons jointly, some or one
(i) See White, v. British Empire Mutual Life Assurance Co., L. R.
7 Eq. 394 ; City Bank v. Sovereiyn Life Assurance Co., 32 W. R 6i;8 •
50L. T. 565.
(k) See hereon Bunyon on Life Assurance.
(I) See amte, p. 163 ; 30 & 31 Vict. c. 144, and 31 & 32 Vict. c. 86.
(m) Williams' Personal Property, 296.
(ti) See Hallam's Constitutional History of England, vol. i. p. 262.
(0) 21 Jac. I, c. 3.
(p) 46 & 47 Vict. c. 57, ss. 17 and 25 ; repealing 5 & 6 Wm. 4, c. 83,
s. 4, 2 & 3 Vict. c. 67, and 7 & 8 Vict. c. 69, ss. 2, 4.
O
2 ID
OF SOME PAKTICULAK CONTRACTS IRRESPECTIVE OF
A register of
patents lias
to be kept.
of whom only are or is the true or first inventor or
inventors (q). The inventor has to file a specification
describing accurately the nature of his invention, and
to pay certain stamp duties ; and by the Patents,
Designs, and Trade-Marks Act, 1883 (f) (which,
together with the Amendment Act of 1888 (s), now
mainly regulates the matter of patents, trade-marks,
&c.), a register of patents has to be kept, which is open
to inspection by the public on payment of a certain
fee, and certified copies of any entry in such register
may be obtained. A patent is assignable, and though
the assignment is usually by deed, it does not seem
strictly necessary that it should be (t), and all assign-
ments of patents have to be registered.
Remedy for
infringement
of patent.
For the infringement of his patent, the patentee
has a remedy both by an action for damages, and also
for an injunction to restrain the further infringement ;
and in any action for an injunction the Court has
power to award damages either in substitution for or
in addition to the injunction (ii). It has been held
that the mere possession of articles which are an
infringement of a patent entitles the person to whom
the patent belongs to obtain an injunction, though
not to get an order for their destruction or delivery
up (x).
IV. Copyright. Copyright is defined as the sole and exclusive
liberty of multiplying copies of an original work or
composition, which exists in its author or his assignee (y).
{q) 46 & 47 Vict. c. 57, s. 5. As to grounds for opposing grant of
patent, see 5 1 k 52 Vict. c. 50, s. 4.
(?•) 46 & 47 Vict. c. 57.
(s) 51 & 52 Vict. c. 50.
{t) Williams' Personal Property, 309.
(u) See further as to patents generally, Williams' Personal Property,
296-313-
(x) United Telephone Co. v. London and Globe Telephone and Main-
tenance Co., 26 Ch. D. 766 ; 53 L. J. Ch. 1158 ; 51 L. T. 187 ; 32 W.
R. 870.
(y) Brown's Law Diet. 134.
ANY DISABILITY OF THE CONTRACTING PARTIES. 211
By the Copyright Act (z) it is provided that this
right shall exist for the natural life of the author Term for
and seven years from his decease, or for an entire ^ght^ex?sts!
term of forty-two years from the first publication,
whichever is the longer. Besides copyright in books,
copyright exists for various terms in music, paintings,
engravings, drawings, photographs, sculptures, and
various ornamental and useful designs (a). With The Copyright
regard, however, to all music published on or since Composition)
loth August 1882, the proprietor of the copyright '^°'" ^^^^•
who shall be entitled to, and shall be desirous of
retaining in his own hands exclusively, the right of
public representation or performance of the same, is
obliged to print or cause to be printed upon the title-
page of every published copy of such musical com-
position a notice to the effect that the right of public
representation or performance is reserved (b). If an Article iu
article is written for an encyclopaedia, or for a maga- magazme^&c.'
z'me or other periodical, and paid for by the proprie-
tor (c), the copyright will be in him ; but in the case
of a magazine or other periodical, after a period of
twenty-eight years the right of publishing such
article will revert to the author for the remainder of
the period for which copyright is allowed (d). The Copyright
deliverer of an original lecture has the copyright '° '^<^*"'"^*'-
thereof in him, and the sole right of printing and
publishing the lecture, provided he has first given
notice in writing to two justices within five miles, at
least two days before delivering the same (e). If this
has not been done, any one may publisli the lecture.
It has, however, been held that a professor of a
university, who delivers orally iu his class-room
lectures which are his own literary composition, does
(z) 5 & 6 Vict. c. 45, s. 3.
(a) See Williams' Personal Property, 320, 321.
(6) 45 & 46 Vict. c. 40, s. I.
(c) In an action for infringement brought by the proprietor he must
prove this (Collingridge v, Emmolt, 57 L. T. 864).
(d) 5 & 6 Vict, c. 45, s. 18.
(e) 5 & 6 Wm. 4, c. 45, s. 5.
212
OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
not communicate such lectures to the world so as to
entitle any one to publish them (/).
Dramatizing It is not an infringement of copyright merely
a novel. ^^ dramatize a novel, even though the drama may
be called by the same name as the novel (g) ; but
it is an infringement if the dramatizer extracts pas-
sages from the novel, and circulates any copies of
No copyright his drama (h). There is no copyright in a name, e.g^
the name or style given to a novel, a drama, or a
newspaper, but if by user the name has become known,
a person making use of it may be restrained by injunc-
tion, on the ground that the public may be deceived
thereby and the plaintiff injured (i).
in a name.
Copyright
assignable
by a mere
entry in the
register.
The right of property in copyright must be registered
at Stationers' Hall (k), and the same is afterwards
assignable by an entry there of the transfer, in the form
given by the Act, and the register is open to inspec-
tion on payment of a small fee (I). The omission
to register, however, does not affect the copyright, but
only the right to sue in respect of the infringement.
For the infringement of his copyright, the same re-
medies are open to the author as before mentioned in
the case of a patentee (m).
Property in As somcwhat Connected with the subject of copy-
right may be noticed the question of the property in
(/) Caird v. Sime, 12 App. Gas. 326 ; 57 L. J. P. C. 2 ; 57 L. T. 634.
(g) Reade v. Conquest, 30 L. J. C. P. 209.
(A) Tinsley v. Lacy, 32 L. J. Ch. 535 ; Warne v. Scebohm, 39 Oh. D.
73 ; 57 L. J. Ch. 689 ; 56 L. T. 92S.
(i) ITof/g V. Kirkby. S A'es. 215; Borthwick v. Evening Post, 37 Ch. D.
449 ; 57 L. J. Ch. 406 ; 58 L. T. 252 ; Licensed Victuallers' Neicspaper
V. Bingham, 38 Ch. D. 139 ; 58 L. J. Ch. 36 ; 58 L. T. 187.
(k) Registration of a copyright is bad if the name entered as that of
the publisher is not that of the first publisher {Coote v. Judd, 23 Ch. D.
727 ; 53 L. J. Ch. 36 ; 48 L. T. 205 ; 31 W. R. 423). The entry on the
register must state the precise title of the work, and the day, month,
and year of first publication (Collingridge v. Emmott, 57 L. T. 804).
[l] 5 & 6 Vict. c. 45, ss. II, 19, 20.
(m) Ante, p. 210. See further as to copyright general!}', Williams'
Personal Property, 313-327.
ANY DISABILITY OF THE CONTRACTING PARTIES. 213
letters written by one person to another. The law on
this point is that the ownership in such letters belongs
to the person to whom they are addressed and sent,
but the writer and sender still retains such an inte-
rest in them as entitles him to obtain an injunction
restraining the publication of their contents, except
where such publication is necessary in order to vindi-
cate character (n).
A Trade-mark may be dehned as some particular v. Trade-
mark or signification adopted by a trader to identify
certain goods, and under the Patents, Designs, and What they
^,-.^, . ^^^/s 1 1 , ■ , niay consist of.
Trade-Marks Act, 1888 (0), a trade-mark must consist
of, or contain, at least one of the following essential
particulars: — (i) A name of an individual or firm
printed, impressed, or woven in some particular and
distinctive manner ; or (2) a written signature or copy
of a written signature of the individual or firm apply-
ing for registration thereof as a trade-mark ; or (3)
a distinctive device, mark, brand, heading, label, or
ticket; or (4) an invented word or words; or (5) a
word or words having no reference to the character
or quality of the goods, and not being a geographical
name (p). For the infringement of a trade-mark the Remedies in
-,. , • ^ p -^ respect of.
same remedies are open to the proprietor or it as are
open to a patentee for infringement of his patent, or
to an author for infringement of his copyright, i.e. to
maintain an action for damages, and also for an in-
junction to prevent the further infringement (q).
(n) Earl of Lytton v. Devcy, 54 L. J. Ch. 293 ; 52 L. T. 121.
(o) 51 & 52 Vict. c. 50, s. 10, which amends the previous provisions
of the Patents, Designs, and Trade-Marks Act, 1883 (46 & 47 Vict,
c. 57, s. 64).
(p) As to what may be registered as a trade-mark see Leonard v.
Welh, Re Leonard's Trade-Marl; 26 Ch. D. 288 ; 53 L. J. Ch. 603 ;
Re Price s Patent Candle Co., 27 Ch. D. 681 ; Pe Anderson's Trade-
Mark, 26 Ch. D. 409 ; 53 L. J. CIi. 664: 32 W. R. 677 ; In re James
Trade-Mark, James v. iSoidhy, 33 Ch. D. 392; 55 L. J. Ch. 915; Re
Meyerstein s Trade-Marl; 43 Ch. D. 604 ; 59 L. J. Ch. 401 ; 62 L. T.
526; Re Densham's Trade-Mark, (1895), 2 Ch. 176; 72 L. T. 614.
(q) See Indermaui's Manual of Equity, 381, 382. In an action for
infringement the court may certify that the right to the exclusive use
214
OF SOME PAimCDLAR CONTRACTS IRRESPECTIVE OF
What it was
formerly
necessary to
prove in an
action for
infringement
of a trade-
mark.
Patents, De-
signs, and
Trade-Marks
Act, 1883.
Until the Trade-Marks Eegistration Act, 1875 (r)
(now repealed and replaced by the Act of 1883,
before referred to), established a registry of trade-
marks, all that was necessary to enable a person to
maintain an action for the infringement of a trade-
mark Avas for him to prove his use of it, that it had
become well known in the trade as his trade-mark,
and that the defendant had unlawfully adopted or in
some way infringed it. By the Patents, Designs, and
Trade-Marks Act, 1883 (s), (which, as amended by the
Patents, Designs, and Trade-Marks Act, 1888 (0, now
governs the subject), it is provided that a person shall
not be entitled to institute any proceedings to prevent,
or to recover damages for, the infringement of a trade-
mark, unless, in the case of a trade-mark capable of
being registered under that Act, it has been registered
in pursuance of that Act or of an enactment repealed
by that Act, or in the case of any other trade-mark
in use before the passing of the Act of 1875 (13th
August 1875), registration thereof under that Act or an
enactment repealed by that Act has been refused (u).
It is also provided that a trade-mark must be regis-
tered as belonging to particular goods or classes of
goods (x), and when registered shall be assigned
and transmitted only in connection with the goodwill
of the business concerned in such particular goods or
classes of goods, and shall be determinable with such
goodwill (y) ; but, subject as aforesaid, application for
registration of a trade-mark shall be deemed to be
equivalent to public use of such mark (2;). It is
of the trade-mark came in question, when, in any subsequent action for
infringement, the pliintiff, on obtaining a final judgment in his favour,
will have his full costs as between solicitor and client, unless the court
trying the subsequent action certifies otherwise (51 & 52 Vict. c. 50,
s. 18)!
(r) 38 & 39 Vict. c. 91.
(s) 46 & 47 Vict. c. 57.
[t) 51 & 52 Vict. c. 50.
(w) 46 & 47 Vict. c. 57.
(x) Sect. 65.
(y) Sect. 70.
{z) 51 & 52 Vict. c. 50, s. 17.
ANY DISABILITY OF THE CONTRACTING PARTIES. 21$
further provided that the registration of a person as Effect of
proprietor of a trade-mark shall be privid facie evi- ^^^^^
dence of his right to the exclusive use of such trade-
mark, and shall, after the expiration of five years from
the date of such registration, be deemed conclusive
evidence of his right to the exclusive use of such
trade-mark, subject to the provisions of the Act as to
its connection with the goodwill of a business (a). It
has, however, been decided that a mark which cannot
be the subject of a trade-mark, and therefore is not
properly registered as such, does not acquire that char-
acter by being registered for five years, and that any
person affected by it may apply to have it removed
from the registry even after the termination of such
period of five years (b). No trade-mark of a nature
similar to one already registered, or very nearly re-
sembling the same, is to be registered, in respect of
the same goods or class of goods (c).
What is now necessary, therefore, in an action for what it is
the infringement of a trade-mark for the plaintiff to "^ prove,
prove is, that the trade-mark is duly registered (d), and
that it has been infringed by the defendant ; and this is
only at ^rst primd facie evidence, and, if contradicted,
the matters formerly necessary to have been proved will
have still to be shewn, but proof of the registration
alone will, after five years from its taking place, be con-
clusive evidence of the plaintiffs right to the trade-
mark, assuming it was capable of registration as such.
As has before been noticed (e), it is provided by Warranty
statute (/) that if any article is sold with a trade-mark go^ds^sori *"
(a) 46 & 47 Vict. c. 57, s. 76.
(6) Re Palmer's Trade-Mark, 24 Ch. D. 504 ; Re Wraggs' Trade-
Mark, 29 Ch. D. 551 ; 54 L. J. Ch. 391.
(c) 46 & 47 Vict. c. 57, s. 72 (2) ; 51 & 52 Vict. c. 50, s, 14 ; Re
Munch' s Application, 50 L. T. 12.
(d) And of this the certificate of the comptroller is sufficient evidence
(46 & 47 Vict. c. 57, 8. 96).
(e) See ante, p. 1 14.
(/) 50 & 51 Vict. c. 28, s. 17.
2l6
OF SOME PARTICULAK CONTRACTS IRRESPECTIVE OF
with a trade- thereoii, a Warranty is implied that the same is genuine
mark on themj -, , i , i , • t •
and true, unless the contrary is expressed in some
writing signed by or on behalf of the vendor, and
delivered to and accepted by tlie vendee (.7).
VI. Legal Legal practitioners may be either barristers, special
practitioners, p^g^^jg^g jjq^ n^^ ^]^e jj^j.^ certified conveyancers, or soli-
citors. The three latter may recover their fees, but
the first may not, their acting being deemed of a volun-
Barristers tary nature, and their fees merely in the light of
their'feeTTmi honorary payments ; and it follows from this that no
we not liable action lies against them for negligence or unskilful-
for negligence. .,- ^ -i • -,• • e ^^
ness. A barrister and his client are, in tact, mutually
incapable of entering into a binding contract of hiring
with respect to the services of the former as an ad-
vocate. This incapacity of contract is reciprocal, and
is an answer to any action brought, whether by client
or advocate, upon such an alleged agreement. This
principle is of universal application in all cases where
the relation of counsel and client exists ; it extends
to an alleged engagement by counsel to give exclusive
attention to the defence of a prisoner standing his
trial upon a criminal charge, and to a case in which
the client has entered into an express agreement with
the barrister to pay special fees named by the barrister
for his exclusive attendance, in excess of the fee which
would be ordinarily payable to counsel for the con-
templated services (h).
Position of
Bolicitor apd
client.
In the absence of an express contract, the agreement
of a client with his solicitor is to pay him for his ser-
vices the ordinary and usual charges, which are regu-
lated chiefly by the time occupied in attendances and
by the length of documents, and now in conveyancing
matters by the amount of the purchase or mortgage
(g) See further as to trade-marks generally, Williams' Personal
Property, 327-336.
(A) Ixobertson v. M'Donogh, 6 L. R. Ir. 433 ; Kennedy v. Broion. 13
C. B. (N. S.) 677.
ANY DISABILITY OF THE CONTKACTING PARTIES. 21^
money ; and beyond this, in particular cases, any special
skill or trouble may be taken into consideration (i).
The client is entitled to the personal advice of the
solicitor, though if a clerk sees the client and has con-
tinual opportunities of conferring with his principal,
that is sufficient (k). To entitle a solicitor to recover Solicitor must
his bill of costs, he must have had a certificate to prac- si^ned^*}]]
tise during the time the work was done, and it is also
necessary for liim to deliver a signed bill, or a billwith
a letter signed, a calendar month before bringing thd
action (I), unless he obtain leave to commence the
action before, which he may do on the ground that
his client is about to leave England, become bankrupt,
liquidate, compound with his creditors, or do any other
act that may be prejudicial to him, the solicitor (m).
In any action brought by a client against his solicitor,
the latter may set off the amount of his costs, though
the month has not expired, and even thoTigh they have
not been delivered, provided he delivers them before
trial (n). A solicitor may now also enter into a con- a solicitor
tract with his client for remuneration in some way en^terhiTo a
other than by his ordinary charges (e.g. by commis- contract for
■^ '' ... .. remuneration
sion), but such agreement must be in writing, and if in by commiesion
respect of any action, must be submitted to a taxing- '^'^^
master for approval before anything can be received
under it. Any agreement for payment, however, only
in the case of success is void, and any stipulation that
the solicitor is not to be liable for negligence is also
(i) See 33 & 34 Vict. c. 2S, s. 18 ; 44 & 45 Viet. c. 44, s. 4, and
General Order of 1882 under this Act.
(k) Hopkinson v. Smith, I Bing. 13.
(l) 6 (fe 7 Vict. c. 73, s. 37. And in this bill he must state the items ;
it is not sufficient to jjut a jjross sum. Where the solicitor had assigned
his bill of costs, and the assignee gave notice of the assignment to the
debtor, and delivered the bill to him enclosed in a letter signed by him-
self, and after a month sued on the bill, it was held he had sufficiently
complied with the Act {.Inyh v. M'Cutchan, 12 Q. B. D. 518 ; 53 L. J.
Q. B. 31 1 ). It has been held that if a third person agrees with a solicitor
to pay his bill of costs against his clients, the solicitor can sue such third
person without sending in a signed bill a month before action (Grecnituj
V. Reeder, 66 L. T. 192).
[m) 38 & 39 Vict. c. 79.
(n) Brown v. Tihbits, 31 L. J. (C. P.) 206.
2l8
OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
Solicitor's
costs may be
charged on
property re-
covered.
void (o). A solicitor could always take a security from
his client for costs already incurred, and he can now
also do so for costs to be incurred {p).
The court or a judge before whom any action, matter,
or other proceeding has been heard, has power to order
the solicitor's costs to be made a charge on property
recovered or preserved by the solicitor's acts, and to
make an order for raising and payment thereof out of
such property, and this can be done not only as to the
client's own interest in the property, but generally
as regards the whole of the property recovered or pre-
served through the solicitor's instrumentality {q). If
a solicitor has assigned his costs, the assignee has the
same right to obtain such an order as the solicitor
himself would have had, had he not made such assign-
ment (r). Any such order has priority over everything
except the claim of a hond fide purchaser for value
without notice (s) ; and if a person takes an assign-
ment of a judgment debt, he is always deemed to take
with full notice of the solicitor's lien, even though such
solicitor has not yet obtained a charging order {t). A
solicitor has also a general lien on his client's papers {u).
SoUcitorsiie.i. However, the solicitor for a party to an adminis-
tration action will not, on a change of solicitors, be
allowed to assert his lien for costs on papers in his
(o) 33 & 34 Vict. 0. 28, ss. 4-15, which applies to litigious business,
and 44 & 45 Vict. c. 44, s. 8, which applies to conveyancing business.
(p) 33 & 34 Vict. c. 28, s. 16, as to litigious business, and 44 & 45
Vict. c. 44, s. 5, and General Order thereunder of 1882, as to convey-
ancing business.
(q) 23 & 24 Vict. c. 127, 8. 28 ; Charlton v. Chnrlton, 52 L. J. Ch.
971 ; 49 L. T. 267 ; 32 W. R. 90; Rhodes v. Sugden, 29 Ch. D. 517 ;
54 L. J. Ch. 638 ; 52 L. T. 613 ; 33 W. R. 558 ; Guy v. Churchill, 35
Ch. D. 489 ; 56 L. J. Ch. 670 ; 57 L. T. 510 ; 35 W. R. 706 ; Moxon
V. Sheppard, 24 Q. B. D. 627 ; 59 L. J.Q. B. 280 ; 62 L. T. 726.
(r) Briscoe v. Briscoe, {1S92), 3 Ch. 543 ; 61 L. J. Ch. 665 ; 67 L. T.
116.
(«) In re Svffield d; Watts, Ex parte Brown, 30 Q. B. D. 693 ; 58 L.
T. 911; 36 W. R. 584.
(t) Cole v. Eley, (1894), 3 Q. B. 350 ; 63 L. J. Q. B. 682 ; 70 L. T. 892.
(m) See ante, p. 103. See also, as to the nature and extent of the lien.
Re LleweUin, (1891), 3 Ch. 145 ; 65 L. T. 249 ; 60 L. J. Ch. 732 ; 39
W. R. 713.
ANY DISABILITY OF THE CONTRACTING PARTIES. 219
possession in such a way as to embarrass the proceed-
ings in the action, but must produce and hand over
any papers when required for the carrying on of the
proceedings (x). The London agent of a country London
solicitor has a general lien on the papers of, and a ''
right to retain the moneys of a particular client of the
country solicitor, in respect of the general account
owing to him, the London agent, by the country
solicitor, such lien or right of retention being, however,
limited to the amount due to the country solicitor
for costs from his client to whom the papers or moneys
belong {y).
It is the duty of a solicitor to conduct his client's The duty of
case with ordinary skill and due expedition to its con-
clusion ; and if, having commenced any proceedings, he
refuses to continue them, he will not be entitled to his
costs, unless specially justified by circumstances in so
doing, e.g. if the client denies that he is liable to pay when he may
the costs already incurred (z), or if on reasonable notice acting. '""^^
the client omits to furnish him with money to meet
costs out of pocket {a), — in either of these cases the
solicitor may discontinue, and bring an action for his
costs already incurred. If a solicitor, in the course of
his actinjj, does not conduct his client's business with
ordinary diligence, but is guilty of some gross default,
negligence, or ignorance, whereby his client is injured,
he is liable to an action (h), but lie is not liable for a
mistake on some doubtful point of law (c). A solicitor
may also under special circumstances be liable to a
person, not his client, for injury caused by his im-
(r) Re Boughton, Boiighton v. Boughton, 23 Ch. D. 169 ; 48 L. T.
413; 31 W. R. 517.
{y) In re Johnson, Ex parte Edwards, 8 Q. B. D. 262 ; 50 L. J. Q. B.
541 ; Lawrence v. Fletcher, 12 Ch. D. 858; Re Maud, 34 Solicitors'
.Journal, 709 ; Law Students' Journal, Sept. 1890, p. 208.
(2) ffaivkes v. Cottrcll, 3 H. & N. 243.
(a) Wadsworth v. Marshall, 2 C. & J. 665 ; Chitty on Contracts, 651.
(b) See Godfrey v. Dalton, 6 Bing. 460, 467.
(c) Kemp V. Burt, 4 B. & A. 424 ; Pitman v. Francis, i C. & E. 355.
226
OF SOME PARTICULAR CONTRACTS IRRESRECTIVE OF
When negli-
gence of
solicitor may
be set up as
fi defence to
an action for
his costs.
Position of
a solicitor
dealing with
liis client.
proper conduct or neglect {d). A solicitor employing
an agent is liable to his client for that agent's negli-
gence or fraud (c).
With regard to a solicitor's negligence, the old rule
was, that if he brought an action to recover the amount
of his bill, his negligence could not be set up as a
defence to the action, unless the negligence was of
some such extreme kind that the client had obtained,
and could obtain, no benefit whatever from his ser-
vices ; and that where the client had derived, or might
derive, some benefit from what the solicitor had done,
although a great part of the benefit he ought to have
derived might have been lost to him, a cross-action
must be brought by the client for the negligence com-
plained of (/). This rule is, however, now no longer
correct, for under the Judicature practice it is pro-
vided (^) that anything may be set off by way of counter-
claim, even although sounding in damages {h).
A solicitor is not absolutely incapable of buying from,
selling to, or otherwise contracting with his client ;
but if he does so, it is incumbent on him, on the con-
tract being called in question, to shew either that the
contract was perfectly fair and proper under the cir-
cumstances, or that the client had separate and inde-
pendent advice ; and if he cannot shew this, it will be
set aside {%).
Although a witness who is subpoenaed to attend a
{d) Re Danuar's Trusts, 41 Ch. L». 178 ; 5S L. J. Ch. 315 ; 60 L. T.
491.
(e) Asquith v. Asquith, W. N. (1885), 31.
{/) Chitty on Contracts, 648.
(g) Order xix. r. 3 ; Order xxi. rr. 15, 17.
(h) As to what will amount to negligence in a solicitor, see Chitty on
Contracts, 648.
(i) See hereon Cocklurn v. Edwards, 18 Ch. D. 449: 51 L. J. Ch.
46 ; Craddock v. Rogers, 53 L. J. Ch. 968 ; 51 L. T. 191 ; Pooley's
Trustee v. Whctham, 33 Ch. D. in ; 55 L. J. Ch. 654 ; 55 L. T. 333 ;
34 W. R. 6S9. See further on this subject, which belongs more
to equity, especially Indermaur's Manual of Equity, 200, 20I.
ANY DISABILITY OF THE CONTRACTING PARTIES. 22 1
trial has a claim for his expenses, and when called to witness's
give an opinion and not to speak to a fact, for his loss expenses is
of time (Z;), his claim is ordinarily not against the ^j^* ^=j^^?^**^
solicitor in the action, but against the party on whose
behalf he is subpoenaed (I). The remedy also of a noi- is a
sheriff's bailiff who executes process in an action is
against the client, not against the solicitor (7?i).
Medical men may be either physicians, surgeons, vii. Medical
apothecaries, or chemists and druggists. As to the dentists, &c.
latter, they must be duly registered as chemists or
druggists, and their duty is simply to prepare, dispense,
and sell medicines, and they cannot recover for advice.
As to the three former, they can recover their fees,
provided they are duly registered under the Medical 21 k 22 vict.
Act (n), and provided also, as to physicians, that they
are not prohibited by the bye-laws of any college of
physicians from so doing (0). If a medical man is guilty
of such a want of reasonable care or skill that his
patient receives no benefit, he cannot recover his fees,
and he is liable to an action by the patient for negli-
gence, even though he was not called in by such
patient, or was not to be remunerated by him (p) ;
and any negligence may be set off against him by
way of counter-claim in an action brought by him
for his fees (q).
With regard to dentists, it is now provided by the Dentists Act,
Dentists Act, 1878 (r), that from the ist August 1879
(k) See post, p. 223.
(I) Lee V. Everest, 2 H. & N. 285 ; Chitty on Contracts, 653.
(m) Roijle V. Bushy, 6 Q. B. D. 171 ; 50 L. J. Q. B. 196, overruling
Bretver v. Jones, lO Ex. 655-
(n) 21 & 22 Vict. c. 90, amended by 23 Vict. c. 7, and 46 & 47 Vict,
c. 19.
(0) Chitty on Contracts, 629. Before 21 & 22 Vict. c. 90, a physician
could not sue for services rendered unless there had been an express
contract to pay him.
(p) See generally as to torts arising peculiarly from negligence, post.
Part ii. ch. vi.
(q) Order xix. r. 3.
{r) 41 & 42 Vict. c. 33.
222
OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
a person shall not be entitled to recover any fee or
charge in respect of dentistry unless registered under
that Act, or unless he is a duly qualified medical practi-
tioner (s) ; and that no person shall be entitled to use
the name or title of " dentist " or " dental practitioner,"
or any description implying that he is registered under
this Act, or that he is a person specially entitled to
practise dentistry, under a fine not exceeding ;^20,
unless he is duly registered (t). Prior to this Act there
was no provision of this character as to dentists, who
are by force of it now placed in much the same position
as medical men.
Veterinary
Surgeons Act,
1881.
With regard also to veterinary surgeons, it is now
provided by the Veterinary Surgeons Act, 1881 (u),
that they must be duly registered, and any person
practising as a veterinary surgeon after 3 1 st December
1883 without being on the register is liable to a fine
not exceeding ^20, and is not entitled to recover any
fee or charge for practising (x).
VIU. Wit-
nesses.
Every person subpoenaed as a witness is entitled to
be paid a reasonable sum for his expenses of going to,
staying at, and returning from the trial, and this sum
must be paid or tendered him at the time of his being
served with his subpoena, otherwise he is not bound to
attend. If a witness lives within the bills of mortality,
it is sufficient to give him a nominal sum with his
subpoena, usually one shilling. If a witness who is not
paid a proper sum for his expenses yet chooses to
attend, he is justified in refusing to be sworn until his
expenses have been paid (y). But though a witness
is always entitled to his expenses, yet he is not
(s) 41 & 42 Vict. c. 33, s. 5.
(t) Sect. 3.
(m) 44 & 45 Vict. c. 62.
(x) Sect. 17.
(y) Chitty ou Contracts, 652. As to the meaning of expression
"bills of mortality," see Wharton's Law Lexicon, title "Bills of
Mortality."
ANY DISA.BILITY OF THE CONTKACTING PARTIES. 223
entitled to be paid for his loss of time, unless he is awheua
professional witness called not to give evidence upon ^ntrtied to be
some matter of fact, but of opinion, e.g. an expert, and |,'f%'|^g'' ^''^^
then he is so entitled (s). The proper allowance to
an ordinary professional man beyond his expenses is
one guinea a day (a).
Service of a subpoena on a witness must be personal. Service of
and the remedy against a witness for not attending on
his subpoena is either by attachment for contempt of
court in not obeying the subpoena, which is a process
of the court, or by an action for damages (&).
A corporation is some legal body always known by ix. Corpora-
, - ,n ■ •, ■ ^ i_-^ tions, com-
the same name, and perpetually preservmg its identity, panics, and
and it may be either a corporation sole, that is, composed institutions,
of one person, e.g. a bishop, or a corporation aggregate,
that is, one composed of many persons, e.g. some com-
pany incorporated by Act of Parliament (c). Corpo-
rations aggregate may be created either by Act of
Parliament, charter, or letters-patent, and the great
peculiarity as to their contracts is that, generally speak-
ing, they must be under their common seal. To this
rule there are, however, exceptions, which may chiefly
be stated to be contracts comprising matters of every-
day occurrence, or of such a nature as to be actually
necessary, these being valid, though not under the
common seal {d).
Companies may be either unlimited or limited, and Differences
now any company consisting of seven or more persons limited and
may, and if more than twenty persons must, be re- companies,
gistered {e). Associations consisting of more than
(2) See Webb v. Page, i C. & R. 23 ; Lee v. Everest, 2 H. & N. 285.
(a) In re The Working Mens Mutual Society, Limited, 21 Ch. D. 831 ;
51 L. J. Ch. 850 ; 47 L. T. 645 ; 30 W. R. 938.
(6) See also as to witnesses, jio^t, Part iii. chap, ii., on Evidence.
(c) Williams' Personal Property, 280,
\d) Clarke v. Cwkfield Union, 21 L. J. (Q. B.) 349 ; Wells v. Mayor
of Kingston upon Hull, L. R. 10 C. P. 402.
(e) 25 & 26 Vict. c. 89, ss. 4, 6.
224 OP SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
twenty persons, and not so registered, are illegal associa-
tions, and parties concerned therein are not entitled
to the protection or assistance of the court (/). An
unlimited company is simply a combination of several
persons for some business, and the members stand in
the position of ordinary partners, and liable to an un-
limited extent for all the debts of the partnership,
and the ordinary partnership rules generally apply to
them (g). A company may, however, be limited if
duly registered as such (h), and the members are then
only liable to the extent of their respective shares or
guarantees ; so that any person contracting with such a
company must only look for payment to the assets of
the company.
How contracts Any coutract made by a registered company need
by^regfsterti o^^y ^6 Under such compauy's seal when the same
companies. would, if made by a private person, require a seal ;
where, if made by a private person, writing would be
necessary, signature by some person authorized by
the company is sufficient ; and where no writing would
be necessary if made by a private person, the contract
may be made by parol by some person authorized by
the company (i), and such autliority may be implied
as regards matters in the ordinary course of the com-
pany's business, but not beyond that (k). A contract
made by a person on behalf of an intended company
cannot afterwards, on the formation of the company,
be ratified by the company, but a fresh contract with
the company must be entered into (l). Shares in a
(/) Sykes v. Beadou, ii Ch. D. 170; 48 L. J. Ch. 822; Smith v.
Anderson, 15 Ch. D. 247 ; 50 L. J. Ch. 39 ; 29 W. R. 21 ; Jennings v.
Hammond, 9 Q. B. D. 225 ; 51 L. J. Q. B. 493 ; In re Padstow Assur-
ance Association, 20 Ch. D. 137; 45 L. T. 774; Shaw v. Benson, 11
Q. B. D. 563 ; 52 L. J. Q. B. 575 ; Croicther v. Thorley, 48 L. T. 644 ;
31 W. R. 564-
(g) As to which see ante, pp. 1 54- 1 63.
(h) 25 & 26 Vict. c. 89.
li) 30 & 31 Vict. 0. 131, s. 37.
(k) In re Cunningham d- Co., Simpson's Claim, 36 Ch. D. 532.
(I) In re Empress Engineering Co., 16 Ch. D. 125 ; 29 W. R. 342 :
43 L. T. 742 ; In re Northumberland Avenue Hotel Co., Sully's Case, 3S
Ch. D. 16 ; 54 L. T. 777 ; Kelner v. Baxter, L. R. 2 C. P. 174.
ANY DISABILITY OF THE CONTRACTING PARTIES. 22$
registered company may be transferred by deed duly
registered at the company's office, or, in the case of
such a company limited by shares, when shares are
fully paid up, by simple delivery of share warrants (m).
With regard to contracts made with persons acting Liability ia
on behalf of institutions and associations, such as ""e^P^ct of
' conti'iicts on
charities, clubs, and the like, the rule is that the behalf of
persons making, or authorizing the making, of the institutions
contract are the persons liable, unless indeed the severally.
other party has specially agreed that he will look for
payment only to the assets of the institution (n). And
this rule applies to all miscellaneous undertakings, it
being always a question, when a person disputes his
liability, whether he in any way authorized what has
been done, so as to make himself liable. Thus, if
a person becomes one of a committee of direction
of any such undertaking or institution, this will be
evidence to shew that he has made himself liable
for goods supplied for its purposes, even although he
himself did not give, or assist in giving, the particular
order in question (o). The mere fact, however, of a
person being a member of a committee of management
will not always in itself serve to render him liable ; it
is only evidence of his having authorized the making
of the contract. Thus, where wine for a club had been
ordered by the house-steward of the club according
to the directions of the committee of management, in
an action brought against two members of that com-
mittee, it was held that it was a question for the jury
whether the defendants had authorized the steward to
order the wine in question (jj).
(m) 30 & 31 Vict. c. 131, ss. 27-33. The subject of companies is of
such genera! importance that it is well worthy of some separate attention
by every student. The student may gain a fair elementary knowledge
on the subject from a perusal of Eustace Smith's Summary of the Law
of Companies. See also Williams' Personal Property, Part iii. chap. i.
(71) Coutts V. Irish Exhibition, W. N. (1891), p. 41 ; 90 Lav) Times
Newspaper, 336; Law Students' Journal, April 1891, p. 81.
(0) See Chitty on Contracts, 483, 484.
{/)) Todd V. Emly, 8 M. & W. 505.
P
226 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
X. Master Contracts in the relation of master and servant
may be conveniently considered under three heads,
viz. : (i) As to the hiring ; (2) as to the power of the
servant, and the relation between the parties during
the service ; and (3) as to the determination of the
service.
As to the Firstly, then, as to the hiring. — There may be an
express contract for the hiring of a servant, and when
there is, it may be either in writing or by word of
mouth, unless it is a hiring for a period beyond a year,
in which case writing is by the Statute of Frauds
necessary {q), and it may perhaps be considered doubt-
ful whether a contract for hiring and services for life
does not require to be by deed (r). In every express
contract of hiring, its duration, and the wages in respect
of the hiring, should be stated ; but if there is no express
contract, but simply an entering into a service, it is
called a general hiring, which has been decided to be
for different terms according to the nature of the ser-
vice (as will be next noticed), but in respect of which
hiring it is always presumed, unless the contrary
appears, that reasonable wages are to be paid (s).
Differeutkiuds Pcrsous occupying the legal position of servants
of servants. ^^^ ^^ classified as clerks, domestic or menial servants,
and servants who are neither in the position of clerks
Etfect of nor domestic or menial servants. A general hiring of a
clerk is a yearly hiring determinable by three months'
notice, or an equivalent three months' wages (t) ;
a general hiring of a domestic or menial servant
{q) 29 Car. 2, c. 3, s. 4, ante, pp. 53-55.
\^r) See notes to Mitchell v. Reynolds, i S. L. C. 430 ; Chitty on
Contracts, 639.
(s) Chitty on Contracts, 639. Payment of wages to workmen in
public-houses is illegal, 46 & 47 Vict. c. 31 ; 50 & 51 Vict. c. 58, s. 11.
Where there is an agreement entitling a master to retain a servant's
wages, on breach by him of certain regulations, the servant must have
an opportunity of first being heard on the matter before his wages can
lawfully be declared forfeited (Armstrong v. South London Tramways
Co., 64 L. T. 96).
(t) Fairman v. Oakford, 5 H. & N. 635.
general
hiring.
ANY DISABILITY OF THE CONTRACTING PARTIES. 22/
is also a yearly hiring, but determinable by a month's
notice, or an equivalent month's wages (u) ; and a
general hiring of other kinds of servants, though it
will be taken primarily as a hiring for a year (x),
must depend more especially upon the circumstances
of each particular case, as indeed it must to a certain
extent in all cases, so that the fact of a servant's wages
being payable at longer or shorter periods, as the case
may be, may alter the presumption as to the hiring
and the length of notice required, as also may a
usage or custom in any particular trade or business.
Although a general hiring of a servant may therefore
be construed as a hiring for a year, and so on from
year to year, yet as it need not necessarily extend
beyond the year, it is valid though not in writing (y).
Secondly, as to the poiver of the servant and the As to the
relation hetioeen the parties during the service. — It Tei^an", and
will be at once seen that a person by entering into w^^^'^*'"'^
another's service becomes that other's agent for certain master and
purposes, and that therefore the ordinary principles of
agency apply, and answer the question of his power to
bind his master by his contracts. These principles The ordinary
of agency have already been considered, and the very aglnc-7!ipp*iy
great difference in the powers of a general and special *® ^^^^^
agent pointed out {z) ; and it follows from that differ-
ence that the power of a servant to bind his master
must depend on whether he is merely a special agent,
appointed simply to do some particular act, or whether
he is a general agent, having a power given him by
his master to do all acts of a certain nature. If he is
of the former kind, then any contract which he makes
(m) Fawcet v. Cash, 5 B. & Ad. 904. The housekeeper of a large
hotel is not a menial servant, and cannot be dismissed on a month's
notice in the absence of express agreement {Latvler v. Linden, 10 Irish
Rep. C. L. 188).
(x) Bayley v. Rimmel, I M. & W. 506.
(y) Becston v. €ollyer, 4 Bing. 309. See as to contracts not to be
performed within a year, ante, pp. 53-55.
(z) See ante, pp. 144, 145.
228 OF SOME PARTICULAR CONTRACTS IRRESPECTIVE OF
can only bind his master when strictly in conformity
with his master's orders ; but if he is of the latter
kind, then any contract he may make will bind his
master, even though it goes beyond his master's orders
in the particular case, if it is within the scope of his
ordinary and usual authority.
As to torts A master is liable for his servant's torts when
Ts'^r^lnt'.'^ ^^ committed by the servant acting in the course of his
ordinary employment and duty, but he is not liable
criminally for his servant's unauthorized acts («)•
Servant A Servant is entitled to be paid wages during a
paid wag*es '" time lie was disabled from service by illness (&), and
though (lis- ^Y\e relation between an ordinary master and servant
;iblea through '' • \ i
temporary (it is Otherwise as to an indoor apprentice) does not
ness. make it obligatory on a master to provide medical
Muster not attendance or medicines for his servant ; but if he
vXmedicai' seuds for a medical practitioner for his servant whilst
attendance. under his roof, he is liable, and he cannot deduct from
the servant's wages any expenses incurred thereby,
unless it was specially so agreed (c).
Master not There was at common law no implied contract by
?ndemn\fy ^ master to indemnify his servant against any injury
servant happening in the course of his employment, or even
juries, subject not to expose his servant to any extraordinary risks (d) ;
LiaSy Act," but there was always a duty cast on him to make
1880. ^^gg Qf proper tackle and machinery in his business,
and also to employ duly competent co-servants ; and
if any injury arose to the servant through the non-
(a) See hereon, post, Part ii. chap. i.
(6) CnJcson v. Stones, I E. & E. 24S.
(c) See Chitty on Contracts, 645 ; and the principle that a master is
not bound to provide medical attendance or medicines for his servant
is the same, even although the servant's illness has arisen through an
accident which occurred in performing his duties as servant, unless,
indeed, it arose in such a way that the master could be held liable
for it.
(rf) Riley v. Baocendale, 6 H. & N. 445.
ANY DISABILITY OF THE CONTRACTING PARTIES. 229
observance of such duties, the master was liable (e).
This subject has been considerably affected by the
Employers' Liability Act, 1880 (/), which is here-
after fully dealt with {g).
Thirdly, as to the determination of the service. — As to the
The general way in which this happens is by notice J^ u* ""eivke!
either by the master or the servant, the length of
which notice varies according to the contract for hiring
or the nature of the service (A).
In giving the notice, it is not necessary to allege when master
any reason for it ; and in the following cases the servant with"-
master will be justified in putting an end to the *"''* ''°*^'=^-
contract of service without any notice : —
1. When the servant unlawfully absents himself
from his work.
2, If he proves to be incompetent to perform any
particular service which he had agreed to render.
3, If he refuses or neglects to obey his master's
reasonable orders ; and
4. If he is guilty of any gross moral misconduct, or
of habitual neglect in the performance of his duties.
And in these cases the servant will only be entitled
to wages already accrued due, so that if his wages are
payable monthly, and he is discharged in the middle
of a month, he forfeits his right to any part of such
month's wages (^).
(e) Wilson v. Merry, L. R. i H. L. Sc. 526.
(/)43 & 44 Vict. c. 42.
{g) See post, Part. ii. chap. vi.
{h) As to which see ante, pp. 226, 227.
(i) Chitty on Contracts, 642, 643. As to the measure of damages in
an action by a servant for wrongful dismissal, see post, Part iii. chap. i.
230
OF SOME PARTICULAR CONTRACTS.
Master's
liability as
to giving a
cliaracter to
his servant.
The death of either master or servant will operate
to dissolve the contract of service (k).
A master is not bound to give his servant a character,
but if he does so, he must give what he believes to be
a true one ; if he wilfully gives a false character, he
will be liable to an action for libel or slander ; but
if he believes the character to be true, and gives it
honestly and fairly without exaggeration, it comes
within the designation of a privileged communication,
and he is not liable (l).
Many important ponits in the relation of master and
servant belong to the second division of this work,
viz. " Torts," and are there considered (m).
(k) Farrow v. Wilson, L. R. 4 C. P. 774 ; 3^ L- J- C P. 326-
{l) See post, Part ii. chap. v.
(m) See post, Part ii., particularly chap, vi., "Of Torts arising
peculiarly from negligence."
OF CONTRACTS WITH PERSONS UNDER SOME DISABILITY. 23 1
CHAPTER VIT.
OF CONTRACTS WITH PERSONS UNDER SOME DISABILITY.
In this chapter will be considered the position of the i. Infanta,
following parties as to their contracts : Infants, married
women, persons of unsound mind, intoxicated persons,
persons under duress, and aliens.
An infant in the eyes of the law is a person under
the age of twenty-one years, and at that period he or
she is said to attain majority. For his torts and crimes
an infant may be liable, but for his contracts, as a
f^eneral rule, he is not liable, unless the contract is for
necessaries. The law as to infants' liability on tlieir
contracts was much altered by the Infants Relief Act,
1874 (a), but to properly understand the application
of that Act it will be necessary to first notice the law
as it stood before its passing.
On his contracts for necessaries an infant is now, and infant is
always has been, liable ; and with regard to his other onTis^on- ^
contracts, they were not formerly actually void, but *e^J;*;^gJ°[e<,
only voidable, and accordingly, from the earliest times,
capable of ratification after he came of age without any other con-
new consideration ; and it was held that any act or Smerirbe
declaration which recognized the original contract as ratified,
binding was sufficient ratification. However, by Lord Lord Tenter-
Tenterden's Act {h) it was provided that no action
should be maintained whereby to charge any person
upon any promise made after full age to pay any debt
(a) 37 & 38 Vict. c. 62.
(6) 9 Geo. 4, c. 14, s. 5.
232 OF CONTRACTS WITH PERSONS
contracted uuriny; infancy, or upon any ratification
after full age of any promise or simple contract made
during infancy, unless such promise or ratification
was made by some writing signed by the party to be
charged therewith (c). As to contracts not for neces-
saries, therefore, tlie law, until lately, was that they
might be ratified by the infant after coming of age by
writing duly signed by him.
Infants But this is no longer so, for by the Infants Eelief
1874. ' Act, 1874 {d), it is enacted that "all contracts,
whether by specialty or by simple contract, henceforth
entered into by infants for the repayment of money
lent or to be lent, or for goods supplied or to be
supplied (other than contracts for necessaries), and all
accounts stated with infants, shall be absolutely void ;
provided always, that this enactment shall not invali-
date any contract into which an infant may, by any
existing or future statute, or by the rules of common
law or equity, enter, except such as now by law are
voidable " (e) ; and tliat " no action shall be brought
whereby to charge any person upon any promise made
after full age to pay any debt contracted during in-
fancy, or upon any ratification made after full age
of any promise or contract made during infancy,
whether there shall or shall not he any new considera-
tion for such promise or ratification after full age " (/).
The law, therefore, as to infants' contracts at the
present day is, that they are absolutely void and in-
capable of ratification unless for necessaries, contracts
as to which are good ; and it has been decided that
(c) Signature by an agent was not sufficient, and 19 & 20 Vict. c. 97,
s. 13, made no difference on this point.
(d) 37 & 38 Vict. c. 62.
(e) Sect. I. As to the latter part of this section, see note (/) infra.
{/) Sect. 2. This Act, in making infants' contracts void, does not
affect the powers of infants in certain cases to convey lands, viz. :
By the custom of gavelkind at the age of fifteen by feoffment ; on
marriage by the sanction of the court under 18 & 19 Vict, c 43 ; and
by the sanction of the court for payment of debts under i Wm. 4, c. 47.
UNDEK SOME DISABILITY. 233
the Act applies to a ratification made after its passing
of a debt contracted prior to it {g).
In several cases since the Act the point has been I'mmise to
raised of the position of a person who, having during ",'S.^^
infancy entered into a contract to marry, after full age
recognizes the promise by continuing his position as
before, or again promises to marry the party in ques-
tion. It has been held that, with regard to ratification,
the Infants Eelief Act, 1874, applies to this in the
same way as to other cases, and that in the absence
of some distinct evidence of a new promise no action
can be maintained Qi). It is, however, in such cases
very difficult to determine whether what has taken
place is in fact a new contract or is only an attempted
ratification. Thus, in one case, the defendant, when
an infant, made a promise of marriage to the plaintiff,
and the day after he had attained his majority he said
to her, " Now I- may and will marry you as soon as
possible." It was held that it was a question of fact
for the jury whether this was a fresh promise, or a
ratification of the promise made during infancy {i).
In another case the defendant, who had promised the
plaintiff marriage when under age, continued in the
same familiar position with her for four years after
comine: of age, and it was held that there was here
evidence to go to the jury of a new promise having
been made {k).
The Infants Eelief Act, 1874, whilst providing that infant liable
. ,. , 1-111 -1 1 .for necessaries.
an inlants contract shall be void, expressly excepts
a contract for necessaries ; and in addition to this
the Sale of Goods Act, 1893 {I), enacts that where
(g) i:x parte KihUe, He Onslow, L. R. 10 Ch. 373 ; 44 L. J. Bk. 63.
(A) Coxhead v. MuUis, 3 C. P. Div. 439 ; 47 L. J. C. P. 761.
(i) Northcote v. TJou'jhty, 4 C. P. D. 385.
(k) Ditcham v. Warrall, 5 C. P. D. 410 ; 49 L. J. C. P. 688 ; 29
W. R. 59 ; see also Holmes v. Brierly, 36 W. R. 795.
{I) 56 & 57 Vict. c. 71, s. 2.
234
OF CONTRACTS WITH PERSONS
Functious of
judge and
jury.
The ineaiung
of the term
"necessaries.'
necessaries are sold and delivered to an infant, he
must pay a reasonable price therefor. It is impor-
tant, therefore, to properly understand the meaning of
the term " necessaries," and it may also be well to
mention that in any action against an infant for
necessaries, it is for the judge to first consider whether
the goods are of such a nature as could possibly come
under that description, and if not, there is nothing to
go to the jury, and the plaintiff will be non-suited ;
but if the judge is of opinion that the goods are of
such a nature that they may be considered necessaries,
he leaves it to the jury to say whether, under the
particular circumstances of the case, they are in fact
necessaries. As a matter of course, the term " neces-
saries " will include all things essential for existence,
and without which a person cannot reasonably be
supposed to live, viz. ordinary lodging, food, and
clothing ; but it has a much wider application than
this, and many things not actually essential to exist-
ence are included under it. The rule as to what
will be deemed necessaries has been stated as follows :
"All such articles as are purely craamental are not
necessary, and are to be rejected, because they cannot
be requisite for any one ; and for such matters, there-
fore, an infant cannot be held responsible. But if
they are not strictly of this description, then the
question arises whether they are bought for the neces-
sary use of the party, in order to maintain himself pro-
perly in the degree, state, and station of life in which he
moved ; if they were, for such articles the infant may
be responsible " (m).
Instance.
To take an instance to exemplify this rule, it has
(m) Per Parke, B., in Peters v. Fleming, 6 M. & W. 47. See further
as to meanincj of term "necessaries," Skrinc v. Gordon, 9 Irish Reps.
C. L. 479. the Sale of Goods Act, 1893 (56 k 57 Vict. c. 71, s. 2), also
contains a definition of "necessaries," it enacting as follows: "Necessaries
in this section mean goods suitable to the condition in life of such infant
or minor, or other person, and to his actual requirement at the time of
the sale and delivery."
UNDER SOME DISABILITY. 235
been held that an infant is liable for the price of horses
bought by him if his position warranted his keeping
horses, or if riding was recommended by his medical
adviser (n). To enumerate a series of cases in which
things have or have not been held to be necessaries
would be useless, and the answer to the question of
what are necessaries for which an infant will be liable
may be shortly stated to be, that he will be liable not
merely for the bare essentials of life, but also for edu-
cation, and generally for anything suitable to his rank
and condition in life, and it will always be a question
for the jury whether an infant is liable or not in
every particular case (o). Where an infant is sued Evidence to
for the price of goods supplied to him on credit, he necesskries.
may, for the purpose of shewing that they were not
necessaries, give evidence that when the order was
given he was already sufficiently supplied with goods
of a similar description, and it is immaterial whether
the plaintiff did or did not know of the existing
supply (p). If an infant has a wife or children, he Necessaries for
will be equally liable for necessaries supplied to her children,
or them as if supplied to himself (q).
The statement that an infant is liable for necessaries An infant is
must, however, be taken with the following restric- necessaries if
tion, viz. that if an infant is residing under the [^f J;^^ umier
parental roof, he cannot generally be made responsible roof.
even for necessaries, for in such a case the presump-
tion is that the credit is intended to be given to the
parent, and not to the infant (r). It must not. Nor is tiie
however, from this be taken as law, that in such a gariiy Uabie.
case the parent is necessarily liable for such things
supplied to his child living with him, for he is not so
(n) Hart v. Prater, I Jur. 623.
(0) See hereon Ryder v. Wombwell, L. R. 4 Ex. 32 ; and also Chitty
on Contracts, 196-206.
(p) Baines v. Toye, 13 Q. B. D. 410 ; 53 L. J. Q. B. 567 ; 51 L. T.
292 ; 33 W. R. 15.
(q) Turner v. Trishy, i Str. 168 ; Chitty on Contracts, 142.
(?•) Chitty on Contracts, 207.
236
OF CONTRACTS AVITH PERSONS
liable as a matter of course, it being always necessary,
to render the parent liable, to shew that he in some
way — either by a precedent act or a subsequent rati-
fication— authorized his child to contract, and to bind
him ; for if he has in no way given any authority, he is
no more liable to pay a debt contracted by his child,
even for necessaries, than a stranger would be. But
slight evidence of the parent's authority will usually
be sufficient, so that if goods are delivered at the
parent's residence, this vf ill j^rivid facie raise a presump-
tion of his liability (s) ; though if, directly he heard
of the goods or saw them, he objected to them, this
would operate to rebut that liability.
Infant not
liable for
money lent,
unless ad
van
necessane
For money lent to au infant not for the purposes of
buying necessaries, lie is, of course, not liable, but if
°^d'^t' b ' °aoney is advanced to him to procure necessaries, and
is so expended by him, the court M-ill order repayment
to the lender, on the ground that he stands in the place
of the infant's creditor, who could have recovered
Nor is he liable against him had his claim not been satisfied (t). The
iTe^halreprr-'**^ mere fact of a person having fraudulently represented
sented himself ijjmggjf to be of age when in fact he was an infant,
to be of age. "
is not sufficient to render him liable. Thus, where
an infant had obtained a lease of a furnished house on
an implied representation that he was of full age, it
was held that although the lease must be declared void,
and possession ordered to be delivered up, yet the
infant was not liable for use and occupation (?/.).
Infant not
liable on a
bill or note,
though for
necessaries.
An infant is not liable on a bill of exchange or pro-
missory note to which he is a party, although it was
given for necessaries (x), but though not liable on the
(s) Chitty on Contracts, 207.
(t) Martin v. Gale, 4 Ch. D. 428 ; 46 L. J. Ch. 84 ; Bateman v.
Kingston, 6 L. R. Ir. 328 ; Lewis v. Alleync, 32 Solicitors' Journal, 486 ;
Law Students' Journal, July 1S88, p. 150.
(u) Lempriire v. Lange, 12 Ch. D, 675 ; see also Bateman v. King-
ston, 6 L. R. Ir. 328.
{x) Re Soltykoff, Ex parte Margrett, C. A. (1891), i Q. B. 413 ; 60 L.
J. Q. B. 339.
UNDER SOME DISABILITY. 237
bill, he may yet be sued on the original debt for neces-
saries. A bill given by an infant is, however, good as
against the other parties thereto {y), unless it is a bill
given after coming of age in respect of a loan made
during infancy, in which case it is provided that the
instrument shall be void as against all persons what-
soever (z).
Infancy is a personal privilege, and does not affect infancy is
the other contracting person's liability, so that though privnjl"*
an infant is not liable generally to be sued on his con-
tracts, he is capable of suing, subject to this, that he
cannot sue for specific performance of a contract {a).
With regard to certain of an infant's contracts, embrac- Continuous
ing matter of a continuous nature, they stand in this which infant
different position from his other contracts in that, il' \'''^^^^ ^^}^^.
■L _ ' does not dis-
the infant does not disaffirm the contract within a affirm on
reasonable time of attaining majority, he will be bound.
This is so with regard to an infant's contract to buy
land (h) ; also in the case of a lease made by an infant,
who is bound thereby if he receives rent after he comes
of age ; also with regard to shares in a company or a
building society taken by an infant ; also in the case
of his having entered into partnership (c). And if an
infant makes a marriage settlement which is not binding
on him, but he does not repudiate it within a reasonable
time after attaining majority, he is bound thereby {d).
Where an infant has contracted for things, not neces-
saries, and has paid for them, he cannot afterwards
(y) 45 & 46 Vict. c. 61, s. 22 (2).
(2) 55 & 56 Vict. c. 4, s. 5.
(a) Bateman v. Kingston, 6 L. R. Ir. 328. See Indermaur's Manual
of Equity, 230.
(6) Prideaux's Conveyancing, vol, i. p. 175, where it is also stated,
"It is apprehended that an infant who has paid a deposit on a contract
for purchase, is entitled to recover it if he refuses to complete when he
comes of age."
(c) He Yeoland's Consols, 58 L. T. 922 ; Whittingham v. Murdy, 60
L. T. 956 ; Anson's Contracts, 108, 109 ; see also ante, pp. 16 1, 162.
(d) Edxuards v. Carter, (1893), A. C. 360 ; 63 L. J. 100 ; 69 L. T.
153 ; Re Hodson's Settlement, Williams v. Knight, (1894), 2 Ch. 421 ; 65
L.J. Ch. 609; 71 L. T. 77.
238 OF CONTKACTS WITH PERSONS
recover back the amount if he has received any benefit
from the contract (e), but if he has in fact received no
benefit whatever, it is otherwise (/).
Infant not Although an infant's contract to marry stands on the
contract to same footing as any ordinary contract he enters into —
^^^^y- i.e. the infant is not liable on it, but can sue in respect of
Jjut if it — yet if the infant actually completes the contract by
marriage • ^.i u ti, • ^i
takes place, it gomg through the marriage ceremony in the manner
bindinc''^^^'^ prescribed by law, then if a male, and of the age of
fourteen or upwards, or a female, and of the age of
twelve or upwards, it is absolutely binding ; or if under
those ages, but not under the age of seven, then he or
she may avoid the marriage on arriving at such ages
respectively ; but if either party is under the age of
seven, then the marriage is absolutely void.
Liability An infant may bind himself as an apprentice, be-
ef infant ^ ■ e -i ■ i ,^
apprentice. cause that IS lor his benefit ; and a covenant entered
into in the apprenticeship deed by an infant to pay
a premium, is capable of being enforced if the deed
was a provident and proper arrangement for him, and
necessary if he wished to learn the business, and pro-
vided that the amount of the premium is fair and
reasonable, and that the instruction has duly been
given under the deed (g). If an apprentice mis-
behaves himself in his service, the master may correct
him, or complain to a justice of the peace to have
him punished according to the statute (h) ; but the
master cannot sue the infant for damages, or for an
injunction in respect of breach of contract contained
(e) Valentini v. Canali, 24 Q. B. D. 166; 59 L. J. Q. B. 74; 61
L. T. 731.
(/) Hamilton v. Vauijhan-Sherrin Electrical Enyineerlii'j Co., (1894),
3 Ch. 589 ; 63 L. J. Ch. 795 ; 71 L. T. 325.
[g) Walter v. Eva'ard, (1891), 2 Q. B, 369; 60 L. J. Q. B. 738; 65
L. T. 443-
(h) Unless indeed the apprentice is an infant, and the apprenticeship
deed contains such conditions that it is manifestly not for his benefit,
in which case it cannot be enforced at all against him ( Corn v. Matthews,
(1893), 1 Q. B. 310 ; 62 L. J. M. C. 61 ; 68 L. T. 482).
UNDER SOME DISABILITY. 239
in the apprenticeship deed, though, of course, he can
sue the father or other person who may have joined in
the deed and covenanted (i).
It has been already stated, incidentally, that an infant infants' torts,
is liable in respect of his torts, so that, for instance,
an action for assault, libel, or trespass may be brought
against him. But if the tort is one arising out of
contract, then the infant cannot be sued, so that where
an infant, having hired a horse, drove negligently and
injured the animal, it was held he could not be sued (k) ;
but where a horse was hired by an infant expressly for
driving only, and the animal was injured through being
jumped, the contrary was held, on the principle that the
jumping of the horse was quite outside the hiring, and
that it was not strictly a tort arising out of the con-
tract (l). Though an infant cannot ordinarily be sued
for money had and received, yet if he wrongfully em-
bezzles money he may be sued for that (m) ; and where,
having embezzled money, an infant on coming of age
gave a memorandum of charge on certain property
to secure payment of the amount, it was held that,
being liable to an action of tort, he gave the charge
to avoid being sued, and that the charge was perfectly
valid (?i).
The position of married women as to their con- 11. Married
tracts may be conveniently considered in the following ^"'"^°-
order : —
1. As to their contracts made before marriase.
2. As to their contracts made after marriage and
during cohabitation ; and
(i) Gilbert v. Fletcher, Cro. Car. 1 79 ; Be Francesco v. Barnum, 43
Ch. D. 165 ; 59 L. J. Ch. 151 ; 62 L. T. 40. See also Chitty on Con-
tracts, 198, 199.
(k) Jennings v. Randall, 8 T. R. 335.
(I) Barnard v. Haggis, 14 C. B. (N. S.) 45.
(m) Chitty on Contracts, 205.
(n) Re Seager, Seeley v. Briggs, 60 L. T. 665.
240 OF CONTRACTS WITH PERSONS
3. As to their contracts made after marriage and
during separation.
r. As to their Firstly, US to contracts made before marriage. — Here
madrbefore it is apparent that there may be a benefit or a liability
marriage. jjj respect of them, and any such benefit being an
outstanding right, is a chose in action. The effect of
Rights of marriage upon personal property in possession has
t"iSs ptr" until lately been that it operated as an absolute gift of
sonai property, j^; j^ j^^ ^q the husband, SO that from that time it was
no longer lier property, but his in every way; but
with regard to mere choses in action this has never
been so, for to entitle the husband to them he must
have reduced them into possession, and if he did this,
then they formed part of his estate in the same way
as choses in possession ; but if he did not reduce them
into possession, and his wife died, he would not then
be entitled to t\\c.n\ ji(,re mariti (that is, in his capacity
of husband), Imt only by taking out letters of adminis-
tration to his wife, and thus constituting liimself her
legal personal representative, which made a very great
difference, for if he took jurr mariti, he was not hound
to pay her debts which might possibly exist. If the
wife survived the husband, then her choses in action
not having been reduced into possession, survived and
whatis a belonged to her. To constitute a sufficient reduction
redaction into i^to posscssion by the husband it was technically said
possession. |^}ja.t he must take some step shewing his disagreement
to, and extinguishing, the interest of his wife, e.g. of
course the actually receiving the principal money would
always so operate, though not the mere receipt of
interest, and again, the recovery of judgment in an
action brought by husband and wife would be suffi-
cient (0).
(o) The subject of married women's property and the position of
married women as to separate estate, &c., belongs more particularly
to equity, and the student is referred to Indermaur's Manual of Equity,
Part iii. ch. vi.
UNDEE SOME DISABILITY. 24 1
With regard, however, to all marriages on or after JMarried
1st January 1 883, it is now provided that all property property Act,
which a woman is then possessed of, as well as property ^^^^•
she shall thereafter acquire, shall be to her separate
use (jj). This is also to be the case as regards any
property the title to which accrues to a woman on or
after ist January 1883, although married before the
Act {q).
As to the liability of the husband, at common law Liability of
the rule was absolute that he was liable for all his w?fe^s con-"
wife's contracts and debts entered into and contracted ^'■^°*^ "^'^^^
. betore
by her before marriage, and also for her torts, whether marriage.
he had any property with her or not ; but this liability
ended with her death, unless he took out administra-
tion to her choses in action, when he would still be
liable as administrator to the extent of her assets (r),
but the rule has now been very materially altered, as
is next stated.
By the Married Women's Property Act, 1870 (.s), Married
it was provided that " a husband shall not, by reason pro^er't/
of any marriage which shall take place after this Act f°^' ^^7°.
has come into operation (f), be liable for the debts of
his wife contracted before marriage, but the wife shall
be liable to be sued for, and any property belonging
to her for her separate use shall be liable to satisfy
such debts as if she had continued unmarried." This
statute did not alter the husband's liability for his
wife's ante-nuptial torts {u).
A very short trial of the provision in the Act of
(p) 45 & 46 Vict. c. 75, s. 2.
{q) Sect. 5. See hereon Reid v. Reid, 31 Ch. D. 402 ; 54 L. T. 100 ;
55 L. J. Ch. 294 ; 34 W. R. 332.
(r) Chitty on Contracts, 270-272 ; Edwards and Hamilton's Law
of Husband and Wife, 117, 139.
(«) 33 & 34 Vict. c. 93, 8. 12.
(0 August 9, 1870.
(w) Edwards and Hamilton's Law of Husband and Wife, 139.
Q
242
OF CONTRACTS WITH PEESONS
Injustice
caused by
this provision.
IMarried
AVomen's
Property Act
Amendmeut
Act, 1874.
1870 shewed that as it stood it was too extensive, for
it created a possible manifest injustice. It provided
that the husband should never be liable for his wife's
ante-nuptial debts ; but yet in many cases the husband
might have property through his wife, and it not being
to the wife's separate use, the creditor had no hold on
it. To remove this injustice, therefore, the Married
Women's Property Act Amendment Act, 1874 (x),
was passed, which repealed so much of the Married
Women's Property Act, 1870, as enacted that a hus-
band should not be liable for the debts of his wife
contracted before marriage, so far as respects marriages
taking place after the passing of that Act (y), and
provided that a husband and wife married after the
passing of that Act might be jointly sued for any
such debt (z), but that the husband should in such
action, and in any action brought for damages sustained
by reason of any tort committed by the wife before
marriage, or by reason of the breach of any contract
made by the wife before marriage, be liable to the
extent only of the assets acquired through his wife as
therein specified.
Married The Married Women's Property Acts of 1870 and
ProTrtyAct 1^74 have, howcvcr, now been repealed, except as
1882. ' regards the rights and liabilities of persons married
before ist January 1883 (a), as to whom the law
remains as above stated. In substance the provisions
of the Act of 1874 on this point, given in the last
paragraph, are re-enacted, it being, however, specially
provided that the husband and wife may be sued
together or separately, so that a husband is liable
even after his w^ife's death for her ante-nuptial debts
or torts to the extent of any assets he had with her (h),
(x) 37 & 38 Vict. c. 50.
iy) July 30, 1874.
(z) Sect. I.
(a) 45 & 46 Vict. c. 75, s. 22.
(6) Sects. 13-15. Edwards and Hamilton's Law of Husband and
Wife, 117, 140.
UNDER SOME DISABILITY. 243
which was not the case uuder the Act of 1874 (^)'
If a creditor sues the wife alone, and obtains judgment
against her, such judgment is a personal one, and not
one limited merely to the separate estate (d). If,
having got such judgment, the creditor cannot succeed
in enforcing payment, the judgment is no bar to a
subsequent action against the husband, who has had
assets with her, and who might therefore have been
sued in the first instance (e).
Any question, therefore, as to the liability of a Summary as
husband for his wife's ante-nuptial debts or torts must huslTa^nd^for ^
depend on the date of the marriage : if it took place '^if^'« '^^te-
,„ , ici r^ -i-T-iin, nuDtial debts
before the 9th of August 1870, he is liable for them and torts,
all; if between that date and before the 30th of July
1874, he is not under any liability in respect of ante-
nuptial debts, but he still remains liable for ante-nuptial
torts ; if on or since this latter date and prior to
1st January 1883, he is liable for either ante-nuptial
debts or torts to the extent of the assets or property
which he has or acquires with or through his wife, but
they must be sued together; and if on or since ist
January 1883, he is liable for them both to the extent
of such assets or property, and may be sued together
with or separately from his wife.
Secondly, as to contracts made after marriage and 2. As to con-
during cohabitation. — Marriage produced a general dis- dm?ng'^ohabi-
ability on the part of the wife to contract, so that no t^tion.
contract that she might make would be binding on
her, and any advantage she might acquire thereunder
vested in her husband. But some contracts (/) of a
married woman always bound her separate estate in
(c) Bell V. Stacker, 10 Q. B. D. 129 ; 52 L. J, Q. B. 49 ; 47 L. T.
624; 31 W. R. 183.
(d) Robinson v. Lyncs, (1894), 2 Q. B. 577 ; 63 L. J. Q. B. 759; 71
L. T. 249.
(e) Beck v. Pierce, 23 Q. B. D. 316 ; 58 L. J. Q. B. 516 ; 61 L. T, 448.
(/) See Hulme v. Tenant, I White and Tudor's Leading Cases in
Equity, 521.
244 OF. CONTRACTS WITH PERSONS
equity; and besides this, there were several excep-
tions to the rule, which were chiefly as follows : —
Cases in which I • Where the husband was banished, or transported,
a married ^j, gufferin" Sentence of penal servitude, the wife could
woman was ° i ■ p i j' i
always in the contract, sue, or be sued as if she were a Jane sole.
position of a
feme sole. ^^ Where the husband had not been lieard of for a
period of seven years she might also do so, as he was
then presumed to be dead {g).
3. Where a judicial separation had been obtained
under the Divorce Act she might also do so (A), or
where under the Matrimonial Causes Act, 1878, a
separation order had been obtained, which that Act
provides shall, as regards her property, have the same
effect as a decree of judicial separation {i).
4. Under the Divorce Act (/.) a married woman may
obtain an order, called a protection order, when she has
been deserted by her husband, protecting her earnings
or property acquired since desertion from her husband
and persons claiming under him.
Position under And now by the Married Women's Property Act,
the Married t88'^ C/") a married woman may generally contract in
Women s \ ■" znjj
Property Act, rcspect of all her separate property {in), and render
'^^^' herself liable thereupon as though she were Sifeme sole.
This statute also enacted that every contract entered
into by her should be deemed to bind her separate
property which she then had or might thereafter
acquire, unless the contrary was shewn {n). It was
held under this enactment, that to render subsequently
acquired separate estate liable, a married woman must
have been possessed of some separate estate at the
(g) See Nepean v. Doe, 2 S. L. C. 584 ; 2 M. & W. S94.
\h) 20 & 21 Vict. c. 85, s. 25.
(t) 41 Vict. c. 19, s. 4.
(jfc) 20 & 21 Vict. c. 85, s. 21.
(0 45 & 46 Vict. c. 75.
(m) Sect. I (2).
(71) Sect. I, (3), (4).
UNDER SOME DISABILITY. 245
time of contracting the debt (0), and it was necessary
in every action on contract against a married woman that
this should be alleged in the statement of claim, and
duly proved (p). This has, however, now been altered
by the Married Women's Property Act, 1893 ($)?
which provides that every contract thereafter (r)
entered into by a married woman otherwise than as
agent, shall be deemed a contract entered into by her
with respect to and to bind her separate property,
whether she is or is not in fact possessed of or
entitled to any separate property at the time when
she enters into such contract, and shall bind all separate
property which she may thereafter be possessed of or
entitled to, and be enforceable also against all property
which she may thereafter while discovert be possessed
of or entitled to (s).
It has been decided that a married woman cannot Married
be made a bankrupt in respect of a debt for which she c^.n'JJot be made
is liable, even thous^h she has a separate estate (0 ; but ^i:'»^krupt
' ° '■ \ / ' unless trading
it is now provided by the Married Women's Property apart from
Act, 1882, that if a married woman is carrying on a
trade separately and apart from her husband, she shall
in respect of her separate property be liable to the
bankrupt laws (u). A married woman cannot be com-
mitted to prison under the provisions of sect. 5 of the
Debtors Act, 1869, for non-payment of a judgment
debt contracted during coverture, for the liability
created by the Married Women's Property Act, 1882,
(o) Palliser v. Gurney, 19 Q. B. D. 519; 56 L. J. Q. B. 546 ; 35 W.
R. 760.
{p) Tttley V. Griffith, 57 L. T. 673 ; 36 W. R. 96.
[q) 56 & 57 Vict. c. 63, s. I.
(V) 5 Dec. 1893.
(s) iSub-sections (3) and (4) of sect. I of 45 & 46 Vict. c. 75 are re-
pealed by this statute (sect. 4).
(i) Ex parte Holland, In re Heneage, L. R. 9 Ch. App. 307 ; 43 L. J.
Bk. 85 ; Expnrte Jones, In re Grissell, 12 Ch. D. 4S4 ; 48 L. .J. Bk. 109.
[u) 45 & 46 Vict. c. 75, s. I (5) ; Re Gardiner, Ex parte Coulson, 20
Q. B. I). 249 ; 58 L. T. 119 ; 36 W. R. 142. The expression "separate
property'' does not include a general power of appointment (Ex parte
Gilchrist, In re Armstrong, 17 Q. B. D. 521 ; 55 L. J. Q. B. 578 ; 55
L. T. 538 ; 34 W. R. 709).
246
OF CONTRACTS WITH PERSONS
Married
woman suing
or defending.
is not personal, but is merely in respect of her separate
property (x).
A married woman, until lately, has sued either
together with her husband or by her next friend ; but
now, under the provisions of the Married Women's
Property Act, 1882 (y), she may in ail cases sue or be
sued as if she were a /e7ne sole, and her husband need
not be joined. It was decided under this provision
that a married woman might sue alone, even thougli
the cause of action arose before ist January 1883 (2),
and that as a married woman's right to bring an
action in her own name dated from the commencement
of the Married Women's Property Act, 1882, she might,
within the statutable limits from that date, bring an
action for a cause which accrued many years previously
to that date, but while she was a married woman (a).
The wife's The qucstiou of the power of a wife living with
bhldlngthe her husband to bind him is one of great importance.
husband. r^^Q earliest leading case constantly referred to upon
Manhy W.Scott, the subject is that of Manhy v. Scott (h), which may be
taken as laying down the broad principle that a wife's
contract does not bind her husband, unless she acts
by his authority. The wife, therefore, may be said to
stand in the position of an agent, but to some extent
as an agent of a peculiar kind ; for the general rule is
that, apart from any special power or authority tliat
may be given her, from her very position of living as
a wife (c) she is presumed to be invested with an
(x) Scott V. Morley, 20 Q. B. D. 120 ; 57 L. J. Q. B. 43 ; 36 W.
li- 97 ; 57 Ij- T. 919. But it is otherwise as regards a judgment
obtained against a married woman in respect of an ante-nuptial debt
{Robinson v. Lynes, (1894), 2 Q. B. 577 ; 63 L. J. Q. B. 759 ; 71 L. T.
249).
(2/) 45 & 46 Vict. c. 75, s. I (2) ; Order xvi. r. 16.
(z) Weldon v. Winslo^v, 13 Q. B. D. 784 ; 53 L. J, Q. B. 52S ; 51 L.
T. 643.
(a) Weldon v. Neal, 32 W. R. 828 ; 51 L. T. 2S9.
{b) 2 S. L. C. 445 ; I Levintz, 4.
(c) And this principle applies to a woman living with a man as his
wife, though not actually married, and even although the tradesman
knows she is not married {Watson v. Threkdd, 2 Esp. 637).
UNDER SOME DISABILITY. 24/
authority to bind him for necessaries suitable to his
rank and condition (d) ; but (as was decided in the
case of Ifontague v. Benedict (e) ) this does not extend Montague v.
to anything beyond actual necessaries, for as to any- -S^"^'^*'^^-
thing beyond this to bind the husband some evidence
of his assent must always be shewn (/).
But a husband is not in all cases absolutely liable Husband not
for necessaries, for as the power of a wife to bind her even for
husband for them only arises from his presumed autho- "ecessanes.
rity to her, such authority is liable to be rebutted by
its being shown that she was kept fully supplied by
her husband with all necessary articles. This is shewn
by the leading case of Seaton v. Benedict (g). So also Seaton v.
modern cases have decided that this presumption of
liability may be rebutted by shewing a prohibition Joilp v. Rees.
by the husband to the wife, forbidding her to pledge
his credit, or by an agreement between them to that
effect {h). This may at first sight seem somewhat to Explanation,
militate against what has been before explained with
regard to general agency {%), namely, that a principal
is liable for all acts of his general agent coming within
the scope of his ordinary authority, although done con-
trary to the principal's directions, if they were not
known to the contractee ; but the reason of the deci-
sion is, that the wife does not, simply as wife, actually
stand in the position of general agent for her husband,
but is only presumed to do so, and that this presump-
tion is always liable to be rebutted. If the position
of agent is actually constituted by the husband allow-
ing the wife to contract, then no doubt, to prevent his
being further liable for necessaries, he must have given
notice to the tradesman.
{d) Etherington v. Parrott, Lord Raym. 1006.
(e) 2 S. L. C. 504 ; 3 B. & C. 673.
(/) See Jetley v. Bill, i C. & E. 239.
{g) 2 S. L. C. 512 ; 5 Bing. 28.
(A) Jolly V. Hecs, 15 C. B. (N. S.) 628 ; 12 W. R. 473 ; 43 L. J. C.
P. 177 ; Debenham v. Mellon, 6 App. Cas. 24 ; 50 L. J. Q. B. 155 ; 43
L. T. 673 ; 29 W. R. 141.
(i) Ante, p. 145.
248 OF CONTRACTS WITH PERSONS
Correct answer To Summarize the foregoing remarks, the answer to
to the question ,i ,• i, 1. i. e -r i ■ i- •
of what con- the question, what contracts of a wife who is Jiving
mTl\ V ^ with her husband will bind him, may be stated
woman living as follows : All her contracts entered into with his
husband will express or implied authority will bind him, and his
bind him. authority will be implied for necessaries, but only for
necessaries (k) ; and this implied authority is liable
to be rebutted by shewing that she is already fully
supplied with necessaries (/), or that the husband has
forbidden lier to pledge his credit, or that they have
so agreed between themselves, even although unknown
to the tradesman, unless indeed the husband has
previously actually constituted her his agent, when
this must be communicated to the tradesman (m).
3. As to con- Thirdly, as to contracts made after marriage, hut
tracts made 7-7/^7 ,• i- • ^ /.
during sei. a- wliiist tke parties are Living separate and apart from
ration. ^^^j^ other. — The separation never made any difference
in the wife's former incapacity to contract, so as to bind
herself, and the observations previously made hereon,
under the second division of this subject, apply equally
here {n) ; but the wife's power to bind her husband
stands on a totally different footing, for in the case of
husband and wife living together, we have seen that,
from their so living together, the presumption is that
the husband is liable for necessaries ; but here there
is no such presumption, and it is always incumbent
on a creditor seeking to charge the husband, to shew
that the wife, from the circumstances of the separation,
or from the conduct of the husband, has such an im-
plied authority (o). The wife's power, therefore, to
bind her husband by her contracts depends on the way
in which the separation occurred, which may be either
{1-) Montague v. Benedict, ante, p. 247.
(I) Sca.'on V. Benedict, ante, p. 247.
(m) Jolly V. Rees, Dcbenham v. Mellon, ante, p. 247.
(n) Ante, pp. 243, 244.
(0) See Johnston v. Sumner, 3 H. & N. 261 ; Mainwaring v. Leslie,
M. & M. 18 ; Eastland v. Burchell, 3 Q. B. D. 432 ; 47 L. J. Q. B.
500.
UNDER SOME DISABILITY. 249
by the fault of the husband, by the fault of the wife,
or by mutual consent and arrangement.
Where the separation is by the fault of the husband, "Where the
• e 1. -i-i- J. n i t,* T e separation is
e.g. it he either actually turns his wife away, or refuses by a hus-
to receive her, or behaves in such a way, either by |]e"*^fi,[bJ^^*f
cruelty or otherwise, as to render it impossible for her necessaries.
to continue to live with him, then unless she has an
adequate allowance for maintenance paid to her, she
goes forth to the world with full authority to bind him
for necessaries, which authority the husband cannot
deprive her of, even though he gives particular notice
to the tradesmen not to trust her (p), and in this case
if the husband seeks to exonerate himself by shewing a
separate allowance, it is a question for the jury whether
or not it is adequate (q).
Where the separation is by the fault of the wife, as But the
if she elopes and lives in adultery, or the husband turns thrsepaTatlon
her away for adultery, or she voluntarily, and without '^..^y, *^'® ,,
fault on his part, simply leaves him, she has no autho-
rity to bind him for necessaries in any degree (r).
And even though she originally leaves him on account
of his misconduct, but then she commits adultery, she
has no further power to bind him (s).
Where the separation is by mutual consent, the rule Where separa-
is, that the wife has an implied authority to bind her Sseift^iuS'^
husband for necessaries, unless there is some express ^^^'^ ^'''^^^®
^ unless a
agreement between the husband and wife on the contrary
subject of the separation and the rights of the wife. ^°^^'^^^^^^ •
(p) Johnston v. Sumner, 3 H. & N. 261 ; Boulton v. Prentice, Selwya's
N. P. 334.
iq) Hodghinson v. Fletcher, 4 Camp. 70 ; Emmett v. Norton, 8 C. &
P. 506.
(r) Chitty on Contracts, 284, 285 ; 2 S. L. C. 535. And there is no
liability on the husband even under the Poor Law Amendment Act,
1878 (31 & 32 Vict. c. 122, s. 33), to support a wife with whom he
has ceased to cohabit in consequence of her adultery {Culley v. Char-
man, 7 Q. B. D. 89 ; 50 L. J. M. C. in ).
(») Govier v. Hancoch, 6 T. R. 603.
250 OF CONTRACTS WITH PERSONS
Although it was at one time considered that, in sucli a
case as this, to exonerate the husband it was necessary
to shew that the wife had from some source adequate
separate maintenance, it appears to be now clear that
it is not necessary to shew this, but that, when the
parties separate by mutual consent, they may make
their own terms and conditions, and, so long as the
separation exists, these terms are binding on them
both (t). If, however, under the agreement of sepa-
ration, a certain allowance is to be paid, if it is not
kept up, the wife may bind the husband by contract-
ing to the extent of it (u).
Effect of notice From the foregoing remarks, it will be seen that to
Ly aTusban^ givc a correct answer to any general question on the
be'aiJ^swIrable*^ power of a wife to bind her husband during separation,
for his wife's the different ways in which the separation may have
occurred must be stated (x). The student may perhaps
have sometimes observed in the newspapers notices by
husbands that they decline to be answerable for the
debts of their wives, and applying to that fact what has
been stated in the previous pages on the subject of the
husband's liability, he will see that any such notice
can have no legal effect or object where the parties
are actually separated ; for if the separation has taken
place by the wife's fault, there is no need for any such
notice, for the husband is not liable anyhow ; if by the
husband's fault, then he is liable, and any such notice
cannot lessen his liability ; and if by mutual consent,
the husband is not liable if the arrangement between
them is that he shall not be. However, such notice
by advertisement may have some effect where husband
and wife are living together, and he has actually con-
it) Biffen v. Bignell, 7 H. & N. 877 ; 31 L. J. Ex. 1S9 ; Eastland v.
Burchell, 3 Q. B. D. 432 ; 47 L. J. Q. B. 500.
(m) Nurse v. Craig, 2 N, R. 148.
(x) See hereon, generally, notes to Manhy v. Scott, Montague v. Bene-
dict, and Seaton v. Benedict, in 2 S. L. C. 466-540, and cases there
quoted.
UNDEK SOME DISABILITY. 25 I
stituted her his agent, but has since withdrawn his
authority to her to pledge his credit ; for in such a case,
as has been pointed out, the principle of private notice
or arrangement being sufficient does not apply (y).
If a husband, by his conduct, renders it necessary Husband is
for his wife to protect herself by applying for him to casts^of^any*^
be bound over to keep the peace, the costs of such proceeding
^ ^ ' rendered
application will always fall on the husband, and he necessary i)y
will be liable to an action by the solicitor who has
incurred such costs, and this even although he allow
and pay her separate maintenance, for he has no right
to diminish her means by his improper conduct (z).
And the same rule will also, generally speaking, apply
as to the costs of other proceedings rendered necessary
by his conduct, e.g. the costs of the institution of an
action for divorce, or for judicial separation, or the
costs of necessary advice taken by the wife (a),
A husband, although he may be liable under the Money lent to
circumstances for necessaries supplied to his wife, necessaries^
would not at law have been liable for money lent to
his wife, even for the purpose of buying necessaries (h).
It was, however, otherwise in equity if the money so
lent was actually expended on necessaries (c), and the
equity rule now prevails (d).
It has before been pointed out, in considering the Effect of con-
subject of agency, that if a married woman, having for*necesLVres,
{y) Ante, p. 247.
(z) Turner v. Rookes, 10 B. & E. 47.
(a) Brown v. Ackroyd, 5 E. & B. 819 ; Wilson v. Ford, L. R. 3 Ex.
63 ; Ottaway v. Hamdton, 3 C. P. D. 393 ; 47 L. J. C. P. 725. The
case of In re Hooper, 33 L. J. Ch. 300, does not clash with the general
rule stated in the text, the reason of the husband being there held not
liable being that there was no reasonable foundation for the wife's
proceedings ; but in so far as any observations in that case tend to
decide that to render the husband liable for the costs of any proceed-
ings they must have resulted in actual success, it is submitted that it
is clearly not law, and that it is sufficient that there was a reasonable
ground for such proceedings. And see hereon 2 S. L. C. 536, 537.
{b) Knox V. Bushell, 3 C. B. (N. S.) 334.
(c) Deare v. Souiten, L. K. 9 Eq. 15 1.
[d] Jud. Act, 1873, s. 25 (11).
252
OF CONTRACTS WITH PERSONS
her husband
being dead,
though not
known to be
by her.
power to bind her husband for necessaries, contracts
for such necessaries after his death, but before she
could possibly have known thereof, no liability therefor
attaches to her personally, and that in such a case the
husband's estate would not be liable either (c).
Liability of
husband for
wife's torts
committed
during
marriage.
The subject of torts committed by a married woman
may be here incidentally noticed. With regard to
these, it makes no difference whether the husband and
wife are living together or are separated. He had by
the old principles of common law a control over her
person (though it seems this is now no longer so, or at
any rate to a very limited extent (/) ), and therefore it
was not unreasonable on this theory to make him liable
jointly with his wife for her wrongdoings. One would
have thought, however, that an alteration would have
been made hereon by one of the Married Women's
Property Acts, but such is not the case, and it has
been held that the common law liability of the husband
has not been taken away, and that a person affected
by the tortious act of a married woman may sue either
the husband and wife jointly, or the wife alone {g).
III. Persons
of unsound
mind.
Persons of unsound mind may be either idiots or
lunatics. By the designation idiot is meant a person
who has never from his birth upwards had any glim-
mering of reason ; whilst a lunatic " is one who hath
had understanding, but by disease, grief, or other acci-
dent has lost the use of his reason " Qi). However,
with regard to these two classes of non-sane persons,
this distinction is of no practical importance, as no
person is now found an idiot, the inquiry as to the
(e) See ante, p. 147, and note {q) on that page, and cases of Smout v.
libery, lo M. & W. i ; Blades v. Free, 9 B. & C. 167 ; and Drew v.
Numi, 4 Q. B. D. 661 ; 48 L. J. Q. B. 591, there referred to.
(/) Reg. V. Jackson, (1891), i Q. B. (C. A.) 671 ; 60 L. J. Q. B. 346 ;
64 L. T. 679.
ig) Scroka v. Kattenberg, 17 Q. B. D. 177; 55 L. J. Q. B. 375 ; 54
L. T. 649 ; 34 W. R. 542.
[h) I Bl. Com. 304.
UNDER SOME DISABILITY. 253
commencement of the insanity not being carried back
to the birth (i).
It was formerly considered that a person could not To what extent
,. ^ ,• i.i.i.Tj.1, unsoundness of
set up as a defence to an action on a contract tnat ne niiud is a
was of unsound mind when it was entered into, but defence,
this is no longer law (k). But although unsoundness
of mind may be set up, yet it must not be thought
that it will form an answer to every action that may
possibly be brought ; for, firstly, a person of unsound
mind is liable for all necessaries suitable to his state
and condition in life, provided no advantage has been
taken of his mental iucapacity (I) ; and, secondly, al-
though the contract may not be for necessaries, and
even though it may be executory, yet, if the other
party to it had no knowledge of the person's want
of mental capacity, unsoundness of mind will be no
defence (vi). The burden of proving both the insanity,
and the knowledge of it by the other contracting
party, lies upon the party seeking to avoid the contract.
Any acts done by a lunatic during a lucid interval Acts during u
are perfectly valid (n). The mere existence of a de- jJeJ-g existence
lusion in the mind of a person making a disposition ^f delusion.
or contract is not sufficient to avoid it, even though
the delusion is connected with the subject-matter
of such disposition or contract ; it is a question for
the jury whether tlie delusion affected the particular
transaction (0). And although a person may not be
({) See hereon Phillips on Lunacy, 224.
(A;) Chitty on Contracts, 191.
(I) Nelson V. Duncombe, 9 Beav. 211 ; Baxter v. Earl of Portsmouth,
5 B. & C. 170. In the recent case of In re Weaver, 21 Ch. D. 615 ; 48
L. T. 93 ; 31 W. R. 224, doubt was expressed whether, if a person
supplies necessaries to a lunatic, knowing of the lunacy at the time, a
contract on the part of the lunatic to pay for them can be implied ; but
the judges carefully abstained from deciding the point, and I think
what principle and authority there are on the subject appear to incline
towards the statement made above.
(m) Imperial Loan Co. v. Stone, (1892), i Q. B. 599 ; 61 L. J. Q. B.
449 ; 66 L. T. 556.
(n) Chitty on Contracts, 193.
(0) Jenkins v. Morris, 14 Ch. D. 674 ; 42 L. T. 817.
254
OF CONTRACTS WITH PERSONS
strictly of unsound mind, yet if he is of weak capacity,
though this by itself would be, generally, no ground
of defence to an action on his contract, yet it may
afford evidence of undue influence, misplaced confi-
dence, or imposition, so as to render the act a construc-
tive fraud {p).
IV. Intoxi-
cated persons.
If a person is in such a state of intoxication as not
to know what he is doing, so that, indeed, his reason
is for the time being destroyed, he cannot be said
to have any agreeing mind, and his contract, made
whilst he is in such a state, cannot be enforced, unless
he afterwards when sober ratifies it, which he may do,
for it is only voidable and not absolutely void. But
intoxication can never be any defence to an action
for things actually supplied for the person's preserva-
tion (j).
V. Persons
under duress.
A person is said to be under duress when he is
subjected to great terror or violence, e.g. if his person
is wrongfully detained, or even legally detained, and
excessive and unnecessary violence is used, or if he is
threatened with loss of life or serious injury. Any
contract made by a person who is under duress is, as
regards him, voidable, and cannot be enforced against
him unless he subsequently ratifies it (r).
VI. Aliens. An alien may be defined as a subject of a foreign
state, and may be an alien atni, that is, a subject of a
friendly state, or an alien enemy, that is, a subject of
a state at enmity with ours.
The Common
Law.
By the Common Law, though an alien ami might
contract and sue, yet the contract of an alien enemy
was absolutely void ; and even with regard to the
[p) As to Constructive Frauds, see Inderniaur's Manual of Equity,
195-216
{q) See hereon Chitty on Contracts, 193, 194.
\r) Ibid., 219-221.
UNDER SOME DISABILITY. 255
contract of an alien ami, if after the contract war
broke out, so that he thus became an alien enemy, his
remedy here was suspended until the war ceased, and
he again became an alien ami (s). The Naturalization Naturalization
Act, 1870 (t), however, now also provides that real and ° ' ^ '^°'
personal property of every description (u) may be taken,
acquired, held, and disposed of by an alien, in the same
manner in all respects as by a natural-born British
subject ; and that a title to real and personal property
of every description may be derived through, from,
or in succession to au alien, in the same manner
in all respects as if a British subject (x), provided
that this shall not qualify an alien for any office, or
for any municipal, parliamentary, or other franchise (y),
nor shall it qualify him to be the owner of a British
ship, or any share therein (z). It may be considered Distinction be-
that, by reason of this comprehensive provision, the ami^ml ^oUien
distinction as to their contracts between an alie7i ami e^cm^/.
and an alien enemy is now done away with, and that
an alien enemy may contract and sue in the same way
as an alien ami ; but as the before-mentioned distinc-
tion was founded on principles of public policy and
expediency, this may well be considered as somewhat
doubtful (a).
(«) See Chitty on Contracts, 210,
\t) 33 Vict. c. 14.
(ii) Formerly, as regards land, an alien could only hold a lease not
exceeding twenty-one years (7 & 8 Vict. c. 66, s. 5).
{x) 33 Vict. c. 14, 8. 2.
(y) Ibid.
(z) Sect. 14 ; and see 57 & 58 Vict. c. 60, s. i.
(a) The learned editors of the work "Chitty on Contracts," however,
clearly give it as their opinion that the Naturalization Act, 1870, has
done away with all such distinction. They state as follows : "As the
statute appears to give this power " (the power of holding and disposing
of all property) "to all aliens, whether they be the subjects of a friendly
state or not, and whether they reside in this country or not, and the
power so given cannot be enjoyed without entering into contracts for
the taking, acquiring, and disposing of real and personal property, it
seems to follow that all aliens are now enabled to enter into such con-
tracts, and may now enforce by action in our courts any obligation
arising therefrom." See Chitty on Contracts, 210, 211.
256 OF THE LIABILITY OX CONTRACTS.
CHAPTER VIII.
OF THE LIABILITY ON CONTRACTS, THEIR PERFORMANCE,
AND EXCUSES FOR THEIR NON-PERFORMANCE.
In this chapter it is proposed to consider the position
of a person who has entered into a contract, and other
points incidental thereto.
"When any person enters into a valid contract, it
follows, as a matter of course, that he thereby incurs a
liability to perform such contract, and must either per-
form it, or shew some good excuse for not doing so.
^Yhen a This liability on a contract arises directly it is entered
a cont/acT i^ito, and if it is for the doing of some immediate act,
arises. ^j^g remedy of the other party to the contract may be
taken immediately on breach thereof. But if the con-
tract is for the doing of an act at some future day, then
generally the remedy of the other party in respect of
such liability cannot be taken until the future day ; e.r/.
if A. for consideration agrees to employ B. at some future
day, the remedy cannot, of course, be taken until that
"When on an futurc day. To tliis rule there is, however, one im-
contract a portaut exceptlou, which may be stated to be, that
liability arises where there is an executory contract, and the person
before the day , , . » , ~
arrives for liable to do the act, before the happening of the future
day, expressly states that he will not do it when the
future day arrives, or renders himself before the day
incapable of doing it, the remedy may be taken against
him at once, though the time for performance has not
actually arrived, for in the meantime he has a right to
have the contract kept open as a valid and subsisting
doing the act.
OF THE LIABILITY ON CONTRACTS. 257
contract. Thus in Hochstcr v. Dc la Tour (a) there Hochster v.
was an agreement to employ the plaiutifF as a courier ^ " '^"''
from a day sulscquent to the date of the writ, and,
before the time for the commencement of the employ-
ment, the defendant refused to perform the agreement,
and discharged the plaintiff from performing it, and he
at once commenced his action for breach of this con-
tract. It was objected that he could not sue until the
future day arrived, but it was held that he might do
so, and the principle before stated was laid down. It
should be noticed in cases of this kind that the repudia- Exact effect of
tion of the contract, or the total refusal to perform it ^epudiatiou.
before the day of performance arrives, is not of itself
a breach of the contract, but may be acted on by the
other party, and adopted by him as a rescission of the
contract if he so chooses. In other words, where one
party refuses by anticipation to perform the contract,
he declares that so far as he can he rescinds the con-
tract, and by doing so wrongfully, he entitles the other
party either to agree to the rescission and treat the
contract as at an end, or to elect not to adopt the
repudiation, and to continue to treat the contract as
binding and wait until the time of performance arrives ;
and when the promisee thus does not accept the
rescission, the contract remains in existence for the
benefit, and at the risk, of both parties, and if anything
occurs to discharge it from other causes, the promisor
may take advantage of such discharge (Z>). But a
party entitled to take advantage of a rescission can-
not both act on the contract as existing for some pur-
poses, and at the same time bring an action upon it
on other points (c). Probably, also, the principle of
rescission or renunciation giving an immediate right of
(a) 2 El. & Bl. 678 ; Frost v. Knnjht, L. R. 7 Ex. iii ; 41 L. J. Ex,
78. See also British Wa;/gon Co. v. Lea, 5 Q. B. D. 149 ; 49 L. J. Q. B.
321 ; 42 L. T. 437 ; 28 W, R. 349 ; Society Generale dt Paris v. Milders,
49 L- T. 55.
[h) Avery v. Bowdiii, 5 El. & Bl. 714 ; Johnstone v. Mdlinq, 16 Q.
B. D. 460 ; 55 L. J. Q. B. 162 ; 54 L. T. 629 ; 34 W. R. 238.
(c) Ibid.
li
258 OF THE LIABILITY ON CONTRACTS.
action has no application at all to the case of a lease
or other contract containing various stipulations, where
the whole contract cannot be treated as put an end to
upon the wrongful repudiation of one of the stipula-
tions of the contract by the promisor (d).
Failure in A question may sometimes arise whether, in the
paymeifts by casc of an agreement to deliver goods by instalments,
instaimeuts. ^ failure to deliver one instalment operates as an
entire discharge of the other party to the contract (e),
and again, if, where goods are to be paid for by instal-
ments, non-payment of one instalment entitles the
vendor to treat the whole contract as at an end (/).
The Sale of Goods Act, 1893, now enacts as follows :
— " Where there is a contract for the sale of goods to
be delivered by stated instalments, which are to be
separately paid for, and the seller makes defective
deliveries in respect of one or more instalments, or the
buyer neglects or refuses to take delivery of or pay
for one or more instalments, it is a question in each
case, depending on the terms of the contract and the
circumstances of the case, whether the breach of the
contract is a repudiation of the whole contract, or
whether it is a severable breach giving rise to a claim
for compensation, but not a right to treat the whole
contract as repudiated " (^).
To entitle a Where a special contract is entered into by a person,
o™ontnict to entitle him to his remedy against the other party to
he must have jf [^ ^g verv uecessary that he himself should strictly
performed his ^ •' "^ • i • c i
parb of it. carry out on his part the stipulations of the contract,
for it is always open to the parties to agree that the
entire performance of a consideration in its nature
(d) Johnstone v. Millir.g, i6 Q. B. D. 460; 55 L. J. Q. B. 162 ; 54
L. T. 629 ; 34 W. R. 238.
(e) Hoare v. Rennie, 5 H. & X. 19 ; Honck v. Midler, 7 Q. B. D. 92 ;
45 L. T. 202 ; 50 L. J. Q. B. 529 : Simpson v. Crippin, L. R. 8 Q. B. 14.
(/) Bloomer v. Bernstein, L. R. 9 C. P. 588.
{g) 56 & 57 Vict. c. 71, s. 31. This section substantially embodies
the previous decision in Mersey Steel and Iron Co. v. Naylor (9 App.
Cas. 434 ; 51 L. J. Q. B. 576 ; 47 L. T. 369).
OF THE LIABILITY ON CONTRACTS. 259
divisible, shall be a condition precedent to tlie right
to a fulfilment by the other party of his promise (A).
Thus, where the agreement was to pay a man a certain cutter v.
sum provided he proceeded, continued, and did his ^°^^^^-
duty as mate of a ship during the whole of a certain
voyage, and he died before the voyage was completed,
it was held that his representatives could not recover,
for the contract had not been strictly carried out by
the deceased, and therefore no right of action had
accrued (i). But although, where there is a special
contract, the remedy must be on that special contract,
and therefore there can generally be no remedy when
the person suing has not himself performed its stipu-
lations, yet if the special contract has been abandoned
or rescinded by the parties, then an action will lie for
what has been done by the person suing on a quan- Suing on a
turn meruit (Jc). And where there has been a special jneruU.
contract which has not been fully performed, but the
other party has taken advantage of and benefited by
the partial performance, in many cases a new contract
will be implied to pay remuneration commensurate
with the benefit derived from the partial performance.
Thus, if A. agrees to build and complete a house for
B,, and then stops in the middle and refuses to con-
tinue the work, and B. completes the house, using and
benefiting by A.'s work, a contract to pay for this
would be implied, though of course it would be subject
to any counter-claim B. might have for damages for
breach of the original contract (/). It may be stated,
as a correct general rule, that where there is a special
contract not under seal, and one of the parties refuses
to perform his part of it, or renders himself absolutely
unable to do so, it is open to the other party to at
(/i) Anson's Contracts, 289.
(t) Cutter V. Powell, 2 S. L. C. I ; 6 T. R. 320 ; see also Ilulle v.
Heightman, 2 East, 145 ; Sinclair v. Bowles, 9 B. & C. 92.
(k) Tliat is to say, for as much as it is worth ; see Brown's Law Diet.
435-
(<!) See 2 S. L. C. 34, 35.
26o OF THE LIABILITY ON CONTEACTS.
once rescind such special contract, and immediately
sue on a quantum meruit for whatever he has done
AVhat refusal Under the contract previously {m). But to entitle a
piii-lyTol^ ^ person so to rescind a special contract on the ground
contract in ^f ^\^q refusal of the other party to perform it, such
rescinding it. ,11, i ^^ n ^ t
refusal must be absolute and unquahtied, and a mere
conditional refusal will not be sufficient {n).
How the The liability of a person upon a contract may be
SSmay put an end to either —
be put an
end to.
1 . By its performance ; or,
2. By shewing some excuse for its non- performance.
I. Performance FiTstly, CIS to the performance of contracts. Con-
uf contracts, ^^.^^.j^g ^^y ^g r^^^ ^re of the most varied nature, and
they must be carried out according to the stipulations
in each particular case, attention being paid always
to the ordinary and well-known rules of construction,
e.g. that the intention of the parties shall be observed,
that the construction shall be liberal, and, failing all
other rules of construction, that the contract shall
be tahen most strongly against the grantor or con-
tractor (0). The most practically useful points to con-
sider under this head appear to be Payment, Tender,
and Accord and Satisfaction.
I. Payment. Payment has been defined as the normal mode of
discharging an obligation (^), and payment by a per-
son liable on a contract to the other party to it, of
the amount which is actually agreed on between them
to be payable in respect of the contract, naturally puts
an end to it and furnishes a complete performance.
(jn) Planche v. Colhurn, 8 Bing. 14 ; ]Yithers v. Reynolds, 2 B. & Ad.
882.
(n) See Lines v. Bees, cited 2 S. L. C. 36.
(0) For rules of construction, see ante, pp. 23-30.
(p) Browu's Law Diet. 395.
OF THE LIABILITY ON CONTRACTS. 26 1
But a payment made under a contract, to amount to
performance, must be actually made by the party, or
some one on his behalf, and if made by some third Pdyment by
, -1 •■ , i e J a third person
person voluntarily, it amounts to no periormance, and voluntarily,
does not destroy the contracting party's liability, unless ance\n^iess"""
afterwards ratified and accepted by him as his act (a), afterwards
_ , . . / , -1 ratified and
But this, of course, is only where payment is made accepted,
voluntarily ; if made — as by a surety — in pursuance of
a legal obligation, then the contract is performed so far
as the original liability is concerned, and a new perform-
ance is necessary, viz. the repayment to the surety (?•).
It is, of course, also necessary, to make the payment To whom
a performance of the contract, that it should be actually be^i™ide.
made to the creditor, or one having authority from him,
either as a particular or a general agent, to receive it.
Payment in an action to the plaintiff's solicitor is
equivalent to payment to the plaintiff; but it seems
payment to the agent of the plaintiff's solicitor does
not necessarily so operate (s).
Where there are several sums of money due from Rule as to
one person to another at different times, and the party oFpa^^ments.^
liable to pay makes a payment, but not sufficient to
discharge his liability in respect of the whole of the
debt, the question arises, In respect of which matter
is it to operate as a performance or part performance ?
The answer to this question is known as the rule as Clayton's Case.
to the appropriation of payments, and is, that the
party liable to performance, i.e. the debtor, has the
right in the first instance to declare in respect of
which contract or debt the payment is made ; failing
his doing so, the person entitled to performance, i.e.,
the creditor, has such right ; and failing either
doing so, then the law considers the payment to
be in respect of the contract or debt which is the
(q) See Simpson v. Eggington, lo Ex. 845.
(r) As to sureties, see ante, pp. 47-51,
(3) Yates V. FrecMeton, 2 Doug. 625.
262 OF THE LIABILITY OX CONTRACTS.
earliest in point of date commencing ■with the liqui-
dation of any interest that may be due (t). And
where, under this rule, the creditor has the right of
appropriating the money, he may appropriate it to a
debt barred by the Statute of Limitations (n). Where
a payment is made to a person to whom two or more
debts are due, of a sum not sufficient to satisfy all,
and the debts are owing in respect of contracts of the
same date, the amount paid, unless expressly appro-
priated by one of the parties, will be apportioned
between the different debts (x).
A smaller Where the performance that is required by a con-
sum cannot be ... ,1 ^ p z' 1 e -^ •
a satisfaction tract IS the payment of a nxed sum oi money, it is no
of a greater, sufficient performance for the debtor to pay a smaller
sum, even though the parties expressly so agree, and
the party to whom the payment is made gives a
receipt expressly stating that it is received in full dis-
charge (y), the reason being that there is no considera-
tion for the smaller sum being received in satisfaction
of the greater ; and as an ordinary simple contract re-
quires a consideration to support it (s), so here there
But some- must be some consideration for the giving up of the
tho'vfgb of Teas' balance. But if something is given in performance
value, may be ^f r^jj oblif?ation of a different nature, there may be a
a satisfaction. ° _ "^
complete satisfaction, though of less value ; thus, a
horse may be given in satisfaction of a debt, though
of much less value than such debt ; and it has been
expressly decided that a negotiable security, such as
a bill, note, or cheque, may operate, if so given and
(t) Clayton's Case, in Devaynes v. Noble, I Mer. 585 ; Tudor's Mer-
cantile Cases, I , and notes thereto ; hi re Macnamara's Estate, 1 3 L. R.
Ir. 158. This ordinar}' rule does not apply as between trustee and
cestui que trust, see Re Nallett's Estate, 13 Ch. D. 696; 49 L. J. Ch.
415 ; 28 W, R. 732 ; Indermaur's Manual of Equity, 140.
(m) Mills V, Fowkes, 5 Bing. (N. C.) 455.
(x) Favenc v. Bennett, 1 1 East, 36.
(y) PineVs Case, 5 Rep. 117a; Cumber v. Wane, i S. L. C. 366; i
Strange, 436 ; Fitch v. Sutton, 5 East, 230 ; Sibree v. Tripp, 15 M. & W.
23. A smaller sum paid by a third party at the debtor's request may
satisfy a greater {Lawder v. Peyton, 11 Irish Reps. C. L. 41).
{z) See ante, p. 39.
OF THE LIABILITY ON CONTRACTS. 2G3
taken, in satisfaction of a debt of greater amount, the
circumstance of negotiability making it in fact a diffe-
rent thing, and theoretically more advantageous tlian the
original debt, which was not negotiable (a) ; a decision
which we can best reconcile with the general principle
and common sense by saying that the general principle
is to be taken very literally, and not to be extended.
Where there is any doubt or disagreement about the
amount of a debt, and in all cases of unliquidated
demands, the rule that a smaller sum cannot satisfy
a greater does not apply, nor does it if the time for
payment is accelerated, or any other advantage given
to the payee, for in such cases there is a considera-
tion— in the one case the settlement of doubts, and in
the other the obtaining the money before it would Smaller sum
be otherwise paid (&). And where a less sum was *''^" ^'^''"^''^•
tendered after the time for payment, and retained in
discharge of a larger sum which was to become due
in default of payment of the lesser sum, it was held
that the receiver could not retain the sum paid other- Remittance in
wise than as a complete discharge (c). If a debtor ^^f^j^puted"^
who disputes the amount claimed from him remits a ci.iim-
smaller sum to his creditor in entire satisfaction of his
demand, and the creditor retains it, giving a receipt
simply on account, he may still sue for the balance (d).
Following out the principle of the case of Cumber Foakea v. Beer.
V. Wane, it has been held that an agreement between
a judgment debtor and his judgment creditor, that in
consideration of the debtor payiug down part of the
judgment debt and costs, and on condition of his paying
to the creditor the residue by instalments, the creditor
would not take any proceedings on the judgment, was
(a) Sibree v. Tripp, 1 5 M. & W. 23 ; Goddard v. O'Brien, 9 Q B. D.
37 ; I S. L. C. 373.
(6) See notes to Cumber v. Wane, I S. L. C. 368 et seq.
(c) Johnson v. Colquhoun, 32 W. R. 124.
\d) Ackroi/d v. Smithies, 54 L. T. 130; 50 J. P. 358 ; Dai/ v. M'Lea,
22 Q. B. D.'6:o ; 5S L. J. Q. B. 293 ; 60 L. T. 947.
264 OF THE LIABILITY OX CONTKACTS.
oiudum 2^actiim, being without consideration, and did
not prevent the creditor, after payment of the whole
debt and costs, from proceeding to enforce payment of
the interest upon the jutlgment {/).
A sm:iiier sum A Smaller sum may, however, be paid in satisfaction
may satisfy a . •<• 1 • ■ i ,
greater if a 01 a greater if the receipt is under seal, for this would
seaHsyveu^ ^^ ^ ^^^^ whicli, as we have seen, requires no conside-
01- ou a com- ration to support it, and operates also bv way of estop-
posiiioii under i//.\ ' - J tr
the Bank- pel (/). And under the Bankruptcy Act, 1890 {g),
1890!^^ ^ ' ^ statutory majority of creditors may, as therein pro-
vided, and subject to the Court's confirmation, agree
to accept a composition in satisfaction of their debts,
which will be binding on the other creditors, and the
payment of which composition will discharge the
Private debtor. Irrespective of this, a private composition
arrangements •.! j- i ■ , ,. ,
Willi creditors, witli Creditors, wherein each creditor agrees to take
a smaller sum than what is due to him, has always
been held to be good ; but this is no real exception
to the general rule that a smaller sum cannot satisfy
a greater, for there is a consideration, viz. the for-
bearance by other creditors (A). It may here be men-
tioned that all private arranj^ements with creditors
require now to be registered within seven days of
their first execution, and are generally governed by
the Deeds of Arrangement Act, 1887 {i).
Performance Performance of a contract will in some cases be
of a contract i ■•i -i • i
maysumetinies presumed Until the Contrary is sliewn, e.g. from lapse
e presumed. ^^ time; and where there is money coming due from
time to time, e.g. rent, the production of a receipt for
(e) FoakeswBeer, 9 App. Cas. 605 ; 54 L. J. Q. B. 130 ; 51 L. T. S33.
And see also i'nderaood v. Underwood, (1894), P. 204 ; 63 L. J. P.
109 ; 70 L. T. 390.
{f) Ante, pp. 16, 18.
{(l) 53 & 54 Vict. c. 71, s. 3.
{h) Good V. Cheeswan, 2 B. & Ad. 335 ; Fitch v. Sutton, 5 East, 230.
(i) 50 & 51 Vict. c. 57 ; and see also 51 & 52 Vict. c. 51, ss. 7, 8,
requiring deeds of arrangement affecting land to be registered at the
Land Registry Office.
OF THE LIABILITY ON CONTKACTS.; 265
a payment will be presumptive evidence that all rent
that has become due before that date has been paid.
But a receipt, even for any particular sura, is not
conclusive evidence of payment of that sum, but, like
other presumptions generally, the fact of the receipt
may be controverted {k).
Payment should strictly be made in money orEfTectof
bank-notes, but if a cheque is given and received, that cheque" ^
operates as payment unless and until dishonoured ;
and if a cheque is given in payment, the payee is
guilty of laches if he does not present it for payment
within the proper time, so that if in the meantime the
banker fails, having sufficient assets of the custo-
mer in his hands, the person to whom the cheque
was paid has no further claim for payment against
his debtor, and can only prove against the banker's
estate (/). So, also, a bill of exchange or other negoti- Or by a
able security may operate as payment, and during its security. ^
currency the remedy for recovering the debt is sus-
pended (m) ; but upon the dishonour of the instrument
the original remedy revives, unless it be then out-
standing in the hands of a third person for value, in
which case it does not (n). On the dishonour of a
bill, note, or cheque given in payment, the creditor
may sue eitlier for the original debt or on the instru-
ment itself.
If a creditor requests his debtor to make payment by Payment by
tiansmission through the post, or if that is the usual throu^hUie'
course between the parties, the debtor is safe in adopting P°***-
that course, provided he properly addresses and posts
the letter ; but unless tliere is such a request made,
(it) Stretton v. Rastcll, 2 T. R. 366.
(l) See hereon, ante, p. 1 93.
(m) Per cur. Belshaw v. Bush. II C. B. 191 ; Simon v. Lloyd, 2 Cr.
M. & R. 187 ; Byles on Bills, 392 ; L'x parte Matthctv, Re Matthews, 12
Q. B. D. 506 ; 32 W. R. S13 ; 51 L. T. 179.
(n) Puckford v. Maxwell, 6 T. R. 52 ; Price v. Price, 16 M. & W.
232 ; Gunn v. Bolckoiv, L. R. 10 Ch. App. 491 ; 44 L. J. Ch. 732.
266
OF THE LIABILITY OX CONTRACTS.
either expressly or impliedly, if the money is lost in
transmission, the debtor will have to pay it over
again (o). If a creditor residing at a distance from
his debtor writes a letter by post simply requesting
the debtor to send a cheque, this is an implied request
or authority to send the cheque by post, and the debtor
is safe in adopting that course, and not liable to be
again called upon to pay, although the cheque never
reaches the creditor, but is stolen in the course of transit
through the post, and cashed by the thief (p).
2. Tender. By tender is meant the act of offering a sum of
money in satisfaction of some claim: if it is accepted,
it of course is payment ; but if refused, it is simply a
tender, and amounts to a performance as far as the
debtor is able of himself to effect performance. The
advisable course to be taken by a person on whom a
claim is made of a pecuniary character, and reduced
or reducible to a certainty, and who admits a liability
but not to the full amount claimed, is to tender to the
other person the amount which he admits, and it is
therefore important to properly understand what will
be a valid tender, and liow a valid tender may bd
made.
AVliat will
constitute a
v;ili(l tender.
A tender may be made either by the debtor or
some one on his behalf, and either to the creditor
personally, or some one who has been duly authorized
by him to receive the money (q), e.g. if a solicitor
writes for payment of a debt, tender may be made
to him. The tender must be made of the actual debt
that is due, and nothing less than it, but tender of
an amount in excess of the debt is a perfectly good
(o) See Chitty on Contracts, 747.
(p) Norman v. liickctts, 3 1 Solicitors' Journal, 124 ; Law Students'
Journal, 1S87, p. 6.
(q) Chitty on Contracts, 783, 788. It may be noticed that tender
by one of several joint debtors i.s good, operating as tender by all (see
JJou'jlas V. Patrick, 3 T. R. 683).
OF THE LIABILITY ON CONTRACTS. 267
tender provided change is not required, or, if required,
provided that no objection is made to the tender on that
ground (r) ; and the tender must be made before any
action has been commenced for recovery of the sum
claimed.
To constitute a valid tender it is not sufficient for in making a
, ... , tendei- the
the debtor to merely say he will pay the money, or money should
even that he has it with him ; there must be an actual p^oduS!^
production of the money itself, unless, indeed, the cre-
ditor expressly dispenses with the production of it at
the time (s). The tender must also be absolute and Tender must
^ ' . . , be uncon-
unconditional ; for instance, in case a receipt is wanted, diti0n.1i.
the proper course is for the debtor to bring a stamped
receipt with him and ask the creditor to sign it and
pay him the amount of the stamp (t). So also a sum
offered, if the creditor would accept it, in full discharge
of a larger sum claimed, has been held not to be a
valid tender (u). It seems a tender under protest is But a tender
under protest
good {X). is good.
A tender must (except as is presently mentioned) In what money
be made in money or bank-notes. It is provided that be made.'"'^^
a tender of Bank of England notes payable to bearer
on demand is a valid tender for all sums above £Sy
except by the governor and company of the Bank of
England, or any branch thereof (y). It is also pro-
vided (z) that a tender of money in coins which have
been issued by the Mint in accordance with the
provisions of that Act shall be a legal tender, in the
case of gold coins, for the payment of any amount ;
in the case of silver coins, for the payment of any
(r) Dean v. James, 4 B. & A. 54.6.
(s) Thomas v. Evans, 10 East, loi ; Douglas v. Patrick, 3 T. R. 683.
(t) Laing v. Header, I C. & P. 257.
(u) Evans v. Judkins, 4 Camp. 156.
{x) Scott V. The Uxhridge i?//. Co., 14 L. T. Rep. (N. S.) 596.
ly) 3 & 4 Wm. 4, c. 98, s. 6.
(2) 33 Vict. c. 10, s. 4.
268
OF THE LIABILITY ON CONTRACTS.
amount not exceeding 40s. ; and in the case of bronze
coins, for the payment of any amount not exceeding is.
■\viien countrj' Notwithstanding tliat a tender sliould usually be
cheques are a actually in money or Bank of England notes, yet a
good tender, tender of country notes, or of a draft or cheque on a
banker, is valid if a creditor at the time raises no
objection to the tender being made in that way (a).
Person tender- Although a creditor rejects a tender that is made to
reniain^eady ^1^^^^ by liis debtor, yet he has afterwards a right to
mone"*" a^*an <^^emand payment of the amount previously tendered,
time after- wliich if refused will make the case as if no tender had
wurtls
been made (h) ; the reason of this being, that the very
principle of tender is, that the person was then ready,
and afterwards remains ready, to pay the amount ten-
dered (c).
Effect of a
tender.
The only effect of a tender as a defence is, that if
it is the fact that the amount tendered was the whole
amount due, although interest may be payable, no
subsequent interest can be recovered, and the debtor
will be entitled to his costs of any action that may
subsequently be brought against him (d). On any
action being brought, the proper course for the de-
fendant to take is to set up the tender in his state-
ment of defence, and pay the money into court ;
and payment into court must, in fact, always ac-
company a plea of tender. If a defendant sets up
tender as a defence, he naturally thereby admits the
contract, and a liability on it to the amount of the
tender.
3. Accord and
satisfaction.
Accord and satisfaction is a defence in law, con-
sisting of two parts, viz. something given or done to
(a) Chitty on Contracts, 793.
(6) The demand must be personal, and not by letter (Edwards v.
Yates, R. & M. 360).
(c) Chitty on Contracts, 794,
{d) See Dixon v. Clark, 5 C. B. 365.
OF THE LIABILITY ON CONTRACTS. 269
the plaiutitf by the defendant as a satisfaction, and
agreed to as such by the plaintiff (c) ; it therefore
amounts to a performance of a contract, though not in
the way originally agreed on, and furnishes an answer-
to any action on it (/). The value of the satisfaction
cannot he inquired into, provided it is shewn that it is
of some value {g) ; but if an accord and satisfaction
has been brought about by means of any fraud, it will
be set aside on application to the Court, in the same
way that any contract induced by fraud may be set
aside (A).
Secondly, as to excuses for the non-performance of ii. Excuses for
11 ^ ' ^ \ D J.^ the llOIl-
co7itracts ; and these may be various, botli from the peifonnance
different natures of contracts themselves, and from °^ coutnicts.
the circumstances that may arise in particular cases
to justify a contracting party in not carrying out his
contract. Of these excuses it is proposed in this
chapter to consider the following, viz. : The Statutes
of Limitation, Set-off, and Eelease. The subject of
fraud or illegality in a contract, forming a valid excuse
for its non-performance, is specially considered in
the next chapter. The subject of bankruptcy and
composition with creditors may well be considered
as beyond the scope of this work ; and with regard to
incompetency of a party to contract, this matter has
already been sufficiently dealt with (t).
The Statutes of Limitation are certain statutes i. statutes of
which have been passed for the purpose of establish-
in*^ fixed periods or limits after which actions cannot
be broufdit, and claiius, or the remedies whereby such
(fi) Brown's Law Diet. il. See also the term "accord and satis-
faction" explained, per Maule, J., in Gabriel v. Dresser, 15 C. B.
628.
(/) See Blale's Case, 6 Reps. 43b.
[g) Pinel's Case, 5 Reps. 117a; Curlewis v. Clarice, iS L. J. Ex.
144.
(/() Ste^oart v. Great Western Ry. Co., 2 De G. J. & S. 319.
\i) See ante, chap. vii. p. 231 et seq.
270 OF THE LIABILITY ON COXTRACTS.
claims iiu[;ht have been enforced, are extinguished and
gone. There are several of these statutes, and different
periods are fixed within which different actions must
As to recnrd-i be brought (A'). To take contracts by record and
am bpecu ties, gpg^jg^n-y ^:ij,g^_ ^^ jg provided that all such actions
must be brought within twenty years after the cause
of such action or suit accrued, and not after (/), but if
(k) The following are some of the chief periods of limitation : —
On a specialty contract ....... 20 vears.
(but with regard to a mortgage of land, although under
seal, an action for the principal money secured by it must
always be brought within twelve years {Sutton v. Sutton,
22 Ch. D. 51 1 ; 52 L. J. Ch. 333 ; 48 L. T. 95) ; and this
is the same even though there is besides the mortgage
a collateral bond by the mortgagor (Fenrnside v. Flint,
22 Ch. D. 579; 52 L. J. Ch. 479; 48 L. T. 154). If,
however, there is a collateral bond by a third person,
the period is then twenty years as to him {Re Powers,
Lindsdl v. Phillips, 30 Ch. D. 291) ; and this is so even
thouiih he is joined by the same instrument {Fe Frishy,
Allinson v. Frishy, 61 L. T. 632 ; 38 W. R. 65). Only
six years' arrears of interest can be recovered on a mort-
gage, but a mortgagor will not be allowed to redeem
without paying nil arrears of interest (Fe Turner, T'urner
V. Spencer, 43 W. R. 153). As regards what arrears of
rent can be recovered hy a landlord against his tenant,
the rule is six years, but if there is a covenant under seal
to pay, then twenty years. See ante, p. 85, note (<).
For recovery of share of personalty imder an intestacy (23
k 24 Vict. c. 38, s. 13, and see hereon, Fe Johnaon, Sly
V. Blale, 29 Ch. T>. 694 ; 52 L. T. 682 ; 33 W. R. 502) 20 years.
For recovery of land and arrears of rent or mesne profits,
against a wrongful owner ...... 12 years.
For recovery of an annuity charged upon land (see
hereon Hughes v. Coles, 27 Ch. D. 231 ; 53 L. J. Ch.
1047 ; 51 L. T. 226 ; 32 W. R. 27) . . . . 12 years.
For recovery of a legacy . . . . . . .12 years.
On a simple contract ....... 6 years.
For libel .......... 6 years.
For assault ......... 4 years.
For false imprisonment ....... 4 years.
For slander ......... 2 years.
For penalty by common informer ..... 2 years.
To recover an advowson three successive adverse incum-
bencies, or sixty years, whichever is the longer, but in
no case after . . . . . . . . . loc years.
It has been held that the Statutes of Limitation apply so as to
bar claims against the separate estate of a married woman {In re
Hastings Estate, Hallctt v. Hastings, 35 Ch. D. 94; 56 L. J. Ch. 631 ;
57 L. 126; 35W. R. 584).
{I) 3 & 4 Wm. 4, c. 42, s. 3. It has recently been held that
judgments come within the Real Property Limitation Act, 1874 (37 &
38 Vict. c. 57, s. S), and in the absence of part payment or acknow-
ledgment in writins:, are barred by the lapse of twelve years {Jay v.
Johnstone, (1893), iQ. B. 189; 62 L. J. Q. B. 12S; 68 L. T. 129).
OF THE LIABILITY ON CONTRACTS. 2/1
any person shall be an infant, feme covert, or non compos
mentis at the time of the cause of action accruing,
then such person is at liberty to commence the same
within the like time after coming of full age, being
discovert, or of sound memory {m) ; and if any person
or persons against whom there shall be any such cause
of action is or are, at the time of such cause of action
accruing, beyond the seas, then the person or persons
entitled to any such cause of action may bring the
same against such person or persons within the like
time after the return of such person or persons from
beyond the seas {n). It is also provided that if there
shall have been any acknowledgment of the debt in
writing signed by the party liable or his agent, or any
part payment or part satisfaction, then there shall be
a like period of twenty years from such acknowledg-
ment, part payment, or part satisfaction (o).
To next take simple contracts, it is provided that As to simple
all such actions must be brought within six years ot
the cause of action arising, and not after {p). But if
the person to whom any cause of action accrues is at
tlie time an infant, feme covert, or non compos mentis,
then such person may commence the same within the
like period after coming of full age, being discovert,
or of sane memory {q) ; and if any person or persons
against whom there shall be any cause of action is or
are at the time of its accrual beyond seas, then the
person or picrsons entitled to any such cause of action
may bring the same within the like period after his
or tlieir return from beyond seas (r). No part of
(m) There was also by this statute a further period allowed in the
case of the absence of the creditor beyond seas, but this is not so now
(19 & 20 Vict. c. 97, s. 10).
{11) 3 & 4 Wm. 4, c. 42, s. 4.
(0) Sect. 5.
{p) 21 Jac. I, c. 16, s. 3.
(q) There was also by this statute a further period allowed in the
case of the creditor being beyond seas, but this is not so now (19 & 20
Vict. c. 97, s. 10).
(r) 4 & 5 Anne. c. 16, s. 19. Where there are several persons jointly
liable on a contract, some only of whom are beyond seas, time runs
against those that are here, notwithstanding the absence of the other
or others (19 & 20 Vict. c. 9;, s. 11).
272
OF THE LIABILITY OX CONTRACTS.
Jleaiiingr of
" beyond
seas."
the Uuited Kingdom of Great Britain and Ireland, nor
the islands of Man, Guernsey, Jersey, Alderuey, and
Sark, nor any island adjacent to any of them, being
part of the dominions of Her Majesty, is " beyond
seas " within the meaning of this provision (s).
TheStatutesof
Limitution as
to contracts
only bar the
remedy, not
the rijiht.
AVhen statute
begins to run
nothing can
stop it.
Ignorance
of right of
action.
Such, then, being the chief legislative enactments as
to the limitation of actions on contracts, it follows that,
if the periods allowed go by, generally speaking there
is no further remedy on the contract ; but it should
be observed that these statutes do not discharge the
debt, but simply bar the remedy, so that a person
having a lien will continue to have that lien although
his debt is statute-barred, and therefore he cannot
bring any action to recover it {t). With regard to the
further periods allowed in the case of disabilities, it
should be observed that the disability must be existing
at the lime of the accrual of the cause of action, and
no subsequent disability will be of any effect ; for when
once the time of limitation has begun to run nothing
will stop it (u). Thus, if at the time of the accrual of
a liability under a contract the person who has in-
curred such liability is here, though he goes beyond
seas the next day, yet the party having the right
against him has no further time allowed him to
enforce that right, though he would have had, had the
other been actually beyond seas at the time of the
liability accruing. Nor will ignorance that a right of
action existed prevent the statute running, unless indeed
the ignorance is produced by the defendant's fraud, and
no reasonable diligence could have enabled the plaintiff
(s) 19 & 20 Vict. c. 97, s. 12.
(t) Per Lord Eldon, in Spears v. Hartley, 3 Esp. 81 ; i?e Carter, Carter
V. Carter, 54 W. R. 57 ; 53 L. T. 630. Thi^ is different to the Statutes
of Limitation relating to land, which not only bar the remedy', but also
the right. As resulting from what is stated in the text, it may be
noticed that it has been held that w^here a legacy is given by a tes-tator
to his debtor, and at the testator's death the debt is statute-barred, yet
the executor is justified in setting off the statute-barred debt against
the legacy {Coatcs v. Coates, 33 L. J. Ch. 448).
(m) Rhodes v. iSmelhurst, 6 M. & W. 351 ; Gregory v. Ilurrill, 5 B.
& C. 341.
OF THE LIABILITY ON CONTRACTS. :273
to discover his rights, for here the statutory period only
commences with the discovery of his rights. This is an
equitable rule, which now, since the Judicature Acts,
universally prevails (x).
But notwithstanding these provisions, the debt may The ways in
be revived, or the Statutes of Limitation prevented effect of 'the
from applyiiifT, by a written acknowledgment of the '^t^^utes of
L f J o' J o Limitation
debt being given, or by the payment of interest, ormaybepre-
part payment of the debt by the debtor, or by the applying,
creditor issuing a writ of summons.
As to the acknowledgment to take a case out of the whntwiiibe
statutes, as regards debts by record and specialty, it ac^"n^^Ted*<r-
was alwavs required to be in writincj (y) but as regards ment to take
" . <• , ° ^-^r . . ^ , a case out of
simple contracts, formerly a verbal admission of the the statutes of
debt was sufficient, provided it contained an express ^"^''^''^'""•
promise to pay, or was in such distinct and unequivocal
terms that a promise to pay upon request might reason-
ably be inferred from it, which was an essential (z),
so that where the acknowledgment set up was in
the following words : " I know that I owe the money,
but ... I will never pay it," it was held this was
no sufficient acknowledgment, because the very words
negatived a promise to pay (a). This is still what
must be the nature of an acknowledgment to take the
case out of the statutes, so that, in every case where it
is disputed whether words used do or do not amount
to an acknowledgment, the criterion is. Do they con-
tain an actual promise to pay, or can such a promise
be inferred? It seems that an unqualified admission
of an account being open, or one which either party is
at liberty to examine, implies a promise to pay the
(x) Oibhs V. G^dld, 9 Q. B. D. 59 ; 46 L. T. 248 ; Barber v. Houston,
18 L. R. Ir. 475 ; Armstrong v. Millbum, 54 L. T. 723.
iy) 3 & 4 \Vm. 4, c. 42, 8. 5.
(3) Williams v. Griffiths, 3 Ex. 335 ; Smith v. Thome, 18 Q. B. 134.
(a) A' Court v. Cross, 3 Bing. 328. See also Green v. Iluviphrei/s, 26
Ch. D. 474 ; 53 L. J. Ch. 625 ; 51 L. T. 42 ; Jupp v. Poucll, i C. & E.
349 ; Quinceij v. Sharp, 45 L. J. (Ex.) 347.
S
274 OF THE LIABILITY ON CONTKACTS.
Conditional debt found due (h). An acknowledgment may be con-
ment!''^^''^" ditional on a certain event happening, but in such
a case the plaintiff, to entitle him to recover, must
prove that the condition has been performed or that
the event has happened (c).
An Hcknovv- A mere oral acknowledgment will not, however,
!iot°Xa*rbe*"o^^ be sufficient, for it has been provided by Lord
in writing. Tcnterdcn's Act (J), that no acknowledgment or pro-
mise by words only shall be sufficient unless in writing
signed by the party chargeable therewith (c) ; but by
the Mercantile Law Amendment Act, 1856 (/), it is
Effect of an cuacted that such an acknowledgment may be signed
went"b^me ^7 ^n agent of the party duly authorized. In the
of several joint Qase of scveral persons being liable jointly upon a
contract, and one of them giving an acknowledgment,
though without the consent or knowledge of the other
or others, it was formerly held that it took the case
out of the Statutes of Limitation, not only as against
that one, but against all (g). The contrary is, how-
ever, now the law, it having been provided by Lord
Tenterden's Act (A), that an acknowledgment given
by one, shall only operate to revive or keep alive a
debt against the particular person giving such acknow-
ledgment.
An acknow- An acknowledgment must be made before any action
be'pore "'"'* is brought (i). The person to whom the acknowledg-
action. meut should properly be made is the creditor, and an
acknowledgment of a simple contract debt is insufficient
(6) Banner v. Btrrid<je, i8 Ch. D. 254 ; 50 L. J. Ch. 630 ; 44 L. T.
680; 29 W. R. 844. See also ante, p. 55.
(<•) Tanner v. Smart, 6 B. & C. 638.
\d) 9 Geo. 4. c. 14, s. I.
(e) It is, however, expressly provided in this section, " that nothinij
therein contained shall alter, or take away, or lessen the effect of any
payment of any principal or interest made by any person."
(/) 19 & 20 Vict. c. 97, s. 13.
Ig) Whitcombe v. Whitinr/, i S. L. C. 61S; Dougl. 652.
(h) 9 Geo. 4, c. 14, s. I.
, (i) Bateman v. Finder, 3 Q. B. 574.
OF THE LIABILITY ON CONTRACTS. 2/5
unless made to the creditor or his agent (/.■) ; but an
acknowledgment of a specialty debt will, it seems,
suffice though made to a stranger (/).
As to payment of interest, or part payment of the Payment of
,. i_/\j.i- ^ interest or
debt made by the debtor or his agent {m), this always part payment
has been, and is still, sufficient to take a case out of the °^ v^'^^^'i'-'^-
Statutes of Limitation, and it matters not that the
payment is made after the statute has barred the debt.
The part payment, whether made to the creditor or his
agent, is indeed evidence of a fresh promise to pay, and
it must therefore be made under such circumstances
that a promise to pay the balance may be inferred (?i).
Where there are accounts with items on both sides,
the mere going through them and striking a balance
docs not take the case out of the statute ; but if it is
expressly agreed that certain items on the one side
shall be set off against, and satisfy, certain statute-
barred items on the other side, and this then leaves
a balance consisting of items not statute-barred, the
full balance can be recovered (o). In the case of Effect of such
several persons liable jointly upon a contract, in the oue'^f seve"^ai
same way that it was formerly held that an acknow- ^""^^ debtors,
ledgment by one would take the case out of the
Statutes of Limitation as against all, so in the case of
part payment of principal, or payment of interest, by
one, it was also held that it extended to all (^j). The
contrary as to this also is, however, now the law, it
being provided by the Mercantile Law Amendment
Act, 1856 (q), that part payment, or payment of
interest, by one, shall only operate to keep a debt alive
(k) Stamford Banking Co. v. Smith, (1892), I Q. B. 765 ; 61 L. J. Q.
B. 405 ; 66 L. T. 306.
(/.) Moodie v. Bannister, 4 Drew. 432. See also I S. L. C. 627.
(m) See as to the necessity of the payment bein^ by the debtor or a
person who is properly speakint; his agent, N^e^vbould v. Smith, 33 Ch.
D. 127 ; 55 L. J. Ch. 788 ; 55 L. T. 194 ; 34 W. R. 690.
(n) Morgan v. Rowlands, L. R. 7 Q. B. 493 ; In re Rainforth, Qwynne
V. Gwynne, 49 L. J. Ch. 5 ; 41 L. T. 610.
(o) Chitty on Contracts, 815, 816 ; i S. L. C. 621, 622.
(p) Whiicomhe v. Whiting, I S. L. C. 618 ; Dougl. 652.
(2) 19 & 20 Vict. c. 97, s. 14.
276
OF THE LIABILITY ON CONTRACTS.
or to revive it as regards the particular person making
Difference as such payment (r). But this provision does not govern
Tove^ned^by' ^ases coming within the Eeal Property Limitation
Real Property j^^^ 1 874, and as to all such cases, if there are joint
Limitation j / -tj
Act, 1874. debtors (e.g. joint mortgagors of land), a part payment,
or payment of interest, by one, M'ill keep the debt
alive against all, the reason being that there is not in
the Eeal Property Limitation Act, 1874, any corre-
sponding provision to that in the Mercantile Law
Amendment Act, 1856, and therefore the common law
principle with regard to the matter still prevails (s).
Issuing of
process to
prevent
Statutes of
Limitation
applying.
2. Set-off.
A creditor cannot, by merely issuing a writ of
summons to recover his debt, keep it alive for an
indefinite space of time. The writ will primarily
only remain in force for twelve months, but if not
served it may by leave be renewed for six months,
and so on from time to time, on its being shewn that
reasonable efforts have been made to serve it, or for
other good reason ; and so long as the writ, having
originally been issued before the debt was statute-
barred, is thus kept on foot, the debt will be kept
alive (t).
Set-off is a demand which the defendant in an
action sets up against the plaintiff's demand, so as to
counterbalance that of the plaintiff either altogether
or in part. As, if the plaintiff sues for ^50 due on
a note of hand, the defendant may set off a sum due
to himself from the plaintiff for merchandise sold to
the plaintiff; and if he pleads such set-off in reduction
of the plaintiff's claim, such plea is termed a plea of
set-off. A set-off may therefore be defined as a claim
(r) However, if one partner makes a part payment or pays interest
in respect of a debt of the firm, this would be presumed to be within
the scope of his authority, and would revive the debt or keep it alive,
not merely as against him, but against the whole firm (Goodwin v.
Parton, 42 L. T. 568).
(s) Re Frishy, Allinson v. Frishy, 61 L. T. 632 ; 38 W. R. 65.
(i) Order viii. rr. i, 2.
OF THE LIABILITY ON CONTRACTS. 2//
which a defendant has upon a plaintiff, and which he
sets up or places against the plaintiff's demand (u).
Before any statute upon the suhject a defendant Former rules
was not allowed to set off any claim he had against
the plaintiff unless it was strictly connected with the
plaintiff's demand, so that, for instance, if the defendant
had simply some independent counter-debt against the
plaintiff, he must have brought a cross action to re-
cover it, but in an action for money received by him
he might have set off any deduction he was entitled
to make out of such sums by way of commission or
otherwise (x). In equity the rule was somewhat dif-
ferent, being much more extensive, for there, whenever
there was some mutual credit between the parties, set-
off was allowed. However, by the Statutes of Set-
off (y) all mutual debts were allowed to be set off,
and this even although such debts were of a different
nature. But under the Statutes of Set-off only debts
were allowed to be set off, and so the law remained
until the coming into operation of the Judicature Acts, Rule now.
1873 and 1875, when it received a great extension,
the provision on the subject now being that a defen-
dant in an action may set off or set up by way of
counter-claim against the claims of the plaintiff any
right or claim, vjhdher such set-off or counter-claim
sound in damages or not, and such set-off or counter-
claim shall have the same effect as a statement of
claim in a cross action, so as to enable the court to
pronounce a final judgment in the same action both
on the original and on the cross claim. But the court
or a judge may, on the application of the plaintiff
before trial, if in the opinion of the court or judge
such set-off or counter-claim cannot be conveniently
disposed of in the pending action, or ought not to be
allowed, refuse permission to the defendant to avail
(u) Brown's Law Diet. 486.
(x) Chitty on Contracts, 821.
{y) 2 Geo. 2, c. 22 ; 8 Geo. 2, c. 24.
278
OF THE LIABILITY ON CONTRACTS.
himself thereof (z). The student will observe that
the great alteration and extension of the principle of
set-off that is made by this last provision is, that any-
thing, even a mere claim for damages, may be set off,
whereas formerly it must have been liquidated, or of
such a nature as might be rendered liquidated, without
an actual verdict to liquidate it (a).
Keiease. By release, as applied to contracts, is meant some
act which operates as an extinguishment of a person's
liability on a contract, and it may occur either where
the contractee expressly exonerates or discharges the
contractor from his liability, or impliedly, where the
same effect takes place by the act of the law. An ex-
press release may be by an instrument under seal, in
which case no consideration is necessary to its validity
and effect ; or provided there be a valuable considera-
tion for the release, it need not be under seal, if it
is made before breach, and a' so provided the original
contract was not under seal ; if the original contract
was under seal, then it can only be discharged by a
release under seal. After breach, a release must be
under seal, unless, being founded on a valuable con-
sideration, it can operate, as it may possibly do, as an
accord and satisfaction (?>). A contract of record may
be discharged by a release under seal (c).
A release
given to one
of several
joint con-
tractors dis-
cliaiges :\11.
A release can only generally operate to discharge
the liability of the person to whom the release is given,
but in the case of several joint contractors a release
given to one will operate to discharge all, and this
even though the contract be several as well as joint,
the reason of which is apparent, for if it did not so
(z) 36 & 37 Vict. c. 66, s. 24 (3) ; Order xix. r. 3.
(a) See In re Milan Tramways Co., Ex parte Theys, 22 Ch. D. 122 ;
48 L. T. 213 ; 52 L. J. Ch. 29 ; 31 W. R. 107. In practice, since the
commencement of the new Acts counter-claims of almost every kind
have been allowed.
{b) As to which see ante, pp. 268, 269.
(c) Chitty on Contracts, 769.
OF THE LIABILITY ON CONTRACTS. 279
operate, the effect would be that any co-contractor
from whom the amount was recovered would have a
right over for contribution against the one released, so
that the release would really be without effect (d).
Although one of two joint creditors can give a re- Covenant not
° . , « , to sue given by
lease, yet a covenant not to sue given by one ot two one of two
joint creditors does not so operate, and cannot be set J"'"* *='editor.s.
up as a defence to an action brought by both (e).
An instance of release by operation or implication Effect of a
of law occurred formerly in the case of a creditor po^ting'his
appointing his debtor executor of his will and dying, f Jc°'^^r.
for here, as he, as executor, is the person entitled to
receive the debts, and the debt is due from himself, and
he cannot sue himself, the debt was at law gone. But
in equity he would have been a trustee for the benefit
of the persons entitled under the will, or the next-of-
kin, and it is now provided by the Judicature Act,
I 873 (/), that where there is any variance between the
rules of law and equity, the rules of equity shall pre-
vail. Another instance of release by operation of law, Or of a wom«u
which might until lately have occurred, was where ^J|)j.'o''i"'°
a man married a woman to whom he was indebted ;
but in equity any such debt might always have been
kept alive by the agreement of the parties prior to
marriage by way of settlement, and the same provi-
sion in the Judicature Act applies here, and now in
marriages on or since i st January 1883 the debt will
remain to her separate use (g).
There remain still some few matters that may con- EqiiitiiWe
veniently be touched upon in concluding the present
chapter. It has frequently happened that on an
action at law beinij brought, the defender has had
(d) Chitty on Contracts, 773.
(c) Walmeslej/ v. Cooper, 11 A. & E. 221.
(/) 36 & 37 Vict. c. 66, s. 25 (11).
{</) 45 & 46 Vict. c. 75, s. 2.
2 So
OF THE LIABILITY OX CONTPvACTS.
Common L;i\v
Procedure
Act, 1854.
Judicnture
Act, 1873.
some answer to the plaintiff's claim which would he
admitted as a defence in equity but not at law. In
such case the only course open to a defendant was to
apply to the Court of Chancery to stay the action at
law, and take the matter under its cognizance, which
it would do, not indeed restraining the court from
exercising its jurisdiction, but acting in personam, and
restraining the plaintiff at law from further proceed-
ing with his action. This state of things was to some
extent remedied by a provision in the Common Law
Procedure Act, 1854 (h), that where a person would
be entitled to relief on equitable grounds he misht
plead tlie facts in his defence, stating expressly that it
was a plea upou equitable grounds (i) ; but the courts
of law on this enactment decided that they could only
allow an equitable defence to be set up where an
absolute and unconditional perpetual injunction would
be granted in equity (/.•), so that there were still very
many cases of equitable defences which could not be
set up at law as excuses for the non-performance
of contracts. The Judicature Act, 1873 (l), however,
now remedies this, for, as it unites the former courts
into one, so also it contains provisions giving, generally,
equal jurisdiction to all the different divisions of that
one court, and provides that where the rules of equity
and law clash the rules of equity shall prevail. Par-
ticularly as to equitable defences it enacts (w), that
where any plaintiff or defendant claims to be entitled
to any relief on equitable grounds only, which there-
tofore could only have been given by the Court of
Chancery, the Supreme Court of Judicature, and every
judge thereof, shall give the same relief in respect of,
and the same effect to, such equitable defence as ought
formerly to have been given by the Court of Chancery.
(h) 17 & iS Vict. c. 125.
(i) Sect. S3.
(k) Woodhouse v. Farehrothcr, 5 E. & B. 277 ; WuMcti v. Frognat, 2
H. & C. 669.
(0 36 & 2,7 Vict. c. 66.
\m) Sect. 24.
OF THE LIABILITY ON CONTRACTS. 28 1
All equitable estates, rights, and titles, aud all equit-
able duties and liabilities appearing incidentally in the
course of any cause or matter, are to be taken notice
of and recognised as they formerly would have been
by the Court of Chancery ; and no action pending
before the said court is to be restrained by way of
prohibition or injunction.
If a person pays money in performance of some Money paid
contract under compulsion of legal process, and after- pulsion of ''
wards he discovers that it was nut due, — c.a. in the ^''S'^i process
"-' cannot after-
case of an action brought to recover money, and the WMids be
defendant in such action, who has already paid the back!^^^
amount, being unable to find the receipt for it, or prove
the payment of it without such receipt, has to pay it
over again, but subsequently finds the receipt — he
cannot recover back the amount so paid (ii).
Money paid under mistake of fact can be recovered Money paid
back again; thus, if A., owing B. money, pays him, "°'^®'' "'^^*''''^'
and then A.'s agent, not knowing that the amount has
been paid, also pays B., the amount can be recovered
back by A. (0). But money paid under a mistake of
law cannot be recovered back ; thus, if A., against
whom B. makes a claim, pays the amount under a
mistaken impression that he is legally liable, and then
finds out the law is the other way, he cannot recover
the amount he has paid ( p). But this rule that money
paid under mistake of law cannot be recovered does
not apply to a payment made under such a mistake
to an officer of the court. Thus, a trustee in bank-
ruptcy— who is an oflScer of the court — demanded
payment of certain moneys from the trustee of
the bankrupt's marriage settlement, which were paid
(«) Marriott v. Hampton, 2 S. L. C. 441 ; 7 T. R. 269 ; Cndaval v.
Collins, 4 A. & E. 866 ; iMoore v. Fulham Vestry, (1895), i Q. B. 399 ;
71 L. T. 862 ; 43 W. R. 277 ; 64 L. J. Q. B. 226.
(0) See as a recent instance of the recovery of money paid under
mistake, King v. Stewart, 66 L. T. 339.
(p) Pollock's Contracts, 435.
282 OF THE LIABILITY ON CONTKACTS.-
under tlie mistaken belief that the trustee in bank-
ruptcy was legally entitled thereto. It was held that
the money could be recovered back even though it
had been distributed in the payment of dividends to
the creditors, the trustee in bankruptcy being ordered
to repay it out of other moneys coming to his hands
belonging to the bankrupt's estate {q).
(q) Ex parte Simmons, lie Camac, l6 Q. B. D. 308 ; 55 L. J. Q. B.
74 ; 54 L. T. 339 ; 34 W. R. 421. See also Re Broun, Dixon v. Broun,
32 Ch. D. 597 ; 55 L. J. Ch. 556 ; 54 L. T. 789.
OF FKAUD AND ILLEGALITY. 283
CHAPTER IX.
OF FRAUD AND ILLEGALITY.
In this chapter it is proposed to consider generally
what will amount to fraud, and when a contract will
be illegal ; the effect of fraud and illegality on a con-
tract ; and also some particular cases.
Firstly, As to Fraud. — Fraud in law may be defined i. As to frau.i.
as some wrongful act, statement, or representation
whereby a person is induced to contract and whereby
he suffers damage (a) ; and, as decided by the leading
case of Paslcy v. Freeman (h), in the case of a false i'«s?''.'/ v.
affirmation, to render it a fraud, it is not at all necessary
to shew that the person making it was benefited by
the deceit, or that he colluded with the person who
was benefited. Subsequent cases, and particularly the
recent case of Berry v. Peeh, cited below, have also Bemj v.
decided that it is not now absolutely necessary, in order ^'^ '
to set aside a contract, to prove that the person who
obtained it by some material false representation kuew
at the time the representation was made that it was
false (c), for if it be untrue in fact, and not believed to
be true by the party making it, or if it be made reck-
(a) Numerous definitions of fraud have, however, from time to time
been given (see several in Brown's Law Diet. 236), and it is an un-
doubtedly difficult matter to accurately define. Courts of equity have
refused to define fraud, considering that the ways of fraud are infinite,
and that new modes of fraud may constantly arise, and the rules of
equity now prevail in all divisions of the High Court of Justice (36
& 37 Vict. c. 66, s. 25 (II)).
(/>) 2 S. L. C. 74; 3 T. R. 51.
(e) Re Reese Hilcer- Mining Co., L. R. 4 H. of L. Cas. 64, 69 ; 39
L. J. Ch. 849 ; 16 L. T. 549 ; Redgrave v. Hurd, 20 Ch. D. i ; 45 L. T.
485 ; Berri/ v. Peek, 14 App. Cas. 337 ; 58 L. J. Ch. 864 ; 61 L. T. 265 ;
Anjus V. Clifford, (1891), 2 Ch. 449 ; 60 L. J. Ch. 443 ; 65 L. T. 274.
284 OF FKAUD AND ILLEGALITY.
lessly, without caring whether it be true or false, and
for the purpose of inducing another person to act upon
it, an action may be maintained by the person who
has been induced to act thereby (d). And this prin-
ciple applies although the misrepresentation was not
the sole inducement which led the party to contract,
provided that it did in fact materially influence him (c).
Fraud may substantially either consist of some false
representation, or some wrong concealment, that is,
Suggestio faJ si eit\\er suggcstio falsi or suppressio veri ; but for the
s«Si-ess?/'*^ latter to constitute fraud the contract must be one
veri. jji which, contrary to the general rule, disclosure is
necessary, that is, a contract uberrimae Juki (/), and
though in such cases suppressio veri may give rights,
as, for instance, to set aside a purciiase of land, yet it
would not form ground for an action for damages for
deceit (g).
As to legal and Fraud was formerly said to be of two kinds: (i)
uioiai fraud. Lgg^l fraud. Consisting in some false representation,
but made without any knowledge of its falsity, and
without any dishonest intentions, or any intention to
benefit the party making the representation ; and (2)
Moral fraud, consisting in there being a representation
made with knowledge of its falsity, or without actual
belief in its truth, and with dishonest intention, or
made for the purpose of benefiting the party making
the representation. A question very much discussed
was, whether to constitute fraud to vitiate a contract
or to give a right of action, it was necessary to shew
moral as well as legal fraud, or whether mere legal
fraud by itself was sufficient (h). Such distinction and
(d) See hereon Pollock's Contracts, 537, 538.
(e) Edginqlon v. Pittmaurice, 29 Ch. D. 459; 55 L. J. Ch. 650 ; 53
L. T. 369; '33 W. R. 911.
(/) As to which see ante, pp. 207, 20S.
((/) See per Lord Cairns, in Feek v. Gurney, L. R. 6 H. L. at p. 403 ;
Anson's Contracts, 154.
(h) Cornfoot V. Potvke, 6 M. & W. 35S ; Evans v. Collins, (Ex. Ch.),
5 Q. B. 820 ; Bailey v. Walford, 15 L. J. (Q. B.) 369. See this subject
dUcussed in 2 S. L. C. 95-9S.
OF FRAUD AND ILLEGALITY. 2S5
question mny, however, be now consigned to oblivion, No such dis-
the phrase legal as distinguished from moral fraud
having been rejected as wholly inapplicable and in-
appropriate to legal discussion, and the question now
always is simply, Do the facts shew fraud in the
common meaning of the word ? (i). It has recently
been expressly decided that a false statement made A false
carelessly and without reasonable ground for be- honestly'
lieving it to be true, is not in itself fraud, though Jj^tfJ^^Jj^ieut.
it may be evidence of fraud ; and such a statement,
if made in the honest belief that it is true, is not
fraudulent, and does not render the person making
it liable to an action for deceit (k). This must,
however, be taken as somewhat qualified by the
Directors Liability Act, 1890 (/), which provides that Directors
directors, promoters, and other persons responsible for ^sgo!^^'^^ ^'^^'
the issue of any prospectus with regard to a company,
shall be absolutely liable for statements contained
therein which induce persons, to their loss, to take
shares or debentures, unless it is proved that they
not only believed in the statement, but had reasonable
ground for such belief; or unless it was a correct
statement of the report or valuation of an engineer,
valuer, or other expert, and they had no reasonable
ground for believing that such person was not com-
petent to make such report or valuation ; or unless
the statement was a correct and fair representation of
a statement made by an official person, or in a public
official document.
A mere lie is not sufficient to constitute fraud, nor what repre-
is a false representation sufficient to found an action ^o^bVsuf-^"
on it, unless it was made with the intention that it ficient to
' constitute
— fraud.
(i) Weir V. Bell, 3 Ex. D. 238 ; 47 L. J. Ex. 704 ; Hart v. Sicaine,
7 Ch. D. 42 ; Joliffe v. Baker, 11 Q. B. D. 235 ; 52 L. J. Q. B. 609 ;
48 L. T. 966; 32 W. R. 69; Smith v. Chadioick, 9 App. Cas. 187 ; 53
L. J. Ch. 873 ; 50 L. T. 697 ; 32 W. R. 687.
(k) Berry v. PeeL; 14 App. Cas. 337 ; 58 L. J. Ch. S64 ; 61 L. T.
26;.
ll) 53 & 54 "^'ict. c. 64.
286 OF FEAUD AND ILLEGALITY.
should be acted on by the injured party, and it has in
fact caused some damage ; nor is a false representation
sufficient to avoid a contract, unless thereby the defen-
dant has been induced, or partially induced, to enter
into the contract (7?/). Words amounting only to mere
puffing, commendation, expectation, or confidence will
not amount to fraud (?«). A misrepresentation which
does not extend to the contents, but only to the legal
effect of an instrument, does not vitiate a transaction
as against a person who has thereby been induced to
enter into it, for every one is supposed to be conversant
with the law, and the legal effects of his acts, and
therefore such misstatement must be taken to be a
matter within his own knowledge (0).
A princii)Mi is If an agent in the course of his employment makes
agent's fraud, some false representation, but which representation is
unknown to the principal, or not known by him to be
false, and not in any way sanctioned by him, but yet
it comes within the scope of the agent's authority or
employment, the principal is liable for the fraud (29),
and this whether the principal has or has not derived
any benefit from the fraud {q). But a principal is not
liable for the misrepresentation of his agent made
without his authority, express or implied, but to serve
the private ends of the agent (r). It has been held
that the secretary of a company has no general autho-
rity to make representations to induce persons to take
shares in a company, so that a person who is induced
to take shares in a company by fraudulent misrepresen-
tations of the secretary, not authorized by or known to
(m) See Edgington v. Fitzmaurice, 29 Ch. D. 459 ; 55 L. J. Ch. 650 ;
53 L. T. 269; 33 W. R. 911.
(n) Bellairs v. Tucl-er, 13 Q. B. D. 562 ; Smith v. Land and House
Property Corporation, 49 L. T. 532 ; 48 J. P. lOl.
(0) Leicis V. Jones, 4 B. & C. 506. ,
(p) C'dell V. Atherton, 7 H. & N. 172 ; Barwiclc v. English and Joint
Stock Bank, L. R. 2 Ex. 259; Shaw v. Port Philip Gold-Mining Co.,
13 Q. B. D. 103 ; 53 L. J. Q. B. 369 ; 50 L. T. 685 ; 32 W. R. 771.
(q) British Mutual Ba7iking Co. v. Charnicood Forest Ry. Co., 18 Q. B.
D. 714 ; 56 L. J. Q. B. 449 ; 57 L. T. Sy^, ; 35 W. R. 590.
(r) Ibid.
OF FRAUD AND ILLEGALITY. 287
the directors, is not entitled to take proceedings against
the company for the removal of his name from the list
of shareholders, or for damages for such misrepresen-
tation (s). An agent acting within the scope of his As to agent's
authority is not personally liable for false representa- Eabiiity.
tions made innocently by him (t).
If a person interests himself to procure credit for Representa-
.i • i-ij. !• -iffi ) tions concerii-
anotner, or is applied to and inquired or as to a person s ing the credit
position, and makes some false representation in reply ^^ ^'"oti^er.
thereto, whereby the inquirer is induced to give credit
to the third person, he is liable to an action in respect
of the fraud contained in such false representation,
and quite irrespective of guarantee ; so that, after
the Statute of Frauds, its provision as to guarantees
being in writing was often evaded by suing for the
fraud frequently involved in such a representation.
But by Lord Tenterdeu's Act (u) it is provided " that Writing
no action shall be maintained whereby to charge any "^''^^^'"y-
person upon or by reason of any representation or assur-
ance made or given concerning or relating to the charac-
ter, conduct, credit, ability, trade, or dealings of any
other person, to the intent or purpose that such other
person may obtain credit, money, or goods upon (x),
unless such representation or assurance be made in
writing signed by the party to be charged therewith."
This enactment applies to a case where the representa-
tion is made in order that the party to be charged may
obtain a benefit from the credit, money, or goods beinf
obtained by such other person (y).
By statute 13 Eliz. c. 5, " An Act against Fraudu- 13 Eliz. c. 5.
lent Deeds, Gifts, Alienations, &c.," it is provided that
(s) Newlands v. National Employers' Accident Association, 54 L. J.
Q. B. 428 ; 53 L..T. 242.
(t) Eaglesjield v. Marquis of Londonderry, 4 Ch. D. 693.
(u) 9 Geo. 4, c. 14, s. 6. As to the circumstances leading to this
enactment, see i S. L. C. 195.
{x) This is as it is in the Act, but it is evidently a misprint, and
should be read " money or goods upon credit."
(y) Pearson v. Scligman, 31 W. R, 730 ; 48 L. T. 842.
288 OF FRAUD AND ILLEGALITY.
all gifts, grants, conveyances, &c., of every kind of
property, by writing or otherwise, made for the pur-
pose of delaying, hindering, or defrauding creditors and
others of their just and lawful actions, suits, debts,
&c., shall be void and of no effect as against such
creditors and others, except made upon good (which
means valuable) consideration to a person bond Jide
not liaving notice of the fraud. It will be observed
that this statute applies to conveyances of all kinds of
property, whether real or personal. The leading case
Tioi^jinesCase. on the construction of the statute is Twynnes Case (z),
in which a gift of goods was held to be fraudulent on
the following grounds : —
1. The gift was perfectly general.
2. The donor continued in possession after the gift.
3. It was made in secret.
4. It was made pending the writ.
5. There was a trust between the parties, and fraud
is always clothed with a trust.
6. The deed of gift stated that the gift was honestly
and truly made, which was an inconsistent clause.
The above are therefore points to look to in any gift
or conveyance of property to determine whether or not
it is fraudulent within the above Act ; not that because
any of those circumstances exist the transaction is there-
fore necessarily void, but a presumption of fraud arises
therefrom. And although it was at one time laid down
that an absolute sale without delivery of possession
must be in point of law fraudulent (a), this cannot be
(z) I S. L. C. I ; 3 Coke, 80.
(a) Edwards v. Ilarben, 2 T. R. 587.
OF FRAUD AND ILLEGALITY. 289
taken at the present day to be the law, for the rule
now established is that under almost any circumstances
the question whether the transaction is or is not
fraudulent is one for the jury (b). And where the
transaction is a mortgage, absence of change of pos-
session is, of course, no evidence of fraud (c).
If a person makes a voluntary settlement of his when fraud
property whereby the assets of creditors are subtracted a^vohintary'
so as not to leave sufficient for creditors, the law pre- settlement.
sumes an intention to defeat and delay creditors so as
to bring the case within the statute (d). Although a
conveyance may be fraudulent under the above statute
as against creditors, yet as between the parties them-
selves it is good (e). A settlement may be set aside
under this statute after a considerable lapse of time :
thus, in a recent case this was done after a lapse of ten
years (/).
By 27 Eliz. c. 4 all voluntary conveyances of land 27Eiiz. c. 4.
were rendered fraudulent and void against subsequent
purchasers for value, and this even although the subse-
quent purchaser had notice of the prior voluntary con- Voluntary
veyance ; but this statute is now practically repealed Act.^iSgs'.*'^*
by the Voluntary Conveyances Act, 1893 (g).
As to the effect of fraud on a contract, the maxim Ex doio ma'o
is, Ux doIo malo non oritur actio (Ji) ; but, notwith- actio.
{h) Martindale v. Booth, 3 B. & Ad. 498, and cases there cited. See
generally hereon I S. L. C 14, 15.
(c) See Edxoardsw Uarhen, 2 T. R. 587 ; i S. L. C. 15, 16.
(d) Spirett v. Willoivs, 34 L. J. Ch. 367 ; Freeman v. Pope, L. R. 5
Ch. 538 ; Spencer v. Slater, 4 Q. B. D. 13 ; 48 L. J. Q. B. 204; 27
W. R. 134 ; Boldero v. London and Westminster Discount Co., 5 Ex.
D. 47 ; 28 W. R. 154 ; Ex parte Mercer, In re Wise, 17 Q. B. D. 290 ;
55 L. J. Q. B. 558 ; 54 L. T. 720. And see generally hereon
Indermaur's Manual of Equity, 35-39.
(e) Robinson v. M'^Donnell, 2 B. & Aid. 134; Marewood v. South
Yorkshire Ry. Co., 3 H. & N. 79S.
{/) Three Town.i Banking Co. v. Maddever, 27 Ch. D. 523 ; 53 L. J.
Ch. 998 ; 52 L. T. 35.
(g) 56 & 57 Vict. c. 21.
(h) See Broom's Legal Maxims, 684 et seq,
T
290 OF FRAUD AND ILLEGALITY.
standing this, the effect of fraud is not to altogether
vitiate a contract, but the person on whom the fraud
is practised is entitled to insist on the fraud as pre-
venting any right of action that would, but for it,
exist, or he may, if he choose, ratify and confirm the
contract, and generally he may also sue for such
But third damages as the fraud has occasioned (i). And al-
acqu^irerr^ though as a coutract originally stands, if induced by
interest. fraud, the party guilty of the fraud cannot enforce it,
yet if third persons acquire a hond fide interest under
it without any notice of the fraud, they will have a
right to enforce it even against the party on whom the
fraud has been practised {h).
A rescission of But wherc there has been fraud, and a person has
the°ground*of therefore a right to rescind the contract, he must
fraud must excrcise this right within a reasonable time, and if,
he exercised o
within a knowing of the fraud, he does not rescind the con-
tiiue. tract, but continues to act in the matter as if there
were no fraud, he will lose his right (/).
Fraud need If there is fraud, it is not necessary to shew that the
whofrof'the fraud goes to the whole of the contract; it is quite
contract. sufficient to shcw that there is a fraudulent misrepre-
sentation as to any part of that which induced the
person to enter into the contract (in).
Application If a person comes to the court to set aside a con-
""jnpaHddkto, tract on the ground of fraud, and it appears that he
^'^- also on his part has been guilty of fraud, so that both
(i) White V. Garden, lo C. B. 919, 927 ; Stevenson v. Neivnham, 13
C. B. 285. But a person cannot always, though he may generally, con-
firm a contract and yet sue for the fraud. Thus, a person who has
been induced to take shares in a company cannot wliile retaining the
shares sue the company of which he is himself a member for damages,
but his only remedy is rescission (Hoiddsicorth v. City of Glasgoto Bank,
5 App. Cas. 317).
(k) Oakes v. Turquand, L. R. 2 H. L. C. 325.
(J) Ibid.
[m) Per Blackburn, J., Kennedy v. Panama Mail Co., L. R. 2 Q. B.
5S7.
OF FRAUD AND ILLECxALITY. 29 1
parties are really and truly in imri delicto, the court
will not give relief, for the maxim is, In pari delicto
potior est conditio defendentis et possidentis, unless,
indeed, public policy will be more promoted by giving
relief (n).
Secondly, As to Illcgcdity. — Primarily speaking, par- 11. As to
ties are allowed to enter into any contracts that they ^°^ ' ^'
think fit, and by their contracts to make laws for them-
selves to a certain extent, but there are many kinds of
contracts which are not allowed because the interests
of the public or of morality are affected thereby, and
public injury might be done were they allowed (0).
Where, then, there is illegality, the contract is void,
and, in the words of Lord Chief-Justice Wilmot, in the
important case of Collins v. Bknitcrn (p), "The reason CoiUnsv.
why such contracts are void is for the public good.
You shall not stipulate for iniquity ; ... no polluted
hand shall touch the pure fountain of justice. "Whoever
is a party to an unlawful contract, if he hath once paid Money paid
the money stipulated to be paid in pursuance thereof, lUegal contract
he shall not have the help of a court to fetch it back ^..^ll'^'^bVrT'
again ; you shall not have a right of action when you covered back.
come into a court of justice in this unclean manner
to recover it back again." But if of two parties to an
illegal contract one is not actually in pari delicto with
the other he may obtain relief; and further, if money
is paid or goods delivered for an illegal purpose, the
party may recover the same back before the illegal
purpose is carried out or effected (q). Still all such
transactions must be regarded closely, and if the
illegal purpose is in substance effected the principle
just stated applies. Thus, it has been held to heffcrmanv.
illegal for a defendant in a criminal case who has
been ordered to find bail for his good behaviour for
[n) Story's Equity, 298, 303 ; Broom's Legal Maxims, 673.
(0) Chitty on Contracts, 671.
(p) I S. L. C. 404; 2 Wilson, 341.
(g) Taylor v. Boivers, i Q. B. D. 300 ; 46 L. J. Q. B. 39.
292 OF FKAUD AND ILLEGALITY.
a certain period, to deposit money with his surety to
secure him, under an arrangement for repayment at
the expiration of the period ; and that therefore no
action can Le maintained by the depositor to recover
it back either before or after such period, although the
defendant in the criminal case has not committed any
default, and the surety has therefore not been called
upon for any payment, for the illegal purpose was
in fact effected when the public lost the protection
which the law affords for securing the party's good
behaviour (r).
The doctrine of Although an instrument on its face may appear to
iioTpreienT^ bc perfectly valid, yet parol evidence may be given
the setting up j.^ gj^ew that it is actually an illegal contract, and
of lUegalily. *' " ' .
this even although it be a contract under seal. This
roUinsy. is wcH shcwn by the case of Collins v. Blantern (s),
Biantern. whicli has already been referred to, and the facts in
which have been set out at a previous page, to which
the student is referred {t). In that case also Lord
Chief-Justice Wilmot in his judgment said : " What
strange absurdity would it be for the law to say that
this contract is wicked and void, and in the same
breath for the law to say, You shall not be permitted
to plead the facts which clearly shew it to be wicked
and void ! " (w).
The law never But it must be carcfuUy remembered that the law
illegality! never presumes illegality, but rather presumes every
contract to be good until the contrary is shewn ; for
one of the maxims for the construction of contracts is
that the construction shall be favourable (x) ; and it
may sometimes happen that some only of the covenants
(r) Herman v. Zeuchner, 15 Q. B. D. 561 ; 54 L. J. Q. B. 340;
L. T. 04 ; 33 W. R. 6c6 ; see also Kearley v. Thomson, 24 Q. B. D. 7,
59 L.'J. Q. B. 288 ; 63 L. T. 150.
53
742;
y jj. w. vt- ^- ^"- , "J — -• -J"
(s) 1 S. L. C. 398 ; 2 Wilson, 341
{t) See ante, pp. 16, 17
\u) I S. L. C. 406.
(x) See ante, p. 24.
OF FEAUD AND ILLEGALITY. 293
or conditions in a deed may be void as being illegal,
and that the others may be good, but here the illegal
covenants must be clearly divisible from the others (y).
Illecralitv is usually said to be of two kinds, viz. : illegality is of
o J -^ - 1 • r, two kinds.
(i) Where the illegality consists of some act which
is illegal by the common law of the realm, as being
against public policy or morality, and acts of this kind
are also said to be mala in se ; and (2) Where the
illegality consists of some act which was not originally
illegal, but has been rendered so by some statutory
provision, and acts of this kind are also said to be
maid prohihita (2).
A contract in general restraint of trade was formerly Contracts in
held to be absolutely void — that is to say, no person, for l^^^t of
however valuable a consideration, could covenant abso- *'''^<*^-
lutely never again to carry on his trade or calling any-
where, for any such agreement was considered to be con-
trary to public policy, as tending to cramp trade and
to discourage industry, enterprise, and competition (a).
But it was held that it was perfectly legal for a
person for valuable consideration to enter into a con-
tract in limited restraint of trade, which might often
be very necessary for another's proper protection ;
thus, if a person sells the goodwill of a business, and
nothing is said restricting his carrying on a similar
business in or near that place, he is at liberty the
very next day to set up a like business even next
door, to the great injury of the purchaser, and even to
solicit the former customers of the business, provided
only he does not represent himself as carrying on
the old business (b). But this power of setting up
(y) Chitty on Contracts, 673.
(z) See this division in i S. L. C. 409, 410.
(a) Mitchell v. Reynolds, i S. L. C. 430 ; i P. Wms. 181.
(6) Pearson v. Pearson, 27 Ch. D. 145 ; 54 L. J. Ch. 32 ; ?i L. T.
311 ; 32 W. R. 1006. See also Walker v. Mottrani, 19 Ch. D. 355 ;
51 L. J. Ch. (Apps.) 108; 45 L. T. 659.
294 OF FRAUD AND ILLEGALITY.
a fresh business might always be prevented by tlie
vendor entering into a contract in limited restraint of
NordenfcUv. trade. "With regard, however, to the point of there
aiTfeUGum ^^eing necessarily a limit to the restraint, it is now laid
andAmmuni- (Jq^^vq that a Contract in restraint of trade which is
tion Co. ... . -1 • T J
even general m its nature is not necessarily invalid
(though it usually is), but that the true test of the
validity of such a contract is whether it is or is not
unreasonable, and that a covenant of this kind may be
unlimited, provided that it is not more than is reason-
ably necessary for the protection of the covenantee,
and is in no way injurious to the interests of the
public (c). The question of reasonableness or un-
reasonableness must depend to a great extent on the
circumstances of each particular case, for naturally
some trades or callings may require a wider limit
than others, and it is therefore impossible to lay down
any fixed rules as to when a restraint will be reason-
able and when not {d). It has been held that a con-
tract in restraint of trade may sometimes be good in
part and bad in part ; that is to say, where there are
distinct stipulations, part may be accepted and held to
be binding, and part may be rejected (c). A covenant
not to carry on a trade at all "so far as the law
allows," has been held to be bad as being too vague
and general, for the parties must fix the limit, and
not leave it for the court to do so (/).
(c) Nordenfeltv. Maxim- Nor denfelt Gunsand Ammunition Co. (1894),
A. C. 535 ; 63 L. J. Ch. 908 ; 71 L. T. 489 ; Rousillon v. Bousillon,
14 Ch. D. 351 ; 49 L. J. Ch. 3-^8 ; 42 L. T. 679 ; 28 W. R. 623 ;
Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345 ; Mills v. Dunham, 64 L.
T. 712 ; Miimford v. Gethivrj, 7 C. B. (X. S.) 317.
(d) See various instances of different limits in Chitty on Contracts,
6S0-6S2. See also Tallis v. Tallis, 2 E. & B. 391 ; Leather Cloth Co.
V. Lorsont, L. R. 9 Eq. 355 ; Allsopp v. ]Vheatcroft, L. R. 15 Eq. 59 ;
42 L. J. Ch. 12 ; Jacoby v. Whitmore, 32 W. R. 18 ; 49 L. T. 335 ;
Mineral Bottle Exchange Co. v. Boolh, 36 Ch. D. 465 ; 57 L. T. 573 ;
and see particularly the recent case of Noid-nfelt v. Maxim- Xordenfelt
Guns and Animunition Co., siipj-a.
(e) Mallam v. May, 1 1 ]M. & W. 643 ; Price v. Green, 16 ^l. & "\V.
346 ; Baines v. Geam, 35 Ch. D. 154 ; 56 L. J. Ch. 935 ; 56 L. T. 567.
(/) Davies v. Davics, 36 Ch. D. 359 ; 57 L. J. Ch. 962 ; 56 W. R.
86 ; 58 L. T. 209.
OF FEAUD AND ILLEGALITY. 295
It is actually necessary that a contract in restraint Such contracts
of trade, to be good, should be founded upon a vahi- "e^fomidecron
able consideration, even thoufrh under seal (g),and this » '^'aiuabie
' " \^/' consideration.
forms an exception to the rule that a specialty contract
requires no consideration. But it seems to be now
decided that the court will not enter into the question
of whether the consideration is adequate, but that it
will be sufficient if there is a consideration shewn to be
of some hond fide legal value, but that if the considera-
tion is so small as to be merely colourable, then it is
not sufficient Qi).
It may be that although the restraint is a limited AVhen a con-
and reasonable one, yet it may, irrespective of that, be iin*inii\e!'ue-
illegal. Thus in one case the plaintiff, who was not^^raintof
° . . / trade, may
a duly qualified medical practitioner, engaged the de- be bad.
fendant to assist him in the profession of medicine,
and bound the defendant not to practise that profes-
sion within ten miles of his place of business for five
years after the engagement terminated. The defendant,
nevertheless, commenced to practise, and the plaintiff
applied for an injunction. It was held that, as the
plaintiff was an unqualified practitioner, the agreement
was not binding, and an injunction was refused {i).
An agreement or combination of employers binding Agreement or
themselves only to employ workers at a certain rate of empioyeis""' ^
wages, or only to carry on their business in a certain
specified way, is illegal, and no action lies on the
breach of any such agreement (/j). So also an agree-
ment by employes to combine to increase the rate of
wages cannot be enforced (/), but by the Trade Union
{g) Mitchell v. Retinoids, i S. L. C. 430; i P. Wms. 181.
(h) Hitchcock v. dohcn, 6 A. & E. 438 ; Archer v. Marsh, 6 A. & E.
966 ; Pllkington v. Scott, 15 M. & W. 657.
(i) Davies v. MaTciina, 29 Ch. D. 596 ; 54 L. J. Ch. 1148 ; 53 L. T.
314; 33W.R. 668.
{k) Hilton V. Eckersley, 6 E. & B. 47 ; and compare herewith Mogul
Steamship Co. v. Macgregor, (1892), A. C. 25 ; 61 L. J. Q. B. 295 ; 66
L. T. I.
{I) Walshy v. Anley, 3 El. & EL 516.
296
OF FRAUD AND ILLEGALITY.
Trade Union
Act, 1871.
Act, 1 87 1 (m), it is provided that trade unions are
not to be considered unlawful so as to render members
thereof liable to be prosecuted, but agreements be-
tween members inter se are to be incapable of being
enforced (n).
Contracts of
ail immoral
nature.
As instances of contracts of an immoral nature, and
as such illegal and void, may be mentioned agreements
in consideration of future cohabitation (0), or future
seduction (p); and any contract which is designed to
promote an illegal transaction is bad, e.g. the letting of
lodgings or supplying goods for the direct purposes of
prostitution (q), or the lending of money to further a
known illegal enterprise (r).
Restraint of
marriage.
Contracts which operate in general restraint of mar-
ria^e are illegal and void.
Contracts involving maintenance and champerty are
also illegal and void.
Maintenance. Maintenance may be defined as an offence which
consists in officiously intermeddling in a civil suit (s)
that in no way belongs to one, as by maintaining or
{m) 34 & 35 Vict. c. 31.
(n) 34 & 35 Vict. c. 31, ss. 2-4 ; Jiigby v. Connol, 14 Ch. D. 482 ;
49 L. J. Ch. 328 ; 42 L. T. 139 ; 28 W. R. 650 ; Duke v. Littlehoy, 49
L. J. Ch. 802 ; 28 W. R. 977 ; 43 L. T. 216 ; Old v. Rohson, 59 L. J.
M. C. 41 ; 62 L. T. 282.
(0) But the mere fact that a man who is cohabiting with a woman
gives her a bond for the payment of money and afterwards continues
to cohabit with her, will not necessarily raise the presumption that the
bond was given in consideration of future cohabitation, and there
being nothing to shew it on the face of the bond, and no evidence that
it was given to secure the cohabitation, the bond will be good {In re
Vallance, Vallance v. hlagden, 26 Ch. D. 353 ; 50 L. T. 574).
(p) A contract to pay a sum in consideration ot past seduction is not
illegal, but there would be no valuable consideration to support a
simple contract {Beaumont v. Reeve, 8 Q. B. 483 ; ante, p. 42).
(q) 31'KinncU v. Robinson, 3 M. & W. 434. See also Croix v.
Morris, i C. & E. 485.
(r) Fearce v. Brooks, L. R. I Ex. 213.
(s) The maintenance of criminal suits is not illegal {Grant v. Thomp-
son, 72 L. T. 264).
OF FRAUD AND ILLEGALITY. 297
assisting either party with money or otherwise, although
having nothing to do with it (t) ; and for maintenance
a person may be prosecuted, and an action may be
maintained against him for damages caused by his
acts of maintenance (w). There are, however, many
exceptions to maintenance, mainly upon the principle
of a common interest in the maintaining party : e.g. a
master may assist his servant, any person may assist
his close relative, or even his neighbour or friend, and
it has even been held that a rich man may out of
charity assist a poor man to maintain a right which
he would otherwise lose (x) ; and in such a case it is
not necessary that there should in fact be a right
existing, for it is sufficient if the party maintaining
honestly believes there is a right, and this even though
he may not have inquired into the circumstances (y).
Champerty consists in an agreement between a Champerty,
litigant and a third party, whereby, in consideration
of that third party advancing him money, he agrees
to share with him the proceeds of the litigation (z).
It may be noticed that the Solicitors Act, 1870 (a),
specially guards against champerty in the case of
solicitors, by providing (h) that nothing therein con-
tained shall be construed to give validity to any
purchase by a solicitor of the interest of his client in
any contentious proceedings, or to give validity to any
(t) Brown's Law Diet. 328; Bradlaugh v. Newdegate, 11 Q. B. D.
I ; 52 L. J. Q. B. 454 ; 31 W. R. 792.
(w) Alabaster V. Harness, (1895), i Q. B. 339 ; 64 L. J. Q. B. 76 ; 71
L. T. 740.
[x) Per Lord Coleridge in Bradlaugh v. Newdegate, II Q. B. D. i ;
52 L. J. Q. B. 454 ; 31 W. R. 792. See also Plating Co. v. Furquharson,
17 Ch. D. 49 ; 50 L. J. Ch. 406 ; 44 L. T. 389.
(y) Harris v. Briscoe, 17 Q. B. D. 504 ; 55 L. J. Q. B. 423 ; 55 L. T.
14; 34W. R. 729.
(2) Ball V. Warivick, 50 L. J. Q. B. 382 ; 29 W. R. 468 ; 44 L. T,
218. This case shews that in order to constitute champerty it is not
essential that there should be an undertaking on the part of the litigant
to proceed with the action.
(a) 33 & 34 Vict. c. 28 ; see ante, p. 217.
(6) Sect. II.
298
OF FRAUD AND ILLEGALITY.
agreement by which a solicitor stipulates for payment
only ia the event of success in an action.
Contract to
compromise
criiuinal
offence.
All contracts for the compromise of criminal offences,
or to interfere with the course of justice, are illegal
and void (c). But in order to render illegal the receipt
of securities by a creditor from his debtor, where the
debt has been contracted under circumstances which
render the debtor liable to criminal proceedings, it
is not enough to merely shew that the creditor was
thereby induced to abstain from prosecuting (d).
Future sepa-
ration.
Gaming
contracts.
Gaming Act,
1845.
Contracts ior future separation of husband and wife
are contrary to public policy and absolutely illegal.
To render a separalion deed valid the separation must
be actually existing at the time. The intervention of
trustees, though usual, is not necessary, and though a
separation arrangement is almost invariably by deed,
it may be merely by word of mouth (e).
Gaming and wagering contracts, though not made
actually illegal, are made void by statute. At common
law, however, such contracts were not void unless of
such a nature as to contravene public policy ; as, for
instance, if tending to the injury or annoyance of
others, or to outrage decency (/). The Gaming Act,
1845 (g), however, provides that all contracts or agree-
ments by way of gaming or wagering shall be null
and void, and that no action shall be brought to recover
any sum of money or valuable thing alleged to have
been won upon any wager, or which shall have been
deposited in the hands of any person to abide the
(c) Windhill Local Board v. Vint, 45 Ch. D. 351 ; 59 L. J. Ch. 60S ;
63 L T. 366; Jones v. Merionethshire Building Society, (1892), I Ch.
173 ; 61 L. J. Ch. 13S ; 65 L. T. 6S5.
(d) Floicer v. Sadler, 10 Q. B. D. 572.
(e) McGregor v. M'Gngor, 21 Q. B. D. 424 ; 57 L. .1. Q. B. 591 ;
37 W. R. 45-
(/) Chitty on Contracts, 707.
Ig) 8 & 9'Vict. c. 109, s. 18.
OF FEAUD AND ILLEGALITY. 299
event on which any wager shall have been made ; but
this is not to be deemed to apply to any subscription,
or contribution, or agreement to subscribe or contribute
for or towards any plate, prize, or sum of money to be
awarded to the winner or winners of any lawful game,
sport, pastime, or exercise. In addition, the Gaming Gaming Act,
Act, 1892 (h), also now provides that any promise, ex- ^ ^^'
press or implied, to pay any person any sum of money
paid by him under or in respect of any contract or
agreement rendered null and void by the Gaming Act,
1845, or to pay any sum of money by way of com-
mission, fee, reward, or otherwise, in respect of any such
contract or of any services in relation thereto or in
connection therewith, shall be null and void, and no
action shall be brought or maintained to recover any
such sum of money.
It is not always easy to determine whether some Principal and
particular contract is or is not prohibited by the above- bitting trans-
mentioned provisions. Thus an agreement between a actions,
principal and an agent that the agent shall employ
moneys of the principal in betting on horse-races, and
pay over the winnings therefrom to his principal, is not
void or illegal (i) ; and if an agent is employed to
make bets, which are won and received by the agent,
the principal can recover the same from the agent (/*;).
But if a principal instructs his agent to make certain
bets, which the agent neglects to do, and had he done
so money would have been won and received by the
agent, and might have been recovered by the principal
from him, yet here the principal cannot sue the agent
for damages for having neglected to make the bets (I).
If an agent by the direction of his principal incurs a
(h) 55 & 56 Vict. 0. 9.
{i) Beeston v. Beeston, i Ex. D. 8 ; 45 L. J. Ex. 230.
{k) Bridge)' v. Savage, 15 Q. B. D. 363; 54 L. J. Q. B. 464; 53
L. T. 129 ; 33 W. R. 891 ; Be Mattos v. Benjamin, 63 L. J. Q. B. 248 ;
70 L. T. 460 ; 42 W. R. 284.
[I) Cohen V. KitteU, 22 Q. B. D. 680 ; 58 L. J. Q. B. 241 ; 60 L. T.
932.
300 OF FRAUD AND ILLEGALITY.
liability in betting on horse-races, it was formerly held
that he must be indemnified in respect thereof, and that
if he paid the amount he could recover it back from
the principal (m). But this is clearly not so now
since the Gaming Act, 1892. To illustrate the way
in which the Act has extended the law, it may be
observed that if A. makes a bet with B. and loses,
under the Gaming Act, 1845, B. cannot sue A. ; but if
A. instructed X. to make a bet with B. and X. made
the bet, and it being lost he paid it, he could formerly
have recovered from A., but now he cannot do so by
reason of the Gaming Act, 1892. This is a manifest
result of this last Act ; but it has a wider effect than
this, as will be seen by a close examination of its
provisions. Thus if A. at the request of B. pays certain
creditors of B. debts which A. at the time of making
the payments knows are bets which B. has lost, A.
cannot sue B. for the amount so paid (n). The Act,
however, would not apply to prevent A. from recover-
ing money lent to B. to pay betting losses.
Exchange
trausactions.
Stock Where a speculator employs a broker on the Stock
Exchange to effect sales or purchases of stock according
to the rules of the Stock Exchange for delivery on a
future day, with the intention that he shall not be
called upon actually to deliver or accept such stock as
may be sold or purchased, but only to pay or receive,
as the case may be, the difference between the price
of the stock at the day of the sale and the price on
the day named for delivery, the contract between the
speculator and the broker is not void or illegal (0).
But the transaction may be of a purely gaming nature,
(m) Read \. Anderson, 13 Q. B. D. 779; 53 L. J. Q. B. 532; 51
L. T. 55 ; 32 W. R. 950.
(n) Tatam v. Reeve, (1893), i Q. B. 44 ; 62 L. J. Q. B. 30 ; 67 L. T.
683. Notwithstanding an opinion expressed in this case, it is with all
deference submitted that if a plaintiff in such a case does not know that
the debts are for losses at betting, he can recover.
(0) Thacker v. Hardy, Thacker v. Wheatley, 4 Q. B. D. 685 ; 48
L. J Q. B. 2S9 ; £x parte Rogers, In re Rogers, 15 Ch. D. 207 ; 29
W. R. 29 ; 43 L. T. 163.
OF FEAUD AND ILLEGALITY. 3OI
e.g. where not for sale and purchase of stock, but merely
to pay or receive differences, according to whether the
stock goes up or down, and then, though not illegal,
this is void {p). It is not always easy to determine
in respect of Stock Exchange transactions whether
they are good or not, and it has lately been laid down
that it is for the jury to say whether a contract relating
to dealings in stocks and shares is intended by the
parties to be a gambling transaction in differences, or
a bond fde sale and purchase of shares; and if the jury
take the former view the court will not interfere {q).
Even if the transaction is held to be a contract by way
of gaming and wagering, it has been decided that securi-
ties deposited by the client by way of " cover " can be
recovered back by the client (?•).
If on a gaming contract a deposit is made with Deposit with
a person as stakeholder, here, before such deposit is may be re- ^^
actually paid over, the person so depositing it has a actu^iif'^'^fi.'r
right to demand and recover it back again, for he has "^er.
to this extent a locus posniientice (s), and this has re-
cently been held still to be the law notwithstanding
the Gaming Act, 1892 (t). Both this point and also
what will be held to be a gaming and wagering
contract are well shewn by the case of Haiupdcn v. Hampdfn v.
Walsh (m), in which the facts were as follows : — Tlie ^°'^'^'
plaintiff and one Wallace each deposited ;^50o in the
defendant's hands as stakeholder, upon an agreement
that if Wallace proved the convexity or curvature to
and fro of any canal, river, or lake by actual measure-
ment and demonstration to the satisfaction of certain
referees, he should receive both sums, but that if he
failed, then the plaintiff should receive both. The
(p) Per Brainwell, L.J., in Thacker v. Hardy, 48 L. J. Q. B. at p
296.
(9) Strahan v. Universal Stock Exchange, (1895), 2 Q. B. 329.
(r) Ibid.
(s) Varley v. Hiclcmnn, 17 L. J. (C. P.) 102 ; Martin v. Hewson, 24
L. J. (Ex.) 174 ; Diqgle v. Higgs, 2 Ex. D. 422 ; 46 L. J. Ex. 721!
(() O'Sullivan v. Thomas, 64 L. J. Q. B. 398 ; 72 L T 281;
(«) I Q. B. D. 189.
OF FRAUD AND ILLEGALITY.
experiment was made, and decided by the referees in
favour of Wallace, and the defendant paid the whole
;^iooo over to him accordingly. Before, however, he
had done so the plaintiff objected to the decision, and
he afterwards brought this action to recover his own
;^500 deposit, as money had and received by the
defendant to his use, and it was held by the court (i)
That the agreement was a wager, and so null and void
within the Gaming Act, 1845 ; and (2) That the
plaintiff was entitled to recover on the ground that
that provision does not apply to an action by a person
to recover his own deposit, and he had here revoked
the authority of the stakeholder before he had paid
over the money.
If, however, a stakeholder pays the money over to
the winner with the express or implied assent of the
other party, then he is discharged from any further
liability (x). No action will lie by the winner against
a stakeholder for the whole of the amount in his
hands, for the stakeholder is not by the fact of the
winning converted into an agent for the winner for
anything beyond what he originally was, viz. the
amount of the winner's own deposit (y). But this does
not extend beyond the stakeholder, and if he pays over
the whole amount to some third person for the use of
the winner, then the winner can recover it from such
third person (z).
AVhatisa It wiU be noticed that the Gaming Act, 1845, con-
whhin th"^ tains a proviso that the enactment shall not extend to
Gaming Act, r^^y subscription or contribution, or agreement for the
same, towards any plate, prize, or sum of money to be
awarded to the winner or winners of any lawful game,
pastime, or exercise. It appears that all games strictly
(x) Howson V. Hancoclc, 8 T. R. 575.
{y) Allportv. Nutt, i C. B. 974.
{2) Simpson v. Moss, 7 Taunt. 246.
OF FKAUD AND ILLEGALITY. 303
of skill, such as chess and the like, are lawful games
within this proviso (a). It has, however, been held
that an agreement between two persons to deposit
money in the hands of a third, to abide the event of
a lawful game between the two, is void within the
statute, and is not a subscription or contribution for
a sum of money to be awarded the winner within the
proviso of that enactment; but although the winner
of the match cannot sue the loser or stakeholder to
recover the stakes, yet he may repudiate the transac-
tion, and bring an action to recover back the share
deposited by him with the stakeholder (&).
Horse-racing is allowed on the principle that it tends Horse-racicg.
to improve the breed of horses (c) ; but, of course,
wagers on the result of such races are void.
Lotteries are rendered illegal by the provisions of Lotteries.
the Lottery Acts (d). But a lottery constituted avow-
edly for the benefit of its members, making certain of
them entitled to particular benefits by the process of
periodical drawings, does not come within the scope
of these enactments (e).
By a statute known as Leeman's Act (/) it is pro- Leeman's Act.
vided that all contracts for the sale and purchase of
(a) See Chitty on Contracts, 648, and cases there cited and referred
to. Instances of other kinds of games which would probably be held
lawful are also mentioned there.
(b) Dirjgle v. Uiggs, 2 Ex. D. 422 ; 46 L. J. Ex. 721 ; overruling
Batty V. Marriott, 5 C. B. 818. See also Coombs v. Dibble, L. R. i Ex.
250; 35 L. J. Ex. 167.
(c) The statute on the subject is 18 Geo. 2, c. 34. By 3 Vict. c. 5
the provisions of 13 Geo. 2, c. 19, as to validity of horse-racing are
repealed. The enactments of 18 Geo. 2, c. 34, so far as they relate
exclusively to horse-racing, appear not to be affected by 8 & 9 Vict.
0. 109 (see Chitty on Contracts, 710).
(d) 10 & II Wm. 3, c. 17, and 42 Geo. 3, c. 119.
(e) Wallingford v. Mutual Society, 5 App. Cas. 685 ; 50 L. J. Q. B.
49 ; 43 L. T. 258 ; 29 W. R. 81. See also, on this subject, Smith v.
Anderson, 15 Ch. D. 269 ; 50 L. J. Ch. 47 ; 43 L. T. 429 ; 29 W. R.
22 ; Jennings v. Hammond, L. R. 9 Q. B. D. 225 ; 51 L. J, Q. B. 493.
(/) 30 & 31 Vict. c. 29.
304 OF FRAUD AND ILLEGALITY.
shares and stock in joint-stock banking companies are
void if they do not specify the distinguishing numbers
of such shares or stock, or, if there are no distinguish-
incT numbers, every person in whose name they stand as
registered proprietor. A custom exists on the Stock
Exchange to disregard this Act, and there is in fact a
rule on the Stock Exchange that if a member shelters
himself behind its provisions he shall be liable to ex-
pulsion. If a client of a stockbroker, knowing of this
custom, has permitted the stockbroker to enter into a
contract in breach of this Act, he is bound to indemnify
the stockbroker, so that any loss may be recovered from
him by the stockbroker notwithstanding the provisions
of the Act, on the principle that he has knowingly
caused the stockbroker to incur a practical, though
not a legal liability, and is therefore bound to in-
demnify him therefrom {g). But if the client did not
know of the custom existing on the Stock Exchange
to disregard Leeman's Act, then it is otherwise, the
custom having been held to be unreasonable (A), and
it is a well-established rule that a person is only bound
by an unreasonable custom if at the time of dealing
he knew of it, and expressly or impliedly agreed to be
bound by it (i).
Bills, notes. If a bill of exchange, promissory note, or other
^iv™n fof °^' security is given to secure some debt won by gaming,
iaming debts, q^ j^y betting on games, or lent for such purpose, this
is a matter not governed by the Gaming Act, 1845 (A-),
but by the Gaming Act, 1835 (0, which provides that
such bills, notes, &c., shall not be absolutely void, but
shall be deemed and taken to have been given or
executed for an illegal consideration. The consequence
in) Seymour v. Bridge, 14 Q. B. D. 460 ; 54 L. .T. Q. B. 347.
(h) Perry v. Barnett, 15 Q. B. D. 38S ; 54 L. J. Q. B. 466 ; 53 L. T. 585.
(i) Sweeting v. Pearce, 9 W. R. 343 ; Blaciburn v. Mason, 68 L. T.
510.
{h) 8&9"Vict. c. 109, s. 15.
(I) 5 & 6 Wm. 4, c. 41, amending 9 Anne, c. 14.
OF FRAUD AND ILLEGALITY. 305
of this is, that if any such security is transferred, before
it becomes due, to a bond fide holder for value without
notice of the illegality — now styled a holder in due
course — he will have a right to recover thereon, al-
though the person in whose hands the same originally
was could not have done so (m). It is, however, pro-
vided {n) that mouey paid to the holder of such a
security shall be deemed to be paid on account of the
person to whom the same was originally given, and
shall be deemed to be a debt due and owing from such
last-named person to the person who shall have paid
such money, and shall accordingly be recoverable by
action. Thus, if A. wins money of B. at gaming, and lustance.
B. gives a promissory note for it to A., who discounts it
with C, who takes hond fide for value without notice
of the illegality of the consideration for which it was
given, here C. can recover the amount from B., but B.
can in his turn recover what he has to pay from A. Bills, &c.,
It must be borne in mind that this statute does not deal wJg^rs.*"^ ^
with all bills, notes, and securities given for wagering
debts, but only with such as are given in respect of
money won by gaming or betting on games. There-
fore, as regards any such instrument given in respect
of a wager transaction not of this character, the
statute just referred to has no application, e.g. a pro-
missory note given for a bet lost over the result
of a contested election. The instrument in such cases
is simply given in respect of a void transaction, and
therefore, though it cannot be sued upon by the party
to whom given, because there is no consideration, yet
it can be sued upon by a holder for value, and this even
though he had notice of the subject in respect of which
it was given ; nor is it necessary for such a holder to
shew that he gave value for it, though if proved that
he gave none he could not recover (0).
(m) 45 & 46 Vict. c. 61, S8. 29, 30.
(n) 5 & 6 Wm. 4, c. 41, s. 2.
(0) Pitch V. Jones, 5 E. & B. 245 ; Lilley v. Ranken, 56 L. J. Q. B.
^8 ; 55 L. T. 814 ; Hawker v. HallcweU, 25 L. J. Ch. 558.
U
3o6
OF FRAUD AND ILLEGALITY,
Wager poli
cies.
Simony.
The Lord's
Day Act.
Kule of
ejusdeni
aeneris.
Any person insuring another's life must have an
interest therein, or the policy will be illegal and
void {p).
Simony is an offence which consists in the buying
and selling of holy orders, and any bond or contract
involving simony is illegal and void {q).
By the Lord's Day Act (r) it is provided that " no
tradesman, artificer, workman, labourer, or other person
whatsoever shall do or exercise any worldly labour,
business, or work of their ordinary callings upon the
Lord's Day, or any part thereof (works of necessity
and charity only excepted) ; and that every person
being of the age of fourteen years or upwards offend-
ing in the premises shall for every such offence for-
feit the sum of five shillings." This statute is still in
force, and under it contracts so entered into will be
illegal and void, and no action can be maintained
thereon ; and it has been decided that if a person buys
goods of a tradesman on a Sunday, although he keeps
them after that day, yet that alone will not render
him liable for the price (s). Although this statute
uses the words " or other persons whatsoever," yet it
does not extend to every person, but these general
words must be taken to be limited by the particular
words immediately preceding them, and it will only
include persons coming within that class — that is, it
will only include persons ejusdem generis. The pro-
vision also only applies to an act done in the way of
one's ordinary calling, so that it will not apply to an
act done by one of the persons within its provisions,
but which act is not of the kind that he ordinarily
does : thus, if a person who is a horse-dealer sells a
(p) 14 Geo. 3, c. 48 ; ante, pp. 206, 207.
(g) See hereon 31 Eliz. c. 6 ; 12 Anne, st. 2, c. 12 ; Fox v. jj
Chester, Tudor's Leading Conveyancing Cases, 190 ; 6 Bing. i.
(r) 29 Car 2, c. 7, s. i
(s) Simpson v. Nicholls, 3 M. & W. 240.
Bishop of
OF FRAUD AND ILLEGALITY. 307
horse on a Sunday and gives a warranty with it, no
action lies against him on his warranty ; but if he is
not a person who usually deals in horses, but simply
a private individual selling a horse, it will be different,
for the sale and the warranty are not in the course of
his ordinary calling. It has been decided under this Oflfences under
statute that a person can commit but one offence on
one Sunday by exercising his ordinary calling con-
trary to the statute ; but this pertains to criminal
law {{).
Where an instrument is illegal, either by the com- C«od ab initio
T (. ^ won valet in
raon law or by statute, it cannot be afterwards con- tractutempork
firmed, the maxim being. Quod ah initio non valet in ^^cit"^^*^
tractu temper is non convalescit.
The mere fact that an instrument which ought to Effect of
have been stamped has not been stamped within the an instmment
proper time is not to render it illegal, but that it can- ^ithm the
•t^ -t o ' proper time.
not be given in evidence until stamped ; and it is the
duty of the officer of the court to call the attention of
the court to any want or insufficiency of the stamp (w).
An ordinary agreement requires a stamp of 6d., and stamp Act,
must be stamped within fourteen days of execution, ^ ^^'
or afterwards can only be stamped on payment
of a penalty of ;^io, and if paid in court, a further
penalty of ;^ i (x). The following agreements, however,
are exempted from stamp duty : —
1 . An agreement or memorandum the matter where- Exemptions
of is not of the value of £$. dntj.^ ^'"^
2. An agreement or memorandum for the hire
{t) Crepps V. Burden, i S. L. C. 692 ; Cowp. 640.
(u) 54 & 55 Vict. c. 39, s. 14.
(x) 54 & 55 Vict. 0. 39, ss. 14, 15. The Commissioners have, how-
ever, power to remit the penalty or any part of it on application (54
& 55 Vict. c. 39, s. 15 (3) ; 58 Vict. e. 16, s. 15).
308 OF FRAUD AND ILLEGALITY.
of any labourer, artificer, manufacturer, or meuial
servant.
3. An agreement, treaty, or memorandum made for
or relating to the sale of any goods, wares, or mer-
chandise.
4. An agreement or memorandum made between
the master and mariners of any ship or vessel for
wages on any voyage coastwise from port to port in
the United Kingdom (//).
A cognovit or I.O.U. does not require stamping,
unless it contains some special terms of agreement (z).
(y) 54 & 55 Vict. c. 39, tit. " Agreement."
(2) Aines V. BiU, 2 B. & P. 150 ; Fisher v. Leslie, i Esp. 426.
OF TORTS GENERALITY. 309
PART II.
OF TORTS.
CHAPTEK I.
OF TORTS GENERALLY.
A TORT may be defined as some wrongful act, consisting Definition of
in the withholding or violating of some legal right (a), '' *"''*•
and the following are a few instances — under the divi-
sions subsequently adopted — of torts in respect of
which an action will lie : —
1. Torts afiectiug land (b), such as, instances of
Trespass to land ;
Waste ;
Nuisances.
2. Torts affecting goods and other personal pro-
perty (c), such as,
Wrongful taking or detention of goods ;
Wrongful distress.
3. Torts affecting the person (d), such as,
Assault and Battery ;
Libel and Slander ;
Seduction.
(a) See Broom's Corns. 717.
(b) Post, chap. ii.
(c) Post, chap. iii.
(d) Post, chaps, iv. and v.
3IO
OF TORTS GENERALLY. '
4. Torts arising peculiarly from negligence («),
such as,
Injuries by carriers to goods or passengers ;
Injuries froru negligent driving (/).
Erery tort Now in all the abovB instances it must follow, that
ng^htof action. ^^ ^ person has a right to the due protection of his
person and his property, both real and personal, that
these rights being infringed, he has a right of action
in respect of the infringement, and all torts will be
found to come in some way under one at least of the
above heads.
The newness
of a tort is 110
objection to
an action.
Remarks of
Aahurst, J. ,
in Pasleij v.
Freeman.
But different torts might be enumerated almost
without end, for they may be infinitely various in their
nature, and it is impossible to lay down any fixed rule as
to what will or what will not amount to a tort for which
an action will lie {(f). It is no good ground of objection to
an action that injury of such a kind has never been made
the subject of any prior action, for, provided it comes
within any principle upon which the courts act, it is
sufficient, although the instance may be new ; but if it
embraces some entirely new principle, and it is sought
to make an act a tort which does not come within any
former principle, then this can only be done by the
interference of the legislature. This is expressed in
the case of Pasley v. Freeman (h), by Ashurst, J., who
says : " Where the cases are new in their principle,
there I admit that it is necessary to have recourse
to legislative interposition in order to remedy the
grievance ; but where the case is only new in the
instance, and the only question is upon the application
of a principle recognized in the law to such new case,
it will be just as competent to courts of justice to
apply the principle to any case that may arise two
(e) Post, chap. vi.
(/) See hereon generally, Addison on Torts, chap. i.
Ig) See Ashby v. White, i S. L. C. 268 ; Lord Raymond, 738.
(A) 2 S. L. C. 74 : 3 T. R. 51.
OF TOKTS GENERALLY. 3 I I
centuries hence as it was two centuries ago." That this
is so is well shewn by the case of Langridge, v. Levy {%), Lawjridge v.
which presents a highly novel instance of a tort. In ^^^'
that case the father of the plaintiff had bought a gun
of the defendant, stating at the time of buying it that
it was required for the use of himself and his sons,
of whom the plaintiff was one, and the defendant gave
him a warranty that it was made by a particular
maker, which was untrue. The plaintiff used the gun,
and it burst and injured him, and this action was
brought for damages in respect of the breach of duty
of the defendant, and it being proved that the defendant
had wilfully, or at any rate recklessly, made the false
warranty, and that the gun had been used by the
plaintiff, who was one of the persons who it was con-
templated should use it, on the faith of that assertion
it was held that the defendant was liable for his deceit,
and that the plaintiff was entitled to recover.
A tort may be committed although no actual harm injuria sine
, . n • c 1 -u t- • damno, and
is done by the tortious act, for if a person has what in damnum sine
the eyes of the law is considered as a legal right, and ''y«"'^-
that right is infringed, he has an action in respect of
it, eVen though it has not hurt him, and this is said to
be injuria sine damno (k). On the other hand, some
substantial harm may be done to a person, but yet he
may have no right of action in respect of it, because,
although damage has been done to him, yet no legal
right has been infringed, and therefore no injury done
to him in the eyes of the law, and this is said to be
damnum sine injuria (I). This subject has already
been sufficiently considered at the pages referred to
below.
(i) 2 M. & W. 519; in error, 4 M. & W. 337.
{k) See ante, pp. 3, 4, and case of Ashby v. White, there cited and
referred to.
{I) See ante, p. 4, and case of Acton v. BlundeU, there cited and
referred to. See also Addison on Tort-;, chap. i. s. i.
312
OF TORTS GENERAIiLY.
Distinction
between torts
and crimes.
As to torts
ifhich do not
amount to
crimes.
As to torts
amounting to
crimes.
Some torts may amount to crimes, but many do not,
and it is very important to properly understand the
difference between mere torts and crimes. A tort has
been already defined (m), and a crime may be described
as some breach or violation of a public right, and the
real distinction between an act which is simply and
purely a tort, and an act which is not only a tort but
also an actual crime, is that, whilst the tort is simply a
wrong afifecting the civil right of some particular person
or persons, a crime affects a public right, injuring the
whole, or a number, of the community (n).
It must, therefore, be apparent to every reader that
there are many wrongful acts which, though amount-
ing to torts, yet do not come within the category of
crimes. Thus particularly may be enumerated torts
arising from the negligence of one's servants or agents.
If a coachman is driving his master's carriage in the
ordinary course of his duty, and by his negligence he
runs over a person, this is a tort for which the master
may be liable in a civil action, but it is nothing more ;
there is no crime on the master's part. Again, a
private nuisance — that is, a nuisance which does not
affect the public at large, but simply some individual
— is a tort, but not a crime.
But, on the other hand, many acts may not only be
torts, but may also amount to actual crimes punishable
by the criminal law ; thus, in our first instance given
above, we have it that the master has committed a tort,
but no crime, but with regard to the coachman the case
may be very different, for he may possibly have been
guilty of a criminal offence amounting to manslaughter.
So, also, if a nuisance is not merely a private but a
public one — that is, one affecting the public at large —
this is an offence for which the person committing it is
liable to be indicted.
(to) Ante. p. 309.
(n) See JBrown's Law Diet., p. 151, title "Crime."
OF TORTS GENERALLY. S^S
When a tortious act is also a crime, and a crime of Where a tort
,., . iiji / \ 'i. is also a crinx'
such a high nature as to amount to felony {o), it was ^^^ ^ivii
formerly considered that the civil right which a person [^^"J^g^yJ^y"''^
had to maintain an action in respect of the injury ^"^pended
done to him was suspended until the felony had been ,„osecution.
punished, for it was said " the policy of the law requires
that before the party injured by any felonious act can
seek civil redress lor it, the matter should be heard and
disposed of before the proper criminal tribunal, in order
that the justice of the country may be first satisfied in
respect of the public offence " (p ). This, however, is
not now the law, for it has been decided that if a person
would have a right of action for another's wrongful act,
it makes no difierence that that wrongful act in fact
amounts to a felony, unless the court considers that it
was under the circumstances the plaintiff's duty to pro-
secute, and that he has neglected to do so (5). Such
a duty would ordinarily be existing so as to prevent an
action against the felon himself before prosecution, but
this does not apply as regards claims by or against
third persons arising out of the felony (r).
With respect, however, to some torts amounting to whenbotii
1 1 T_ J.1, • •! J criminal and
crimes, the injured party cannot take both civii and cjvii proceed-
criminal proceedings; but these are cases in which, >^°|"^^^^"""* ^*
though the act does amount to a crime, yet it is to a
certain extent a crime directly and particularly affect-
(0) A felony at common law was an offence which occasioned for-
feiture of a man's property, and was generally applied to a higher
class of offences than comprised under the term "misdemeanour."
Now, however, by various statutes, numerous offences have been classed
indiscriminately as felonies and misdemeanours, and forfeiture for
felony having by 33 & 34 Vict. c. 23 been abolished, the original
distinctions between felonies and misdemeanours are now to a great
extent gone.
{p) Per Lord Ellenborough, C.J., in Crosby v. Leng, 12 East, 413.
Iq) Midland Insurance Company v. Smith, 6 Q. B. D. 561 ; 50 L. J.
Q. B. 329 ; 45 L. T. 411 ; 29 W. R. 850 ; In re Shepherd, Ex parte
Ball, 10 Ch. D. 667 ; 48 L. J. Bk. 57 ; Hoope v. D'Aviydor, 10 Q. B.
D. 412; 48L.T. 761.
(r) Appleby v. Franklin, 17 Q. B. D. 93 ; 55 L. J. Q. B. 129; 54
L. T. 135; 34 W. R. 231.
loo, ss. 44,
45-
3 14 OF TORTS GENERALLY. ■
ing the individual, and not the public at large. Thus,
for an assault, where there is a criminal prosecution
and there is also a civil action for damages pending,
sentence will not be passed for the crime whilst such
24 & 25 Vict, action is pending (s). It has also been provided that
if the justices, upon the hearing, upon the merits, of
any summary proceedings for assault or battery, shall
deem the offence not proved, or to be justified, or to be
so trifling as not to merit any punishment, and shall
accordingly dismiss the complaint, they shall forthwith
make out a certificate under their hands stating the
fact of such dismissal, and shall deliver such certificate
to the party against whom the complaint was pre-
ferred (t) ; and that if any person against whom any
such complaint shall have been preferred shall have
obtained such a certificate, or having been convicted
shall have paid the whole amount adjudged to be paid,
or shall have suffered the imprisonment awarded, in
every such case he shall be released from all further
or other proceedings, civil or criminal, for the same
cause (u).
The term The term " tort" is frequently used for the purpose
in^contradk*'^"^ of denoting a wrong or injury quite independent of-
tinction to contract (./■ ) ; but in the definition at the commence- '
" contract. \ ' ^ . .
ment of the present chapter a wider application la
given to it, viz., that it is some wrongful act which
consists in the withholding or violating some legal
Quasi torts. right, and, as will be presently noticed, there are many
torts in some way connected with contracts, and which
are said to arise out of or flow from contracts. Before,
however, proceeding to further notice this, it is im-
portant to have a correct appreciation of the difference
between rights arising from breach of contract, and
rights arising from tort, using that term as signifying
(s) Reg. V. Mahon, 4 A. & E. 575.
\t) 24 & 25 Vict. c. 100, 3. 44.
(m) Ibid. s. 45. ■ ■ • . .• •■ i,;;
(x) See it so defined in Brown's Law Diet. 534. •■ •••■.•' ■ *
OF TORTS GENERALLY. 315
au injury independent of contract, for these are the
more ordinary and usual kind of torts.
Where a person's right arises from a wrongful act Diflference
independently of any contract, his . action is styled an arising from "^
action ex delicto, but when arising strictly out of a P°'J^^^^*^^^°'/^
contract it is called an action ex contractu, and in this of contracts.
latter kind it is necessary that there should be privity
between the plaintiff and the defendant, for a person
cannot sue upon a contract when there is no privity
between himself and the party against whom he claims.
Thus, if a person sends a message by a telegraphic Mistake in
company, and a mistake is made by the company in mesfage. ^°
sending it, whereby he (the sender) is injured, here
there is privity of contract between liim and the com-
pany, and he has a right of action ex contractu against
them. But if through the mistake an injury happens
to the person to whom the message is sent, there being
no privity of contract between him and the company
— for he indeed made no contract with them — he can
have no right of action against them ex contractu {y),
though possibly he might have such a right ex delicto,
on the ground of the company having been guilty of
a tort by reason of the breach of their proper duty.
To support an action ex contractu, therefore, it is essen-
tial that there should be privity between the parties ;
but with regard to a tort — again using that term as
signifying an injury arising independently of contract
—the right of action has nothing to do with any privity
between the parties, but it exists simply because of the
withholding or violation of some right {z). That this
is so is shewn by the case of Langridgc v. Levy, the
facts in which have been already stated {a). So also in
another case the plaintiff had been employed by a ship-
{y) Playford v. United Kingdom Telegraph Co., L. R. 4 Q. B. 706 ;
Addison on Torts, 676.
{z) Gerhard v. Bates, 2 E. & B. 476 ; Langridge v. Levy, 2 M. & W.
519- ;
(a) Ante, p. 3 1 1. ■ ■■
3l6 OF TORTS GENERALLY.
owner to paint his ship, and the defendant had been
employed by the shipowner to put up a staging round
the ship for the purpose of the painting. The plaintiff,
owing to a defect in the staging, fell and was injured.
It was held that privity being in no way essential to
an action of tort, the plaintiff could recover damages
asainst the defendant, as the defendant was under an
obligation, in erecting the staging, to see that it was in
a fit and proper state for the use of persons who might
naturally be expected to come upon it (&).
There are But there are many kinds of torts arising out of
wSu mVy contract, — being cases in which there has been a con-
be in a person's (^p^ct and a breach of that contract, — which, looked at
election to sue , . , „ .
for a tort or in ouc Way, f umish a right of action ex contractu, and
coiitraa" " looked at in another way furnish a right of action ex
delicto. Thus, in the case of Langridge v. Levy, before
referred to (c), there was a valid contract of warranty
of the gun to the father who bought it, and on a
breach of that warranty, as regarded him, he might
have brought an action ex contractu ; but the actual fact
in the case was that the breach happened as regarded
the sou, between whom and the defendant there was
no privity of contract, he not having been in any way
a party to the contract ; but he was held entitled to
succeed in an action ex delicto. The point we are at
present considering is well explained by Mr. Broom in
his Commentaries on the Common Law {d), and we
cannot do better than quote the passage from that
work : " Although tort in general differs essentially
from contract as the foundation of an action, it not
infrequently happens that a particular transaction
admits of being regarded from two different points of
view, so that when contemplated from one of these,
it presents all the characteristics of a good cause of
(6) Heaven v. Pender, ii Q. B. D. 503 ; 52 L. J. Q. B. 702 ; 49 L.
T. 357.
(c) Ante, p. 311.
(d) Page 740.
OF TORTS GENERALLY. 317
action ex contractu, and when regarded from the other,
it offers to the pleader's eyes sufficient materials
whereupon to found an action ex delicto. Thus
carriers warrant the transportation and deUvery of
goods intrusted to them. Attorneys, surgeons, and
engineers undertake to discharge their duty with a
reasonable amount of skill and with integrity ; and
for any neglect or unskilfulness by individuals be-
longing to one of these professions, a party who has
been injured thereby may maintain an action, either
ill tort for the wrong done, or in contract, at his
election" (e).
But even in cases where the tort flows from con- Privity is
tract, the rule that privity between the parties is not "ar^^ "torts,
necessary still applies (/).
Having now considered the nature of torts, the dis- Certain cases
tinctions between mere torts and acts actually amount- remedy for*
in<T to crimes, and the differences between acts which *^'"*^-
are purely and simply torts in the more limited sense
of the word, and breaches of contract, it remains but
to notice in this chapter that there are certain acts
which, although they are torts, yet the law allows no
redress for, principally upon public grounds.
There is no remedy for a tort committed by the Maxim that
vereign, becai
no wrong '' (^).
sovereign, because of the maxim, "The King can do ^lo^no wrom>'!
(c) From the above the student will perceive that there are various
matters before treated of under Part I., "Contracts," which might
perhaps with equal propriety be considered in this part, "Torts,"
particularly such subjects as Carriers, Innkeepers, and Bailments
generally.
(/) Oerhard v. Bates, 2 E. & B. 476 ; Langridgc v. Levy, 2 M. & W.
(gr) Broom's Legal Maxims, 46. This maxim is explained thus in
Broom's Legal Maxims, 46, 47 : " Its meaning is, first, that the
sovereign individually and fully 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 answerable for it personally
3i8
OF TORTS GENERALLY.
Acts done by
a judge of
a court of
record.
Act done by
a superior
oiBcer.
For any act done by a judge of a court of record
no action lies, provided such act is done in the proper
and appropriate discharge of his legal duties, for it is
considered for the benefit of the community at large
that the judges should have full scope, and not be
fettered and impeded by any restraint and apprehen-
sions, and this is so even although a judge's acts may
be shewn to have proceeded from malice (h). But if
an act is done by a judge not acting judicially, or if
an act is done by him in respect of some matter which
was not at all within his jurisdiction, as he knew, or
ought to have known, he is not protected then, but
is liable in the same way as any other person (i).
The same principle is applied also to a limited extent
to arbitrators, who are not liable for mistakes or errors
of judgment if they act honestly (k).
Again, a superior officer is justified in arresting and
imprisoning an inferior for the purpose of bringing
him to a court-martial in accordance with the rules
of the service, and this is so even although the person
so arrested is not ultimately brought to a court-martial,
if the arrest was in respect of some matter fairly
cognisable by a military tribunal, and no action will
lie against the superior officer (/). And this rule has
been carried so far that it has been decided that it
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 prejudice,
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 as his
subjects. If, then, the sovereign personally command an unlawful act
to be done, the offence of the instrument is not thereby indemnified,
for thouc'h the king is not himself under the coercive power of the law,
yet in many 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."
(h) Anderson v. Gorrie, (1895), i Q. B. 668; 71 L. T. 382.
(i) Scott V. Stansfield, L. R. 3 Ex. 220 ; and see Broom's Corns. 102-
105, and cases there cited and referred to.
(k) Pappa V. Bose, L. R. 7 C. P. 725-
{I) Hannafoad v. Himn, 2 C. & P. 148 ; Dawkins v. Lord Rokehy, 4
JF. & F. 806.
; OF TORTS GENERALLY. ' 3 L9
will apply even although the tortious act complained
of is done maliciously, and without reasonable and
probable cause (m).
If two or more persons commit a tort, and the Ex turpi
plaintiff recovers against them, but levies the whole owaw'S'ro.
damages on one, that one has no right to recover con-
tribution from the other or others, for Ex turpi causd
non oritur actio (n). Aii exception to this rule, how-
ever, now exists by reason of the Directors' Liability
Act, 1890 (o), which provides that in case of represen-
tations made by' directors of companies, whereby they
become liable to pay damages under that Act, each
director shall be entitled to contribution, as in cases of
contract, from any other person who, if sued separately,
would have been liable. If a person is instructed to ludemuifying
, , . . x; J j.\- • another from
do some palpably tortious act, and the person so in- consequences
structing him undertakes to indemnify him from the of tort.
consequences of such act, no action will lie ; yet if the
act he is so instructed to do does not appear of itself
manifestly unlawful, and he does not know it to be so,
he can recover thereon (p). Thus, if A. instructs B.
to drive certain cattle from a field, which B. does,
thereby unwittingly committing a trespass, A. is bound
to iiidemnify him ; but if A, instructs B. to assault
a person, which he does, this is an act manifestly
illegal in its nature, and B. cannot call upon A. to
^ndempify, bim.
(m) DawHns v. Lord Paulet, L. R. 5 Q. B. 94. Lord Chief-Justice
Cockburn, however, dissented from this.
(n) Merryweather v. Nixan, 2 S. L. C. 569 ; 8 T. R. 186. It is other-
wise in contract. As to the position with regard to the costs of the
action, when tWo or more are jointly sued for a tort, and set up different
defences, see Stum v. Dixon, 24 Q. B. D. 52^ ; 58 L. J. Q. B. 183 ; 60
L. T. 560.
(o) 53 & 54 Vict. c. 64, s. 5. See aiite, p. 285.
(p) Per Lord Kenjon in Merryweather v. Nixan, 2 S. L. C. 569 ;
8 T. R. 186 ; Betts v. Gibbon, 2 A. & E. 57.
320
OF TORTS AFFECTING LAND.
CHAPTER II.
OF TORTS AFFECTING LAND.
Different torts
affecting land.
Every person possessed of land has necessarily a right
to the peaceful possession and enjoyment of such land,
and the infringement of this rii^ht is a tort in respect
of which an action will lie. The infringement of this
rif^ht may happen in various ways, but the most impor-
tant infringements are by trespass, by commission of
nuisances, and by waste.
I. Trespass.
Meaning of
the term
" trespass."
A trespass, in its widest sense, signifies any trans-
gression or offence against the laws of nature, of society,
or of the country in which we live, whether relating
to a man's person or to his property (a) ; but we have
here only to consider trespass to land, which has been
defined as a wrongful and unwarrantable entry upon
the soil or land of another person (b), and is styled
trespass quare dausuw /regit.
Trespass to
lands :
In considering the subject of trespass to land, two
main points present themselves for our consideration,
viz. : —
1 . The position of the party claiming that a
has been committed.
2. What will amount to a trespass.
trespass
(o) Brown's Law Diet. 540.
(6) Broom's Corns. 838.
OF TORTS AFFECTING LAND. 32 1
Firstly, then, as to the position of the party claiming i. The position
that a trespass has been committed. It is necessary cLinun^'that
that he should have a valid title to the lands, and that a trespass
1 T 1 1 , ,, . , , . . „ , has been coni-
he should be actually in the exclusive possession ot the mitted.
lands by himself, his servant, or agent (c). It is not,
however, actually essential that the plaintiff should in
every action for trespass to his lands prove his strict
title thereto, for possession is the great requirement, Possession
and if the plaintiff proves that he is in possession as ggg^e^^^.j*
above, that makes out a sufficient ^?'im(^/acie case on
which he can recover (d) ; but if the defendant in any
such action sets up in his statement of defence that the
title to the lands in respect of which the trespass is
alleged to have been committed is not in the plaintiff,
but in him the defendant, or in some third person by
whose authority he has entered, then the actual title
to the lands is in question (c). An action of trespass. An action for
therefore, is frequently resorted to as a method of trying frequently
the title to lands, and any such action must be brought resorted to, to
. ' *' ° try the title
within twelve years after the time of the accrual of to lauds,
the right, except that in cases of infancy, coverture, or
lunacy then existing, six years is allowed from the
termination of the disability, but thirty years is to be
the utmost allowance for all disabilities (/).
An action in respect of trespass to lands situate Action for
abroad cannot be brought in this country, although laudTabroad.
both the plaintiff and the defendant are domiciled and
resident here (g).
We have stated that the possession of the land in Very slight
respect of which the trespass is committed is an possess^ion oi
essential to the plaintiff's case, but, "very slight evi- j:"}*^^^^ ®"^"
(0) Hodson V. Walker, L. R. 7 Ex. 55.
[d) See Broom's Corns. 838.
(e) Addison on Torts, 404.
(/) ?)7 ^ 38 Vict. c. 57, .ss. I, 3, 5. Absence beyond seas does ncit
now give any further time to bring the action (s. 4).
(r/) Jivitish South Africa Co. v. Companhia di Mogamhiquc, (1893),
A. C. 602 ; 6t, L. J. Q. B. 70 ; 69 L. T. 604.
X
OF TORTS AFFECTING LAND.
support iia
action for
trespass.
"When a
reversioner
may sue in
resi)ect of a
trespass.
dence of possession is sufficient to establish a primd
facie title to sue for an injury, such as the occupation
of the soil with stones and rubbish which have been
placed thereon by order of the plaintiff, and kept
there for some short time without molestation, or the
building of a wall, or a dam, mound, or fence, which
goes on for some weeks without interruption and is
then knocked down ; or the enclosure or cultivation
of a piece of waste ground, the mowing of the grass
thereof, or the pasturing of a cow thereon ; for mere
occupancy of land, however recent, gives a good title
to the occupier whereon he may recover against all
who cannot prove an older and better title in them-
selves " Qi). Possession by one's servant or agent is
also sufficient, and there is one case in w^hich a person
may maintain an action for trespass committed to land
aUhough not in possession, and that is in the case of a
reversioner, who, if some injury of a permanent kind
is done to his reversion, may sue for the same (i),
although in respect of the immediate injury to the
land he would have no right of action, that being in
the possessor, the actual tenant. Thus, if a person
trespasses and cuts down trees, the tenant of the lands
in possession may sue for the injury done to the resi-
dential value of the property, and the landlord for the
diminished saleable value {k). And where a window
was obstructed by the erection of a wall on the ad-
joining premises, it was held that the reversioner was
entitled to recover damages in respect thereof because
of the permanent nature of the obstruction (l).
When a A mortgagor, by mortgaging, parts with the legal
rnay^mfhTtain estate in the land mortgaged, and therefore could not
an action for formerly have maintained an action in respect of any
trespass committed on the property ; but by reason of
trespass.
{h) Addison on Torts, 405.
(i) Cox V. Glue, 5 C. B. 533.
(k) Addison on Torts, 407.
{I) Jesscr V. Gifford, 4 Burr. 2 141.
OF TOUTS AFFECTING LAND. 323
the Judicature Act, 1873 (in), he may do so now if
he remains in possession, and provided that the mort-
gaffee has not Griven notice of his intention to take
DO O
possession.
It is not at all necessary in an action for trespass to in an action
land for the plaintiff to shew that he has sustained any landTtTs^not*'
special damarje, the mere fact of the trespass entitlinir essential to
\ o ' _ _ i o prove any
him at any rate to a nominal verdict (71). The fact of special
a person trespassing after notice or warning not to do '
so, will operate to aggravate the offence, and justify
the jury in giving damages of a penal nature (0).
In the case of trespass to land, and the owner of Exception to
such land dying, the right of action survives to his ^Acti^'^^lZn.
executors or administrators, provided the iniury was «^*'^ "^°^^^"''.
committed within six months of the owners death,
and that the action is brought within one year after
his death ; and this forms an exception to the maxim,
Actio personalis moritur cum pcrsond (p). So also if
injury is done to land, or, in fact, any property, real
or personal, by a person who then dies, though the
maxim primarily applies, yet there is a like exception,
provided the injury was committed within six months
before the death, and the action is brought within six
months after the executors or administrators have taken
upon themselves the administration of the estate of such
deceased person (q). And, apart from this provision,
it must be remembered that where a person by his
wrongful act acquires the property of another — e.g.
if he wrongfully cuts and takes timber — the right of
(m) 36 & 37 Vict. 0. 66, s. 25 (5). See also ante, p. 67.
(n) Broom's Corns. 838.
(o) Merest v. Harvey, 5 Taunt. 441.
(p) 3 & 4 Wm. 4, c. 42, s. 2. See as to this maxim, ante, pp. 5, 6 ;
and see other exceptions to the maxim, -post, pp. 355, 418.
(7) 3 & 4 Wm. 4, c. 42, s. 2. See hereon Kirk v. Todd, 21 Ch. D.
484 ; 52 L. J. Ch. 224 ; 47 L. T. 676 ; 31 W. R. 69 ; Jones v. Simes,
43 Ch. D. 607 ; 59 L. J. Ch. 351 ; 62 L. T. 447.
3^4
OF TORTS AFFECTING LAND.
action does not die with the person, but may still be
enforced (?■).
2. What will
amount to a
trespass to
land?
Entry may be
constructive.
Cattle strny-
Dogs straying
Tilletl V.
Ward.
Obligation as
to fencing out
cattle.
Secondly, What will amount to a trespass to land ?
"We have defined trespass to land as a wrongful and
unwarrantable entry upon the soil or land of another
person (s), and it therefore follows that entry is the
essential to constitute a trespass. But this entry need
not be actual, it may be constructive, as by a person
throwing stones or rubbish on to his neighbour's land,
or by letting a chimney or any other part of his house
fall thereon, or by erecting a spout on his own lands
or buildings, which discharges water on to his neigh-
bour's {t). So also if a man's cattle stray from his
own lands on to his neighbour's, the latter not being
under any legal obligation to fence them out, this
amounts to trespass ; but this rule as to cattle does
not apply to dogs, for the owner of a dog is not liable
for its straying and doing injury, unless it is of some
peculiarly mischievous disposition (?/). And if cattle
are lawfully passing along a highway and stray on to
adjoining land through its not being properly fenced
off, this does not amount to a trespass, though it is
otherwise if they are not meiely passing along, but
staying there {x). Upon this principle, it was held
that where an ox belonging to the defendant was
being driven through the streets of a country town,
and entered the plaintiff's shop and damaged his
goods, the defendant was not liable, there being no
negligence on his part (y). A person is not gene-
rally under any obligation to fence out his neighbour's
cattle for his neighbour's protection, though the con-
trary may be the law either from express contract
(r) Phillips V. Homfray, 24 C!i. D. 439 ; 52 L. J. Ch. S33 ; 49 L. T. 5.
(s) Ante, p. 320.
\t) Addison on Torts, 360, 361.
(w) Ibid. 128.
(x) See Dovasfon v. Panne. 2 S. L. C. 154 ; 2 Hen. Blackstone, 527.
[y) Tillett v. Ward, 10 Q. B. D. 17 ; 52 L. J. Q. B. 61 ; 47 L. T. 546 ;
31 W. R. 197.
OF TORTS AFFECTING LAND. 325
to that effect or by prescription. Eailway companies
are, however, under the provisions of the Eailway
Clauses Act, 1845 (;::), bound to fence to keep out
the cattle of adjoining proprietors (a). It has also
been held that the owner of an open quarry is bound
to fence it to protect his neighbour's cattle from fall-
ing therein (h).
The fact of a lawful owner of lands out of posses- a lawful
sion peaceably entering thereon is justifiable, and does p^s^essi'on may
not constitute a trespass ; thus, if a tenant wrongfully peaceably
holds over after the expiration of his tenancy, there is
no doubt that the landlord may peaceably enter, and
thus by his own act regain possession, but he must not But must not
use force. So also may a mortgagee entitled to posses- "^® ^°'^°^'
sion thus peaceably enter. If such a person, however,
enters forcibly, though technically he cannot be liable
for a trespass on his own land (c), yet he might be
liable for an assault (d), and generally his act would be
contrary to the provisions of 5 Eich. 2, s. i, c. 8, and
illegal (e).
The fact that the owner of lands gave leave and Licence to
licence to a person to come on his lands will, of course, ^^ ^^'
justify and excuse what would otherwise be a trespass,
but will not justify the remaining after rescission of
such licence or permission, for if it be a mere permis-
sion or licence, and not a grant, it is always revocable
{z) 8 & 9 Vict. c. 20, s. 68.
(a) And it has been decided that this duty of railway companies
extends to keeping out swine, although swine require a stronger kind
of hedge than cattle [Child v. Hearn, L. R. 9 Ex. 176 ; 43 L. J. Ex,
100).
(6) Ilaioken v. Shearer, 56 L. J. Q. B. 2S4. There is also now a
duly cast on the owner of a quarry witliin fifty yards of a highway to
fence it in (50 & 51 Vict. c. 19). See further post, p. 428.
(c) Newton v. ILirland, i Mr. & Gr. 644 ; Per Parke, B., Harvey v.
Brydges, 14 M. & W. 442.
(d) Beddall v. MaiUand, 17 Ch. D. 174; 50 L. J. Ch. 401 ; 44 L.
T. 248 ; 29 W. R. 484 ; Edridye v. Ilawkes or Edwich v. UaiuTces, 18
Ch. D. 199 ; 50 L. J. Ch. 577 ; 45 L. T. 168 ; 29 W. R. 91.
(e) Ante, pp. 80 81.
326
OF TORTS AFFECTING LAND.
A person is
justified in
removing a
trespasser
from his lands,
even though under seal (/). A licence to break and
enter premises with force is absolutely void. A person
is justified in removing a trespasser from his lands,
provided he first require him to leave, and in removing
him he does not use a greater amount of force than is
necessary under the circumstances.
or in forcibly A pcrson is justified in forcibly defending the pos-
possesiilln. session of his land against any one who attempts to
take it (g).
Some special
rights over
the lands of
others.
Easements.
Persons sometimes have rights over the lands of
others, entitling them to do acts which, if they had
not such rights, would amount to trespasses ; and of
such rights the chief are Easements and Rights of
Common. An easement has been well defiued as
" Tlie right which the owner of one tenement, which
is called the dominant, has over another, which is called
the servient, to compel the owner thereof to permit
something to be done, or to refrain from doing some-
thing, on such tenement for the advantage of the
former " (h). Eights of watercourse and rights of way
may be mentioned as easements (i).
A right of common has been
which one person has of taking
duce of land, while the whole
itself is vested in another " (^■).
common are the right of pasturi
lands, called common of pasture
turf on another's lands, called
defined as " The right
some part of the pro-
property in the land
Instances of rights of
U2 cattle on another's
the right of cutting
common of turbary ;
{/) Wood V. Lcadhitter, 13 M. & W. S38.
\g) Per Fr)-, J., in Edridge v. Baickes, supra; Tvlly v. Reid, I C.
& P. 6. . ^
(A) See notes to Sury v. Pigot in Tudor's Conveyancing Cases,
p. 154.
(i) This is a subject belonging to Convej-ancing. As to it, see Sury
V. Pigot (supra), and notes thereon.
(k) See notes to Tyrringham s Case in Tudor's Conveyancing Cases,
p. 120.
OF TORTS AFFECTING LAND. 327
and the right of fishing in water on another's lands,
called common of piscary (/).
Where persons own land adjoining a river (711), the Riparian
soil is vested in each up to the centre of the stream, I'^^i'"'' "^'•
and if either deals with it beyond that point he is a
trespasser. Each of such persons has a right to use
the water for all proper purposes, provided he does
not thereby interfere with his neighbour's enjoyment
thereof, and to do so — e.g. by preventing the water
from flowing to some proprietor below — is a tort for
which an action will lie (n). But this does not apply
where water flows under the surface in no defined
channel, for in such a case a landowner is justified in
sinking a well and preventing the water from percolat-
ing through to, or in draining it from, his neighbour's
lauds, and this even though his design may be to injure
his neighbour (0). He may, in fact, appropriate the
under-ground water in which at present, until appro-
priation, there is no property ; but still he may not
foul it, for whilst it percolates, every owner through
whose land it passes, has a right to receive it in its
natural condition (p).
Where one person is possessed of the surface of land Position when
and another of the subsoil, each has an independent p°ygg^gej of
property in respect of which trespass may be com- the surface ami.
mitted. It is the duty of the owner of the subsoil to the subsoil of
leave sufficient support to maintain the ground above.
{I) This subject pertains to Conveyancing, and reference may be made
to the notes in Tyrrin<j}iam' s Case, in Tudor's Conveyancing Cases, p. 120.
(m) Such persons are called riparian proprietors.
(n) See notes to Sury v. Pigot, Tudor's Conveyancing Cases, p. 1 54.
(o) Chasemore v. Richards, 7 H. of L. Cas. 349 ; Grand Junction
Canal Co. v. Shugar, L. R. 6 Ch. 483 ; Bradford Corporation v. Pickles,
(1895), I Ch. 145 ; 64 L. J. Ch. loi ; 71 L. T. 793 (since affirmed in
House of Lords, 29 July 1 895). This, it will be remembered, is an
instance of a damage without what is considered an injury in the eyes
of the law — that is, damnum sine injuria. See ante, p. 4.
ip) Ballard v. Tomlinson, 29 Ch. D. 1 15 ; 54 L. J. Ch. 454 ; 52 L. T.
942.
328
OF TORTS AFFECTING LAND.
CoUieri/ Co.
Mitchell.
and the owner of the ground above must not interfere
with the soil beneath. The owner of the subsoil is
liable for every subsidence occurring tlirough his not
Barley Main leaving Sufficient support for the surface land. In a
recent case the facts were that the lessees of coal under
the plaintiff's land worked the coal so as to cause a sub-
sidence of the land and injury to houses thereon in the
year 1 868. For the injury thus caused they made coui-
pensation and ceased working the coal, but in the year
1882 a further subsidence occurred, causing fresh injury.
The defendants contended that the plaintiflf's right of
action accrued only from the time of the last working of
the coal, and that any claim was statute-barred, and that
the case was therefore one of damnum absque injurid.
The House of Lords, however, held that the cause of
action in respect of the further subsidence did not arise
until the subsidence occurred, and that the action could
be maintained though more than six years had elapsed
since tlie last working of the coal (q). Every owner
of land has a right to the lateral support of his neigh-
bour's land to sustain his own land unweighted by build-
ings, but nothing more ; unless, indeed, a title is gained
by prescription, which will be the case after twenty
years' enjoyment of the additional support (?') ; or
where there is an express grant of the additional right,
or such a grant can be implied, which would be the
case when the adjoining land belongs to the same
vendor, wlio sold for building purposes, for where there
is a grant for building purposes there is an implied
grant of the right of support for the land with the
buildings to be erected, from adjoining land of the
grantor (s).
Right to
Literal
support.
(q) Darlen Main Colliery Co. v. Mitchell, il App. Cas. 127 ; 55 L. J.
Q. B. 529 ; 54 L. T. 882. Lord Blackburn dissented from this judg-
ment.
(r) Dalton v. Angus, 6 App. Cas. 740; 50 L. J. Q. B. 689 ; 44 L.
T. 844 ; 30 W. R. 191 ; Bower v. Pcate, I Q. B. D. 321 ; 45 L. J. Q.
B. 446; 35L. T. 321.
(s) Iti(/by V. Bennett, 21 Ch. D. 559 ; 48 L. T. 47 ; 31 W. R. 222.
OF TORTS AFFECTING LAND. 329
A nuisance (/) may be defined as some act wliicb 11. Niiisances.
unlawfully and unwarrantably injures or prejudices
tbe rigbts of anotber person ; tbus, tbe carrying on an
offensive or noisy trade (it), tbe excessive ringing of a
peal of bells (x), tbe improper emission of smoke from
a chimney (y), and suffering drains to get into an offen-
sive state (z), and many other acts, have been held
to be nuisances (a). But it must not be understood
from tbe foregoing that because a person simply car-
ries on a trade which is somewhat objectionable to
his neighbour, the carrying on of that trade must
necessarily constitute a nuisance ; to amount to a what acts are
nuisance the matter must go further than that, and c"„stitute a
it must be shewn that there is some special injury ^usance,
resulting therefrom. Thus, a person may possibly have
a material objection to a butcher's shop being set up
next door to him, and it may deteriorate from tbe value
of his house, but the setting up of such a shop will not
of itself be a nuisance ; but if, by reason of the way
in which tbe person conducts his business, offensive
smells penetrate to the next house, then undoubtedly
it will be. It is not every mere discomfort a person
may experience that will constitute a nuisance (h).
Were it otherwise, the question of nuisance or no
nuisance would frequently involve questions of fancy,
of whether this person's delicacy made an act a nuis-
ance which to anotber person in the same position
would be no nuisance at all (c).
Where a nuisance arises not directly from the act
{t) From nuire, to annoy. The author has considered the subject
of nuisances generally in this chapter, though many nuisances affect
only the person, and do not therefore come under the heading of this
chapter, " Of Torts affecting Land."
(m) St. Helen's Smelting Co. v. Tipping, 11 H. L. Ca. 642
{x) Soltau V. De Held, 2 Sim. (N. S.) 133.
ly) Rich V. Basterfield, 4 C. B. 786.
(z) Russell V. Shcnton, 3 Q. B. 449.
(a) For numerous instances of acts that will amount to nuisances
t^ie student is referred to Addison on Torts, 365-374.
{h) St. Helen's Smelting Co. v. Tipping, u H. L. Ca. 650.
(c) See also hereon Broom's Corns, 792.
330
OF TORTS AFFECTING LAND.
Party liable
for probable
consequence
of his acts.
Landlord and
tenant.
of the defendant, but only incidentally from something
he has done, he is nevertheless liable in respect of it,
if it can be considered as the probable consequence of
his act {d). If a man creates a nuisance on his pro-
perty, and then conveys or demises it to another, they
both are liable in respect of it. And if a nuisance
arises on property in the possession of a tenant, from an
omission on the part of the landlord to do repairs which
he was bound to do, the landlord is liable ; and so also
a landlord will be liable if he by licence authorizes the
doing on his land of something whereby a nuisance is
created {c). Primd facie, however, in the case of a
nuisance on premises in the occupation of a tenant, the
tenant and not the landlord is the person liable, and
in all such cases the remedy will be against the tenant
if the landlord is not a party to it in any way, and the
tenant has covenanted to repair (/).
It is no
defence to an
action for a
nuisance that
the act is a
benefit to other
persons or to
the community
at large.
Although a
person comes
to a nuisance
he still has a
right to have
it abated.
Where an act is done which really does amount to
a nuisance to some person or persons, it is no defence
to say that the act is a benefit to other persons or to
the community at large, or that the place where it is
carried on is very convenient for the public. Thus,
there are many trades of an offensive character that
necessarily must be carried on, and as to which it
would be a detriment to the public were they not fol-
lowed, but that fact does not justify a person in esta-
blishing such a trade where it prejudices another {g)\
he must seek out another place where he can carry
it out without doing injury to any one. And if a
person comes to a place where a nuisance is existing,
he has an equal right to his legal remedies in respect
of that nuisance as if he had been there first, and the
(d) Chihnall V. Pavl, 29 W. R. 536.
(e) Todd V. Flight, 30 L. J. C. P. 21 ; White v. Jameson, 18 Eq. 303.
(/) Pretty v. Bichmore, L. R. 8 C. P. 401 ; 21 W. R. 733 ; Nelson v.
Liverpool Brewery Co., 2 C. P. D. 311 ; 46 L. J. C. P. 675 ; 25 W. R.
877.
[g) Bamford v. Turnley, 31 L. J. (Q. B.) 2S6 ; Stocl-port 'Waterworks
Co. V. Potter, 31 L. J. (Ex.) 9.
OF TORTS AFFECTING LAND. 331
nuisance had been afterwards established (h). Where
an Act of Parliament authorizes the doing of certain
things, but does not by direct and imperative provisions
order them to be done, if in doing them a nuisance or
other injury is created, the Act does not afford any
statutory protection (i). And even if the thing is
imperatively required to be done, the onus rests on
the person who has to do it of shewing that it was
impossible to do it without creating a nuisance (Jc).
Nuisances are divided into two classes, viz.: —
1. Public nuisances, which are acts that affect the Nuisances mny
11. IT- c T 1 • T_T be either
public at large, e.r/. the digging of a ditch in a public public or
road, or the causing of a great smoke ; and private.
2. Private nuisances, which are acts that affect only
some particular individual or individuals, and not the
public at large, e.g. an offensive smell which only
penetrates to the next house, or a noise only affecting
a neighbour.
There are very material differences in the remedies Differences
- , -. , . . . between them
m the case of a public and a private nuisance. A in the remedy
public nuisance being a public wrong, affecting the t^J'j^f/'^'^* "^
community at large, a public remedy is applied to it,
the proper course being to proceed either by indict-
ment or information. An indictment is a written indictment,
accusation laid against one or more persons of a felony
or misdemeanour, preferred to and presented upon oath
by the grand jury (l), and there are many cases of
(h) Per Byles, J., Hole v. Barrow, 27 L. J. (C. P.) 208 ; Sturges v.
Bridgman, II Ch. D. S52 ; 48 L. J. Ch. 875 ; 28 W. R. 200.
(i) Metropolitan Asylum, District v. Ilill, 6 App. Cas. 193 ; 50
L. J. Q. B. 353 ; 44 L. T. 653 ; 29 \V. R. 617 ; Gas Light and Coke Co.
V. Vistry of St. Mary Abbotts, 15 Q. B. D. I ; 54 L. J. Q. B. 414 ;
53 L. T. 457 ; 33 W. R. 892 ; Rapier v. London 2'ramways Co. (1893), 2
Ch. 588 ; 67 L. J. Ch. 36 ; 69 L. T. 361.
(k) Attorney-General v. Gas Light and Coke Co., 7 Ch. D. 217 ; 47
L. J. Ch. 534.
(I) Brown's Law Diet. 272.
JJ
^2
OF TORTS AFFECTING LAND.
public nuisances in which an indictment is the strictly-
proper course, e.g. the keeping of gunpowder in large
quantities in close proximity to populous neighbour-
hoods, the blocking up of, or other injury to, a public
road, the keeping of a disorderly house, indecent
bathing, or the carrying of persons suffering from
iuiectious disorders through the public streets in such
a way as to endanger the health of the public (m).
Information, An information is a process preferred in the name
of the Attorney-General or Solicitor-General for the
purpose of restraining, on behalf of the public, the
commission or continuance of some public injury, and
is a remedy frequently resorted to in cases of ordinary
public nuisances. However, although indictment and
information are the proper remedies for a public nuis-
ance, an action may be brought in respect of it by
a private individual if he can show that the nuisance
affects him more than the community at large {n).
Tiie remedy As to a private nuisaucc, however, it is no offence
ITprivatf ""^ against the public, but only against a private individual,
nuisance is j^^j therefore there is no public remedy, but merely a
au action. ■"■ _ii • • j •
private one, in respect of it. This private remedy is
exercised by bringing an action, in which the plaintiff
simply seeks damages for the injury that has been
done to him by the commission of the nuisance, or an
injunction to restrain the commission or continuance
of the nuisance, or both ; that is to say, damages for
the injury already done him, and an injunction to pre-
But a person vent the Continuance of such injury. If, however,
iIvTiis LaciieT there has been leave and licence expressly given, or
impliedly given by a person standing by for some time
and acquiescing tacitly in the doing of some act which
constitutes a nuisance — e.g. if he stands by and sees a
building completed wliich he knows is being erected
for the purpose of carrying on an obnoxious trade
{m) See Broom's Coms. 992, 993.
{n) Soltau V. De Held, 2 Sim. (X. S.) 133.
OF TOKTS AFFECTING LAND. T,23
amounting to a nuisance — he will lose Lis right to
an injunction, though it would be otherwise were he
not aware that the act would constitute a nuisance,
or if the nuisance exceeded what he had reasonable
grounds for believing it would amount to (o).
Besides the before-mentioned remedies by legal Abatement
,t • , ,^ iU i. „ of nuisances.
process, there is yet another course that can some-
times be taken by a person affected by a nuisance, and
that is the abatement of it, which may be defined
as a remedy by the act of the party, consisting in
the removal and doing away of the nuisance. Hei e a public
again is another difference between a public and a "^^^oQiy i^^
private nuisance, for in one of the former kind it can ai^ted where
■t ' ... it particularly
only be abated where it does the person abatmg it affects the
some special and peculiar harm, but in one of the
latter kind the person prejudiced has always the right
of abating it (p). Thus, in the case of an obstruction
placed on a public road, strictly speaking a private
person has no right to remove it unless he requires to
pass that way, and then, as it does him a special and
peculiar injury, he may; but in the case of, say, the
erection of a spout discharging water on to a person's
land, here, as this is a private nuisance only affecting
that person, he has a right to remove it. And so also Cutting trees.
if trees on one man's land overhang the adjoining laud,
the owner thereof is entitled to cut them, however long
they may have been thus overhanging, and it is not
necessary first to give notice of the intention to so
cut them (q).
The abatement of a nuisance must, however, be The abatement
done peaceably and without danger to life or limb ; °i,u^st"bT
so that although, if a house is wrongfully built on peaceable,
another's land (which will constitute both a trespass
(o) Addison on Torts, 394.
(p) Mayor of Colchester v. Brook, 7 Q. B. 389 ; Earl of Lonsdale v.
Nelson, 2 B. & 0. 302.
(ry) L€m7mn v. Webb, (1895), A. C. i ; 64 L. J. Ch. 205 ; 71 L. T.
.6^7.
334 OF TORTS AFFECTIXG LAND,
and a nuisance), the person affected is justified in
pulling it down, yet he cannot do so if individuals
Notice usually are actually in the house at the time (r). And if to
i.efoie entering ^-bate a nuisancc it IS ncccssary to enter on another's
riTndTo^abate ^^^^j noticc must be given to the occupier of such
a nuisance. land requiring him first to remove it (s), uuless it is
of such a kind as to render it positively unsafe to
wait, when an immediate entry will be perfectly jus-
tifiable (t), provided it is made peaceably, or at the
most with as little violence as is necessary under the
circumstances. But although a person may be justi-
fied in entering on another's lands to abate, he is not
justified in so entering to prevent the commission
of a nuisance (u).
III. "Waste. "Waste may be defined as some act committed by a
limited owner of an estate exceeding the right which
he has therein. It does not appear to be strictly correct
to say that it is some act which tends to the deprecia-
tion of the inheritance, nor to say that it is some havoc
or devastation, for an act which does not really injure
the property, but, on the contrary, improves it, may
Persons liable possibly yet amouut to waste. As to who are liable
01 was e. £^j, waste, tenants for life, for years, at will, or at
sufferance are ; but a tenant in tail is not, because
he can at any time bar the entail and make himself
absolute owner of the property, unless he be a tenant
in tail after possibility of issue extinct, and then, as he
cannot bar the entail, he is liable for that kind of waste
called equitable waste. A tenant in fee simple is, of
course, not at all liable for waste, unless, indeed, he be a
tenant in fee simple with an executory devise over (x).
(r) Perry v. Fitzhowe, 8 Q. B. 757.
(s) Ibid.
(t) Pel- Best, J., Earl of Lonsdale v. Xelson, 2 B. & C. 31 1.
{«) Addison on Torts, 396. See further as to abatement of nuis-
ances, Addison on Torts, 396-399.
(x) The subject of waste is most properly discussed in a work on
real property law. It is not, therefore, dealt with further here.
On the subject generally the reader is referred to Lewis Bowles' Case,
OF TORTS AFFECTING LAND. 335
Another tort indirectly affecting land may here be Slander of
shortly referred to, viz. slander of title. If lands are
about to be sold by auction, and a person declares in
the auction-room, or elsewhere, that the vendor's title is
defective, or makes other statements calculated to deter,
and which do deter, people from buying, or from buying
at as high a price as would otherwise have been the
case, this is actionable unless the truth of the state-
ments can be proved. In all such cases, however, the
plaintiff must prove special damage caused to him
by the defendant's act (?/). This right of action for
slander of title formerly only existed as regards land,
but such an action may now be brought even as regards
chattels (z).
and notes, in Tudor's Conveyancing Cases, 37, and to Garth v. Cotton,
and notes, in i White and Tudor's Equity Cases, 806. The student
will also find a useful short statement of the liabilities of different
owners in respect of waste in Indermaur's Epitome of Conveyancing
and Equity Cases, 7th edit. 5.
(y) Addison on Torts, 259.
(-) Wren v. Weild, 38 L. J. Q. B. 327.
^^5 OF TORTS AFFECTING GOODS
]iass or cou
Version.
CHAPTEE III.
OF TORTS AFFECTING GOODS AND OTHER PERSONAL PRO-
PERTY, AND HEREIN' OF THE TITLE TO THE SAME.
Torts to goods, Torts to goods and other personal property mainly
tndeTiiil come under one of two divisions, viz.: (i) Trespass,
liead of tres- r^y^^ ^2) Conveision, Tlie former may be described as
the wrongful meddling by a person with the goods of
another, and the latter as the taking of f;oods from
the possession of another and exercising some dominion
or control over them.
Mode of con- "^Vc will consider the subject of torts affecting goods
sidering torts j^j^j other personal property in the following manner : —
to goods, &c., '■
adopted ia
this cbiipter. ^ rpj^^ ^.^^g necessary to enable a person to sue in
respect of such a tort.
2. The tortious acts themselves.
3. Justification of the tortious acts.
4. Some miscellaneous points connected with the
subject.
I. Title. The mere fact of a person having goods in his pos-
session generally raises a presumption that they are
Possession liis property, and that he has a perfect title to them,
raises a ^j ^ j^g cau disposc of and deal with them to the
presuiuption ^" i.ii".u r
of title. fullest extent ; but this is of course only a presump-
tion, and the general rule is Nemo dat quod non hdbet.
Generally speaking, the mere fact of bare possession
OF TORTS AFFECTING GOODS. 337
constitutes a sufficient title to enable the party enjoy-
ing it to maintain an action against a mere wrong-
doer (a) ; but this is not always so, for a person may
have possession of goods and yet have no real title
to them, or an imperfect one.
As to stolen goods, the thief naturally has no good As to stolen
title to them, and the law is (except in the case of ^°°' *''
bills of exchange, promissory notes, and other negoti-
able instruments (b) ) that he can give no title to
them, except by a sale in market overt when it is
otherwise (c). By a sale in market overt is meant "svhat is meant
selling goods in open market as opposed to selling overt^
them privately. In the country, the market-place or
piece of ground set apart by custom for the sale of
goods is in general the only market overt there ; but
in the city of London, and in other towns when so
warranted by custom, a sale in an open shop (d) of
proper goods is equivalent to, and in fact amounts to,
sale in market overt (e). This advantage of a sale in The advantage
1 , J. 1 • 1 ■ 1 . 1 1 of a sale in
market overt, which is now expressly recognized by market overt
the Sale of Goods Act, 1893 (/), existed at common ^^'*'®'^ '^^
3 ^j \./ /;■ common law.
law (g), and is of material importance, enabling, as it
does, a person to give a good title to goods where he
could not have done so by a private sale of them ;
but it must also be carefully borne in mind that
there is one case in which even this kind of sale by
a wrongful owner will not have this effect, it being
provided by the Sale of Goods Act, 1893 (^Oj that Sale of Goods
where goods have been stolen and the offender is g^\'^^ ^^'
prosecuted to conviction, the property in the goods so
(a) Armory v. Delaviirie, I S. L. C. 385 ; i Strange, 504 ; Per Lord
Campbell, C.J., in Jeffries v. Great Western Ry. Co., 5 E. & B. 805.
{b) As to wliich, see ante, pp. 165-197.
(c) 56 & 57 Vict. c. 71, s. 22.
(d) Haryreave v. Spink, (1892), I Q. B. 25 ; 61 L. J. Q. B. 318 ; 65 L.
T. 650.
(e) Brown's Law Diet. 332. (/) 56 & 57 Vict. c. 71, s. 22.
{g) See the case of Market Overt, Tudor's L. C. Mer. Law, 274 ; and
also see Crane v. London Dock Co., 33 L. J. (Q. B.) 224.
(A) 56 & 57 Vict. C.71, s, 24, which is based upon the provision con-
tained in the Larceny Act, 1861 (24 & 25 Vict. c. 96, s. 100).
Y
338 OF TORTS AFFECTING GOODS
stolen revests in the person who was the owner of the
goods, notwithstanding any intermediate dealing with
them whether by sale in market overt or otherwise,
so that he can sue to recover them from any person
into whose hands they may have got (i). The Act
goes on, however, specially to provide that where goods
have been obtained by fraud, or other wrongful means
not amounting to larceny, the property in such goods
shall not revest in the person who was the owner ot"
the goods by reason only of the con\dction of the
offender. This is a modification of the previous law,
for it had formerly been held that, under the provisions
contained in the Larceny Act, 1861 {k) (which formerly
entirely governed the matter), there was no distinction
between cases of false pretences and larceny (/).
Special pro- And as to One particular kind of property, viz. a
saie'^of ahorse, horse, it is expressly provided that even although
bought in market overt, a sale of it will confer no
better title than the vendor had, unless it has been
exposed there for sale for an hour between ten in
the morning and sunset, and also the price, colour,
and marks of it, together with the names, descrip-
tions, and abodes of the buyer and seller, have
been taken down by the book-keeper ; and even when
these formalities are complied with, if the horse has
been stolen, the ri(,ditful owner may at any time
within six months after the sale recover it, on tender-
ing to the person possessed of it the price he has bo7id
Jide paid for it (??i),
(t) Cundy V. Lindsay, 3 App. Cas. 459 ; 47 L. J. Q. B. 481.
(it) 24 & 25 Vict. c. 96, s. 100.
\l) Bentley v. Vilmont, 12 App. Cas. 471 ; 57 L. J. Q. B. 18. The
case of Moyce v. Newington, 4 Q. B. D. 32 ; 48 L. J. Q. B. 125, which
was overruled by Bentley v. Vilmont, is, therefore, now good law under
the new provisions, and it furnishes an apt illustration of the modification
now introduced.
(7?i) 2 & 3 P. & M. c. 7 ; 31 Eliz. c. 12. It is extraordinary that
the Sale of Goods Act, 1893. should have left these old statutes still ex-
istinij, but it does, and it in fact expressly recognizes them by enacting
(s. 22), "Nothing in this section shall affect the law relating to the
sale of horses."
AND OTHER PERSONAL PROPERTY. 339
A person who has found goods does not acquire Eights of a
any absolute title by such finding, but he does acquire " ^^ *^ ^°° ^'
a qualified title that will be good against all the
world except the rightful owner or his representatives.
This was decided in the important case of Armory Armory v.
V. Delamirie (n). There the plaintiff, a chimney- ^'^"""''■^'•
sweeper's boy, had found a jewel, and taken it to the
shop of the defendant, a goldsmith, to know what
it was ; he there delivered it to the defendant's ap-
prentice, who, under a pretence of weighing it, took
out the stone, and the master, the defendant, then
offered the plaintiff three-halfpence for it. On the
plaintiff refusing to accept this, and requiring to have
the jewel back, the socket was returned to him with-
out the stone, and this action was brought for damages
in respect of the wrongful conversion. It was objected
that the plaintiff had no title to enable him to sue
in respect of the wrongful conversion, but the Court
decided that he might do so, as, though he had no
absolute title to it, yet he had a title against every
one but the rightful owner. So also where a person
picked up a parcel of bank-notes in the defendant's
shop, and temporarily deposited them with the de-
fendant to restore to the true owner when he was
ascertained, and no owner appeared to claim them, it
was lield that the original finder might recover them
from the defendant (o). These cases illustrate the
rule already stated, that bare possession is generally a
sufficient title as against wrongdoers. If an honest
finder sells to a person bond fide in market overt, he
will give a perfect title, as there is here no one liable
to be prosecuted and convicted.
Any money, coin, gold, silver plate, or bullion found Treasure
{trouvi) in the earth or sea, the owner whereof is un-
known, is called treasure trove. The property therein,
(n) I S. L. C. 385 ; i Strange, 504.
(0) Bridges v. Hawhesworth, 21 L. J, (Q. B.) 75.
340
OF TORTS AFFECTING GOODS
A judgment
does not affect
the title to
goods.
Proiierty in
animals and
fish.
and the title thereto, under different circumstances,
vest either in the Crown, the lord of the manor within
whose limits it is found, or the finder (j)), but the
Crown is inimd facie entitled {q).
A person purchasing goods from one against whom a
judgment has been signed gains a perfect title to such
goods unless they are actually taken in execution, or
he has, at the time of acquiring his title, notice that a
writ of execution is lying unexecuted in the hands of
the sheriff, under which the goods might be seized (r).
A person purchasing goods from one against whom a
receiving order has been actually made, can gain no
title to them ; nor can he after an act of bankruptcy
and before the date of the receiving order, unless he
has bought them honCt fide without notice of the act of
bankruptcy (s).
In animals of such a nature as horses, cows, sheep,
&c., a person may, of course, have an absolute property ;
but in animals of a wild nature and not ordinarily in
man's dominion, called animals fenc naturcc, he can
only gain a qualified property, as by taming them, or
their being on his land, or their being so young as not
to be able to get away, or by reason of his being pos-
sessed of a forest, chase, or rabbit-warren. Also in
fish a person may gain a title by harpooning or hooking
them (f).
Property in Where a person leases his lands to another without
game as reserviu'^ the game, it belonged bv the common law to
between land- '■^'■"^ c^ o ' o v
lord and the tenant ; but by the principal Game Act (w), it was
provided that in all cases of tenancies existing before
(p) Brown's Law Diet. 539.
\q) Att.-GeneraZ v. Moore, (1893), I Ch. 676 ; 62 L. J. Ch. 607 ; 68
L. T. 574-
(r) 56 & 57 Vict. c. 71, s. 26.
(s) 46 & 47 Vict. c. 52, s. 49.
(t) Addison on Torts, 542.
(u) I & 2 Wm. 4, c. 32.
AND OTHER PERSONAL PROPERTY. 34 I
the passing of that Act (x) tlie landlord should have
the right to the game, except such a right had been
expressly granted or allowed to the tenant, or a fine
had been taken upon the granting or renewal of the
lease (y). Under this Act, as regards the future, the
occupier for the time being of lands had given to him
the sole and exclusive right of killing and taking the
game upon the land, unless such right was reserved
to the landlord or any other person ; and where any
landlord had reserved to himself the right of killing
game upon any land, it was made lawful for him to
authorize any other person or persons, who should
have obtained an annual game certificate, to enter
upon such land for the purpose of pursuing and
killing game thereon (z). The subject of ground Ground Game
game is, however, now governed by the Ground Game
Act, 1880 (rt). Under this Act every occupier has, as
incident to and inseparable from his occupation, the
right, either by himself or by persons duly authorized
by him in writing (b), to kill, take, and sell ground
game, concurrently with any other person who may be
entitled to kill and take the same, and every condition
or agreement which purports to divest the occupier's
right in this respect is void (c). This provision does
not, however, apply to cases in which, at the time of
the passing of the Act (d), the right of taking game was
for valuable consideration vested in some person other
(x) October 5, 1831.
(y) I & 2 Wm. 4, c. 32, ?. 7.
(z) I & 2 Wm. 4, c. 32, s. II.
(a) 43 & 44 Vict. c. 47.
(6) The Act provides that the occupier himself and one other person
authorized in writing by such occupier, shall be the only persons
entitled under its provisions to kill ground game with firearms, and
that no person shall be authorized by the occupier to kill or take
ground game in any way, except members of his household resident on
the land in his occupation, persons in his ordinary service on such
land, and any one other person bond fide employed by him for reward
in the taking and destruction of ground game (43 & 44 Vict. c. 47,
s. I).
(c) 43 & 44 Vict. c. 47, ss. I, 3, 4, 8.
{d) September 7, 18S0.
342
OF TORTS AFFECTING GOODS
than the occupier (c). It has recently been decided
that the Ground Game Act does not prevent a tenant
from absolutely assigning his right to kill game to
a third person for value, but that it only makes
void any arrangement, of any kind, which as between
the landlord and the tenant would bar the tenant's
right (/).
II. The
tortious acts
themselves.
Instances.
It has been stated that torts to personal property
consist mainly of trespass or conversion. The dis-
tinction between trespass to goods (which is called
trespass dc bonis asportatis) and conversion of goods
has been well expressed as follows : " If a man who
has no right to meddle with goods at all, takes them
and removes them from one place to another, an action
may be maintained a;_'ainst him for a trespass; but
he is not guilty of a conversion of them unless he re-
moved the goods for the purpose of taking them away
from the plaintiff, or of exercising some dominion or
control over them for the benefit of himself or of some
other person " {g). Numerous instances of trespass to
goods might be given ; thus in the case of carriers
of goods, or innkeepers, dealing wrongfully with the
goods they are conveying or holding, here are common
instances in which an action will lie {h). So also if
a wrongful distraint is made on goods, this is a tres-
pass {i). As examples of conversion of goods may be
mentioned the appropriation of goods by a bailee, or
where anv one finding goods afterwards refuses to give
the same up to the real owner on demand made.
But all acts of trespass or injury to goods are not
(e) 43 & 44 Vict. c. 47, s. 5.
{/) Morgan v. Jaclcson, (1895), I Q. B. 885 ; 64 L. J. Q. B. 462 ; 72
L- T. 593- .
(g) Addison on Torts, 49S.
{h) See as to carriers, ante, pp. 129-138; as to innkeepers, ante, pp.
139-141.
()') As to which, see ante, p. 76, and Semayne^s Case, there referred
to ; also as to when a person will be a trespasser ab initio, see ante,
p. 82, and the Six Carpenters' Case, there refeired to.
AND OTHER PERSONAL PROPERTY. 343
of a direct nature, but may arise in various ways. Duty as to
^. .„ -I 1 . j_ ^1 • i dangerous
Thus, if one person lends out to another, or gives to tiii^gg.
another to carry, any article of a highly dangerous
character, or which, though not naturally dangerous,
has yet such defects as to make it dangerous, of which
fact he is or ought to be aware, he is liable for any
injury done to property thereby (k). And any person ^^j^^f^y-
who brings and keeps on his property for his own pur-
poses animals or any other things — e.g., water or sewage
— which may escape and do injury to property, is liable
for any injury occasioned thereby, for it is the duty
of the owner to keep the same under due control, so
that they may do or cause no injury {I). Sic utere
tuo ut alienum non Icedas (w) is, indeed, an established
principle governing such cases as this, and if a person
will bring into or collect on his property things of
a manifestly dangerous nature, or which may become
so, he does it at his own peril, and it is not necessary,
if damage occurs by reason of their escape, to prove
negligence. Thus, to further illustrate this, it may be
mentioned that where the owner of land had thereon
a yew-tree, the branches of which projected on to his
neighbour's land, and the neighbour's horse ate some
of the leaves and was poisoned thereby, the owner of
the land on which the tree was growing was held
liable (n) ; but where the same thing happened, ex-
cept that the branches of the yew-tree did not pro-
ject, but the plaintiff's horse trespassed and ate the
leaves, it was held the defendant was not liable (o).
And, notwithstanding what has been stated, if the
injury caused by a dangerous thing on a person's land
(k) Blackmore v. Bristol and Exeter Ry. Co., 27 L. J. (Q. B.) 167.
[1) Rylands v. Fletcher, L. R. 3 H. L. Cas. 330 ; 34 L. .J. Ex. 177 ;
Anderson v, Oppenheimcr, 5 Q. B. D. 602 ; 49 L. J. Q. B. (App.) 708 ;
Snow V. Whitehead, 27 Ch. D. 58S ; 53 L. J. Ch. 885 ; 51 L. T. 253 ;
33 W. R. 128; Ballard v. Tomlinson, 29 Ch. D. 115 ; 54 L. J. Ch. 454 ;
52 L. T. 942.
{m\ " Use your own rights so that you do not hurt those of another.
(n) Oroivhurst v. Amcrsham Burial Board, 4 Ex. D. 5. See also Firth
V. Bowline; Iron Co. , 3 C. P. D. 254.
(0) Panting v. Noakes, (1894), 2 Q. B. 281 ; 63 L. J. Q. B. 549 ; 70
L. T. 842.
344
OF TORTS AFFECTING GOODS
is due to the act of God — that is, such an act as
could not ordinarily be anticipated — the party is not
here liable. Thus, where the defendant had on his
land stored up water, and an overflow occurred from
an extraordinary storm, it was held that the defendant
was not liable (p).
WhaUey v.
Lancasliire
and Yorkshire
Railway
Company.
Injuries by
animals.
Scienter.
Where a person is not responsible for the dangerous
thing that is on his land being there, he is, of course, not
liable for its escape ; but he is not justified in actively
transferring the mischief on to his neighbour, and will
be liable if he does that. Thus in a recent case (q),
on account of excessive rainfalls, a quantity of water
accumulated against a railway embankment, which it
threatened to destroy, and to protect it the railway com-
pany cut trenches which caused the water to be trans-
ferred to the lower land of the plaintiff; it was held
that the company were liable for the damage done.
With regard to animals fe^rc naturce, such as rabbits,
and with regard also to pigeons, it seems that though
a person breeds them on his land, as he only has pro-
perty in them whilst on his land, he is not liable
for any injury they may do if they escape, the only
remedy of the person injured being to capture or de-
stroy them (r). Subject to this, however, in the case
of creatures which are by their very nature likely to
do injury, the person owning, keeping, or harbouring
them is always liable for any damage done by them ;
but in the case of animals not of such a character, to
make a person liable for injuries to property done by
them, a previous scienter or knowledge of the creature's
mischievous propensities must be proved (s). This is
(p) Nichols V. Marsland, 2 Ex. D. i ; 46 L. J. Ex. 174 ; 25 W. R.
173-
{q) Whalley v. Lancashire and Yorkshire Ry. Co., 13 Q. B. D. 131 ;
50 L. T. 472 ; 53 L. J. Q. B. 285 ; 32 W. R. 7".
(r) Addison on Torts, 1 3 1.
(s) Sanders v. Tcape, 51 L. T. 263 ; 48 J. P. 757 ; Cox v. Burhridge,
16 C. B. N. S. 430.
AND OTHER PERSONAL PROPERTY. 345
shewn more particularly with regard to injuries to the
person (t), but it has also application to injuries to
goods. On the above principle, therefore, that the
scienter of the owner must be shewn, it was formerly
held that if a man's dog strayed and trespassed on
another's land, and by biting, worrying, or otherwise,
injured that other's sheep or cattle, unless the owner
could be proved to have known that his dog had
previously so acted, he was not liable, because, it was
said, the worrying and killing of sheep is not in ac-
cordance with the ordinary instinct and nature of the
animal (u). The contrary is, however, now the law, it Dogs Act,
being enacted (x) that " the owner of every dog shall be ^ ^'
liable in damages for injury done to any cattle or sheep
by his dog ; and it shall not be necessary for the party
seeking such damages to shew a previous mischievous
propensity in such dog, or the owner's knowledge of
such mischievous propensity, or that the injury was
attributable to neglect on the part of such owner " (y).
Damages, where not exceeding £$, are under the
provisions of this Act recoverable summarily before
a justice or justices in petty sessions. It will be
noticed that the words used in the Act are injuries
to " cattle and sheep " only, so that as to injuries to
animals not coming under those designations, or to
other personal property, the rule as to the necessity
of proving the scienter of the owner still remains law ;
thus in the case of an injury done by one dog to
another, scienter must still be proved. It has, how-
ever, been decided on the general intention of the Act
that the term " cattle " includes horses (s).
As to what will amount to a scienter of viciousness, What will
., . , , ,1 , ,1 • amount to
it IS enough to shew that the owner was m any way scienter.
(i) See this noticed post, in chapter vi. , " Of Torts arising particularly
from Ne<;ligence. "
(m) Addison on Torts, 130.
(x) 28 & 29 Vict. c. 60.
(y) Sect. I.
(2) Writjlit V. Pearson, L. R. 4 Q. B. 582 ; 38 L. J. (Q. B.) 312.
346 OF TORTS AFFECTING GOODS
aware of the animal's savage disposition, and it is not
actually necessary to prove that the animal has pre-
viously bitten some one else (a). If the owner of an
animal appoints a servant to keep it, the servant's
knowledge of the animal's disposition is equivalent to
the knowledge of the master ; but it is not necessarily
so if the servant is not so specially appointed, or has
no special control in the matter (b).
The doctrine The doctrine of scienter in relation to injuries to
does n'of apply auimals, is uot applicable to cases where there is an
when there is independent obligation by contract to take reasonable
an obligation ^ " •' ^ ^
existing by care ; SO that where the plaintiff entrusted the defen-
dant with a colt to take care of, and the defendant
put it in a field near to where he kept a bull, and the
bull gored the colt, it was held that the defendant
was liable although he had no knowledge of the bull's
viciousness, and in fact had always believed it to be a
perfectly gentle animal (c).
If a dog of a Although a person is not liable as a trespasser for
mischievous , . , . , . . , , , , i / tx . •.•
propensity liis dog straymg on to his neighbour s lands (a), yet it
injury.'^the °^^ it be of a peculiarly mischievous propensity, which is
owner is liable, i^qowu to hiuj, he is liable for any injury it may do
to his neighbour's property (c) ; and if a dog whose
nature it is to destroy game, or who has been trained
for that purpose, strays on to another's land and does
injury in that way, the owner is liable in respect of
all such injury (/).
It is a tortious To kill or injure any creature the property of
injure another auothcr is a toi'tious act, for which the person so
man's dog killing or injuring will be liable, even although tlie
or cat. o J o ' o
(a) Worth v. GilUng, L. R. 2 C. P 6S5.
\b) Baldwin v. Casella, L. R. 7 Ex. 325 ; Stiles v. Cardiff Steam
x^^avigatlon Co., 33 L. J. Q. B. 310.
(c) S7nith V. Cook; I Q. B. D. 79 ; 45 L. J. Q. B. 122.
(d) See ante, p. 324.
(c) Addison on Torts, 130.
(/) Read v. Edicards, 17 C. B. (N. S.) 245 ; 34 L. J. C. P. 32.
Al^D OTHER PERSONAL PROPERTY. 347
creature be only a dog or a cat. And it is also a
tortious act to kill the dog of another, although it is
actually known to be of a ferocious disposition, and
is found going at large ; unless, indeed, it is actually
attacking a person at the time when it is killed {g).
A person is not justified in killing his neighbour's straying
doR or cat which he finds on his land, unless the ani- ^
mal is in the act of doing some injurious act which
can only be prevented by its slaughter (7i). And it injury done
has been held that if a person sets on his lands a trap ^' ^^^'^"
for foxes, and baits it with such strong-smelling meat
as to attract his neighbour's dog or cat on to his land
to the trap, and such animal is thereby killed or
injured, he is liable for the act, though he had no
intention of doing it, and though the animal ought
not to have been there {i).
A person can be guilty of an act of trespass or con- Conversion
version by his agent; and the ratification of a prior "ITagent's act,
act originally unauthorised will amount to a conver- ^^^'^jf^.^tion^
sion by the person so ratifying it, provided the per-
son doing the act professed at the time to be doing
it as his agent. Thus, if A. meddles with the goods of
B. and takes them away, professing to act in so doing
for 0., who gave him no instructions or authority to
do so, but C. afterwards acknowledges and ratifies the
act, it amounts to conversion by C. But for a ratifi-
cation to have this effect, it must be with the full
knowledge of the nature of the act committed, or
with an ititention to adopt that act at all events {k) ;
so that where a landlord gave a broker a warrant to
distrain for rent, and the broker took away and sold
a fixture and paid the proceeds to the landlord, who
received the money without inquiry, but yet without
(f/) Addison on Torts, 508.
(h) Ibid. 508, 509.
[i] Townsend v. Watkcn, 9 East, 277
[k) I S. L. C. 391.
348
OF TORTS AFFECTING GOODS
any knowledge of the broker's irregularity, it was
held that no such authority appeared as would sustain
an action against the landlord (/).
Conversion by
intermeddling'
and taking
away goods.
Conversing bj'
auctioneers.
If a person in any way unlawfully meddles with
and exercises an act of ownership over the goods of
another, an act of conversion is at once committed,
and an action for such conversion may be maintained
immediately against him. Thus, in the case of
Cochrane v. Rijmill (m), the plaintiflF advanced money
to one Peggs on a bill of sale of his effects. The
defendant, an auctioneer, without notice of the plain-
tiff's rights, by the direction of Peggs, sold the effects,
and after deducting money he had advanced Peggs on
account, paid the whole balance to him. The plaintiff
sought to recover the value of the goods on the ground
of their conversion by the defendant, and it was held
that the plaintiff was entitled to recover, for the
dealing with the property and sale by the defendant
amounted to a conversion. But if in this case the
goods had been sent to the defendant in the ordinary
and usual course of the business of the person sending
them (n), the decision would have been different (o).
It may be noticed that the protection afforded to a
purchaser of goods in market overt (jj) does not ex-
tend to an auctioneer selling in market overt so as
to save him from the consequences of an inadvertent
conversion (q).
{I) Freeman v. Jtosher, 13 Q. B. 780.
(m) 40 L. T. 744 ; 27 W. R. 776. This case is perfectly distinguish-
able from a subsequent case of National Mercantile Bank v. Ryniill, 44
L. T. 767.
(n) It matters not that the auctioneer was acting in the way of his
ordinary business ; that will not protect him. The case of Turner v.
Hockey (56 L. J. Q. B. 301), in so far as it decides anything to the
contrary, cannot be maintained. See Barker v. Furlong, (1S91), 2 Ch.
172; 64 L. T. 411 ; Consolidated Co. v. Curtis, (1S92), I Q. B. 495;
61 L. J. Q. B. 325 ; 40 W. R. 426.
(o) National Mercantile Bank v. Hampson, 5 Q. B. D. 177 ; 28 W. R.
424 ; Taylor v. M'Keand, 5 C. P. D. 358 ; 49 L. J. C. P. 563 ; 28
W. R. 528.
(p) Seean^e, p. 337.
(2) Delaney v. Wallis, 14 Ir. Reps. Ch. 31.
AND OTHER PERSONAL PROPERTY. 349
If goods come to a person's hands lawfully in the When demand
first instance, and he then detains them, to enable the beforrsuing
owner to maintain an action for conversion, he must ^°^' conversion,
first make a demand for such goods, and then, on
refusal to deliver them, he may sue for their con-
version (?'). This demand for, and refusal of, the
goods furnishes evidence of a conversion of them either
then or at some time previously (s).
There are, however, some cases in which a person is When a
justified in refusing to deliver up goods in his posses- fustifiecUn
sion thoua^h he is not the owner of them, and in which I'^fusmg to
o ' dehvev goods
his refusal will not render him guilty of a conversion, to the owner.
Thus if goods are deposited in a person's hands for
another, but subject to a certain charge in some third
person's favour, here the depositee is justified in refus-
ing to deliver the goods over to the owner of them unless
he has ascertained whether such charge does or does
not exist. And, of course, with still greater force, if
the depositee has himself some claim in the nature
of a lien, he is justified in retaining the goods until
such lien is satisfied. If, however, the lien is disputed,
and the owner brings an action to recover the goods,
he can at once obtain possession of them on paying
into court the amount of the lien to abide the result of
the action (t). And if a person has goods of another
and leaves them with his servant, and demand of them
from the servant is made by the owner, here the ser-
vant is justified in refusing to deliver them up until
he has had an opportunity of receiving his master's in-
structions upon the subject ; and such a refusal is a
qualified, reasonable, and justifiable refusal, and no
evidence of a conversion in an action brought by the
owner against the master (u).
(r) Thorogood v. Robinson, 6 Q. B. 772.
(s) Wilton V. Girdlestone, 5 B. & Aid. 847.
(t) Order L. rule 8 ; Gehruder Naf v. Ploton, 25 Q. B. D. 13 ; 63 L.
T. 328.
(«) Addison on Torts, 505.
350
OF TORTS AFFECTING GOODS
Right of owner
to follow
proceeds of
goods wrong-
fully
converted.
Interpleader,
what it is, &c.
III. Justifica-
tion,
Instances of
justification.
The owner of goods which have been wrongfully
converted may follow the proceeds thereof so long as
he can mark or distinguish them, and provided there
is no countervailing and superior title, such as a pur-
chase in market overt. Tims, where a person wrong-
fully obtained goods and sold them, and the proceeds
of sale were paid into a colonial bank for the purpose
of transmission to its London brancli, it was held that
the owners of the goods were entitled to follow the
proceeds into the hands of the bank (x).
Where a person is in doubt which of two or more
persons demanding goods of him is the true owner to
whom he ought to deliver them, the course open to him
is to interplead, that is, take certain steps to have it
decided between those parties which of them is the
one entitled. There was always a process of inter-
pleader in equity, but this necessitated the person in
doubt filing a bill there, so that if an action was brought
against him by one of the parties, and he did not know
whether that person or the other was entitled, his only
course to obtain relief was to file a bill of interpleader.
This process of interpleader in equity has, however,
long been obsolete, there being full provisions as to
interpleader at common law (y).
There may be many cases in which the commission
of a trespass to goods is justifiable, as has incidentally
appeared in some of the foregoing remarks. " If a
man's goods and chattels obstruct me in the exercise
of my right of way, I have a right to remove them.
If he places a horse and cart in the way of the access
to my house, or before the door, so that I cannot drive
up to it, I have a right to lay hold of the horse and
lead him away, and, if necessary, to whip him to make
(x) Comitedes Assu7-eurs Maritimes v. Sta7idard Bank of South Africa,
I C. & E. 87.
(2/) The practice as to interpleader is now regulated by Order LVii.
AND OTHER PERSONAL PROPERTY. 35 I
him move on. So, if a person's goods are placed on
my ground, I may lawfully remove them ; and if his
cattle or sheep come upon my land, I may chase them
and drive them out " (z). All these form instances of
the justification.
It is perfectly justifiable to kill a naturally ferocious when justifi-
,,.,.» 1-1 T i.' able to kill
animal which is round at large, e.g. a lion or a tiger, another's
but this does not extend to justify a person killing a '^^^i™'^!-
ferocious dog simply found at large (a). But it is
perfectly justifiable for a person who is attacked by a
dog to kill it in self-defence, or to kill it when it is
chasing sheep or cattle, and they cannot be preserved
without (h). It is also justifiable for the police to
detain any dogs found at large without an owner, and
if any dog is of an actually dangerous disposition,
application may be made to justices, who may order ir,
to be destroyed (c).
Cases in which a person is justified in refusing to Acts not really
give up goods, though belonging to the person making t^rplTss or
the application for delivery to him, have already been conversion,
mentioned (d). These cases cannot be called the justi-
fication of a conversion, but rather cases in which acts,
though apparently constituting a conversion, do not
actually amount to it. So also with regard to the
justification of a trespass, perhaps these cases would
be more correctly described as cases in which acts,
though apparently constituting a trespass, do not
actually amount to it.
Although a person does what is apparently an un- An act done
.-n 1 ^ • • j_ i.ij J.1 n ^ accidentallv
justmable injury to another s property, he may find ^lay be ex-"
an excuse for it by showing that it was the result of ^usable.
(z) Addison on Torts, 497, 49S.
(a) Ante, pp. 346, 347.
(b) Ibid.
(c) 34 & 35 Vict. c. 56.
(d) Ante, p. 349.
352
OF TORTS AFFECTING GOODS
IV. Miscella-
neous poiut.
Kecapliou.
How a person
is justified in
eflEecting a
recaption.
unavoidable accident ; as, if a man is riding along the
streets, and accidentally, and without any fault on his
part, his horse runs away and does injury, he is not
liable. So again, on the same principle, if a person
is walking along the streets, and accidentally slips and
falls against and breaks a window, he is not liable for
the damage done. But if, in either of these cases,
at the time of the accident the person was doing an
unlawful act, e.g., committing an assault, he would
be liable {e).
Self-defence is a natural act open to every man,
and if a person has actual possession of goods or other
personal property, and another wrongfully attempts
to take the same from him against his will, he is
perfectly justified in using all force necessary for the
purpose of defending his own possession and preventing
the act of trespass or conversion ; he must, however,
use no more force than is, under the circumstances of
the case, necessary (/).
And even if a person is wrongfully dispossessed of
his goods, he has the right of recaption. Eecaption
may be defined as a remedy by the act of the party,
consisting in the right of the true owner of goods to
follow them into the hands of another, and actually
retake them from that other and repossess himself
thereof {g). And a person to exercise this right of
recaption, if the taker has removed the goods on to
his own land, may enter thereon and take them, and
will commit no trespass in so doing ; but in exercising
this right he must be careful not to do any act that
may render him in his turn an aggressor — he must
not use any undue force, must not effect the retaking
(e) Hammach v. White, 5 L. T. Rep. (X. S.) 676 ; and see Vaughan
V. Taff Vale Ry. Co., 5 H. & N. 679; Manzoni v. Douglas, 6 Q. B. D.
145 ; 50 L. J. Q. B. 2S9 ; 29 W. R. 425.
( f) Broom's Corns. 200 ; judgment in case of Roj. v. WUson, 3 A. &
E. 825.
(7) Brown's Law Diet. 444.
AND OTHER PERSONAL PROPERTY. 353
in a riotous manner, and must not commit a breach of
the peace.
But although (as stated above) if a man actually The mere
takes goods away and places them on his land, the being on°" *
owner may enter and retake them, yet the mere f act ''^°*^*^'"/ ^^°"^
•' '' does not
that goods which have been actually wrongfully taken justify an
away are on another's land will not justify the owner theln.
in entering on such land to retake them ; he must shew
how they have got there. If, however, the goods so
wrongfully taken are found in a fair or on a common,
then the mere fact of their being there justifies the
owner in retaking them (h).
When trespass to goods is committed, or a conversion who can sue
of them takes place, the person possessed of them at conversum.^ *"^
the time of the committing of the wrongful act is
generally the person entitled to maintain an action
in respect of it. But in the case of a bailment of Bailments.
goods, there being an interest in both the bailor and
the bailee, the rule in tlie case of many tortious acts
is, that either or both of them may maintain an
action in respect thereof (i). Thus, if goods are let
out by A. to B., and a trespass is committed in respect
of them by a third person, C, whereby they are de-
stroyed or permanently and materially damaged, B.
may sue in respect of the direct loss to him, and the
bailor A., who is entitled after the determination of
the bailment, may sue for the ultimate injury done
to him. To entitle the bailor, however, in such a
case to sue, the injury done must be of a permanent
nature (k). But where a conversion takes place in
respect of goods the subject of a bailment, and the
bailee has a right to them for some fixed and specific
(h) Broom's Corns. 200, 201.
(i) Per Parke, B., Reg. v. Vincent, 21 L. J. (N. C.) 109; see also
ante, p. 142.
(k) Hall V. PicJcard, 3 Camp. 187 ; Mears v. London and South-
western Ry. Co., II C. B. (N. S.) 850.
Z
354
OF TOETS AFFECTING GOODS
period yet unexpired, here the bailor cannot sue in
respect of the conversion, but the action must be by
the bailee ; unless, indeed, the very conversion occurs
by the tortious act of the bailee which determines the
bailment (/).
Remedy for
trespass to
goods.
The legal remedy for a trespass was originally
either by action of trespass for damages for the direct
injury done, or an action of trespass on the case for
the injury, not direct, but consequential, and this was,
in fact, the only difference in the two forms of action.
The present system of pleading under the Judicature
practice, however, now entirely does away with all
such distinctions (and, indeed, this distinction of forms
of action had ceased long before), and in respect of a
trespass committed to goods, the proper remedy is by
an action to recover damages for the tortious act.
Remedies for With regard, however, to cases in which the tor-
Teis^oii!^ ^°" tious act amounts not merely to trespass, but to
a conversion of goods, that is, to the actual taking
away and wrongful appropriation of them, or where
goods are wrongfully detained by a person from the
true owner, though all distinctions in the forms of
action are now quite done away with, yet it will be
useful to note the former remedies and the present
Former action position. In cases of convcrsion, the action brought was
an action of trover (so called because founded on the
supposition, generally a mere fiction, that the defendant
had found the goods in question (m) ), and the claim of
the plaintiff was not for the return of the goods, but to
recover the value of them. In the case of wrongful
conversion now, though there is no such thing as an
action of trover, yet the remedy may still well be called
an action in the nature of an action of trover, being to
recover the value of them as formerly.
of trover.
(I) Fenn v. Bittleston, 7 Ex. 159.
(m) Wharton's Law Lexicon, 748.
AND OTHEK PEKSONAL PKOPERTY. 355
But when goods were wrongfully detained from a Former action
person, there was another action that he might bring, ° ^tmue.
called an action of detinue, being to recover the goods,
or on failure thereof the value, and also damages for
the detention (n). It was in the option of the defen-
dant, on a verdict against him, either to return the
goods or pay their value ; but by the Common Law
Procedure Act, 1854 (0), it was enacted that the plaintiff
might apply to the Court or a judge to order exe-
cution to issue for the return of the particular goods
without giving the defendant the option of retaining
them on paying their value, and the Court or a judge
might at discretion so order (^). So now, therefore,
though, under the Judicature practice, all distinctions
in forms of actions are done away with, yet an action
may still be brought for the return of the goods
detained, which may well be styled an action in the
nature of an action of detinue.
"Where an injury has been committed to the goods Exception to
and chattels of a person who then dies, the right oi ^^^^^^^^^ff*^^^
action survives to his executors or administrators, thus
forming an exception to the maxim, Actio ^personalis
moritur cum persond (q). Thus, where the plaintiff
sued in respect of the infringement of his trade-mark,
and died pending the action, it was held that the
cause of action involved damage to the plaintiffs
property, and consequently his personal representa-
tives could continue the action (r). So also, as has
been previously noticed, there is a further exception
to the maxim in the case of injuries committed by
a deceased person to any property, whether real or
personal (s).
(n) Wharton's Law Lexicon, 235.
(0) 17 & 18 Vict. c. 125.
{p) Sect. 78 ; see also post. Part iii. chap. i.
(9) 4 Edward 3, c. 7 ; 25 Edward 3, st. 5, c. 5 ; see other exceptions
to the maxim, ante, p. 323, and post, p. 418. See also as to the maxim,
ante, pp. 5, 6.
(»•) Oakey v. Dalton, 35 Ch. D. 700 ; 56 L. J. Ch. 823 ; 57 L. T. 18.
(s) 3 & 4 Wm. 4, c. 42, s. 2, ante, p. 323.
356
OF TORTS AFFECTING THE PERSON.
Torts to the
person are
more impor-
tant tlian
torts to
propert}'.
CHAPTER IV.
OF TORTS AFFECTING THE PERSON (a).
We have in the two preceding chapters considered
the subject of Torts to Property ; in this and the next
chapter we proceed to the subject of Torts to the
Person, which may be said to be still more important
than torts affecting property, because every one does
not possess property for a tort to be committed in
respect of, but these torts affecting the person may
equally be committed on any one. The different torts
affecting the person are numerous, and those which
may most usefully be considered appear to be the
following : —
1. Assault and battery.
2. False imprisonment and malicious arrest.
3. Malicious prosecution.
4. Libel and slander ; and
5. Seduction and loss of services.
I. Assault
and batterj-.
Definition of
an assault.
Assault and battery are always classed together
because they are acts closely connected, and, in fact,
depending on each other; for though an act may be
an assault without amounting to a battery, yet a
battery must comprise an assault, and so it is most
usual to find an assault and battery taking place
simultaneously. An assault may be defined as the
(a) Some of the torts ranged under this head in the present chapter
and the one next following, are sometimes styled Torts affecting the
Reputation ; but it does not appear necessary to introduce this further
division in a work like the present, as torts particularly affecting the
reputation necessarily more or less affect the person, for the reputation
appertains to the person.
OF TORTS AFFECTING THE PERSON. 357
unlawful laying of hands on another person, or an
attempt or offer to do a corporal hurt to another,
coupled with a present ability and intention to do
the act (h). A battery may be defined as the actual Definition of
striking of another person, or touching him in a rude, ■' '* ^^^'
angry, revengeful, or insolent manner (c). We will
now proceed to notice the essentials to constitute an
assault, and some instances of assaults ; and then the
essentials to constitute a battery, and the distinction
between the two torts, and their combination.
To constitute an assault by a mere attempting or What acts will
„ . , . . 1 • j_i 1 n -J.' j-\ 4- ^^^ suflBcient
onermg to do an act, it is stated in the dennition tnat to constitute
there must be a present ability and intention to do the ^^ assault,
act attempted or offered to be done. This means that
it is not sufficient for a person to offer to do the act,
unless he apparently is both able to and intends to do
it. Thus, " holding up a fist in a threatening attitude
sufficiently near to be able to strike ; presenting a
gun or pistol, whether loaded or unloaded, in a hostile
and threatening manner, within gun-shot or pistol-shot
range, and near enough to create terror and alarm ;
riding after a man with a whip, threatening to beat
him, or shaking a fist in a man's face," are all acts of
assault (d), for the person in all these cases has the
apparent power of doing the act he threatens to do,
and the intention of doing it. But if, in the foregoing
instances, though the person threatens the act, yet he
has not the then present apparent ability to perform
what he threatens, e.g. if, holding up his fist, he is yet
not near enough to strike, or presenting a gun or pistol,
is out of gun-shot or pistol-shot range, here no assault
is committed. Again, in any of these instances, even
although the person has the ability to do the act he
threatens to do, yet, if he shews from his words or
conduct that he does not mean to do it, e.g. if he says
(6) See Brown's Law Diet. 48 ; Jiead v. Coker, 13 C. B. 860.
(c) Ibid. 49.
{(I) Addison on Torts, 137.
358
OF TORTS AFFECTING THE PERSON.
Au assault
may be com-
mitted by a
mere touching
however
slis:lit.
Except iu a
few cases.
were it not for some event he would strike or would
shoot, here no assault is committed (e).
The definition of assault also shews that a tort
may be committed by a mere touching or laying on
of hands, and this is so however slight may be the
touching, for " the law cannot draw the line between
different degrees of violence, and therefore totally
prohibits the lowest stage of it, every man's person
being sacred, and no other having the right to meddle
with it in any, even the slightest manner " (/). There
are, however, some few acts, consisting in the touching
of another person, which from their very nature are
not assaults, e.g. if one has to push through a crowd,
he has of necessity to touch others ; but unless he
does it with roughness or violence, this is no tort, but
an act which he is justified in doing {(j).
Instances of
acts held to
be assaults.
In the foregoing remarks some instances of assault
have already been given. The following acts have
also been held to be assaults, and furnish apt in-
stances : —
The riding after a person and obliging him to run
away into a garden to avoid being beaten {h).
The forcing a person to leave premises by threats of
violence if he did not do so {i).
Where two persons were fighting, and one of them
accidentally struck a third person {h). This, of course.,
proceeds upon the principle that the person was doing
an unlawful act in fighting. Had he not been doing
(e) Addison on Torts, 137, 13S.
(/)2 Bl. Com. 120.
(g) Addison on Torts, 138.
(k) Martin v. Shoppee, 3 C. & P. 373.
(i) Head V. Coker, 22 L. J. (C. P.) 201.
(h) James v. Campbell, 5 C. & P. 372.
OF TOKTS AFFECTING THE PERSON. 359
SO, then he would not have been liable for what
was a pure accident ; so that where a person threw
a stick which accidentally hit another, it was held that
it was fair to presume that the stick was thrown for
a proper purpose, and therefore that defendant was
not liable (/).
The cutting off of the hair of a pauper in the work-
house by force and against his will (m). The unlawful
restraining the liberty of a person (n).
A person cannot be guilty of an assault by acting in An assault
1 . .^ L ^ T crtnnot be
a merely passive manner ; so that where a policeman committed
obstructed persons from entering a room, it was held ^y a merely
■T o » passive act, or
that this was no assault by him (0). A person also is in some cases
in some cases precluded from complaining of an assault sented to.
where he has consented to the act complained of (p).
The definition of a battery (q) shews that the striking Assaults not
^ 1 • . 1 . , p , amounting to
or touching must be m a rude, angry, revengiul, or battery.
insolent manner to constitute it a battery. If, there-
fore, the touching is not in this way, it will only
amount to an assault.
The distinction, therefore, between the two acts of Distinction
assault and battery may be said to be, that the assault assault and
is a lesser offence than the other, that there may be ^ ^^^^^^y-
an assault without a battery by simply touching the
person of another without any violence, or by a threat-
ening without the carrying out of the threat ; but that
in every battery there must have been an assault pre-
ceding it, and therefore in cases of battery there is a
{!) Alderson v. Waistell, i C. & K. 358 ; see also as to the principle
stated in the above paragraph, ante, pp. 351, 352.
(ni) Forse v. Skinner, 4 C. & P. 239.
(n) Hunter v. Johnson, 13 Q. B. D. 225 ; 53 L. J. M. C. 182 ; 51 L.
T. 791 ; 32 W. R. 857 ; Bird v. Jones, 7 Q. B. 742 ; 15 L. J. Q. B. 82.
(0) Jones v. Wylie, i C. & K. 257.
Ip) Latter v. Braddell, 50 L. J. Q. B. 448 ; 29 \V. R. 366 ; 44 L. T.
369-
(7) Ante, p. 357.
360 OF TOUTS AFFECTING THE PERSON.
combinatiou of the two torts, which are rightly de-
scribed together as assault and battery.
Definitiou of Assault aud battery may sometimes be of such an
what^^i'i'^"' aggravated kind as to amount to an actual wounding
and will not ^f ^-^q person, or to constitute the offence called may-
amount to it. ^ ' "^
hem. Mayhem (or maihem) has been described as " the
violently depriving another of the use of such of his
members as may render him the less able in fighting
to defend himself or to annoy his adversary, e.g. the
cutting off, or disabling, or weakening a man's hand or
finger, striking out his eye or fore-tootb, or depriving
him of those parts the loss of which in all animals
abates their courage " (r). But the doing of an injury
that only detracts from a person's appearance is not
considered as mayhem, but only as wounding, because
it does not weaken, but only disfigures him.
An action may Notwithstanding that an assault or battery may
herefo/an have been committed abroad, out of the jurisdiction
mTued abroad °^ ^^® Court, yet the party injured has his remedy
Mostyn v. here if the assaulter comes to this country (s) ; thus,
' ' in the case of Mostyn v. Fahrigas, cited below,
it was held that an action might be maintained
against the Governor of Minorca for an injury to
the person of the plaintiff committed there. And
although, in the case of a tort committed abroad, it
happens that it could not, according to the law of the
country where committed, be sued upon there until
after certain penal proceedings had been taken in
respect of it, yet, as that only goes to the procedure, it
does not at all affect the remedy here {t). But where
an action was brought against the Governor of Jamaica
for assault and false imprisonment there, it was held
(?■) Brown's Law Diet. 327.
(s) Mostyn v. Fahriyas, I S. L. C. 628 ; Cowp. 161 ; Order xi. rule i.
An action cannot be maintained here in respect of trespass to land
abroad. See ante, p. 321, and case of British South Africa Co. v.
CompanJiia di Mozambique, there quoted.
(t) Scott V. Lord Seymour, i H. & C. 219.
OF TORTS AFFECTING THE PERSON. 36 1
that an Act of Indemnity, retrospective in its nature,
passed by the Legislature of the island and assented
to by the Crown, for acts done in good faith after
a proclamation of martial law in the suppression of
a rebellion, prevented any action being maintained
here (v).
There are, however, many cases in which, though Assault aud
an assault and battery may have been committed, yet sometimTs^be
such acts may, under the circumstances, be justifiable, i^^'^tifiabie.
and such cases of justification may chiefly be ranged
under two heads, viz. (i) Where done in defence of
person or property ; and (2) Where allowed by reason
of the defendant's peculinr position.
Now, as to defence, this is a justification of a very justifiable in
defence
person.
extended nature, for not only is a person justified in ^ ^"*'*^ °
striking another in his own defence, but also in defence
of husband, wife, child, relative, or even neighbour or
friend (x) ; and as these last terms are very wide, it
seems almost, if not entirely, correct to say that a
person is justified in assaulting another in defence
either of himself or others. But the nature of the But the
assault and battery done in defence must be carefully J^ot be more^
observed, for some extreme act of defence, being more ^'''^^ ^^j^^'^^t^'
' . s^i'y under the
than was necessary from the nature of the assault it circumstances.
was done in defence of, is not justifiable, e.fj. if one
attempts to hit another, that other is perfectly justified
in warding off the blow, or in striking a blow of the
same nature in defence, but he is not justified in using
some offensive weapon, and materially injuring the
person, as by striking with a sword or knife (y). In
every case in which justification on this ground is set
up as a defence, the original act to prevent which it
was necessary to resort to defence must be looked to.
(m) Phillips V. Eyre, L. R. 6 Q. B. 21 ; 40 L. J. Q. B. 28 ; 22 L. T.
869.
(a;) Addison on Torts, 143.
(y) See Cockcroft v. Smith, 11 Mod. 43, quoted in Addison on Torts,
140.
demesne.
362 OF TORTS AFFECTING THE PERSON.
and a person is not justified in going beyond mere
defence, and avenging himself, as by not being content
with warding off a blow, but following it up by fresh
Son assault and Unnecessary blows. Where a justification for an
assault and battery is set up on the ground of defence
to the person, such defence is called a plea of son
assault demesne {z).
Justifiable also Assault and battery, also, in defence of one's property,
jltertr"^ whether real or personal, is perfectly justifiable (a) ;
for if a person attempts to dispossess another of his
goods, that other is fully justified in using means to
prevent him doing so, and laying hands on him for
that purpose. And so, also, if the attempt is to dis-
possess another of his land, that other is justified
in committing an assault and battery for preventing
the attainment of that object. If, however, a person
peaceably enters on another's land, the owner is not
justified in forthwith assaulting him for the pur-
pose of ejecting him therefrom, but he must first
request him to go, and then, if he will not do so,
proceed to eject him, using only as much force as is
necessary (&).
But here And here, again, must be noticed — as in cases of
Se gi'^atei defence of the person — that the act in defence of one's
thannecessaiy. p^perty must uot be of an excessive character, for if
it is more than is necessary under the circumstances,
then it is not justifiable, nor is it justifiable to do an
act in defence of property which may manifestly tend
Setting man- to injure the other party (c). And particularly it is
traps, &c. pi-ovided by statute {d) that any person causing to be
set, or knowingly suffering to be set, upon his lands
any spring-gun, man-trap, or other engine calculated
(-) Brown's Law Diet. 496.
(a) 3 Bl. Com. 120; Addison on Torts. 140, 141.
(b) Poll-inhorn v. Wriyht. 8 Q. B. 197 ; Per Parke, B., Harvey v.
Brychjes, 14 M. & W. 442.
(c) Collhis V. Renison, Say. 138.
(d) 24 & 25 Vict. c. 100, s 31, re-enacting 7 & 8 Geo. 4, c. 18.
OF TORTS AFFECTING THE PERSON. 363
to destroy life, with the intent of destroying or doing
grievous bodily harm to trespassers, shall be guilty of
a misdemeanour.
Now, as to the assault and battery being justifi- Justifiable on
, ,. -i.- rr\\ account of a
able by reason of a persons peculiar position, ihere person's pecu-
are many cases in which the law gives a direct power ^'^^' position.
of laying hands on the person of another and assaulting
him, and a primary instance of this may be seen in
the chastisement sometimes awarded to offenders by
flogging. And, irrespective of any sentence of the
law, a person, by the relationship in which he stands
towards another, may have a justification for assault
and battery committed on that person, e.g. a father E.g. a father
naturally has a right to reasonably chastise his ^\^is cMM.
children, and so also has a master his apprentices,
and a schoolmaster his scholars, but the chastisement
must not be excessive (e). A master or captain of a
ship has also a right by virtue of his position to
imprison or reasonably chastise any of the sailors who
behave in a mutinous or disorderly manner, or refuse
or neglect to obey his lawful and proper orders, but
any chastisement must be reasonable (/) ; and a
constable, a churchwarden, a beadle, or other person
employed in that capacity in a place of worship, is
justified in laying hands on, and forcibly removing
from that place, any person who by his conduct is
disturbing the congregation (g).
It necessarily appears that in actions for assault and Malice is not
battery it is not at all essential that malice should f" assault
exist. Malice may, of course, be shewn, and may ^"^^ I'attery.
operate to inflame the injury done, and increase the
amount of the damages ; but a wanton, or thoughtless,
(e) See hereon Winterburn v. Brooks, 2 C. &K. 16 ; Clearyv. Booth,
(1893), I Q. B. 465 ; 62 L. J. M. C. 87 ; 68 L. T. 349.
(/■) Brou'ihton v. Jackson, 21 L. J. (Q. B.) 265 ; Nodcn v. Johnson,
20 L. J. (Q! B.) 95.
{ri) Burton v. Henson, lO M. & W. 105 ; Williams v. Glcnister, 2
B. & C. 699.
364
OF TOKTS AFFECTING THE PEKSON.
or negligent act, without the slightest malicious intent,
may equally constitute an assault and battery.
An assault ao.i Assault and battery may also be committed indirectly
battery may 11 ^ i p i i. . 1
be oommitted as Well as directly ; thus, where the defendant threw
indirectly. ^ lighted squib M-hich fell on a stall on the street, and
the keeper of the stall for his own protection threw it
off, and it then exploded and injured the plaintiff, it
was held that the defendant, the original thrower,
was liable, for a person is liable for the natural and
probable consequences of his own act {h). A person
is liable for an assault committed by his agent or
servant by his authority express or implied, for qiii
facit per almm facit per se ; but he is not liable if he
has not authorized the act, and it was outside the
scope of the servant's duties. Thus, where a person
employed to levy a distress committed an assault in
doing so, it was held that the employer was not liable,
the assault not being directed or authorized, and it not
being within the scope of the main authority to commit
an assault {i).
Remedies in
respect of
assault and
batter}'.
A person may proceed either civilly or criminally
in respect of an assault, and the period of limitation
for bringing any action in respect of such a tort is
four years {k). It has already been noticed, however,
in considering the subject of torts generally, that
sentence will not be passed in a prosecution for an
assault if an action for the same assault is also
pending ; that if a conviction on summary proceed-
ings takes place, that bars further civil proceedings ;
and that if a magistrate dismisses a charge of assault,
his certificate of dismissal will operate to bar any
further proceedings, civil or criminal, in respect of
it (/).
(h) Scott V. Sheppard, i S. L. C. 480 ; 2 Blackstone, 892.
(i) Eichards v. West Middlesex Waterworks Co., 15 Q. B. D. 660;
54 L. J. Q. B. 551 ; 33 W. R. 902.
(k) 21 Jac. 1,0. 16, s. 3.
(I) Ante, p. 314.
OF TORTS AFFECTING THE PERSON. 365
If a man assaults his wife, she has no right of a wife cannot
, . , \ 1 ^ 1 • J. J. sue her hus-
action against him (m), her remedy being to prosecute band in respect
him, or to apply for him to be bound over to keep ^Ji^teTto her
the peace, or the assault and battery may constitute during cover-
cruelty sufficient to enable her to obtain a separation
order from a Court of Summary Jurisdiction {n), or to
found proceedin<Ts for judicial separation. It has been even though
-'■ ^ . . ..,,, J. J she has since
decided that no action is maintainable by a divorced obtained a
wife against her former husband for an assault and divorce,
battery committed during the coverture (o). What is
stated in this paragraph applies not only to assault
and battery, but to any tort under such circum-
stances (p).
False imprisonment may be defined as some un- H- False
■"■. . , .- imprisonment.
lawful detention of the person, either actually or con-
structively (q). The difference between an actual and Distinction
. , . o ^ • J^^ • J.^ J. 1 •^ between an
constructive detention of the person is this, that while actual and a
an actual detention is a detention by forcible means, '^i^lf^^^^^^^
the constructive is not, but may consist in a mere
shew of authority or force, e.g. if an officer informs a
man that he has a legal process against liim, and that
he must accompany him, and accordingly, although
no hand is laid on him, he goes with the officer, this
amounts to an imprisonment (r).
(m) The Married Women's Property Act, 18S2 (45 & 46 Vict. c. 75),
though giving all rights in respect of property, specially provides (s. 12)
that, further than that, no husband or wife shall be entitled to sue the
other in respect of a tort.
(n) See 58 & 59 Vict. c. 39 (Summary .Jurisdiction — Married Women
— Act, 1895). This statute, as from January i, 1S96, repeals sect. 4 of 41
Vict c. 19 (Matrimonial Causes Act, 1878), and re-enacts, but with
variations and additions.
(0) Phillips v. Barnett, i Q. B. D. 436 ; 45 L. J. ((2. B. ) 277.
{p) But where a husband was a lunatic, though not so found by
inquisition, and his wife during his lifetime wrongfully took possession
of and sold certain of his chattels and applied the proceeds to her use,
it was held that an action might be maintained by the husband's repre-
sentatives against the wife's representatives to recover the amount from
her estate in her executor's hands {In re Williams, Williams v. Stretton,
50 L. J. Ch. 495 ; 44 L. T. 600).
(q) See Broom's Coms. 793.
(r) Grainger v. BiU, 4 B. & C. 212 ; Wood v. Lane, 6 C. & P. 774.
366 OF TORTS AFFECTING THE PEHSOX.
Imprisonment It being, therefore, understood what will constitute
abir^""^*'^" a false imprisonment, we will proceed to consider
particular cases in which imprisonment is allowed by
the law, so that it will not be a false, but a justifiable
and proper imprisonment.
Detention by a Firstly, it may be noticed that there are various
of hTposiTion'' persons who are, from their positions, naturally justified
as a father. jj^ detaining certain persons to whom they stand in
a peculiar relation, e.g. a father his child, or a com-
manding officer his inferior. It has been recently
held, contrary to the general view which undoubtedly
formerly prevailed, that a husband has no right to
detain the person of his wife, except under very
extreme circumstances, e.g. to prevent her committing
adultery (s).
Detention for Secondly, for criminal offences persons are liable
offence"''^ to be arrested and imprisoned, in some cases only by
a warrant from competent authority for that purpose,
and in some cases by any one without any warrant
at all.
Definition of A Warrant is a precept under hand and seal to an
raoXoTacting officer to arrcst an offender to be dealt with according
thereunder. ^^ ^^^ course of kw (<). It is obtained on applica-
tion to a magistrate or justice, and is then delivered
to a constable, who makes the arrest, having it with
him at the time to produce if required, as if he has
not so got it with him he stands in the same position
as if there were no warrant (^/).
As to the If a justice does an act within his jurisdiction, e.g.
jSSel ""^ granting a warrant to arrest an offender in respect of
an act for which, had he been guilty, the justice would
(s) Reg. V. Jackson, (1891), I Q. B. (C. A.) 671 ; 60 L. J. Q. B. 346
64 L. T. 679.
{t) Brown's Law Diet. 567.
(u) Galliard v. Laxton, 31 L. J. (M. C.) 123.
OF TOKTS AFFECTING THE PERSON. ^^6]
have had full power to grant it, he is not liable to any
action in respect of it, unless the act "was done mali-
ciously, and without reasonable and probable cause {x) ;
but if he does an act without jurisdiction, e.g. sending
an offender to prison, where he has, even although
the offender were guilty, no power to imprison, he
is liable quite irrespective of malice ; but no action
can be brought against him in respect of it until
after the conviction has been quashed {y). Formerly
no action could be brought against a justice for any-
thing done by him in the execution of his office until
one calendar month's notice in writing was given to
him, with particulars of the intended action {z), but
this provision was repealed by the Public Authorities
Protection Act, i893(rt). With regard also to any PuWic Autho-
proceeding against any person for any act done in tiou Act, 1893.
pursuance or execution of any Act of Parliament,
or of any public duty or authority, this Act contains
the following provisions: — (i.) The action must be
commenced within six months. (2.) If judgment is
obtained by the defendant, it shall carry solicitor
and client costs. (3.) Tender of amends before action
commenced may be pleaded in lieu of or in addition
to any other plea ; and if the action was commenced
after the tender, or is proceeded with after payment
into court of any money in satisfaction of the plaintiff's
claim, and the plaintiff does not recover more than the
sum tendered or paid, he shall not recover any costs
incurred after the tender or payment, and the defendant
shall be entitled to solicitor and client costs incurred
after the tender or payment. (4.) If the Court thinks the
plaintiff has not given the defendant a sufficient oppor-
tunity of tendering amends before commencement of
the action, the Court may award the defendant solicitor
and client costs (&).
(x) II & 12 Vict. c. 44, s. I.
{y) Sect. 2.
(3) Sect. 9.
(«) 56 & 57 Vict. c. 61, s. 2.
(&) Sect. I.
368
OF TORTS AFFECTING THE PERSON.
As to the
liability of
constables.
Special pro-
vision for their
protection
when acting
under a war-
rant.
A constable doing an act in pursuance of a legal
warrant is not liable to an action for false imprison-
ment, but if the warrant were granted without juris-
diction, then the law was, formerly, that he, in the
same way as the justice granting it, and indeed all
persons concerned in its execution, was liable to an
action for false imprisonment. A constable is, how-
ever, in such a case now protected, it being provided
that no action shall be brought against him before
making a six days' demand for a copy of the warrant
under which he acted, aud that if that is given, then,
although the person aggrieved may bring his action
against the constable ami the justice granting the
warrant, the production of such warrant shall entitle
the constable to a verdict (c).
The jierson
obtaininjr a
warrant is not
liable for fals<!
imprisonment,
but may be
for malicious
I^rosecution.
A person who lays a complaint before justices, and
thereupon obtains a warrant, is not liable to an action
for false imprisonment, though it turns out that the
complaint was erroneous, or there was no jurisdiction
for the granting of the warrant. He may, however,
sometimes be liable for malicious prosecution (d).
Cases iu which
a constable
may arrest
without war-
rant.
A constable may not generally arrest another with-
out a warrant for that purpose, but there are many
special cases in which he may. Particularly he may
do so when he sees a felony committed, or has reason-
able ground for suspecting that a felony has been
committed, and also reasonable ground to suspect that
the person he arrests is the committer of the felony ;
but the suspicion must be a reasonable one, or the
constable will be liable (e). If a person makes a
reasonable charge of felony against another, a con-
stable is justified in arresting such alleged culprit, and
is not liable to any action for false imprisonment for
so doing, though the person making the complaint and
(c) 24 Geo. 2, c. 44, s. 6.
{d) As to which see^os^, p. 375.
(e) Hogg v. Ward, 27 L. J. Ex. 443.
OF TORTS AFFECTING THE PERSON. 369
requiring the arrest may be so liable (/). The follow-
ing are also specific cases in which a constable is
justified in arresting without warrant : — Where an
assault is committed in his presence, or to prevent a
breach of the peace {g) ; where a person is found
committing malicious injury to property {h) ; where
a person is found committing an indictable ofience in
the night between the hours of 9 p.m. and 6 a.m. {i) ;
where a person is found collecting a crowd round
another's house, or continually ringing another's bell,
because such acts are likely to lead to a breach of
the peace {h).
A private person may also in some few cases arrest a private
another, and not be liable to any action for false im- justified in
prisonment. Particularly he may do so if he sees a anoTiierla
felony committed, or if a felony has been actually some few cases,
committed, and he has just and reasonable cause for
suspecting the person he arrests to be guilty of it.
There is, however, a great distinction between an
arrest without warrant, in respect of a felony, by a
constable and by a private individual, for " in order
to justify the private individual in causing the im-
prisonment, he must not only make out a reasonable
ground for suspicion, but he must prove that a felony
has actually heen committed by some one, and that the
circumstances were such that any reasonable person,
acting without passion or prejudice, would have fairly
suspected that the plaintiff had committed it, or was
implicated in it ; whereas a constable, having rea-
sonable grounds to suspect that a felony has been
committed, although in fact none has heen, is autho-
rized to detain the person suspected until he can be
(/) Broom's Corns. 79S.
{rj) Ibid. 797.
{h) 24 & 25 Vict. c. 97, s. 61.
(i) 14 & 15 Vict. c. 19.
(k) Addison on Torts, 154.
2 A
3 70 OF TORTS AFFECTING THE PEHSOX.
brought before a justice of the peace to have his con-
duct investigated (/).
A private person may also arrest another actually
fighting in the streets, to prevent the continuance of
Special powers a breach of the peace (m). And if a pawnbroker to
brokerTas to whoin any property is offered has reasonable ground
arrest. £qj. believing that an offence has been committed in
respect of it, he is justified in arresting the person
offering such property, and taking him and the pro-
perty before a justice of the peace (n).
Detention in
civil cases.
Contempt of
Court.
Thirdly, in civil cases persons are sometimes liable
to be arrested and imprisoned.
Imprisonment by reason of contempt of Court may
be placed under this head, although, of course, it may
equally occur in criminal cases. Contempt of Court
consists in any refusal to obey an order or process of a
Court of competent jurisdiction, or in offending against
particular statutes which render such offending a
contempt of Court, or in interfering with or violating
established rules of Court, or in behaving in a dis-
respectful or improper manner towards the Court, or
any judge or officer thereof (o). Instances of contempt
are easy to find, e.g. non-obedience to a judgment for
specific performance, or an injunction granted by the
High Court of Justice ; or the interfering, by marrying
or otherwise, with a ward of Court ; or threatening a
witness, so as to prevent him giving, or to intimidate
him in giving, his evidence ; or disrespectful behaviour
to the Court ; or commenting in a newspaper article
on a case then pending. In one case a co-respondent
in a divorce suit, immediately after the service of the
(l) Addison on Torts, 1 54.
(m) Ibid. 153.
(71.) 24 & 25 Vict. c. 96, s. 103 ; 35 & 36 Vict. c. 93, s. 34.
(0) Brown's Law Diet. 120. See also Hey. v. Castro, L. R. 9 Q. B.
219.
OF TORTS AFFECTING THE PERSON. 371
citation, caused advertisements to be published deny-
ing the charges made in the petition, and offering a
reward for information which would lead to the dis-
covery and conviction of the authors of them, and it
was held that these advertisements constituted a con-
tempt of Court (jp).
Imprisonment for debt is said to be abolished {q), imprisonment
but nevertheless it may occur in various cases. The stm 000"^^
Act upon this subject is the Debtors Act, 1869 0')^ f ^^ ^3 Vict.
which enacts that, with the exceptions thereinafter
mentioned, no person shall after the commencement
of the Act (.s) be imprisoned for making default in
payment of a sum of money (t). The exceptions are
as follows : —
1. Default in payment of a penalty, or sum in the Six cases of
nature of a penalty, other than a penalty in respect of ^^q^^. ^^'^^'^'
any contract.
2. Default in payment of any sum recoverable
summarily before a justice or justices of the peace.
3. Default by a trustee or person acting in a
fiduciary capacity («), and ordered to pay by a Court
of Equity any sum in his possession or under his
control (x).
{p) Brodrihb v. Brodribb, 11 P. D. 66; 55 L. J. P. 47 ; 34 W. R.
5S0.
(r/) See the title of 32 & 33 Vict, c 62, "An Act for the Abolition
of Imprisonment for Debt," &c.
(r) 32 & 33 Vict. c. 62.
(s) 1st January 1870.
(t) 32 & 33 Vict. c. 62, s. 4.
(m) As to who is a trustee or a person acting in a fiduciary capacity,
see Marris v. Ingram, 13 Ch. D. 33S ; 49 L. J. Ch. 123 ; 28 W. R. 434 ;
In re Diamond Fuel Co., Metcalfs Case, 13 Ch. D. 815 ; 49 L. J. Ch.
347 ; 28 W. R. 4S5 ; Croivther v. Elgood, 34 Ch. D. 691 ; 56 L. J. Ch.
416 ; 56 L. T. 415 ; 35 W. R. 369, in which case an auctioneer neglect-
ing to pay over the proceeds of a sale was held to be in such a capacity
and liable to imprisonment.
(x) See Re Walker, Walker v. Walker, 59 L. J. Ch, 386 ; 62 L. T.
449.
372 OF TOETS AFFECTING THE PERSON.
4. Default by a solicitor in payment of costs when
ordered to pay costs for misconduct as such, or in pay-
ment of a sum of money when ordered to pay the
same in his character of an officer of the Court making
the order (?/).
5. Default in payment for the benefit of creditors
of any portion of a salary or other income in respect
of the payment of which any Court having jurisdiction
in bankruptcy is authorized to make an order.
6. Default in payment of sums in respect of the
payment of which orders are in this Act authorized to
The imprison- be made (z). It is provided, however, that in all or
brfor1>e3"oud any of these excepted cases no person shall be im-
onc year. prisoned for a longer time than one year, and nothing
in the section is to alter the effect of any judgment or
order of any Court for payment of money, except as
regards the arrest and imprisonment of the person
making default in paying such money (a).
41 & 42 Vict. With regard, however, to the exceptions numbered
'^' ■^'*' 3 and 4, it is now provided by the Debtors Act, 1878,
that the Court or judge may inquire into the circum-
stances of the case, and is to have a discretionary
power as to imprisoning (h). It has been held that
under this provision the Court will not necessarily
refuse to grant an application for a writ of attachment
against a defaulting trustee, where, owing to the de-
faulter being wholly without means, no useful object
would be gained thereby, for the imprisonment is
{y) See hereon In re Strong, 32 Ch. D. 342 ; 55 L. J. Ch. 553 ; 34
W. R. 614 ; 55 L. T. 3.
(z) 32 & 33 Vict. c. 62, s. 4.
(a) However, a person who makes default in paynient of a sum
of money whicli he has been ordered by the Court to pay cannot be
attached for contempt, but must be proceeded against under sect. 5,
as to which see post, p. 373 (Esdaile v. Visser, 13 Ch. D. 421 ; 28 W.
R. 281 ; 41 L- T. 745)-
(6) 41 & 42 Vict. c. 54.
OF TOETS AFFECTING THE PERSON. ^,^1
to a certain extent meant as a penalty and to deter
others (c). But where a trustee, though he has been
guilty of negligence, has not been guilty of any
criminal or fraudulent act, nor of any contumacious
refusal to comply with the Court's order, the Court
will not attach him ((/).
In addition to the foregoing cases, the Debtors Act, Also power to
1869, also provides that any person (c) making default prison for six
in payment of any debt, or instalment of any debt, due '^I^^IZ?''"'^
from him in pursuance of any order or judgment, may
be committed to prison for a term not exceeding six
weeks, on its being proved that he has, or has had since
the date of the order or judgment, the means to pay
the sum in respect of which he has made default, and
has refused or neglected, or refuses or neglects, to pay
the same (/). The application to commit to prison Judgment
, ,, . ... IT n J summonses
under this provision is made by a summons called a ^^^ bank-
judgment summons, and such an application is now '■"ptcy busi-
bankruptcy business, and must, irrespective of the
amount of the judgment, be made to the County Court
within the jurisdiction of which the judgment debtor
is or resides, unless the judgment creditor first applies
for and obtains an order of the bankruptcy judge of
the High Court, or unless the amount remaining due
on the judgment exceeds ^50, and the judgment
debtor resides or carries on business within the London
Bankruptcy District, when the same may be issued in
the High Court (g). A judgment summons must in a
(c) Marris v. Ingram, 1 3 Ch. D. 338 ; 49 L. J. Ch. 123 ; 28 W. R.
434 ; Re Gent, Gent-Davis v. Harris, 40 Ch. D. 190 ; 58 L. J. Ch. 162 ;
60 L. T. 355 ; In re Knotvlcs, Doodson v. Turner, 52 L, J. Ch. 685 ;
48 L. T. 760.
(d) Earl of Aylesford v. Earl Poulett, {1S92), 2 Ch. 60 ; 61 L. J. Ch.
406 ; 66 L. T. 484.
(e) This does not apply to a married woman against whom judgment
has been signed for a debt contracted during coverture (Scott v. Morley,
20 Q. B. D. 120 ; 57 L. J. Q. B. 43 ; 57 L. T. 919 ; 36 W. R. 67).
(/) 32 & 33 Vict. c. 62, s. 5.
[g) 46 & 47 Vict. c. 52, s. 103 ; Bankruptcy Rules, 18S6 and 1S90,
Rules 355, 356.
374 OF TORTS AFFECTING THE PERSON.
County Court be heard in open court before the judge
or his deputy (Ji).
Conditional No Conditional order for committal to prison at a
commiuainot future day can be made under any circumstances;
good. j^Q^ even by consent. Every committal order must
be absolute and present in its terms, but the issue of
the order may be restrained for a certain time for the
purpose of giving a locus pcenitenticc to the default-
Power to make iug party {%). It is now provided by the Bankruptcy
orderlnftead Act, 1 883 {k), that ou an application made under a
of committal -judsment summons to a Court havimr bankruptcy
Older. Jo o r j
jurisdiction, the Court may, if it thinks fit, decline to
commit, and in lieu thereof, with the consent of the
judgment creditor, on payment of the prescribed fee,
at once make a receiving order against the debtor (/) ;
• and if the Court has not got bankruptcy jurisdiction,
it may transfer the matter to the Court having bank-
ruptcy jurisdiction as regards the particular debtor (m).
whenadefen- The Dcbtois Act, 1 869, also coutains an enactment
action may be as to the arrcst of a defendant, a matter totally dis-
tinct and apart from imprisonment for debt, it being
provided {n) that where the plaintiff in any action in
any of Her Majesty's superior courts of law proves at
any time before final judgment, by evidence on oath
to the satisfaction of a judge of one of those courts,
that (i) the plaintiff has good cause of action against
the defendant to the amount of ;^50 or upwards ; (2)
that there is probable cause for believing that the
defendant is about to quit England unless he is appre-
hended ; and (3) that the absence of the defendant
(h) 32 & 33 Vict. c. 62, s. 5. As to the powers of the County Court
as regards a judc;ment of the High Court, see Ex parte Addiii'/ton, In
re Ives, i6 Q. B. I). 665 ; 55 L. J. Q. B. 246 ; 54 L. T. 877 ; 34 W. R.
593-
(i) Stonor v. Foivk, 13 App. Cas. 20 ; 57 L. J. Q. B. 3S7 ; 58 L. T. i.
{k) 46 k 47 Vict. c. 52.
(I) Sect. 103.
(7?i) Bankruptcy Rules, 355-362.
(n) 32 & 2S Vict. c. 62, s. 6
arrested.
OF TORTS AFFECTIXG THE PERSON. 375
from England will materially prejudice the plaintiff in
the prosecution of his action (o), the judge may order
such defendant to be arrested and imprisoned for a
period not exceeding six months, unless and until he
has sooner given the prescribed security, not exceeding
the amount claimed in the action, that he will not go
out of England without the leave of the Court. Where
the action is for a penalty, or sum in tlie nature of a
penalty, other than a penalty in respect of any con-
tract, it is not, however, necessary to prove that the
absence of the defendant from England will materially
prejudice the plaintiff in the prosecution of his action,
and the security given (instead of being tliat the de-
fendant will not go out of England) is to be to the
effect that any sum recovered against the defendant
in the action shall be paid, or that the defendant shall
be rendered to prison. Under the above provision,
although a debtor may be committed to prison for a
fixed period, lie cannot be detained in prison after final
judgment has been signed (j^).
If a person obtains an order for arrest under the iMaiicious
foregoing provision by any false statement or wrongful '^"'^^*-
suppression of facts, he may, in addition to the false
imprisonment, be liable to an action for malicious
arrest. Malicious arrest may be described or defined
as a tortious act consisting in the malicious (q) arrest
of another without reasonable or probable cause.
It will be noticed that the provision as to the arrest Distinction
reen arr
iiiiprisou-
of a defendant is quite distinct and different from the ^'S'',^'' ^"''*
foregoing provisions as to imprisonment for debt; in ment.
the latter there is a judgment or order for payment,
and the object of the imprisonment is to get satis-
faction of it ; in the former there is no debt as yet
(o) 'J'his being a matter very difficult to prove, orders for the arrest
of a defendant under this section are not at all frequently granted.
Ip) Hume V. Druyff, L. R. 8 Ex. 214 ; 42 L. J. I]x. 145.
(q) Using the word " malicious " in the sense ascribed to malice in
law, post, p. 37S.
376
OF TORTS AFFECTING THE PERSON.
adjudged by the Court to be due, and the object is to
prevent the defendant from leaving the country. The
student should carefully remember this distinction, as
it is important (?').
III. Malicious
prosecution.
Malicious prosecution may be defined as a tortious
act consisting in the unjust and malicious prosecution of
one for a crime, or the unjust and malicious making one
a bankrupt, without any reasonable or probable cause.
Three esseu-
tials ill an
action for
malicious
prosecution.
There are three essentials necessary to entitle a
person to maintain an action for malicious prosecution,
viz. : (i.) That the prosecution was determined in the
plaintiff's favour if from its nature it was capable of
being so determined (s). (2.) The absence of any rea-
sonable and probable cause for the prosecution (t).
(3.) ]\Iulice on the part of the defendant.
A person
cannot sue
for malicious
conviction on
it standing
against him.
The first essential, viz. that the prosecution was
determined in the plaintiff 's favour if it was capable
prosecution if ^f jrjginnr go determined, scarcely calls for any corn-
there IS a o .
ment. From it will be seen that if a person has been
actually convicted, or has been actually adjudicated a
bankrupt, he cannot maintain this action whilst the
conviction or adjudication stands against him, for that
furnishes at once irrebuttable evidence of reasonable
and probable cause. To entitle a person, therefore, in
such a case, to maintain his action, he must shew that
the conviction or adjudication has been reversed or
superseded (u).
(r) Since the Judicature Acts, 1873 ^^<i 1875, the practice at common
law and in equity in respect of the arrest of a debtor on mesne process
is assimilated, and a writ of ne exeat regno in respect of an equitable
debt will not be granted unltss the applicant brings his case within the
terms of the 6th section of the Debtors Act, 1869 [Drover v. Beyer,
13 Ch. D. 242 ; 49 L. J. Ch. 37 ; 28 W. R. no).
(s) Barber v. Lessiter, 7 C. B. (N. S.) 186 ; Baseht v. Matthews, L. R.
2 C. P. 684 ; see Clerk and Lindsell's Law of Torts, 508.
(t) See as to these two essentials, per Williams, J., in Barter v.
Lessiter, 7 C. B. (N. S.) 186.
(m) The Metropolitan Bank Limited v. Poolei/, 10 App. Cas. 210;
54 L. J. Q. B. 449 ; 53 L. T. 163.
OF TORTS AFFECTING THE PERSON. 377
The second essential, viz. the absence of any reason- As to reason-
able or probable cause, is important; and what is reason- probable
able and probable cause is a question to be determined *'^"^^-
by the judge on the circumstances of every particular
case (x), for there may be many cases in which, though
a person fails to sustain his accusation, yet there may
have been very good grounds for the institution of his
proceedings ; thus, he may have been compelled to with-
draw from such proceedings by reason of inability to
find his witnesses, the death of a material witness, or
other circumstances ( y). It is important to here clearly Functions of
appreciate the different functions of the judge and the J^dseandjury.
jury respectively in such cases. It is for the jury to
decide upon the facts which the defendant alleges as
constituting reasonable and probable cause, and then it
is for the judge to determine whether the facts as found
by the jury do or do not amount to reasonable and
probable cause (z). It should also be noticed that the
onus is not on the defendant to prove reasonable and
probable cause, but on the plaintiff to prove the absence
of any reasonable and probable cause (a).
Care must be taken, with regard to what is stated in Distinction
the last paragraph, not to confuse an action for malicious f^ actwn"
prosecution with one for false imprisonment, for there f°^ ^^^^^ ,
^ . . imprisonment,
is this recognised distinction between the two actions,
that in false imprisonment the onus lies upon the de-
fendant to plead and prove affirmatively the existence
of reasonable cause as his justification, whereas in an
(x) Watson v. Whitmore, 14 L. J. Ex. 41 ; Low v. Collum, Ir. Reps,
2 Q. B. D, 15. In I/icks v. Faulkner (8 Q. B. D. 167 ; 51 L. J. Q,
B. 268) Mr. Justice Hawkins said : "I should define reasonable and
probable cause to be an honest belief in the guilt of the accused, based
upon a full conviction, founded upon reasonable grounds, of the existence
of a state of circumstances which, assuming them to be true, would
reasonably lead any ordinarily prudent and cautious man, placed in the
position of the accuser, to the conclusion that the person charged was
probably guilty of the crime imputed."
(y) Willans v. Taylor, 6 Bing. 186.
(z) Broom's Coins. 81 1, 812.
(n) Abrath v. North- Eastern i?y. Co., II App. Cas. 247 ; 55 L. J. Q.
B. 457 ; 55 L. T. 63.
378 OF TORTS AFFECTING THE PERSON.
action for malicious prosecution the plaintiff must, as
stated above, allege and prove affirmatively its non-
existence (h).
A prosecution Although a prosecution at the outset may not be
not at the out- , . . , . «, it t
set malicious malicious, yet It may atterwards become so by reason
may become ^f ^j^g continuance of it after positive knowledge of the
innocence of the accused (c).
Malice in fact The third essential, namely, malice, requires careful
and in law. . . , , , . , i -j. -n i
comparison with the second essential, and it will be
well first to properly understand the meaning of the
word. Malice is said to be of two kinds, viz. malice
in law, and malice in fact (d). The latter means what
we ordinarily understand by the term, and consists of
some act of spite, either against some particular indi-
vidual or the public at large ; but the former does not
simply mean ill-will against a person or the public at
large, but signifies a wrongful act done intentionally
without just cause or excuse, e.g. the unwarrantable
striking of a blow likely to produce death, for in such
cases there is no necessity to prove any particular
spite or ill-will, the act speaking for itself (c).
Is malice in It would Ordinarily seem, and it is generally true,
otMimsttiwe that if a prosecution is shewn to have been without
be malice in reasonable and probable cause, malice in a sense must
be existent, and it has therefore been sometimes stated
that malice in law is all that is necessary in an action
for malicious prosecution (/). But such a statement is
not always accurate, and it has indeed been expressly
laid down that malice in fact must be shewn, that
there must actually be the two essentials existent, of
absence of reasonable and probable cause, and actual
(b) Per Hawkins, J., in Ilicls v. Faulkner, 51 L. J. Q. B. at p. 270.
(c) Per Coclcburn, C.J., in Fitz-John v. Mac/cinder, 30 L. J. (C. P.)
264.
(d) Per Bayley, J., in Bromage v. Prosscr, 4 B. & C. 255.
(e) Brown's Law Diet. 328.
(/) Per Parke, J., in Mitchell v. Jenkhis, 5 B. & A. 5S8.
or TORTS AFFECTING THE PERSON. 379
malice (^7). This apparent confusion arises thus : —
The question of absence of reasonable and probable
cause is one for the judge, the question of malice is
for the jury. The jury may, if they tlunk fit, infer
malice from the very circumstances which have led
the judge to the conclusion that there was no reason-
able and probable cause, or they may come to the
conclusion that the defendant acted honestly and
without ill-will, and with a desire to do right (h).
On the whole, it seems correct to say that malice in
fact is necessary, but that if the judge rules that there
was no reasonable and probable cause for the prosecu-
tion, the jury are justified in finding, but are not bound
to find, that there was malice (i).
It has been decided that an action for malicious Company
.,, , . . /7 s liable for
prosecution will lie against a company (/:). maiioious
prosecution.
The malicious prosecution of a civil action, though No action lies
. , , , 111 J L for malicious
without any reasonable or probable cause, does not prosecution of
have the same effect as a malicious criminal prosecu- ^ *^i^'^ action,
tion, or the malicious obtaining of an adjudication in
bankruptcy, and no action will generally lie in respect
of it. No action, also, for malicious prosecution, will nor for court-
lie by a subordinate against his commanding officer ^eyngs^''°
for bringing him to court-martial (/).
An action will, however, lie for falsely, maliciously, otherwise,
however, for
and without reasonable and probable cause presenting malicious
a petition to wind up a company, such an act being ora^wimihig-
necessarily injurious to the credit of the company (m). up petition.
(7) See Per Hawkins, J., in Hicks v. Faulhicr, 8 Q. B. D. 167 ; 51
L. J. Q. B. 268 ; 30 W. R. 545.
(/t) HicJcs V. Faulkner [supra] ; Broivii v. Haickes, (1891), 2 Q. B. 718 ;
65 L. T. 108.
{%) See further hereon Ringwood's Torts, 46, 47.
(/.-) Edwards v. Mid/and Rij. Co., 6 Q. B. D. 287 ; 50 L. J. Q. B. 281 ;
43 L. T. 694 ; 29 W. R. 609.
(l) Addison on Torts, 31.
\m) Quartz Hill Gold-Mining Co. v. Eyre, 11 Q. B. D. 674 ; 52 L. J.
Q. B. 488 ; 49 L. T. 249 ; 31 W. R. 668.
38o
OF TORTS AFFECTING THE PERSON.
CHAPTER V.
OF TORTS AFFECTING THE PERSON — {continued).
IV. Libel and Tn the Same way that the torts of assault and battery
slander. ^^^ usually classed together, so also frequently are
those of libel and slander ; but there are many and
material distinctions between the two torts, and it will
be advisable to consider the subject in the following
manner : —
1. The law particularly as to libel.
2. The law particularly as to slander.
3. The differences between libel and slander.
Definition of
libel.
Libel may be defined as a tortious act, consisting
in the malicious defamation of another, made public
by writing, printing, pictures or effigy, in such a
manner as to expose him to public hatred, contempt,
ridicule, reproach, or ignominy (a). As an assistance
to this definition, and as tending to show what acts
will be libellous, it may be stated that everything in
writing or printing, or any picture or effigy, which
tends to imply reproach to any person, or to in any
way derogate from his character by imputing to him
any bad actions or vicious principles, or to abridge
his comforts or respectability, will amount to a libel,
even although practically and substantially the libel
complained of may not have caused the plaintiff any
special or peculiar damage, or, indeed, any real damage
at all (6) ; by which is meant that, even without proof
(a) See various definitions from which this is compiled given in
Folkard on Slander and Libel, 3, 4.
(6) Folkard on Slander and Libel, 165-191.
OF TORTS AFFECTING THE PERSON. 38 1
of special damage, the plaintiff may be entitled to a
verdict and nominal damages, though, of course, in
every case, proof of special injury done to him by the
libel will tend to increase the amount of the damages
that will be awarded by the jury.
A municipal corporation cannot maintain an action Municipal
for libel unless injury to the corporate property can canno\''sue'for
be shewn (c) ; but a trading corporation, or company, ^i^'^^-
may maintain such an action in respect of a statement
reflecting on its character in the conduct of its busi-
ness, without proof of special damage (d).
Very many instances of words held to be libellous instances of
might be enumerated, and a few may usefully be given, ^o^be^'iibdious.
In one case it was held that to write or print of a
person that he was a swindler was a libel (e) ; in
another, that to write of a person that he was a black
sheep or a blackleg was a libel (/) ; in another, that
to write of a person that he had been blackballed on
an election for members of a club was libellous (g) ;
and in another, that to write of a person that lie had
no experience in work he was employed to do was
libellous (h). Mere words of suspicion will not, how-
ever, be sufficient to constitute libel (i). There may be
many cases in which the words used by the defendant,
and complained of by the plaintiff as libellous, though
not apparently on their face so, yet, by the special
and peculiar sense in which they may be taken in
any particular case, may be actually libellous ; thus,
in one case the plaintiff complained that the defendant
(c) Mayor of Manchester y. Williams, (1891), I Q. B. 94; 60 L. J.
Q. B. 23 ; 63 L. T. 805.
(d) South Hetton Coal Co. v. North-Eastern News Association, (1S94),
I Q. B. 133 ; 63 L. J. Q. B. 293 ; 69 L. T. 844.
(e) r Anson v. Stuart, i T. R. 748.
(/) Macfjregor v. Gregory, 11 M. & W. 287.
ig) O'Brien v. Clement, 16 M. & W. 159.
(A.) Botterill v. ]]Tiitehead, 41 L. T. 588.
(i) Simmo7is V. Mitcliell, 6 App. Cas. 156; 50 L. J. P. C. 11 ; 43
L. T. 710; 29 "\V. R. 401.
382
OF TORTS AFFECTING THE PERSON.
Person may
be libelled
though not
named.
had libelled him by calling him a truck-master, and
the Court held that this might possibly constitute a
libel, and that it must be for the jury to decide
whether or not, under the circumstances, the word
complained of was used in a defamatory sense (Jc).
There may also be many cases in which a person
may be libelled, although he is not actually named,
if it clearly appears that he is the person against
whom the defamatory matter was aimed (/) ; as, for
instance, by describing the plaintiff or his place of
residence or business, or giving other particulars
which would lead persons to apply the libel to him ;
and it is not necessary to prove that the whole world
would take the matter as applying to the plaintiff,
but it is quite sufficient to show that some would (m).
Words not
libellous.
If, however, the words used are words that no
ordinary reader would put a libellous construction on,
the plaintiff cannot, by alleging that they have a par-
ticular intent, make them libellous. Thus, in one
case the libel complained of consisted of an advertise-
ment stating that the plaintiff was not any longer
authorized to receive subscriptions for a certain in-
stitute, and the plaintiff brought this action, alleging
that the meaning of the advertisement was that he
had falsely pretended to be authorized to receive
subscriptions on behalf of such institute. The Court
held that no action was maintainable here, as the
words made use of would not bear any libellous in-
terpretation (?i). In some cases, however, although
words may not be libellous in their primary sense,
yet evidence may be given of facts which, under the
particular circumstances, makes them defamatory, but
there must be some evidence of this nature to make
(k) Homer v. Taunton, 29 L. J. (Ex.) 318.
(I) See r Anson v. Stuart, I T. R. 74S.
(m) Bourke v. Warren, 2 C. & P. 307.
(n) Mulligan v. Cole, L. R. 10 Q. B. 549 ; 44 L. J. Q. B. 153.
OF TOUTS AFFECTING TIIK TEUSON. 383
such words as these actionable (0) ; and where a
plaintiff in his statement of claim annexes a mean-
ing or innuendo to words complained of, and fails by innuendo.
his evidence to sustain such meaning, he cannot discard
that and adopt another {p). As regards the innuendo,
it is the duty of the judge to say whether a publication
is capable of the meaning ascribed to it ; but if he is
satisfied that it is capable of it, it must then be left to
tlie jury to say whether in fact it has such meaning (^7).
To entitle a person to succeed in an action for Tiiepuiiiica-
libel, he must prove the publication of it, and indeed must always
this proof must be given before any evidence can be "^^ i»oved.
adduced of the contents of the libel {r) ; for it is not
sufficient to render a person liable to an action for
libel that he wrote the defamatory matter, for if he
has kept it in his possession, and not in any way
shewn it to a third person, he has done no harm.
For instance, to write a letter to a person containing
defamatory matter concerning him is not actionable
if it reaches his hands without being seen by any
third person ; so that even where such a letter, simply
folded and not sealed, was delivered to a third person
to carry to the other, and might have been opened and
read by him, but was not, it was held that no action
was maintainable (s). The publication of a libel may what will
I . pp , 1 ii 1 r 1 i. amount to a
occur m many different ways, as by the deienclant publication.
actually with his own hand giving the libel to an-
other, by inserting a libellous advertisement in a news-
paper {t), by telegraphing, or writing on a postcard,
(0) Capital and Counties Bank v. Henty, 7 App. Cas. 741 ; 52 L. J.
Q. B. 232 ; 47 L. T. 662 ; 31 W. R. 157 ; Ruel v. Tutndl, 29 W. R.
172 ; 43 L. T. 507 ; Williams v. Smith, 22 Q. B. D. 134 ; 5S L. J. Q.
B. 21 ; 59 L. T. 757 ; 37 W. R. 93.
{p) Ruel V. TatncU, supra.
(q) See Lord Selbourne's remarks in Capital and Counties Bank v.
Hentij, 7 App. Cas., at p. 786 ; Williams v. Smith, supra.
(r) Folkard on Slander and Libel, 439.
(s) Cluttcrhuck v. Chaffers, 2 Stark. 471,
\t) Browne v. Croome, 2 Stark. 297.
3^4
OF TORTS AFFECTING THE PERSON.
even to the plaintiff himself (u), and of course by
writing and sending a letter to a third person (x), even
though such third person is the wife or husband of the
person libelled (?/). But the delivery of a libellous
paper by a husband to his wife, or by a wife to her
husband, is not ^e?- se a publication (z).
publishin
libel is not
liable to au
action.
A person Where a porter, in the course of his business and em-
ifnwiuinjfiy " ploymcut, delivered parcels containing libellous hand-
bills, it was held that, although he was the actual pub-
lisher of the libel, yet he was not liable to an action
in respect of it, he being ignorant of the contents of
the parcel (a). Upon the same principle, though the
vendor of a newspaper is ijrimd facie liable for a libel
contained in it, yet he is not liable if he can prove
that he did not know it contained a libel, that his
ignorance was not due to any negligence on his part,
and that he did not know, and had no ground for
supposing, that the newspaper was likely to contain
libellous matter (&).
Malice in law
is an essential
to constitute
a libel.
Our definition of libel states it to be the malicious
defamation of another (c). Malice, therefore, is an
essential to constitute a libel, but by the word malice
used here is not meant malice in its ordinary sense of
spite or ill-will, but malice in law as before described
in treating of malicious prosecution {d), viz. the in-
tentional doing of a wrongful act without just cause
or excuse. Malice, therefore, is properly said to be an
essential of libel, but it is inferred, and need not be
(m) Williamson v. Freer, L. R. 9 C. P. 393 ; 43 L. J. C. P. 161 ; 22
W. R. 878.
{x) Phillips V. Jansen, 2 Esp. 624.
(y) Wenman v. Ash, 22 L. J. C. P. 1 90.
\z) Wennhak v. Morgan, 20 Q. B. D. 635 ; 57 L. J. Q. B. 241 ; 59 L.
T. 28 ; see generally as to publication Folkard on Slander and Libel,
chap. 19.
(a) Day v. Bream, 2 M. & Rob. 54.
{b) Emmensv. Pottle, 16 Q. B. D. 354; 55 L. J. Q. B. 51 ; 34 W. R.
116; S3L. T. 808.
(c) Ante, p. 380.
(d) Ante, p. 378.
OF TORTS AFFIICTINC; TIIK I'KRSON. 385
proved for "where words have been uttered or a libel r.utitis
' , ,..n/.i 1-1 ii inferred, au'l
published of the plaintiff, by whicli actual or pre- ,,^,^,1 ....^ i,^
sumptive damage has been occasioned, the malice of i"oved.
the defendant is a mere inference of the law from the
very act ; for the defendant must be presumed to have
intended that which is the natural consequence of his
act (e).
But there may be cases in which special circum- Circumstimces
. !• 1 • 1 11 iTiay, however,
stances rebut the presumption of malice tliat would rebut malice,
otherwise exist, and when there are such special cir- I'^'^.II'.^J^^.
cuinstances they prevent the matter complained of }J°^j'"^^"
being a libel, although had they not existed it would
have been, and in such cases the matter is said to be
a privileged communication.
A privileo-ed communication may therefore be defined Definition of
° 1-1 • c iJi: a privileged
as a communication which on its face would be de- communica-
iamatory and actionable, but is prevented from being *^°"-
so by reason of circumstances rebutting the existence
of malice (/). It exists where any person having an
interest to protect, or a legal, moral, or social duty to
perform, makes a communication in protection of his
interest or in performance of his duty, to another person
having a corresponding interest or duty to receive the
same (g). Here, although the communication may con-
tain matter that would ordinarily be actionable, yet it
is not actionable if the communication is fairly and
honestly made in hondjide belief of its truth, and with-
out any gross exaggeration (h). And where privilege
attaches to a defamatory oral statement made, in pur-
suance of some duty, to persons interested in the subject-
(e) Folkard on Slander and Libel, 473.
(/) Wri(jht V. Woodf/ate, 2 C. M. & U. 573.
(g) Hchilitch v. Macllwainc, (1894), 2 Q. B. 54 ; 63 L. J. t^. li. 587 ;
70 L. T. 826.
(h) Harrison v. Bufh, 25 L. J. Q. B. 25; Whitdci/ v. Adams, ^^
L. J. C. P. b'9 ; AUfjutt v. Medical Council, 23 Q. B. U. 400; 58 L. J.
q. B. 606 ; 61 L. T. 585 ; Stuart v. Bell, 64 L. T. 633 ; IIu,U v. Great
Northern Bij. Co., 60 L. J. Q. B. 498 ; 64 L. T. 418.
2 B
386 OF TORTS AFFECTING THE PERSON.
matter of such statement, that privilege is not taken
away by reason of that statement being made in the
presence of other persons not so interested, if the
speaker has not the power to prevent the presence of
An instance such Other pcrsons (i). A good instance of a communi-
communiS"^ catiou privileged by reason of being made in discharge
tion occurs in ^f ^^ J^ty occurs in the case of a master giving a
the case of a •' . . .-i .
master giving cliaracter 10 his servant, it is quite true that a ser-
hi?™ut.*° vant cannot compel his master to give him a charac-
ter (/c), but, although this is so, it is clearly the master's
moral or social, though certainly not his legal, duty to
"ive a character, if he is asked for one ; and if he,
therefore, on being applied to, gives a character which
he hond fide believes to be true, he is protected, and
though it is in reality false, it is a privileged commu-
nication (/). Thus, A. has had a servant, B., who, on
applying for a new place, refers his intended new mas-
ter to A., who, believing that B. has, during his service
with him, stolen certain articles, replies to his intended
new master's inquiries to that effect ; here, if A. hond fide
believed this statement to be true, and made it without
any exaggeration, yet under the circumstances, although
B. can prove himself totally innocent, he has no right
Position if _ of action against A. And even if a master, without
WuuSriif.''" being applied to for a character, honestly makes such
a statement because he considers it his duty to do so,
this may also be privileged ; but when a master volun-
teers to give the character, stronger evidence will be
required that he acted bond fide than in the case where
he has given the character after being requested to do
statement by SO (7/i). As another instance of privilege by reason
solicitor. ^f discharge of duty may be mentioned the case of a
solicitor writing a letter in protection of his client's
interests, for if in such letter he merely states what he
(i) Pittard V. Oliver, 60 L. J. Q. B. 219 ; 64 L. T. 758.
{k) Carol v. Bird, 3 ICsp. 20 1 ; Smith ou the Law of Master and
.Servant, 347.
(Z) Weatherstone v. Hawkins, i T. R. no; Fountain v. Boodle, 3
Q. B. 5 ; Jones v. Thomas, 34 W. R. 104 ; 53 L. T. 678.
{m) Per Littledale, J., in Pattison v. Jones, 8 B. & C. at p. 5S6.
OF TORTS AFFECTING THE rEItBON. 387
liouestly believes to bo true, and in the interest of his
client to state, he can be under no liability (n).
With regard to fair comments on public proceedings Comments iimi
or the conduct of public men, and fair and honest °" ^''isma.
criticisms and reviews, these are not privileged, and
therefore may be the subject of an action of libel with-
out there being any indirect or evil motive, which
would not be the case if they were privileged, for there
would in such a case be the necessity of proving spite,
ill-will, or the like. Such criticisms or comments, in
order to be libellous, must in the opinion of the jury
be something more than the expression of the strong
opinions and prejudices of a fair man. If the matter
goes beyond what any fair man would say in making
comments or criticisms, then it is libellous and action-
able. This is a question of fact for the jury in each
particular case (o).
Statements made by members of Parliament in the Members of
House are privileged, but such members may be liable ^'^ ^'""'^" '
if they subsequently print and publish such state-
ments (p), unless, indeed, it is simply a publication of
a speech by a member ho7id fide for the information of
his constituents (-2).
Fair reports of proceedings in Parliament or in Reports of pro-
« . . / , -! • / \ \ ceedings in
courts of justice (even ex parte proceedmgs {r) ) are parliament,
privileged, unless the proceedings are of an absolutely meetings, &c.
scandalous, blasphemous, or indecent nature (s) ; and
()i) BoJcer V. Carrick, (1S94), i Q. B, 83S ; 63 L. J. Q. B. 399; 70
L. T. 366.
(0) Merrivale v. Carson, 20 Q. B. D. 275 ; 58 L. T. 331 ; 36 "W. R.
231.
(p) See Folkard on Slander and Libel, 234 ct scq.
(q) See Wason v. Walter, L. R. 4 Q. B. at p. 95.
(r) Kinibcr v. Press Association, (1893), ^ Q- ^- ^5 ! ^7 ■''-'• '^- S'S-
(s) See Folkard on Slander and Libel, 236-253. But it lias been
held that a true report of proceedings in a court of justice sent to a
newspaper by a person who is not a reporter on the staff of the news-
paper is not absolutely privileged, and if it be sent from a malicious
motive an action will lie {Stevens v. Sampson, L. R. Ex. 53 5 49 ^- "^•
Ex. 120; 41 L. T. 782).
388 OF TORTS AFFECTING THE PERSON.
it has been held that a fan- and accurate report of the
judgment in an action, published hond fide and without
malice, is privileged, although not accompanied by any
report of the evidence given at the trial {t). It was
formerly held that a report of proceedings at a meeting
of poor-law guardians, affecting an individual, could not
be considered to be privileged {u) ; but with regard to
this and certain other reports, it has now been provided
Libel Act, by the Libel Act, 1888 {x), that a fair and accurate
'^^^" report published in any newspaper of the proceedings
of a public meeting (ij), or (except where neither the
public nor any newspaper reporter is admitted) of any
meeting of a vestry, town council, school board, board
of guardians, board of local authority, and some other
bodies mentioned in the Act, and the publication at
the request of a Government office or department,
officer of state, commissioner of police, or chief con-
stable, of any notice or report issued by them for
information of the public, shall be privileged, unless
published or made maliciously. But this enactment
is not to protect a person who has refused or
neglected to insert, on request, in the newspaper in
which the report or other publication appeared, a
reasonable letter or statement explaining the same,
and it is not to protect the publication of any matter
not of public concern, and the publication of which is
not for the public benefit (s).
[t] Macdougall v. Knight, 17 Q. B. D. 636 ; 55 L. J. Q. B. 464 ; 34
W. R. 727 ; 55 L. T. 274. This case afterwards went to the House of
Lords' (14 App. Cas. 194 ; 58 L. J. Q. B. 537 ; 60 L. T. 762), and was
affirmed, but on different grounds, and Lord Halsbury certainly ex-
pressed his view to be different from that of the Court of Appeal. The
matter was, however, in 1890 further considered by the Court of Appeal
in a second case of Macdougall v. Knight (25 Q. B. D. I ; 59 L. J. Q. B.
517 ; 63 L. T. 43), and they again distinctly laid down the law to be as
stated in the text above.
(m) Purcdl V. Solder, 2 C. P. D. 215 ; 46 L. J. C. P. 3C8.
(x) 51 & 52 Vict. c. 64, s. 4. The previous provision contained in
44 & 45 Vict. c. 60, s. 2, is repealed by this Act (s. 2).
{y) The Act defines a public meeting to mean any meeting bond fide
and lawfully held for a lawful piurpose, and for the furtherance or dis-
cussion of any matter of public concern, whether the admission be
general or restricted (s. 4).
(2) See Kelly v. O'Malley, 6 Times L. R. 62.
OF TORTS AFFECTING THE T'KRSOX. 389
Judges, magistrates, and others acting in a judicial statements
capacity (a) are not liable for defamatory publications advwaS kc
made by them in the exercise of their judicial functions,
even though they may have acted maliciously and
contrary to good faith and honesty (b) ; and any state- ■
ment made by an advocate in the course of his advo-
cacy is also absolutely privileged, and this although
uttered by the advocate maliciously and not with the
object of supporting the case of his client, and even
though uttered without any justification or excuse,
and from personal ill-will or anger towards the person
defamed, arising out of a previously existing cause, and
even although irrelevant to every issue of fact which
is contested before the tribunal (c).
The statements of a witness in a Court of Justice statements i>y
/. 1 XT p T ^ witnesses.
or before a select committee of the House of Lords or
House of Commons are absolutely privileged (d), and
this even although the witness goes somewhat beyond
what he was asked (c). And with regard to what will
be a Court so as to render a witness not liable for his
statements, it may be noticed that it has been decided
that a court of inquiry instituted by the Commander-
in-chief of the army, under the Articles of War, to
inquire into a complaint made by an officer of the
army, is such a court, and therefore that statements,
whether oral or written, made by an officer summoned
to attend before such court, are absolutely privileged (/).
In many cases of what are alleged to be privileged
(a) Royal Aquarium v. Parkinson, (1892), i Q. B. 431 ; 61 L. J. Q. B.
409; 66 L. T. 513.
(b) Anderson v. Gorrie, (1895), I Q. B. 668 ; 71 L. T. 3S2.
(c) Munster v. Lamb, 1 1 Q. B. D. 5S8 ; 52 L. J. Q. B. 726 ; 32
W. R. 248.
(d) Goffin V. Donelly, 6 Q. B. D. 307 ; 50 L. J. Q B. 303 ; 29 W. R.
440.
(e) Seaman v. NethercUff, 2 C. P. D. 53 ; 46 L. J. C. P. 128.
(/) Daiokins v. Lord Rokeby, L. R. 7 H. L. 744 ; 42 L. J. Q. B._8.
It has also been held tliat reports made by a military officer for the in-
formation of the Commander-in-chief are absolutely privileged (Bawkins
V. Lord Paulci, L. R. 5 Q. B. 94 ; 39 L. J. Q. B. 53).
590
OF TOFvTS AFFECTING THE PERSON.
The judge
decides
whether a
particuhii'
matter is
privileged.
communications on the ground of moral or social duty,
it is often a difficult matter to decide whether or not
there is shewn to have existed such a duty as to render
the communication privileged ; in all such cases it is
for the judge to decide whether the principle can be
applied to the particular case {g).
JIany cases
that wouhl
prima facie
appear to be
privileged
may yet on
particular
facts not be.
Distinction
between
qualified and
absolute
privilege.
In many cases of alleged privileged communica-
tions, however, it is open to the plaintiff to shew
that, notwithstanding that the communication w^ould
ordinarily be privileged, yet the defendant has been
guilty of actual malice, i.e., malice in fact (A). Thus,
it has been pointed out {i) that a master is privileged
in giving a character to his servant; but yet, if he
knowingly gives a false character, here there is actual
malice, and there cannot possibly be any privilege.
Cases of this character are designated as cases of
qualified privilege, as opposed to cases in which no
such evidence could be given, which are styled cases
of absolute privilege, e.g. statements by judges and
advocates in the course of their duties.
The truth of
libel affords
a complete
answer in a
civil action.
Effect of the
truth of a
libel in a
The truth of a libellous imputation affords a com-
plete answer to any action for damages, because the
action is brought by the plaintiff to free his character
from such imputation, which he cannot be entitled to
do if the imputation is actually true {]:) ; and where the
truth of the imputation is not thoroughly and strictly
proved, but it is proved substantially or to a great
extent, this, though not sufficient to form a defence,
may go in mitigation of damages (/). Libel is, how-
ever, punishable, not only civilly, but also criminally
(g) Per Erie, C.J., in Whiteley v. Adams, 15 C. B. (X. S.) 418 ;
Waller v. Lock, 7 Q. B. D. 619 ; 30 VV. R. iS ; 45 L. T. 242 ; Harrison
V. Eraser, 29 W. R. 652.
(h) Wright v. Woodgate, 2 C. M. & R. 573. As to malice in fact,
see ante, p. 378.
(?) Ante, p. 3S6.
\l;) Folkard on Slander and Libel, 21, 22.
(0 Chalmers v. Sliackell, 6 C. & P. 475.
OF TOUTS AFFECTIXG THE PERSON. 39!
by indictment, and in some special cases, wliere tlie criminui
persons libelled are in some public office or position, fJi-'it.*'"*'""'
by criminal information (m). In any criminal prose-
cution the truth of the libel was formerly no defence,
for the object of the proceeding is to a great extent
the preservation of public peace and good order, which
cannot be maintained if one man is allowed to publish
of another everything that may chance to be true of
that person, so that, whether true or false, the imputa-
tion may have equally mischievous results, and con-
sequently be equally a public wrong (n). This state
of the law is, however, now to a considerable extent
altered, it having been provided that the truth of a
libel shall form a defence to a criminal prosecution, Libel Act,
if it is also for the public benefit that the matters
complained of should be published (0).
With regard to criminal proceedings in respect of a Order of judge
libel, it is provided by the Libel Act, 1888 (p), that beforrpfo-
no criminal prosecution shall be commenced against ifb^u"^**""
any proprietor, publisher, editor, or any person respon- newspaper,
sible for the publication of a newspaper, for any libel
published therein, without the order of a judge at
chambers first being obtained, on notice to the person
accused, who shall have an opportunity of being heard
against it. This provision, however, does not apply to
a proceeding by way of criminal information (q).
The Libel Act, 1843 (r), also contains two impor-
(m) See ^ey. v. Labouchere, 12 Q. B. D. 320 ; 53 L. J. Q. B. 362 ;
32 W. R. 861.
(n) See Folkard on Slander and Libel, 21, 22.
(0) 6 & 7 Vict. c. 96, s. 6. See hereon Jieg. v. Labouchere, 14 Cox,
C. C. 419.
(p) 51 & 52 Vict. c. 64, s. 8, which repeals the previous provision of
44 & 45 Vict. c. 60, s. 3, which required the fiat of the director of
public prosecutions.
(?) Jier/. V. Yates, 14 Q. B. D. 648 ; 54 L. J. Q. B. 258 ; 33 W. R.
482 ; 52 L. T. 305. This was a decision under 44 & 1^5 Vict. c. 60,
s. 3, but it no doubt still holds good as regards the provi!>ion of 51 &,
52 Vict. c. 64, s. 8.
(r) 6 & 7 Vict. c. 96.
392 OF TORTS AFFECTING THE TEKSON.
Trovision of taiit provisions on the subject of libel, besides the
1843, as't'o o^^6 ah-eady mentioned as to the truth of a libel
ap'jiogy gene- i^eiog Set up in criminal proceedings in respect of
it. The first of such provisions is, that in any action
for defamation it shall be lawful for the defendant
(after notice in writing of his intention so to do duly
given to the plaintiff at the time of filing or delivering
the defence in such action) to give in evidence, in
mitigation of damages, that he made or offered an
apology to the plaintiff for such defamation before the
commencement of the action, or so soon afterwards as
he had an opportunity of doing so, in case the action
shall have been commenced before there \vas an oppor-
tunity of making or offering such apology (s).
rrovision of The Other of such provisions is, that in an action
Libel Act, p ^■^ i ^-i- it- 1
1843, as to for libei contained in any public newspaper or other
imbiic'iiews- periodical publication, it shall be competent for the
i.iiiwr, &o. defendant to plead that such libal was inserted therein
without actual malice and without gross negligence,
and that before the commencement of the action, or at
the earliest opportunity afterwards, he has inserted in
such newspaper or other periodical publication a full
apology for the said libel, or, if such newspaper or
otlier periodical publication shall be ordinarily pub-
lished at intervals exceeding one week, that he has
offered to publish the said apology in any newspaper
or other periodical publication to be selected by the
plaintiff in such action ; and that every such defen-
dant shall upon filing such plea be at liberty to pay
into court a sum of money by way of amends for the
injury sustained by the publication of such libel (t).
(s) Sect. I. The statement above, and the notice required, must
not be confused by the student with the seven days' notice that is
required to be given under Order xxx%'i. rule 37, to entitle a defen-
dant who does not set up the truth of the libel or slander to give in
evidence at the trial the circumstances under which the libel or slander
was published, or evidence as to the character of the plaintiff.
(t) 6 & 7 Vict. c. 96, s. 2. By 8 & 9 Vict. c. 75, s. 2, it is provided
that it shall not be competent for a defendant to plead an apology as
stated in the text, without at the same time making a payment of
money into court.
OF TOUTS Al'FKCTINO Tilt: TKUSON. 393
This latter provision is not, however, now of the im-
portance it formerly was, as under the Judicature prac-
tice money may be paid into court in all actions (^0-
With regard to actions brought in respect of libels con- J^r|;^'j*]^"^|.« "*■
tained in newspapers, a further provision has recently 1888, as to
been made by the Libel Act, i 888 (.;), it being enacted ;;;;;g'3°;'„;:^
that in an action for any such libel the defendant may J;^';^^;;;^^^^
prove in mitigation of damages that the plaintiff has
already recovered, or brought actions for, damages, or
has received or agreed to receive compensation in
respect of a libel or libels to the same purport or efTect
as the libel for wdiich such action has been brought.
An action of libel may be brought at any time ^^^^'J^'^° \^J
within six years of the publication thereof (y). brought within
six j'ears.
If a person, to whom a libel is published, in his Liability for
i ' ^ . fresh publiCH-
turn publishes it again, he is liable m respect of it, as tion of libel.
well as the original libeller, even though he believed
it to be true (z).
Slander may be defined as the malicious defamation Definition of
sln.iiQ.6r
of another person, not in writing, but simply by word
of mouth. For ordinary slander, the only remedy
of the person slandered is to bring an action for
damages, for the injury done to him is not so great as
by libel, which, being in writing or the like, is more
lasting and permanent in its nature, while slander,
being but by word of mouth, is from its very nature
fieetino-; but in some exceptional cases of slander, f.^. Cases in which
where the words used are seditious, grossly immoral, prosecution
or blasphemous, or addressed to a magistrate with ^I'/jJJg^./'^'"
reference to his duties or whilst he is performing his
(u) Order xxii. rule i.
(x) 51 & 52 Vict. c. 64, s. 6.
(y) 21 Jac. I, c. 16, s. T,.
(z) M'Pherson v. Daniels, loB. & C. 273 ; Tidman v. Ainslic, loEx.
63 ; Bolterill v. Whitehead, 41 L. T. 5S8.
394
OF TORTS AFFECTING THE PERSON.
Instances of
slander.
duties, or uttered as a challenge to fight a duel or to
provoke such a challenge, a criminal prosecution will
lie (a).
As to what words will be sufficient to enable a
person to maiutaia an action of slander, may be
instanced words imputing a crime to any one, as
generally that he is a thief, or that he has committed
a certain wrongful act (&) ; but it is not necessary
that the words used should be so extreme as that,
and generally speaking any defamatory words causing
damage will give rise to the action. On the other
hand, there are many cases of words merely spoken
which confer no right of action, although had they
been written they would have done so (c). Words
made use of expressing simply a suspicion (d), or
charging another with having evil desires and inclina-
tions, but not stating that they have been brought
into action, are not actionable (c), but if they go
beyond that, and charge another with actually having
evil principles, then it seems they are (/).
Facts to be The facts to be proved in an action for slander are
aotk.ffor'' generally three, viz.: (i) The uttering of the slan-
siander. dcrous words ; (2) The malice of the defendant ; and
(3) The damage caused to the plaintiff.
What words
will be defa-
matory.
The first point involves the question of whether or
not the words are really defamatory ; and to render
them so they must be such that, if not the whole
world, at any rate some persons would have taken
them in a defamatory sense (g). The question as to
(a) See Folkard on Slander and Libel, 794.
(b) It is slanderous to call a person a felon who has undergone his
sentence and been discharged, for he is then no longer a felon iu law
{Lcyman v. Latimer, 3 Ex. D. 352 ; 47 L. J. Ex. 470 ; 26 W. R. 305).
(c) PA nson v. Stuart, i T. R. 748.
\d) Simmons v. Mitchell, 6 App. Cas. 156; 50 L. J. P. C. 1 1 ; 29
W. R. 401.
(c) Harrison v. Stratton, 4 Esp. 218.
(/) Prince v. Howe, I Bro. P. C. 64.
(y) Ante, pp. 381 382.
OF TORTS AFFECTING THE TERSON. 395
the meaninjT of the words used is, — In what sense did
the person uttering them mean them to be under-
stood ? (A). But although words, if they stood by
themselves, miglit be defamatoiy and actionable, yet
it is quite possible that they may be controlled by
other words made use of at the same time, so as to
prevent them having the ordinary usual and primary
meaning that they otherwise would have had (/).
The malice that is required is only malice in a The malice
legal sense, which is implied if the uttering of the (,n1y"u,iie*'e in
defamatory words is proved (/.•). ^''•^•
We have stated that the third essential of proof Special damage
n ,. (• 1 1 • J.1 1 J 1 must be proved
in all actions tor slander is the damage caused by i,i jm action
the defamatory words ; for, generally speaking, unless ^"^^^'^°'^^^-
the slander has been productive of damage, no action
lies, in which respect slander differs from libel ; for in
the former we have pointed out that the plaintiff will
at any rate be entitled to a nominal verdict, although
he may not give one atom of evidence that the libel
has caused him any injury (/). In some few cases Except in four
this is also so in slander ; and when so, the words
used are said to be words actionable in themselves,
and they are as follows : —
I. Where a criminal offence (?n), or actual conviction i- imputing
thereof, is imputed ; and it is not necessary that the offence.
crime should be technically described, for any words
by which it would ordinarily be understood are suffi-
cient ill) ; nor is it necessary to particularly specify
any crime; it is sufficient if a person says be has a
(A) Mead v. Ambridge, 6 C. & P. 308.
li) Shipley V, Todlmnier, 7 C. & P. 680.
[k) As to malice in fact and malice in law, see ante, p. 3 78.
(I) Ante, p. 3S0.
(m) It need not be an indtctnhle offence {Wehh v. Bevan, 1 1 Q. B. D.
609 ; 52 L. J. Q. B. 544 ; 49 L. T. 201).
(«) Coleman v. Godwin, 3 Doug. 90.
396
OF TORTS AFFECTING THE PERSON.
2. Imputiug
an infectious
disorder.
light to have another punished (o). General terms
of abuse, such as rogue, rascal, scoundrel, &c., are not
words actionable in themselves, for they do not im-
pute any precise and definite offence punishable in the
courts of justice (p).
2. Where the words used impute to the plaintiff
a contagious or infectious disorder, which may have
the effect of excluding him from society (q), e.g. the
leprosy or the itch. It is not, however, sufficient to
say that a person has at some past time had such a
disorder (r).
3. Imputing
incompetence
in a trade,
]>iofession, or
employment.
3. Where the words used impute to the plaintiff
some incompetence or misconduct in his office, trade,
profession, or calling, or tend to injure or prejudicially
affect him therein. Thus, words imputing to a solicitor
in any way that he is a knave (s), or that he deserves
to be struck off the rolls (t), come within this category.
So, also, to say of a doctor that none of the other
medical men in the town will meet him is in itself
actionable («), and so are words imputing indigent
circumstances to a banker (x). To render words
actionable in themselves as coming within this class,
it matters not how humble the calling or employment
of the plaintiff' may be ; thus, menial servants have
been held entitled to maintain an action for words
spoken against them in their employment without any
proof of special damage (y). The great criterion to
ascertain whether or not words do come within this
heading is, Do they directly touch or affect the plaintiff'
(0) Francis v. Jioose, 3 M. & W. 191
{p) Folkard on Slander and Libel, 139.
Iq) Ibid. 108, 109 ; Bloodivorth v. Gray, 7 M. & (Jr. 334.
(r) Carslake v. Mwplcdoram, 2 T. R. 473.
(s) Day V. Bullar, 3 Wils. 59.
{t) Per Kenyon, C.J., Philips v. Jansen, 2 Esp. 624.
(u) Southee v. Denny, i Ex. 196.
{x) Robinson v. Marchant, 7 Q. B. 91 8.
{y) Connor v. Justice, 13 Ir. C. L. K. 451.
OI' TOUTS AKKKC'J'IN(; THE I'EI{SOX. 397
in Lis oflice, trade, profession, or calling ? If tlu-y do,
then they are actionable per se (z). It has been held
that words imputing want of integrity, malversation, or
dishonesty to a person holding an oilice of confidence or
trust, whether an ofiice of profit or not, are actionable
without proof of special damage ; but that words im-
puting unsuitableness for an office, or want of ability,
are not actionable without proof of special damage if
the office is merely an honorary one (a).
4. Where words are spoken or published of a woman 4- Tmputine
, ., 11.^ X 1 mi • • • uncli.istity to
imputmg unchastity or adultery to her. ihis is quite a a woman,
recent provision by the Slander of Women Act, i 89 1 (h),
for formerly it was otherwise (c) ; and the Act is not
retrospective, but only applies to words uttered after
its passing ((/). The Act also provides that for words
spoken and made actionable by reason of its provisions,
a plaintiff shall not recover more costs than damages
iinless the judge shall certify that there was reasonable
ground for bringing the action (e).
It is only important to prove that words come
within one of these ibur classes when special damage
cannot be proved ; and, of course, proof of special
damage is, when possible, always given for the purpose
of increasing the amount of the damages.
The truth of slanderous matter will form a perfect The truth of
defence to any action in respect of it, on the like answeTto an
__^_ action for it.
(2) Folkard on Slander and Libel, 126 ; see Black v. Hunt, Ir. Eeps.
2 Q. B. D. 104.
(a) Booth V. Arnold, (1895), I Q- K. 571 ; 64 L. J. Q. B. 443 ; 72 L.
T. 310 ; Alexander v. Jenkins, (1892), i Q. B. 797 ; 61 L. J. Ch. 634 ;
66 L. T. 391.
(b) 54 & 55 Vict. c. 51.
(c) It may, however, be mentioned that callinf^ a woman a whore, or
otherwise imputing unchastity to her, was even formerly actionable by
itself in the City of London courts ; and so calling a woman a strumpet
in the city of Bristol was even formerly actionable there by the custom
of that place. See Fisher's C. L. Digest (tit. "Defamation").
(d) August 5, 1891.
<.e) 54 & 55 Vict. c. 51, s. 1.
598
OF TOKTS AFFECTING THE TERSOX.
jDi'inciple that, as has been stated (/), the truth of
a libel may be set up as a defence to an action
for damages. This point has been extremely well
stated {(j) as follows : " It is essential to the claim
for damages that the imputation should be false ;
for, as in point of natural justice and equity, no
one can possibly have any claim or title to a false
character, so also would it be contrary to the prin-
ciples of public policy and convenience to permit
a man to make gain of the loss of that reputation
which he had forfeited by his misconduct. In foro
conscicnticc, it is no excuse that the slander is true ;
but in compassion to men's infirmities, and because if
the words spoken are true, the individual of whom
they are spoken cannot justly complain of any injury,
the law allows the truth of the words to be a justifi-
cation in an action for slander."
rriviieged The remarks that have been made under the head
tions. of libel on the subject of privileged communications
apply equally to cases of slander (A).
Scandahim
magiiatuvi.
A special and peculiar kind of defamation occurs
in what is called scandalum magnatum, of which it is
sufficient to say, that it consists in the spreading of
false reports against peers and certain high officers of
the realm, and that it is subjected to peculiar punish-
ments by various ancient statutes (i).
Limitation for An actiou for slaudcr may be brought at any time
slander. within two years after the uttering of it (/.;).
Repetition of
slander.
A person repeating a slander uttered by another
renders himself liable in respect of it, and cannot in
(/) Ante, p. 390.
{g) Folkard on Slander and Libel, 79, So.
(h) See ante, pp. 3S5-390.
(;■) See Brown's Law l)ict. 475.
(k) 21 Jac. I, c. 16, s. 3. As to the construction put uj)ou this pro-
vision, see Folkard ou Slander and Libel, 429, 430.
OF TORTS AFFECTING THE PERSON. 399
nny way discharge himself by giving up the name of
the author or first utterer of it, for both are liable (I).
In an action, however, against the original utterer of
the slander, proof of the unauthorized repetition of
it by the person to whom uttered is not adnnssible as
proof of special damage (in).
The differences between libel and slander have Differences
,. T ■ ..-i , c J^ between libel
appeared m discussing respectively each of those and skuder.
torts, and all that is therefore necessary under this
third heading is to summarize those differences. They
are as follows : — •
1 . There is the difference in the very nature of the
two torts which appears from their respective defini-
tions (n).
2. Libel, from its nature, is of a more lasting, and
slander of a more fleeting character, so that libel is a
tort of a more serious nature than is slander (0).
3. It is not essential to prove special damage in an
action of libel (p), but it is in slander, except in the
four cases already given ((/).
4. Libel is punishable both civilly and criminally,
but slander, generally speaking, only civilly (r).
5. Libel is statute barred after six, but slander after
two years (s).
(1) M'Pherson v. Daniels, 10 B. & C. 273 ; Tidman v. Ainslie, 10 Ex.
63 ; Botterill v. Whitehead, 41 L. T. 588.
(m) Ward v. Weeks, 7 Bing. 211.
(n) Ante, pp. 380, 393.
(0) Ante, p. 393.
(p) Ante, pp. 380, 381.
(5) Ante, pp. 395^397- .
(r) Ante, p. 393. An injunction may also be granted in some casrs
(and even on an interlocutory application) to restrain the publication of
a libel. See Inderniaur's Manual of Equity, 385, 3S6.
(s) Ante, pp. 393, 398.
400 OF TORTS AFFECTING THE PEKSON.
Libel or Aiiotliei", tlioiigli somewhat out-of-the-way, differ-
slander of , , » ■■, « , ,
the dead. euce may perhaps be userully rererred to, viz, as re-
gards a libel published or slander uttered concerning a
dead person. No one could here sue in a civil action
for damages, and therefore there would be no remedy
as regards the slander. Nor generally would there
be any remedy as regards the libel ; but if it were
shewn that the design and effect of the libel was to
bring contempt on the family of the dead, and to stir
up the public against them, then, and then only, it
might be prosecuted for (t).
V. Seduction " An action of seduction is in our law founded upon
services. a fiction — the basis of this action, when brought even
by a father, to recover damages for the seduction of
his daughter, having been from the earliest times uni-
formly placed, not upon the seduction itself, which is
the wrongful act of the defendant, but upon the loss
of service of the daughter, in which service the parent
is supposed to have a legal right or interest. It has,
accordingly, always been held that in an action for
seduction loss of service must be alleged, and must be
proved at the trial, or the plaintiff will fail, notwith-
standing the production of evidence conclusive as re-
gards the guilt of the defendant ; for the wrong done
by his act the law does not esteem j9?r sc as an wjuria,
using that word in its strict sense, but merely as
damnum sine injuria, for which, consequently, an action
will not lie" {it).
The action of The forcgoiiig Quotatiou shews lucidly enouLdi the
not for the nature of the action commonly called an action of
seduction, but geductiou. From it the student will carefully observe
tor tlie loss ut •'
service. that although the action is said to be " for seduction,"
yet this is not strictly correct ; it is really for the loss of
(<) Rex V. Topham, 4 East, 126; and see Mr. Justice Stephen's
remarks in Jleg. v. L'nsor, 82 L. T. Newspaper, 2S7.
(u) Broom's Corns. 74, 75. As to damnum sine injuria, see ante,
pp. 4, 5.
OK TORTS AFFECTINC THK PERSON. 40r
service that ensues from the antecedent act of seduction,
and is therefore so called, but a parent or other person
has no remedy simply because his daughter or other
relative has been seduced (x). This may have injured
him substantially in his position or in his feelings, yet
it is not what the law considers as a legal injury, but
constitutes an instance of the rule already explained (y),
that damnum sine injuria will not be sufficient to
enable a person to maintain an action.
Again, a woman cannot herself maintain any action Volenti non fit
in respect of her own seduction, for she has been a ^"■^"'^^•
consenting party, and the maxim of our law. Volenti
non fit injuria, deprives her of any remedy she might
but for its existence have had {z).
Did the law stop here, there would, therefore, be no The fiction
remedy for the tortious act of seduction ; but, as stated action o/
in commencinfj the subject, this action is, in our law, seduction la
o •> ' ' ' maintainable.
founded upon a fiction, which is that, although the
person seduced cannot maintain any action, nor can
a parent in his character of parent, yet any person,
whether parent or not, between whom and the
seduced party the relationship of master and servant
exists, may sue for the loss of service that ensues from
the pregnancy and illness consequent on the seduction,
whereby the person is deprived of the services that
should have been rendered to him, and to which he
was entitled.
This action, therefore, can be maintained by a person The usual cases
who is purely and simply a master ; but this is not the oui^''court°'are
usual class of case that occurs, for in such, practically, ^^'®" ^ parent
the damages the master would recover would be but
small. The actions of seduction usually occurring in
our courts are where a parent or other person sues
(x) Satherivaite v. Duerst, 5 East, 47 n.
[y) Ante, pp. 4, 5.
(z) See Broom's Legal Maxims, 262 ct seq.
2 C
402
OF TORTS AFFECTING THE PERSON.
The jury in
an action of
seduction
for the seduction and subsequent loss of service to him
of his daughter or other relative ; and here, though
he has to make out a state of service as existing be-
tween himself and the person seduced, yet this being
made out technically, substantial damages may be given
to the plaintiff very far beyond any real injury done
by the loss of service, as a solatium to his feelings,
and increased in amount according to the conduct
of the seducer. The jury also, undoubtedly, in most
cases of seduction, look to the fact that, although
generally look ^Y\q actiou is nominally for loss of service, yet, sub-
to the substau- ... i-n !> 11 n
tiai object of stautially, or probably, it is chiefly for the benent
the action. ^^ ^^^^ seduccd herself, it being, at any rate, the only
means she has of obtaining any redress from the
seducer («).
Points to be In cvery action of seduction the points to be proved
proved in an .
action of are three, viz. : —
seduction.
1. The fact of the seduction, and consequent illness
and loss of service.
2. That the relation of master and servant existed
between the plaintiff and the party seduced ; and
3. The damages sustained.
What will
constitute the
position of
master and
servant to
enable a
person to sue
in this action.
With reference to the first and third points, it has
already been pointed out that it is not the actual act
of seduction which really gives rise to the action, but
the illness and loss of service, and that the jury have
a very wide discretion in awarding damages. The
second point remains, as to what will be sufficient
proof of the relationship of master and servant, and
as — as has also been pointed out — it is not in simple
(a) Excppt, indeed, a bastardy summons for the maintenance of the
child, as to which see 35 & 36 Vict. c. 65. Also, of course, practically,
in an action for breach of promise of marriage, if there has also been
seduction, that may go to increase the damages.
OF TORTS AFFECTING THE PERSON. 403
cases of ordinary service that the action is usually
brought, but in other cases, in which it is necessary to
establish a technical service, it is sometimes not easy
of determination whether or not that relationship can
be said to exist.
It is not at all necessary to shew that the seduced it is not neces-
was actually employed in a regular routine of duty (h), thl^ the "^
for very slight evidence of actual service, such as "Educed wa.s m
•' o ' ^ any regular
milking cows, making tea, nursing children, will sufiBce routine of
11. <• 1 • All service.
to prove the fact of actual service. And where a
daughter is shewn to have been living with her father
at the time of the seduction, forming part of his family,
and liable to bis control and direction, service will be
presumed, and proof of acts of actual service will be
unnecessary (c). Where the plaintiff's daughter was
seduced in his house and service in Ireland, and the
day after left the country, pursuant to prior arrange-
ments, for America, and whilst in service there, finding
herself pregnant, returned to Ireland to the house of
her sister, where she was confined, and after her con-
finement she returned to the house of the plaintiff, it
was held that there was evidence to go to the jury
of loss of service sufficient to sustain the plaintiff's
action (d).
The relationship of master and servant must be The relation-
shewn to have existed not only at the time of the and servant
illness and loss of service, but also at the time of the ^^gtej^t^the
seduction (e), upon the principle that a master taking time of the
,1 1 , , 1 ^ , ^ 1 seduction.
a servant who has ah-eady been seduced, takes her
with the injury already done ; it is not an injury
committed during the time of his rights over her.
(b) See Griffiths v. Teetgen, 1 5 C. B. 344 ; Torrence v. Gibbins, 5 Q. B.
297 ; Rist V. Faux, 32 L. J. Q. B. 386.
(c) Addison on Torts, 587, 588 ; and as to the latter statement in
the text, see Maunder v. Venn, M. & M. 323 ; Jones v. Brown, i Esp.
217 ; Fores v. Wilson, i Peake, 77.
(d) Long v. Keightley, 11 Ir. Keps. C. L. 221.
(e) Davies v. Williams, 10 Q. B. 729.
404
OF TORTS AFFECTING THE PERSON.
An action may
be maintained
for the seduc-
tion of <a
married
woman.
Effect of a
woman being
in the service
of her seducer
The fact of the seduced party being a married
woman does not prevent the action, for, provided she
is separated from her husband and living with and
serving her parent or other person who brings the
action, without any interference on the part of the
husband, the plaintiff's rights are just the same as if
she were not married (/). But if a daughter is in a
house of her own, the fact of her father being there,
with her consent, cannot place her in a subordinate
position so as to confer on him any right of action (g) ;
and if she is away in actual service to some third
person, and does not come home regularly, but only
occasionally, although she then renders services, this
cannot give the parent any right to bring the action Qi) ;
but if she is generally at home, and simply away
making a temporary visit when the seduction or the
illness occurs, here the parent has his right of action,
because he has a right to call for her services {i).
If the woman is actually and substantially in the
service of her seducer when the seduction takes place,
no one will have any right to maintain the action,
unless, indeed, she has been fraudulently lured away
from her home and taken into service with the view
of seduction, in which case the parent or person
standing in loco parentis will still have his remedy,
because such a fraudulently arranged service does not
put an end to the relationship of master and servant
that before existed. In such cases it will always be
a question for the jury whether there was a land fide
service between the woman and the defendant (if
there was a lond fide service the verdict must be for
the defendant), or whether the service was arranged
simply and expressly for the purposes of and with a
view to the accomplishment of the seduction (if it was
(/) Harper v. Luff/cms, 7 B. & C. 387.
(fl) Manleji v. Field, 29 L. J. C. P. 79.
(h) Thompson v. Ross, 29 L. J. Ex. i.
\i) Griffiths v. Teetgen, 15 C. B. 344.
OF TORTS AFFECTING THE PERSON. 405
SO arranged, the plaintiff will still be entitled to a
verdict, notwithstanding such service (k) ).
It will always be a good defence to an action of if the i-iaintiff
this kind that the plaintiff has by his own conduct couduct"'*
brought about the evil he complains of, e.q. if he has J''oug^t "^o^t
° ^ ^ ^ ^ ' '^ _ the seduction
encouraged any improper intimacy between the parties, lie cannot
or has introduced the person seduced to, or encouraged action for it.
her acquaintance with, persons of a known loose, dan-
gerous, or immoral character (I).
If a defendant proves that, although he seduced Scductiuu, but
the woman, yet he was not the father of the child tLTatherof
of which she was delivered, no action lies against ^1'?, f®'^"''*^*^'^
' o child.
him (m).
There are also cases in which an action can be An action for
maintained for loss of services arising otherwise than (,°^jf^g^^^^,J^^^
by seduction, for " every person who knowingly and t"'ned quite
•'. . ,. .. irrespective of
designedly interrupts the relation subsisting between seduction,
master and servant by procuring the servant to depart
from the master's service, or by harbouring him and
keeping him as servant after he has quitted his place
and during the stipulated period of service, whereby
the master is injured, commits a wrongful act, for
which he is responsible in damages " (n). And this Procuring a
principle is applied not only to cases in which the breakVis
strict relationship of master and servant actually exists, ^^^jntract.
but to cases in which a person has maliciously pro-
cured another to break his contract. Thus, in the
case of Lumlcy v. Gyc (0), the plaintiff alleged in hi?: Lvmhyv.Gye.
declaration that he was lessee and manager of the
Queen's Theatre, and that he had agreed with one
Johanna Wagner to perform in his theatre for a certain
(h) See Addison on Torts, 589, and remarks of Abbot, C.J. , in
Speight V. Olivrera, 2 Stark, 495, there quoted and referred to.
(l) See, as an instance of this, Rcddie v. Scoolt, I Peake, 316.
(m) Eager v. Grinuvood, 16 L. J. Ex. 236.
(n) Addison on Torts, 583.
(o) 2 Ell. & B. 224 ; 22 L. J. Q. B. 463.
406 OF TORTS AFFECTING THE PERSON.
time, with a condition that she should not sing or
use her talents elsewhere during the term without the
plaintiff's consent in writing ; and the defendant, know-
ing these facts, and maliciously intending to injure the
plaintiff as lessee and manager of the theatre, whilst
the agreement with Wagner was in force, and before the
expiration of the term, enticed and procured Wagner
to refuse to perform, by means of which enticement
and procurement of the defendant, she wrongfully
refused and did not perform during the term. On de-
murrer, the Court held that this shewed a good cause
of action in the plaintiff, and that an action lies for
maliciously procuring a breach of a contract to give
exclusive personal service for a time certain, equally
whether the employment has commenced or is only
in fieri, provided the procurement be during the sub-
sistence of the contract, and produces damage, and that
to sustain such an action it is not necessary that the
employer and employed should stand in the strict rela-
tion of master and servant. It must be taken as
now clearly decided that in all cases an action lies
for maliciously inducing a person to break his con-
tract with the plaintiff, and that it is immaterial
whether the contract is between a master and servant
or not {p).
(p) Bowen v. Hall, 6 Q. B. D. 333 ; 50 L. J. Q. B. 305 ; 44 L. T. 75 ;
29 W. R. 367 ; Temperton v. Russell, (1893), i Q. B. 715 ; 62 L. J. Q.
B. 412 ; 69 L. T. 78.
OF TORTS ARISING PECULIAKLY FROM NEGLIGENCE. 407
CHAPTER VI.
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
In the foregoing pages many matters depending on Many matters
negligence have incidentally been touched on, as, for jilvefndd^u^
instance, particularly in the chapter on Bailments, and ^^^^y ^^^^
., . p ~ r^ ■ 1 . , 1 • , . treated of iQ
therem of Common Carriers, which subject mostly m- prior pages,
volves negligent breaches of duties on the part of the
bailee (a). The design of the present chapter is to
treat particularly of the subject of Negligence, intro-
ducing some matters that have been before casually
mentioned, and some that have not been treated of
at all.
Negligence producing damage to another is in all Negligence
cases a ground of action to the party suffering tliereby, f^e^funJ.'^' ^^*^
provided there is some obligation on the part of the "^ i^^ge and
negligent person to use care, in cases tried before a
judge and jury in which negligence is alleged, it is for
the judge to consider whether any evidence of negli-
gence has been given, or if the circumstances are such
that negligence may reasonably be inferred, for there
may be many cases in which it is rightly said res ipsa Res ipsa
loquitur, or the thing speaks for itself, e.g. in the case ''^"''"''•
of a collision between two trains belonging to the same
railway company (I). If the judge, however, considers
that there is no evidence of negligence, and that it is
not a res ipsa loquitur case, he should not let the
case go to the jury, but should nonsuit the plaintiff;
(a) As to which see ante, Part i. chap. iv. pp. 1 22-142.
[b) Skinner v. L. B. d: S. C. Ry., 5 Ex. 7S7 ; Kearney v. L. B. ,L- S.
C. Ry., L. R. 6 Q. B. 759 ; 40 L. J. Q. B. 2S5.
405 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
but if he thinks there is some such evidence, or it is
such a case that negligence may reasonably be inferred,
then he should leave the case to the jury as a question
of fact, subject to rules of law or of common sense,
according to which the measure of culpable or action-
able negligence varies as the circumstances of each
particular case differ ; for in some cases a person is
liable only for very extreme acts of negligence, in
others for very slight acts of negligence (c) ; thus,
to again refer to the subject of bailments, we have
seen that a remunerated bailee is liable for ordinary
negligence, whilst a mere voluntary bailee is liable
only for acts amounting to gross negligence. A
person, too, may be liable not only for acts of negli-
gence done in his own proper person, but also by
those whom he employs, under the maxim. Qui facit
per alium facit per se (d) ; and this is only reasonable,
for the person employing has the selecting of those
whom he employs, and if he employs negligent, care-
less, or unskilful persons, it is only fair and proper that
he should be liable for their negligence, carelessness,
or unskilfulness. The burden of proving negligence
in all cases, of course, lies on the plaintiff who alleges
it, unless, indeed, the case is one that, as already
explained, speaks for itself (e).
Mode of The subject of Negligence may be conveniently
the subject. Considered under the following heads, viz. : —
1. Negligence causing injury to the person.
2. Negligence causing injury to property, real or
personal.
3. Defences to an action for negligence.
(c) See Brown's Law Diet., tit. "Negligence," 362.
(d) See Broom's Legal Maxims, 799 et seq.
(e) Manzoni v. Douglas, 6 Q. B. D. 145; 50 L. J. Q. B. 289 ; 29 W.
R. 425.
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 409
If a person, through negligent driving, runs over or i. Negligence
otherwise injures any person, he is liable for such injury, to"the person^
and this equally so whether the driving is by himself
or by his coachman or other servant, and whether he is
at the time in the vehicle or not, provided always that,
in the case of a servant being the driver, he is acting
in the course of his duty ; for if this is not so — as if
the servant takes out the vehicle contrary to his mas-
ter's orders or without any express or implied authority
to do so — then the master is not liable (/). If, how-
ever, the servant is out in the course of his duty,
and then merely disobeys his master's instructions in
some way, as by driving by a different route than what
he was told to, the master is nevertlieless liable, though
it is otherwise if the servant, though originally out in
the course of his duty, afterwards starts off on an inde-
pendent enterprise of his own {g). And generally a
master or principal is liable civilly for all his servant's
or agent's torts, committed whilst he was acting under
his master's or principal's authority, or in the ordinary
course of or incidental to his employment (Ji), for, as
is ordinarily said, Respondeat superior, and again. Qui Respondeat
facit per almm facit per se ; but if the act complained ^'"'P"^^'-
of is not within the scope of the servant's or agent's
authority, or incident to the ordinary duties of his
employment, the master or principal is not liable (i).
A master or principal is not liable criminally for his
servant's or agent's act, unless he directed or sanctioned
the same ; but he may be liable civilly for his servant's
act though it was criminal in its nature, if it was done
in the course of his employment, and in doing that
(/) M'Mnnus V. Crickett, I East, 106 ; Wilson v. Owens, 16 L. R. Ir.
225 (since affirmed by C. A.).
ig) Storey v. Ashton, L. R. 4 Q. B. 476 ; 38 L. J. Q. B. 223 ; Mitchell
V. Crassweller, 22 L. J. C. P/ioo; Rayncr v. Mitchell, 2 C. P. D. 357 :
25 W. R. 633.
(h) Ruddinian v. Smith, 60 L. T. 708 ; 37 W. R. 528.
(i) Stevens v. Woodicard, 6 Q. B. D. 31S ; 50 L. J. Q. B. 231 ; 44
L. T. 153 ; 29 W. R. 506 ; Charleston v. London Tramways Co., 36 W. R.
367 ; Butler v. M. S. <fc L. Ry. Co., 21 Q. B. D. 207 ; 57 L. J. Q. B. 564 ;
60 L. T. 89 ; 36 W. R. 726; Abrahams v. Deakin, 60 L. J. Q. B. 238 ;
63 L. T. 690.
4IO
OK TORTS ARISING PECULIARLY FROJI NEGLIGENCE.
which he believed to be for his employer's interest (k).
Thus, if A.'s coachman whilst driving A. wantonly runs
over X., no action for damages would lie against A. ; but
if the coachman is driving very quickly to get A. as soon
as possible to his destination, and driving carelessly
runs over and kills X., under such circumstances that
he is guilty of manslaughter, A. would be liable to an
action for damages by X.'s representatives, notwith-
standing that the coacliman's act was criminal in its
nature.
Injury caused
by delegate of
agent.
Upon the principle dele^/alus nan potest delegare a
master cannot ordinarily be liable for the negligence
or misconduct of a person to whom his servant or
agent has delerrated his authoritv. Thus, in a recent
case, an omnibus-driver was ordered by a policeman to
discontinue driving as he was intoxicated, and a passer-
by thereupon volunteered to drive the omnibus home.
This he was allowed to do, and in doing so he negli-
gently drove over and injured the plaintiff, who sued
the proprietor of the omnibus. It was held by the
Court of Appeal that the defendant was not liable {I).
liiability in
the case of :i
vehicle let
out.
Where a vehicle is let out by a job-master to a person
who appoints his own coachman, here, generally speak-
ing, the job-master is under no liability, for the coach-
man is not his servant, but the servant of the person to
whom the vehicle is let (w) ; but where the owner of a
carriage hires horses of a job-master who also provides
a driver, here the job-master is liable {n). In all cases
in which it is desired to make one person liable for the
negligent act of another, it is, as a general rule, essen-
tial to shew that the person guilty of the negligence
[k) Limpus v. London General Omnibus Co., H. & C. 526 ; Difer v.
Mundny, (1895), I Q. B. 742 ; 64 L. J. Q. B. 448 ; 72 L. T. 448.
(/) Gwilliam v. Twist, (1895), 2 Q. B. 84 : 64 L. J. Q. B. 474 ; 72
L. T. 579.
(771) Laugher v. Pointer, 5 B. & C. 547.
(n) Quarman v. Burnett, 6 M. & W. 499 ; Jones v. Corporation of
Liverpool, 14 Q. B. D. S90 ; 54 L. J. Q. B. 345 ; 33 W. R. 551.
OF TOKTS ARISING PECULIARLY FROM NEGLIGENCE. 4 II
actually stood in the position of servant or agent
to the other (0) ; but it must be noticed, as an ex-
ception, that as regards cabs plying for hire within
the City of London and the liberties thereof, and the
Metropolitan Police District, the Metropolitan Hackney Metropolitan
Carriage Act, 1843 (j)), really renders the registered carriages,
proprietor of any such vehicle liable to third persons
for the negligence of the licensed driver as if the
latter were his servant, although the relation of master
and servant does not exist, but the real position be-
tween the cab-owner and the driver is that of bailor
and bailee (q).
Upon the same general principle that the rela- The case
tionship of principal and agent, or master and servant, contractor,
must exist, it has been held that where a contractor
for building, or other purposes, employs a sub-con-
tractor to carry out the work, who in his turn employs
his servants, the original contractor is not liable for
the negligence of such servants, unless he interferes
and assumes specific control (r). The rule is, that he
who controls the work is answerable for the workman,
and that the remoter employer who does not control it
is not answerable (s). Thus in a recent case the de-
fendants had contracted to lend a firm, who were en- Donovan v.
gaged in loading a ship on their wharf, a crane with wharton <t
a man in charge of it. The man received directions ^o^'^J ^'^-
° _ struction
from the firm in question, and the defendants had no Syndicate.
control in the matter. The plaintiff was injured by
this man's negligent working of the crane, and it was
held that the defendants were not liable, for that
though the man remained their general servant, yet
(0) Butler V. Hunter, 31 L. J. Ex. 214.
(p) 6 & 7 Vict. c. 86.
(5) Venahles v. Smith, 2 Q. B. D. 279 ; 46 L. J. Q. B. 470 ; 25 W. R.
584; King v. London Improved Cah Co., 23 Q. B. D. 281 ; 58 L. J.
Q. B. 456; 61 L. T. 34 ; Keen v. Henry, (1894). I Q. B. 292 ; 63 L. J.
Q. B. 211 ; 69 L. T. 671.
(?•) Cuthbertson v. Parsons, 12 C. B. 304 ; Muvrny v. Currie, L. R.
6 C. P. 24.
(s) Pollock's Torts, 75.
412
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
Injuries done
by builders.
Dangerous
work.
Completed
work.
Guests and
licensees.
they had parted with the power of controlling him
with regard to the matter on which he was engaged (t).
So if a person instructs builders or other workmen
to pull down or alter his house, or do other work of a
lawful and not necessarily dangerous character, he is
not liable for their acts of negligence committed in the
course of such work being done (u) ; but if the work
the contractor is employed to do may naturally involve
risk or injury to another, the person instructing him
to do it has a duty cast on him to see that reasonable
care or skill is used by the contractor, and he will be
liable for any want of this in the same manner as if
he were doing the work himself, for he cannot rid
himself of responsibility by delegating the performance
to a third jierson (x). And if any work is actually
completed, and afterwards, through the negligent way
in which it has been done, an injury happens to a
person, then the owner may be liable ; so that, for
instance, where the plaintiff went to certain races, and
paid money for the privilege of viewing such races
from a stand erected for that purpose, and was injured
through the negligent manner in which it had been
constructed, it was held that the defendant, who caused
its erection and received the money for admission, was
liable in respect of such injuries (y). If, however,
money is not paid in such a case, but the persons are
received as visitors, it would be the same as a man
receiving visitors at his own house, as to which the
law is, that they stand in the same position as mere
licensees, and the host or licensor is not liable for in-
juries caused by defects in the construction of premises,
or by their being in want of repair, nor is he liable
(t) Donovan v. Laing, Wharton <t- Down's Construction Syndicate,
(1893), I Q. B. 629 ; 63 L. J. Q. B. 25 ; 6S L. T. 512.
(u) Butler v. Hunter, 31 L. J. (Ex.) 214.
\x) Hughes v. Perciial, 8 App. Cas. 443 ; 52 L. J. Q. B. 719; 49
L. T. 189; 31 W. R. 726.
{y) Francis v. Cockrell, L. R. 5 Q. B. 501 ; 39 L. J. Q. B. 291 ; 18
W. R. 1205. See also John v. Bacon, L. R. 5 C. P. 437 ; 39 L. J. C. P.
365-
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 41:3
for any injury happening from some defect of which
he himself was not aware ; though, if he is aware of
the defect, and such defect is not necessarily observable,
it is his duty to warn the guest, and if he fails to do
so then he will generally be liable (z).
If a person deposits with a carrier, or other bailee, Liability in
goods of a dangerous character, and neglects to disclose arif^erous
that fact to such carrier or other bailee, he is liable for s^^^^^
the consequences {a) ; and if a person negligently en-
trusts any machine, implement, or animal to a person
unfit to take charge of it or to manage it, who from
his unfitness does some injury, the person entrusting it
to him is liable (h). And the same principle applies
where a person negligently leaves about anything of a
dangerous character, or which may do injury, for he is
liable for all the reasonable and probable consequences
arising from his negligence (c). If a person keeps or animals,
some animal of a naturally ferocious nature, as a lion
or a bear, he is liable for any injury such animal may
do ; but if not naturally of such a nature — e.g. a dog
— then to render the owner liable for an injury done
to a person, proof not only of the animal's viciousness
must be given, but also of the scienter' or knowledge of
the owner of such viciousness (d). Proof, however, of
such scienter in the case of injuries to sheep or cattle
is not now necessary (e).
Where the negligence complained of arises out of An action for
a contract, persons besides the other contracting party be^nwntaine!f
may, nevertheless, sometimes maintain an action in i^i*" irrespec-
respect oi it, which fact depends upon the principle privity,
that privity is not at all requisite to support an action
(z) Collis V. Selden. L. R. 3 C. P. 495 ; Southcote v. Stanley, i H. &
N. 247 ; Ringwood's Torts, 94, 95.
(a) Far rent v. Barnes, 31 L. J. C. P. 139; Brass v. Maitland, 6
E. & B. 470.
(6) Dixon V. Bell, 5 M. & S. 198.
(c) Lynch v. Nurdln, L. R. i Q. B. 36 ; Clark v. Chambers, 3 Q. B. D.
327 ; 47 L. J. Q. B. 427 ; 26 W. R. 613.
\d) Sanders v. Teape, 51 L. T. 263 ; 48 J. P. 757.
(e) 28 & 29 Vict. c. 60 ; see hereon ante, pp. 344 -346.
414 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
ex delicto (/) : thus, a medical man may be liable for
the negligent treatment of his patient, although he
was not called in by the patient, and was not to be
remunerated by him (g). And where a master took a
ticket for his servant to travel by rail with him, it was
held that the servant might maintain an action in his
own name for the loss of his luggage (h). In a recent
case where the servant took his own ticket, for which,
however, the master paid, it was held that the master
might sue for the loss of certain liveries the property
of the master, but which formed part of the servant's
luggage (i).
Injuries from Nuisanccs arising from negligence frequently cause
nnjBances. direct injury to the person; e.g. if in the course of
necessary excavations to public roads a heap of stones is
negligently left lying there, this constitutes a nuisance,
and a person falling over such stones and being
thereby injured has a right of action in respect of this
misfeasance (j). But no action will lie against a road
authority fur an injury caused by a mere omission
itijuriesarising to keep the road in repair (k). And although any
OU8 places. One lias certainly a right within due bounds to do what
he likes on his own property, yet if he has dangerous
holes, shafts, pits, wells, or the like thereon, which
he is or ought to be aware of, it is his duty to protect
Doctrine of any onc coming lawfully on his premises by his invita-
iiiTitation. ^. • ^^ j jt irn
tion, express or implied ; and if a person so lawfully
coming thereon, through not being properly warned,
guarded, and protected against such dangerous places,
falls in them, or in any way injures himself through
them, the proprietor is liable, unless the person with
due caution or care might have himself prevented the
(f)Ante, pp. 315, 316, and cases there cited.
(g) GladweU v. Steggal. 5 Bing. N. C. 733.
\h) M'lrsliaU v. York, <L-c. Rq. Co., 21 L. J. V. P. 34.
(i) Meux V. 6. E. Rfi. Co., (1895), 2 Q. B. 387.
(jl) See EUis v. Sheffield Gas Consumers' Co. , 2 E. & B. 767.
{k) Cowley v. Neivmarket Local Board, {1892', A. C. 345 ; 67 L. T.
486 ; Oliver v. Horsham Local Board, (1894), i Q. B. 332 ; 63 L. J. Q. B.
181 ; 70 L. T. 206.
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 415
accident (/). In such cases a person has a greater
duty thrown upon him than he has as regards mere
guests or licensees, although even here, if the danger
is not apparent, and it is known to the proprietor of
the premises, there is a duty cast on him to warn the
guest or licensee (w).
It is provided by statute (n), that it shall not be Liability for
. , -J. 1 r.. 4. an injury
lawful for any person to sink any pit or shait, or to arising from
erect or cause to be erected any steam-engine, gin, or ^^^^"f]"^;^^';'
other like machine, or any machinery attached thereto pubUc road,
within the distance of twenty-five yards, nor any
windmill within fifty yards, from any part of any
carriafTe-way, or cart- way, or turnpike road, unless the
same shall be within some house, building, wall, or
fence sufficient to screen the same from such way or
road, so as to make it not dangerous to passengers,
horses, or cattle. It is also provided that where any Uufeuced
quarry dangerous to the public is in open or unen- 'i^'^'^'y-
closed land within fifty yards of a highway, and is not
separated therefrom by a secure and sufficient fence,
it shall be kept reasonably fenced for the prevention
of accidents (0). Within these prescribed distances Position of
it is no answer to an action to show that the person trespassers,
injured was a trespasser at the time he sustained
the injury (p). Subject, however, to the foregoing,
a person is not liable for an injury from a defect
or danger on his premises happening to one who is a
trespasser at the time (q).
Where the injury complained of is caused by the where an
negligence of several persons, the party injured may ^y ggverrroiie
(I) Indermaur v. Dames, L. R. 2 C. P. 311 ; 36 L. J. 181 ; Burchell
V. I/ickitson, 50 L. J. Q. B. lOi ; Ringwoods Torts, 94.
(m) See ante, p. 412.
(n) 5 & 6 Wm. 4, c. 50, s. 70, extended by 27 & 28 Vict. c. 75.
(0) 50 & 51 Vict. c. 19, 8. 3.
(p) Addison on Torts, 625.
(q) See, however, a.-s to the setting of man-traps, spring-traps, dog-
traps, &c., Addison on Torts, 143.
4l6 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
oraiiraavbe maintain his action a2[ainst any one or more of
them (r) ; and if he chooses to sue only one of them,
that one has no right of contribution against the other
or others, although such other or others may have
been equally guilty with him (unless, indeed, it is
some negligence arising out of contract), for there is
no contribution between wrongdoers, the rule being
Ex turpi causcl non oritur actio (s).
The liability The liability of carriers of passengers for injuries
of carriers of , • t ^i • ti c ..i • i.
passenfjers liappening to thcui m ttie course or the carrymg, turns
entiref^'ujon ^^^^^ely upoH the point of negligence, their duty and
the question of contract being to carry safely and securely so far as
by reasonable care and forethought is possible, and
if they in any way fail in this they are liable (t)
Negligence therefore must be proved ; but in the case
of injuries arising from collisions or other similar
occurrences, if the vehicle is at the time of the injury
being done under the control of the carrier, negligence
is in-imd facie presumed from the very circumstance,
and the onus of proof will be in the first place on the
carrier to explain and show that there was really no
negligence on his part (w). In many cases of injuries
to passengers, the carrier is not liable because the
injury cannot be properly said to be caused by his
negligence, for he does not in any way warrant a
passenger's safety, and when he has done everything
that prudence can suggest, an accident may still
happen ; thus there may be some latent defect in the
vehicle which causes the accident, and which it was
impossible, with the exercise of all due care, caution,
(r) Moreton v. Hardcrn, 4 B. & C. 223.
(5) Merri/ioeather v. Nixon, 2 S. L. C. 569 ; 8 T. R. 186 ; see also
ante, p. 319, and exception there mentioned as occurring under the
Directors' Liability Act, 1890 (53 & $4 Vict. c. 64, s. 5).
(() Ante, p. 138.
(w) Flannery v. Waterford and Limerick Ry. Co., Ii Ir. Reps. (C. L.)
30. As to what will be evidence of negligence, see Slattery v. Dublin,
ti-c. Ry. Co., 10 Ir. Reps. (C. L.) 256, affirmed in House of Lords, Ir.
Reps. 2 Q. B. D. Apps. 319.
OF TORTS AEISING PECULIARLY FROM NEGLIGENCE. 417
and skill, to have discovered (x). On the other hand,
with regard to any injury which can be shown to
have happened to a passenger directly by reason of the
carrier's negligence, the carrier is liable ; e.fj. if a rail-
way company's servants put a known lunatic, or a
known biting dog, or men known to be drunk or
quarrelsome, into a carriage with one of the ordinary
public who is injured thereby (?/). But the injury
that occurs to a passenger must be connected with
the negligence complained of, for if it cannot be so
connected, then the damage is too remote. Thus in a Cobb v. at.
recent case the plaintiff claimed damages for the loss
of money stolen from his person while travelling in a
train of the defendant railway company, founding
his claim on two grounds, viz. : firstly, negligence on
the part of the railway company in not detaining the
train when requested to do so, in order to enable
the plaintiff to give the men into custody and have
them searched ; and secondly, negligence in permitting
overcrowding, and thus facilitating the hustling and
robbery of the plaintiff. The House of Lords held that
the railway company was not liable (z).
Although a person, therefore, has always had a right Actio person-
of action for an injury done to him through the negli- cumpersond.
gence of another, yet, if the injury was so extreme
as to actually cause his death, the person guilty of or
responsible for the negligence escaped from his lia-
bility to an action, upon the principle that it was an
(x) Redhead v. Midland Ry. Co., L. R. 2 Q. B. 412 ; Ibid. 4 Q. B.
379. As to the warranty that is implied when a vehicle is let out
that it is fit for the purpose, see Hyman v. Nye, 6 Q. B. D. 685. See
also as to implied warrants ante, pp. Ill, II2.
(2/) Per Smith, L.J., in Pounder v. North- Eastern Ry. Co., (1892), I Q.
B. 385 ; 61 L. J. Q. B. 136 ; 65 L. T. 679.
(z) Cobb V. Great Western Ry., {1893), I Q. B. 459 ; 62 L. J, Q. B. 336 ;
68 L. T. 483. The decision in the earlier case of Pounder v. North-
Easlern Ry., supra, is on the same point, but it may well be doubted if
the principle was rightly applied in that case, and in Cobb v. Great
Western Ry. Lords Selborne and Morris expressed their dissent from
the decision in Pounder v. Nortli- Eastern Ry.
2 D
41 8 OF TORTS ARISING PECULIARLY FRO:\[ NEGLIGENCE.
action personal to the individual, and he having died,
there was no one to maintain it, the right to bring it
having ended with his decease ; the maxim being. Actio
2Krsonalis onoi'itur cum pcrsojid (a). The law upon this
point has, however, been altered by an Act intituled
" An Act for compensating the families of persons
killed by accidents," and generally known as Lord
Campbell's Act (h).
Provisions of By that Act it is enacted : " That whensoever the
bell's Act^' death of a person shall be caused by wrongful act,
0^5°^'*^*' neglect, or default, and the act, neglect, or default is
such as would, if death had not ensued, have entitled
the person injured to maintain an action and recover
damages in respect thereof, then and in every such case
the person who would have been liable if death had
not ensued shall be liable to an action for damages,
notwithstanding the death of the person injured, and
although the death shall have been caused under such
circumstances as shall in law amount to a felony " (c).
Time for bring- Every sucli actiou, the Act provides, shall be brought
° ' ' 'by the executor or administrator of the person deceased
within twelve calendar months after the death of such
deceased person (d) ; and shall be for the benefit of the
wife, husband, parent (which term is to include father,
mother, grandfather, grandmother, stepfather, and step-
mother), and child (which term is to include son,
daughter, grandson, granddaughter, stepson, and step-
daughter) of the deceased (e). Only one action is to be
brought in respect of the same subject-matter of com-
(a) See Broom's Legal Maxims, 855 et seq.
(b) 9 & 10 Vict. c. 93, amended by 27 & 28 Vict. c. 95. The provi-
sions of these Acts constitute the great exception to the maxim, Actio
persanalis moritur cum persona ; but see other exceptions, ante, pp.
323, 355. See also now the Employers' Liability Act, iSSo, 43 & 44
Vict. c. 42, post, pp. 422-426.
(c) 9 & 10 Vict. c. 93, s. I.
(d) Sects. I, 2, 3.
(c) 9 & 10 Vict. c. 93, ss. 2, 5. The expression "child" does not
include an illegitimate child {Dickinson v. North-Eastern Ry. Co., 33
L.J. Ex. 91).
OF TOKTS ARISING PECULIAELY FROM NEGLIGENCE. 4^9
plaint (/ ), and the plaintiff must deliver to the defen-
dant, or his solicitor, full particulars of the person or
persons for the benefit of whom the action is brought,
and of the nature of the claim in respect of which
damages are sought to be recovered. All damages
awarded, after deducting any cosst not recovered from
the defendant, are to be divided amongst the before-
mentioned relatives in such shares as shall be found
and directed by the jury {g).
The provision, however, that the action must be Ameudment of
^ , . . the Act by 27
brought by the executor or admmistrator has been & 28 vict. c.
amended by a subsequent statute {h), which provides ^^"
that if there shall be no executor or administrator of
the deceased, or if the action is not brought by such
executor or administrator within the first six of the
twelve months allowed, then it may be brought in the
name or names of all or any of the persons for whose
benefit the executor or administrator would have sued.
And it has been held that an action cau, under this
provision, be maintained by any of such persons, though
brought w^ithin six calendar months of the death, if
there be at the time no executor or administrator of
the deceased {i).
An action cannot be maintained under Lord Camp- no action
bell's Act where the deceased, if he had survived, ^ecetLd's re-
would not have been able to recover : so that where presentatives
if he could not
a person entered into a contract with a steam-packet have sued,
company, under which he became a passenger, and
which contract provided that the company should not
be liable for injuries happening from perils of the sea
or default of a pilot or master, and the ship came into
collision with another vessel and the passenger was
drowned, it was decided that, as he could not have
recovered for any injury had he lived, neither could his
(/) 9 & 10 Vict. 0. 93, s. 3.
{y) Sect. 4.
[h) 27 & 28 Vict. c. 95, s. I.
(i) Holleran v. Barjndl, 4 L. R. Ir. 740.
420
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
Contributory
negligence.
No action can
be brouglit if
the deceased
has durinj;
his lifetime
received
compensation.
Injury from
train over-
shooting
platform.
personal representatives sue in respect of the damage
caused by his death (k).
All the general rules of law which govern ordinary
actions for negligence by the person actually injured,
apply to this kind of action ; so that, for instance,
where by reason of the person's contributory negli-
gence (l) he could not have himself maintained any
action, neither can his representatives (m). If the
deceased has during his lifetime brought an action and
recovered damages for the injury done to him, or has
made some arrangement with the causer or causers of the
injury for compensation to him, and received satisfac-
tion thereunder, no action can be brought under Lord
Campbell's Act, for that statute does not give any new
cause of action, but merely substitutes the right of the
representatives to sue in place of the deceased (n).
If a person travelling by rail, thinking, on the train
stopping, that it has arrived at his station and that he
should therefore alight, does so, and by reason of its
having overshot the platform, or otherwise, he is
thereby injured, the company are liable if he had
fair reason for believing that it was at the station,
and that he might and ought to get out (o). And
even if the passenger sees the danger, but is justified
in believing that the train is about to move on with-
out being backed, or without any official coming to his
assistance, he is justified in descending, using due care,
and if he is injured the company may be liable (p).
(k) Hai'jh V. Royal Mail Steam Packet Co., 52 L. J. Q. B. 640 ; 49
L. T. 802 ; 48 J. P. 230.
(Z) Contributory negligence is dealt with post, pp. 434-438.
{m) Watling v. Oastlcr, L. R. 6 Ex. 73 ; see judgment in Pryor v.
Great Northern By. Co., 2 B. & S. 767.
(h) Read v. Great Eastern Ry. Co., L. R. 3 Q. B. 555 ; 16 W. R.
1040. As to the damages recoverable in an action under Lord Camp-
bell's Act, see post, p. 459.
(0) Foy V. London, Brighton, and South Coast Ry. Co., t8 C. B.
(N. S.) 225 ; Cockle v. South- f astern Ry. Co., L. R. 5 C. P. 457 ; L. R.
7 C. P. (Ex. Ch.) 331 ; Robson v. North-Eastern Ry. Co., 2 Q. B. D. 85 ;
46 L. J. Q. B. 50 ; 25 W. R. 418.
(jp) Robson V. North-Eastern Ry. Co., supra.
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 42 1
It lias been pointed out (q) that a person is fully A master was
liable for the acts of those whom the law denominates liabie^fOT^an
his servants, under the maxim, Qui facit per alium facit a^iervanrbV
per se, but to this rule there has been until lately one another
,.,,.■,,.,, ,. servant acting
very important exception, which stiii exists to a certain in a common
extent, viz. that if the person injured was also a servant employment.
acting in the course of a common employment with the
servant guilty of negligence, here the master was under
no liability (r). The reasoning upon which this ex- Reason of this,
ception was founded was this : that the servant in
entering on his employment saw and contemplated all
the risks he would or might run, and agreed to include
them all in his wages, and also that he has identified
himself with the other servants acting in the common
employment ; so that just as where an injury to a
servant has happened through his own negligence he
can have no remedy against his employer, so although
the injury does not happen to him but to his fellow-
servant, yet it is just the same (s). In all such cases
as this, however, it is manifestly the duty of the master
to provide competent fellow-servants and proper tackle
and machinery for the servants to work with, and in so
far as he fails in doing this, and through his not doing
so the injury occurs, he will be as liable as if the
person had been a stranger (t).
The words " common employment " used in the The servants
, .-,, T 1 • 1 1 2.1 must, how-
precedmg paragraph will have been noticed by the ever, be acting
student, and from them he must understand that if, empioyinent.
although the persons are fellow-servants, yet they are
not acting in the course of a common employment,
i.e. are not employed in duties of something of the
(5) Ante, p. 409.
(r) Priestlji v. Fowler, 3 M. <fe W. i ; Winterhottom v. Wright, 10 M.
& W. 109 ; Tunney v. Midi and Ry. Co., L. R. i C. P. 290.
(s) See Hutchinson v. Yo7-Jc, d-c. Ry. Co., 5 Ex. 351 ; Bartonshill
Coal Co. v. Reid, 3 Macq. H. L. Cases, 266 ; Lovell v. Howell, I C. P.
D. 161 ; 45 L. J. C. P. 387.
{t) Ibid. ; Wilson v. Merry, L. R. I Scotch App. 326 ; Roberts v.
Smith, 26 L. J. Ex. 319 ; Senior v. Ward, 18 L. J. Q. B. 139.
422
OF TORTS ARISING PECULIARLY FROM NEGLIGE^X■E.
like nature, the exception will not apply, and the
master will still be liable (w). But though servants
may occupy totally different grades, yet they may be
properly said to be acting in a common employment
if engaged in or about the same thing ; thus, in a
recent case it was held that the master of a ship
is engaged in a common employment with the seamen
on board (x).
Provisions of
Employers
Liability Act,
Sect. I.
However, this former important exception of liability
has now, to a great extent, been done away with by
the Employers Liability Act, 1880 (y), which provides
that where, after ist January 18S1, personal injury
is caused to a workman (:;) by reason of: (i) Any
defect in the condition of the ways (a), works (h),
machinery (c), or plant (d) connected with or used in
(m) Smith V. Stcecic, L. E. 10 Q. B. 125 ; and see Wilson v. Merry,
L. R. I Scotch Apps. 326 ; Lovc/l v. Howdl, i C. P. D. l6l ; 45 L. J.
C. P. 3S7 ; Conway v. Belfast Ry. Co., II Ir. Reps. (C. P.) 345 ; see also
Johnson v. Lindsay, (1891), A. C. 371 ; 65 L. T. 97, in which case it
was held that if a contractor sublets a portion of his work under
the contract, the sub- contractor is liable for an injury caused by one
of his workmen to a workman of the original contractor.
(x) Ilcdiey v. Pinhicy d- Son's Steamship Co., ( 1S94), A. C. 222 ; 63 L.
J. Q. B. 419 ; 70 L. T.630.
(y) 43 & 44 Vict. c. 42.
(z) As to the meaning of the expression " workman," which is very
wide, see sect. S, which provides that it shall include a railway servant
and any person to whom the Employers and Workmen Act, 1875 (3^
& 39 Vict. c. 90, s. 10), applies. An omnibus conductor has been held
not to come within this description (Morgan v. London General Omnibus
Co., 13 Q. B. D. S32 ; 53 L. J. Q. B. 352 ; 51 L. T. 213 ; 32 W. R. 759).
See also Stuart v. Evans, 3 1 W. R. 706 ; 49 L. T. 1 38 ; Brown v. ButtcrHy
Co., 53 L. T. 964 ; Bound v. Lawrence, (1892), i Q. B. 226 ; 61 L. J.
M. C. 21 ; 65 L. T. 844.
(rt) See M'Gifin v. Palmer's Shiphuildituj Co., 10 Q. B. D. 5 ; 52 L.
J. Q. B. 25 ; 47 L. T. 346 ; 31 W. R. 118.
(b) This means works already completed, and not works in course of
construction [Howe v. Finch, 17 Q. B. D. 187 ; 34 W. R. 593).
(c) This includes original unsuitability of machinery [HesJce v.
Samuclson, 12 Q. B. D. 30 ; 53 L. J. Q. B". 45 ; 49 L. T. 474 ; Criprs
V. Judge, 13 Q. B. D. 582 ; 53 L. J. Q. B. 517 ; 51 L. T. 182 ; 33 W.
R. 35 ; Puley v. Garnctt, 16 Q. B. D. 52 ; 34 W. R. 295). It also
includes a machine which, though effective, is dangerous to the
workman using it {Morgan v. Hutchins, 59 L. J. Q. B. 197 ; 38 W. R.
412).
((/) See Yarmouth v. France, 18 Q. B. D. 647; 57 L. J. Q. B. 7,
where a horse was under the circumstances held to be "plant."'
OF TORTS AKISING PECULIARLY FRO:\r NEGLIGENCE. 423
the business of the employer (c) ; (3) The negligence
of any person in the service of the employer who has
any superintendence entrusted to him whilst in the
exercise of such superintendence (/); (3) The negli-
gence of any person in the service of the employer to
whose orders or directions the workmen at the time of
the injury was bound to conform (g), and did conform,
where such injury resulted from his having so con-
formed ; (4) The act or omission of any person in the
service of the employer done or made in obedience to
the rules or bye-laws of the employer, or in obedience
to particular instructions given by any person delegated
with the authority of the employer in that behalf (h) ;
(5) The negligence of any person in the service of the
employer who has the charge or control (i) of any
signal-points, locomotive engine, or train upon a rail-
way (Jc) — the workman, or in case the injury results
in death, the legal personal representatives of the
workman, and any persons entitled in the case of
death, shall have the same right of compensation and
remedies against the employer as if the workman had
not been a workman of, nor in the service of, the em-
ployer, nor engaged in his work (/). This enactment
(e) See, as to what will or will not be such a defect, Thomas v.
Quarter maine, 18 Q. B. D. 685 ; 56 L. J. Q. B. 340 ; 57 L. T. 537 ; 35
W. R. 555.
(/) See Shaffers v. General Steam Navigation Co., lO Q. B. D. 356 ;
52 L. J. Q. B. 260 ; 48 L. T. 22S ; 31 W. R. 556 ; Osborn v. Jackson,
II Q. B. D. 619 ; 48 L. T. 642 ; Kellard v. Roolce, 21 Q. B. D. 367 ;
57 L. J. Q. B. 599 ; 36 W. R. 875.
(fj) As to this expression see Bunker v. Midland Ry. Co., 31 W. R.
231 ; 47 L. T. 476 ; Mihvard v. Midland Ry. Co., 14 C^. B. D. 68 ; 54
L. J. Q. B. 282 ; 52 L. T. 255 ; 33 W. R. 366 ; Wild v. Wayyood, (1892),
I Q. B. 783 ; 61 L. J. Q. B. 391 ; 65 L. T. 710.
{h) See Whatlcy v. Jlolloivay, 62 L. T. 639.
{i) See Gibbs v. G. W. Ry. Co., 12 Q. B. D. 208 ; 53 L. J. Q. B. 543 ;
^o L. T. 7 ; 32 W. R. 320 ; Cox v. G. W. Ry. Co., 9 Q. B. D. 106 ; 30
W. R. 816.
{k) This has been held to include a temporary railway laid down by
a contractor for the purpose of the construction of works (Doughty v.
Firbank, lo Q. B. D. 358 ; 52 L. J. Q. B. 490 ; 48 L. T. 530) ; but a
steam-crane fixed on a trolly, and propelled by steam along a set of
rails when it is desired to move it, has been held not to be a locomotive
engine within the meaning of the above provisions [Murphy v. Wilson,
52 L. J. Q. B. 524 ; 48 L. T. 788).
[l) 43 & 44 Vict. c. 42, s. I.
424 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
Proviso by is, howevei, subject to this proviso, i.e. that a workman
shall not be entitled to any right of compensation or
remedy against the employer in any of the following
cases, viz.: (i) Under provision above numbered (i),
unless the defect therein mentioned arose from, or had
not been discovered or remedied owing to the negli-
gence of the employer or of some person in the service
of the employer, and entrusted by him with the duty
of seeing that the ways, works, machinery, or plant
were in proper condition ; (2) Under provision above
numbered (4), unless the injury resulted from some
impropriety or defect in the rules, bye-laws, or in-
structions therein mentioned ; provided that where a
rule or bye-law has been approved of or has been
accepted as a proper rule or bye-law by one of Her
Majesty's Principal Secretaries of State, or by the
Board of Trade, or any other department of the
Government under or by virtue of any Act of Par-
liament, it shall not be deemed to be an improper
or defective rule or bye-law ; (3) In any case where
the workman knew of the defect or negligence which
caused his injury, and failed within a reasonable time
to give, or cause to be given, information thereof to
the employer or some person superior to himself in
the service of the employer, unless he was aware that
the employer or such superior already knew of such
defect or negligence (wi). If a servant, knowing of
any defect, and appreciating the danger and the
risk (n), yet consents to encounter them, and con-
tinues to work, and by reason of the defect is injured,
no action lies against the employer, upon the principle
Volenti non fit of Volenti noTi fit injuria. Mere knowledge of a risk,
however, is not suflficient to make this principle of
Volenti non fit injuria apply, but there must be a
consent shewn, though such consent may be inferred
from the course of conduct, so that it is by no means
(m) 43 & 44 Vict. c. 42, s. 2.
{n) See Brooke V. Ramsden, 63 L. T. 2S7.
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 425
always easy to apply the principle to particular cases (0).
"Where a defect consists of the omission by the employer
of a duty imposed upon him by statute for the protec-
tion of his servants, the master must, however, always
be liable {2^).
The amount of compensation that can be recovered Amount ro-
under this Act is limited to such sum as may be found ^Jde^of ^ ^°
to be equivalent to the estimated earnings during the procedure,
three years preceding the injury of a person in the
same grade employed during those years in the like
employment, and in the district in which the workman
is employed at the time of the injury {q) ; but this
provision does not lay down a measure of damages,
but simply limits the maximum damages recover-
able (r). Any action under the Act nmst be brought
in the district County Court, but may, upon the ap-
plication of either plaintiff or defendant, be removed
into the High Court (s).
To entitle a person to maintain an action under this Notice of
Act, notice of the injury must be given within six weeks '"•'"^^'
of its happening, and such notice must give the name and
address of the person injured, the cause of the injury, and
the date at which it was sustained, and it must be served
on the employer or sent by registered post. Such notice,
however, is not to be deemed invalid by reason of any
defect or inaccuracy therein, unless the judge who tries
the case is of opinion that the defendant in the action
is prejudiced thereby in his defence, and that the defect
(o) Smith V. BaJcer, (1891), A. C. 325 ; 60 L. J. Q. B. 6S3 ; 65 L. T,
467 ; Tarmouth v. France, iS Q. B. D. 640 ; 57 L. J. Q. B. 7. The
case of Thomas v. Quartermaine, 12 Q. B. D. 685 ; 56 L. J. Q. B. 340 ;
57 L. T. 537, must be considered as overruled by Smith v. Baker {supra).
ip) Baddeley v. Granville, 19 Q. B. D. 423 ; 56 L. J. Q. B. ^oi ; Kj
L. T. 268 ; W. R. 63.
iq) 43 & 44 Vict. c. 42, s. 3.
(r) BorticJc v. Jlead, Wriijhtson <£• Co., 34 W. R. 102 ; 53 L. T. 909.
(s) 43 & 44 Vict. c. 42, s. 6. It lies upon the party making such
application to shew distinctly that the case comes within the statute
{Hanrahan v. Limerick Steamship Co., 18 L. R. Ir. 135).
426 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
or inaccuracy was for the purpose of misleading (t).
Thus, where the date of the injury was omitted from the
notice, and the judge was of opinion that the defendant
was not prejudiced by the omission, and that it was
not for the purpose of misleading, it was held that
this omission did not render the notice invalid (21).
Tinaefor xhe action must be commenced within six months
action. from the injury, or, in case of death, within twelve
months from the death. In case of death, however,
the omission to have given such notice is to be no bar
to the institution of the action if the judge shall be
of opinion that there was reasonable excuse for such
want of notice (.7;). It has been held that the notice
must be in writing (y).
Workmen may It has been decided that a workman can lawfully
contract them- .... • i i
selves out of contract witli his employer that neither he nor his
*^ ■ representatives will claim compensation under this
Act (z).
2. Negligence Nuisanccs existing from negligence cause injury to
causing injury „ , , ,
to property property even more Irequentiy than to the person ;
'*"^^' thus, the neglect to cleanse drains, sewers, &c., beyond
the injury they may do to health, may also materially
depreciate the value of surrounding property ; the
neglect to clean chimneys or to repair ruinous houses
may do great injury to property, and many instances
of a like character might be enumerated.
Liability from Although there may be no obligation as between a
omission to re- ■, t, ^ ti- , • ^ i ' i
pair property, landlord and his tenant to repair the demised premises,
yet it is the duty of the landlord so to act as to protect
the public at large, and if he lets the house get into
{t) 43 & 44 Vict. 0. 42, ss. 4-7.
(«) Carter V. Brysdale, I2 Q. B. D. 91 ; 53 L. J. Q. B. D. 537 ; 32
W. R. 171.
(x) 43 & 44 Vict. c. 42, ss. 4-7.
(y) Mmjle v. Jcnlins, 8 Q. B. D. 1 16 : 51 L. J. Q. B. 112. See as
to what may be a sufficient notice in writing, Thomson v. Boicrtson, 22
Sc. L. R. 97.
(z) Gri^iths v. Earl of Dudley, 9 Q. B. D. 357 ; 51 L. J. Q. B. 543.
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 427
such a ruinous condition that it, or some part of it, falls
down, he is liable, not only for the injury that may be
done to persons, but also for the injury done to neigh-
bouring houses («) ; unless, indeed, he has demised the
premises to a tenant, and at the time of the demise they
were not either faulty or ruinous, but have been allowed
to become so by the tenant, on whom the obligation
to repair rested during the continuance of the original
demise (h). And this has recently been decided to
be equally the case as regards a weekly tenancy, as
it is a letting that continues until determined by
notice to quit (c). With regard to premises let out
to different persons, as flats, chambers, or offices, it
has been held that the common landlord is liable for
injuries caused to any person properly coming to
the premises, by reason of the non-repair or other
defect of a general staircase or passage, by which
access to the different flats, chambers, or offices is
obtained (d).
Every man has a right to the lateral support of his Right to the
neighbour's land to sustain his own land unweighted by adjoining land
buildings, and if buildings have been notoriously sup- °^' buildings,
ported by neighbouring land or buildings for a period
of twenty years, then a privilege is gained in the nature
of a prescriptive right, and, quite irrespective of any
negligence, the owner of the supporting land or build-
ings will be liable if he so deals with his own property
as to deprive the buildings of their support, and cause
them to fall or be otherwise injured (e). In the case,
however, of twenty years not having so elapsed, then
(a) Todd V, Flight, 30 L. J. C. P. 31.
(6) Robhins v, Jones, 33 L. J. C. P. i ; Cliauntlct v. HoMnson, 4 £x.
163.
(c) Bowen v. Anderson, (1S94), I Q. B. 164 ; 42 W. R. 236.
(d) Miller v, Hancock, (1893), 2 Q. B. 177 ; 69 L. T, 214 ; 41 \V. E.
578.
(e) Dcdton v. Angus, 6 App. Cas. 740 ; 50 L. J. Q. B. 689 ; 30 ^^.
R. 191 ; Bower v. Peate, i Q. B. D. 321 ; 45 L. J. Q. B. 446 ; 35 L.
T. 321 ; ante, p. 315 ; Latimer v. Official Co-operative Society, 16 L. R.
Ir. 305.
428
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
ihere can be no such extensive right to the support of
the neighbouring land unless there is a grant of such
right either express or implied — e.g. would be the case
where a man grants part of his land specially for build-
ing purposes (/) — and the owner thereof cannot there-
fore be compelled to leave sufficient land to support
the buildings. But although this is so, yet it is clearly
his duty in dealing with his land to act very carefully,
and to give the owner of the buildings notice of his
intention, so that the latter may have an opportunity
of shoring up his buildings, or doing other acts for
their protection ; and in so far as he fails in acting
carefully, and giving such warning, he will be liable
for negligence {g).
Rights when a
house is let to
different
persons.
Where different floors of a house are let to different
persons, each must so act as not to injure the other ;
and if one places more weight in his rooms than the
floor can bear, or could be expected to bear having
reference to the purpose for which the premises were
let, and it accordingly gives way, and does injury to
property of a person below, he is liable (A).
Liability
arising from
allowing
fences to
become
defective.
If a person on whom any obligation rests to keep
up a fence or wall negligently allows it to become
defective, he is liable to any injury happening, e.g.
by cattle straying and getting killed. There is not,
generally speaking, any obligation on a person to
fence out his neighbour's cattle for his neighbour's
protection, but railway companies are under this obli-
gation as regards land adjoining the railway {i). And
although a person, or a railway company, may be under
an obligation to keep up a fence or a wall, and there-
(/) Righy v. Bennett, 21 Ch. D. ^59 ; 4S L. T. 47 ; 31 W. R. 222.
{g) Dodd V. Bobne, i A. & E. 506 ; Jotics v. Bird, 5 B. & Aid. S37 ;
and see 18 & 19 Vict. c. 122, s. 94.
(A) Manchester Bonded Warehouse Co. v. Carr, 5 C. P. D. 507 ; 49
L. J. C. P. S09 ; 43 T^- T. 476.
(i) Arite, p. 325, and note («) ; 8 & 9 Vict. c. 20, s. 68.
OF TOUTS ARISING PECULIARLY FEOM NEGLIGENCE. 429
fore liable to injuries to cattle straying through the
negligent state of the fence or wall, yet such liability
does not extend to cattle not properly on the land,
but trespassing thereon (k). If through a person's
negligent keeping of his own fences his horses or
cattle stray on to the highway and do injury, he is
not liable unless they were vicious to his knowledge (l) ;
but if they stray on to adjoining property and do
injury, he is always liable (m).
Although, if a collision occurs in the public streets, if ca collision
it is clearly the duty of the owner of an overturned pubUc Itreets,
vehicle to take steps to remove the obstruction, and ^^^ ^'^^^^'
, -n 1 Til -e 1 Tin must remove
ne will be liable if he negligently allows it to remain the obstruc-
there, yet the same rule does not apply to ships. If ?s°not soln the
a vessel, through a collision or otherwise, without anv ^p-seof coiii-
^ , ■' sions at sea, if
fault or negligence on the part of the person having the obstmct-
control of it, sinks, there is no duty or obligation Lbanlouedf
thrown upon the owner to take steps to prevent its
being an obstruction to the navigation of other vessels,
but he may abandon it and leave it there (?i). If,
however, the vessel is not abandoned, but the owner
exercises acts of control over it, e.g. by attemptino-
to raise it, or by sending divers down, or otherwise
endeavouring to get up part of the cargo, then this
principle does not apply, for a vessel may just as much
be in a man's control under water as above water, and
in this case it is his duty to act with all due care and
prudence, in just the same way as it was his duty
when the ship was afloat to act with all due care and
prudence in navigating it : thus, if he is exercising acts
of control or ownership, he must take steps to mark
out the place where the ship has sunk, so that it may
(Jc) Manchester, <£r. Eij. Co. v. Wallis, 22 L. J. C. P. 85.
(l) Cox V. Burbidge, 32 L. J. C. P. 89.
(?«,) Lee V. Riley, 34 L. J. C. P. 212. Distress damage feasant may
also be taken for injury done to chattels upon the land as well as to the
land itself, but an action for damaores is not maintainable so long as
the distress is detained (Roscoe v. Bodcn, (1894), i Q. B. 608 : 6^ L. J.
Q. B. 767 ; 70 L. T. 450).
(n) Brown v. Mallett, 5 C. B. 599,
430
OF TORTS AEISING PECULIARLY FROM NEGLIGENCE.
be avoided, and if he fails in doing this he is guilty
of negligence, and liable accordingly (o).
Liabilit}' in
respect of
injuries from
negligent or
accidental
fires.
In the case of a fire happening on one person's pre-
mises, and extending and doing injury to his neigh-
bour's, generally speaking tlie person on whose premises
the fire originated was at common law liable in respect
of the damage done. It has, however, been provided
by statute that no action shall be maintained against
any person on whose premises a fire shall accidentally
originate (j)). The law, therefore, now is, that if a fire
happens either through any wilful act, or any negligent
conduct of a person or his servants, he is liable ; but
if the fire really happens through pure accident, and
cannot be traced to any negligent cause, then the person
on whose premises it originated is not rendered liable
by reason of the mere fact that it originated on his
premises (q).
A railway A railway company, authorised by the legislature to
li^birfwan use locomotive engines, is not responsible for damage
from^\1ks°° ^Y ^^^ occasioncd by sparks emitted from an engine
from an engine travelling ou the railway, provided the company has
been no taken every reasonable precaution, and adopted all
reasonable means to prevent such injury, and has not
been guilty of any negligence in the management of
the engine or otherwise (r) ; and the mere fact that
the company has not adopted the latest inventions of
negligence.
(o) Manley v. St. Helen's Canal and My. Co., 2 H. & N. 840 ; see also
judgment delivered by Mr. Justice Maule in Broicn v. Mallett, 5 C.
B. 599.
(j)) 14 Geo. 3, c. 78, s. 86.
Iq) Addison on Torts. See further as to acts done accidentally,
ante, pp. 351, 352.
(j-) raughan v. Taff Vale Ry. Co., 5 H. & N. 679 ; 29 L. J, Ex.
247. As an instance of negligence on the part of a railway company
in such a case, see Smith v. London and South- Western Ry. Co., L. R.
6 C. P. 14 ; 40 L. J. C. P. 21. There the company's servants had
cut wrass on the banks adjoining the line, and raked it into heaps and
left ft there for longer than was necessary. The sparks from a passing
train set fire to the heaps of dry grass, and the fire spread and con-
sumed the plaintiff's house. The company were held to be liable to
the plaintiff.
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE. 43 1
scientific discovery is not sufficient to render it liable (s).
However, with regard to a traction-engine propelled by
steam power along a highway under statutory authority,
the contrary has been held, upon the ground that it is a
dangerous machine, in respect of which an action would
have been maintained at common law, and that there is
no statute restricting this liability (f). But even in the
case of a steam traction-engine, or an electrical tramcar,
or anything of a similar character, run under statu-
tory authority, if an injury that happens is a natural
incident of the exercise of the statutory powers {e.g. a
horse being frightened, or a telephone system interfered
with by the discharge of an electrical current into the
earth), the proprietors are not liable, as such things must
be deemed to have been in the contemplation of the
legislature when it gave its sanction (u). And no action Not for
° ... 1 ii f „ iniury from
will lie agamst a railway company by the owner ot a ^ibi-ation or
house for compensation in respect of injury done to smoke,
the house by vibration or smoke (x), the principle being
that they are only acting in the exercise of their
statutory powers (y).
Waste of that kind called permissive waste con- Waste,
stitutes an injury to property peculiarly arising from
negligence. The subject of waste (which pertains
more particularly to real property) has been already
noticed as far as the scope of the present work
permits (z).
A sheriff is liable for the negligent acts of his Negligence by
officers acting in the execution of their office, and oflScers.
(s) The National Telephone Co. v. Balcer, (1893), 2 Ch. 186 ; 62 L. J.
Ch. 699 ; 68 L. T. 283.
(() Poivell V. Fall, 5 Q. B, D. 597 ; 40 L. J. Q. B. 428 ; 43 L. T. 562.
(«) The National Telephone Co. v. Baker, (1893), 2 Ch. 186 ; 62 L. J.
Ch. 699 ; 68 L. T. 283.
(cc) Hammersmith and City Ry. Co, v. Brand, L. R. 4 Eng. & Ir.
App. 171 ; 18 W. R. 12.
{y) Truman v. London, Brighton, and South Coast Ry. Co., 25 Ch, D.
423 ; 53 IJ- J- Ch. 209 ; 32 W. R. 364.
(2) Ante, p. 334.
432
OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
Wrong
direction
given by
solicitor.
therefore if an officer, having arrested a debtor, after-
wards negligently permits him to escape, or if he
neglects to arrest him in the first instance when he
ought to have done so, or having a writ of fi. fa.
neglects to levy when he should have done so, or
having levied is guilty of any negligence afterwards
in realizing the goods, whereby the judgment creditor
is injured, in all these cases an action lies against the
sheriff for the negligence. But a sheriff is not abso-
lutely liable even for goods he has seized, for some
negligence must be shewn ; thus, where a sheriff seized
under a fi. fa., and then a mob broke in and injured
the goods without fault upon his part, he was held not
liable (a). It is the duty of the officer, on a warrant
being delivered to him, to make all inquiries as to the
whereabouts of the debtor or of his goods, and there
is no obligation on the plaintiff or his solicitor to
furnish him with information and assistance in the
execution of the writ {h). Should the solicitor give
assistance or information, and in fact direct the sheriff
to seize particular goods, this is not within his implied
authority, so as to render his client the judgment
creditor liable for the act, unless indeed it was done
by his (the client's) direct instructions (c). But if all
the solicitor does is to indorse on the /. fa. a statement
that the debtor resides at a certain place, which is
inaccurate, and by reason of it the sheriff is misled
and seizes another person's goods, it has been held that
to make such an indorsement is within the solicitor's
implied authority, and that the client is liable in respect
of the wrongful seizure {d).
Negligence by If a railway company advertises a certain train to
company by arrive or depart at a specified time, and through their
(a) Willis, Winder & Co. v. Comhe, i C. & E. 353.
(h) Addison on Torts, 690. See, as to the measure of damages in
actions against sheriffs, post, Part iii. chap. i. p. 462.
(c) Smith V. Kcal, 9 Q. B. D. 340 ; 51 L. J. Q. B. 4S7.
[d) Morris v. Salherg, 22 Q. B. D. 614 ; 5S L. J. Q. B. 275 ; 61 L. T.
283.
OF TOETS AEISING PECULIARLY FROM NEGLIGE^•CE. 433
negligence considerable delay occurs, whereby a person reason of the
is put to expense or otherwise damnified, he may oTa tralnlit
recover from the company, even although one of the ^^^^"■^p®'^
company's general conditions is to the effect that the
company will not guarantee the punctuality of the
trains ; and under particular circumstances, but not
as a matter of course, a person is justified in taking a
special train, and charging the expense thereof to the
company (e). If, however, a ticket is issued subject
to a condition that the company will not be liable for
loss or inconvenience for delay unless due to wilful
misconduct of their servants, there can be no right of
action unless proof is given of such misconduct, as such
a condition is not unreasonable (/). A company is
justified on special occasions, such as race meetings, in
suspending the running of their ordinary trains, and
puiting on special trains at fares in excess of the
maximum rates allowed by statute for their ordinary
trains (^).
3. In addition to the self-evident defence of a 3- Defences to
simple denial of the negligence alleged, in which the negligence,
matter usually resolves itself into a question for the
jury of yes or no, there may be two other defences of
a rather more complex nature, viz. : ( i ) That the alleged
negligence was really and substantially an inevitable
accident ; and, (2) That there was contributory negli-
gence on the part of the person complaining of the
negligence. As to the first of these two defences,
that of inevitable accident, this might be put down
under the head of a simple denial of the negligence,
for, of course, if it is an inevitable accident there is
(c) Hamlin v. Great Northern Ry. Co., I H. & N. 408 ; Le Blanche v.
London and North-Wcstern Ry. Co., I C. P. D. 286; 45 L. J. (Apps.)
C. P. 521.
(/) Woodgate v. Great Western Ry. Co., 51 L. T. S26 ; 33 W. R. 428.
See also M'Carlan v. North-Eastern Ry. Co., 54 L. J. Q. B. 441.
(g) Lawrie v. London and South- Western Ry. Co., 80 L. T. Newspaper,
120; Law Studeuts' Journal, Jan. 1886, p. 5.
2 E
434 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
no negligence ; but a few words are necessary to point
out what is such an accident, one or two instances of
it, and the distinction between it and an act really
amounting to negligence.
What will and An inevitable accident that will form a defence to
will not be an . . ■<■ i j -i i *.
inevitable an actiou for negligence, may be descnbeu as some act
accident. quite undesigned and unforeseen, and in respect of
which the person committing it has not been guilty
of the slightest particle of negligence (h). Thus, for
instance, a railway accident generally happens through
some negligence on the part of the railway company's
servants, but, as has been pointed out, an accident
may arise in which the ingredient of negligence may
be totally wanting, as by lights being obscured by fog
or snow, or by there being some latent defect in a
wheel or in machinery that no care or foresight could
have discovered (i). So also, if a person being en-
gaged in lawfully shooting game, accidentally and
without any negligence shoots some person, he is not
liable (/.:). But although an act may apparently result
from inevitable accident, yet on close examination
some negligence may often be discovered. Thus, if
A. puts away a gun belonging to him in a proper and
ordinarily secure place, and in some utterly unforeseen
way a child gets possession of it and shoots some one,
this will be an inevitable accident, and there will be
no liability on A.'s part ; but if A. has left his gun in
a place he should not have done, and it is there got pos-
session of by the child and an injury done, here this is
not an inevitable accident, for there is original negli-
gence on A.'s part in thus carelessly leaving it about (/).
{h) Wakeynan v. Hobitismi, I Bing. 213. See Brown's Law Diet. 9,
tit. "'Accident." Of course, the "accident" above spoken of is quite
distinct from accident in equity, in which the Court gives relief in a
limited class of cases against the consequences of an act which has
actually occurred, as to which see Indermaur's Manual of Equity, 177.
(i) Ante, p. 416.
(k) Stanlci/ V. PoiocU, (1S91), I Q. B. S6 ; 60 L. J. Q. B. 52 ; 6j L. T.
S09 ; 39 W. R. 76.
[l) Per Lord Denman in Lynch v. Nurdin, i Q. B. 29.
OF TORTS AKISING PECULIARLY FROM NEGLIGENCE. v|3S
Contributory negligence may be defined as such an Definition of
act of negligence on the part of a person complaining negUgence."^^
of the negligence of another as in reality is the proxi-
mate cause of the injury complained of, and but for
which such injury would not have happened (m), e.g.
if a person negligently walks upon a railway and a instance of
train kills or injures him, here neither he, nor his repre- uegiigence"^
sentatives in the case of his death, have any remedy,
for his own negligent act has been the proximate cause
of the injury.
But as to what will constitute contributory negli- it is not every
, I J 1 • ^-i^' J' • mere act of
gence so as to preclude a plaintiii irom recovering, negligence on
it is not every mere act of negligence on his part that *art^tbat'\fin
will suffice ; for, in the words of our definition, the preclude him
, , , ... .... . from re-
act must be such a one as in reality is the proximate covering.
cause of the injury complained of, and but for which
such injury would not have happened." The mere
fact of there having been negligence on the plaintiffs
part does not justify the defendant in having acted
anyhow, and if, notwithstanding such negligence, the
defendant yet might with reasonable care have avoided
doing the injury, then he had been in reality the proxi-
mate cause of the injury, and is liable accordingly, not-
withstanding the negligence on the plaintiff's part (n).
Thus, to take the instance given above of contributory
negligence by walking on a railway, if the driver of
the train chose to start it although he saw the person
walking there, here, as he might with due care have
prevented the accident, the company would generally
be liable.
If, in an action for injuries alleged to have been Onus on
caused through the negligence of the defendants, the prov'e*'
evidence discloses a state of facts equally consistent negligence.
(m) See per Lord Penzance in Radley v. London and North- Western
Ry. Co., I App. Gas. 759 ; quoted fully in Broom's Corns. 758.
(n) Davies v. Mann, 10 M. & W. 546 (which forms a particularly
good instance of this principle) ; Tuff v. Warman, 2 C. B. (N. S.) 740 ;
Ibid. 5 C. B. (N. S.) 573 ; Mayor of Colchester v. Brooke, L. R, 7 Q. B. 339.
436
OF TOETS ARISING PECULIARLY FKOM NEGLIGENXE.
Wakelin v.
London and
South- Western
Railway
Company.
with negligence un the parts of the defendauts, or con-
tributory negligence on the part of the person injured,
the plaintiff cannot succeed, as the onus is on the
plaintiff to prove negligence. This is shown by the
case of Wakelin v. London and South-Wcsiern Ry.
Co. (o), which was an action by a widow under Lord
Campbell's Act (jy) for damages in respect of the death
of her husband. The husband was found about nine
in the evening dead near a level crossing on the Lou-
don and South- Western Railway, and there was no
doubt that he had been knocked down and killed by
a passing train. The plaintiff proved that the crossing
was peculiarly dangerous owing to a curve in the line,
that the man whom the defendants kept on duty at
the crossing for the protection of the public left at
8 P.M., and that no whistle was blown, on nearing the
crossing, by the engine which appeared to have knocked
down and killed her husband. Beyond this there was
substantially no evidence as to how the catastrophe
happened. The House of Lords held that this evi-
dence was not sufficient to establish that the husband's
death was caused by the defendants' negligence, and
that where there is more than one possible cause of the
accident, the onus is always on the plaintiff to prove
that the operating cause was the one for which the
defendauts would be liable.
A person If a person sees that the way he is taking has been
festiy'danger- rendered manifestly dangerous by the negligence of
c;mnoTrecover ^.uother, as, for instance, if he is driving and some ob-
from the struction has been left in the road, and he yet chooses
person causing • ■, ^ •, •,•■,■ ... i ,i ■
the danger. to riSK the danger, and in doing so is injured, this con-
stitutes contributory negligence on his part, so as to
prevent his recovering (q). And generally it niav be
(o) 12 App. Cas. 41 ; 56 L. J. Q. B. 229 ; 55 L. T. 709 ; 35 W. R.
141.
(p) 9 & 10 Vict. 0. 93, amended by 27 & 2S Vict. c. 95 ; see ante, pp
417,418.
(q) Clayards v. Dethick, 12 Q, B. 439 y^Thompson v. North- Eastern
Ry. Co., 31 L. .7. Q. B. 194.
OF TORTS ARISINCx PECULIARLY FROM NEGLIGENCE. 437
Stated that if the injury complained of is really due
to the plaintiff's omission to use the care which any
reasonable man would have used, this is contributory
negligence (r).
The doctrine of contributory negligence applies The doctrine
equally to a person not competent to take care of "^ T*"^'**"'"^
himself — e.g. a young child — as to an ordinary person, applies to
for though he himself may not have the capacity to be ''^'^'^'^°' '^°'
guilty of what can be styled negligence, yet he is identi-
fied with the person whose duty it was to have taken
care of him, and who has accordingly been guilty of
negligence (s).
In the same way that a master is liable for the Contributory
negligence of his servant, under the maxim, Qui facit °?§iigence
7. /. ., /,x , . } ^ J of a servant.
per ahum, facit per se (t), so the contributory negligence
of the servant will be the contributory negligence of
the master, and prevent him from recovering (u).
Tiiere have been some cases going to shew that this
principle applies to the case of an injury happening to
a person being conveyed in some vehicle — e.g. a ship,
a train, or a stage-coach — and that such person is so
identified with the person having control of the vehicle,
that if the injury to him has occurred through the
contributory negligence of such person, it is the same
as if it had been his (the passenger's) negligence, and
that therefore he cannot recover (x). This, however, is
not now the law, the House of Lords having, in the case
of The Bernina, Mills v. Armstrong (y), definitely laid The Bemina,
it down that there is not necessarily any such identi- AMong.
(r) Bavey v. London and South- Western Ry. Co., 12 O. B D 7o • i;-?
L. J.Q. B. 58; 49L. T.739. ^ ^ -l^'bS
(s) Singleton v. Eastern Counties Ey. Co., 7 C. B. (N. S.) 287 ; Abbot
V. Macfie, 33 L. J. Ex. 177 ; Manyan v. Attcrton, L. R. i Ex. 239.
[t) Ante, p. 409.
(u) Child V. Hearn, L. R. 9 Ex. 176 ; Armstrong v. Lancashire, <L-e.
Ry. Co., L. R. 10 Ex. 47.
(x) Thorogood v. Bryan, 8 C. B. 115.
iy) 13 App. Cas. I ; 57 L. J. P. 67 ; 58 L. T. 423. This case dis-
tinctly overrules Thorogood v. Bryan [supra).
438 OF TORTS ARISING PECULIARLY FROM NEGLIGENCE.
fication. In that case two ships came into collision,
both being to blame, and the questions involved were
whether the representatives of (i) the officer in charge,
(2) the chief engineer, who was ofif duty, and (3) a
passenger, could recover compensation. The Court
held that ( i ) the representatives of the officer in charge,
who was directly responsible for the navigation of his
ship at the time of the collision, could recover nothing,
but that the representatives of (2) the chief engineer,
and (3) the passenger, were entitled to recover.
The doctrine of contributory negligence seems to be
Voientinonfit founded upon, and to proceed from, the maxim, Volenti
vnjuria. ^^^^ ^^ injuria, which substantially means that where
the sufferer is willing, no injury is done ; and the
doctrine of contributory negligence seems a fair ex-
tension of that principle.
OF DAMAGES. 439
PAET III.
OF CERTAIN MISCELLANEOUS MATTERS NOT
BEFORE TREATED OF.
CHAPTER I.
OF DAMAGES.
The subject of Damages has in the preceding pages
been incidentally mentioned, and in this chapter it is
proposed to give it such special notice as the scope
of the present work admits of. We will consider the Mode of con-
subject in the following order: — subject ^^*
1. Damages generally.
2. The measure of damages generally.
3. Damages in some particular cases.
I. The main object of an action is generally to re- r. Damages
cover compensation for the injury complained of, that ^®°®''* ^'
is to say, compensation in respect of some alleged
breach of contract, or for some alleged tort, and this
corapensntion is called damages. Damages, therefore, DeBnition of
have been rightly defined as a pecuniary compensation, damaged.
recoverable by action, for breach of contract or in
respect of a tort (a).
Damages may be either liquidated or unliquidated. Difference
By liquidated damages is meant compensation of a fixed liquidated and
amount agreed and decided on between the parties ; by ||",',ia"ls'^'^^'^
(a) Brown's Law Diet. 15S.
440 OF DAMAGES.
unliquidated damages is meant compensation not so
agreed and decided upon, but remaining yet to be ascer-
tained by the means pointed out by law, i.e. ordinarily
by a jury. Thus, if one person buys goods of another,
and agrees to pay a certain price for them, which he
neglects to do, this is a case of liquidated damages,
for the parties have agreed on the amount to be paid,
which is fixed and certain ; but if in such a case the
person agreeing to supply the goods neglects to do so,
the buyer here has a claim for damages of an unliqui-
dated nature, to be estimated and ascertained by the
proper tribunal according to the recognized rules as to
the measure of damages ; and so, also, it is the same
in all actions of tort, such as libel, slander, and the
like — here the person has a claim for unliquidated
damages.
Persons may But in the casc above mentioned of breach of a con-
si^aii be tract to supply goods, the parties may, and sometimes do,
tiie iiumages. ^^j. ^.j^g j-jj^^^ ^f entering into the contract, consider the
possibility of a breach happening, and provide what shall
be the compensation or amount of damages to be paid
to the injured party (h). If this is done, and there is an
agreement on breach to pay a certain sum actually by
way of agreed and liquidated damages, then that amount
is recoverable (c), even though it may exceed the actual
r,nt the Com c damage sustained (d). In any case such as this, however,
see whether the Court looks at the contract with great care, and
to beTaid"^r'^ the mere fact that the parties have stipulated that on
really liqui- breach a Certain sum shall be paid by way of compen-
dated damages, , • i .1 ^ ^i .i •■,^ 1 • -i
or by way of satiou by the One to the other, will not always entitle
pena ty. ^|^^^ Other to recover the exact amount, and this even
although the parties may expressly stipulate that the
amount agreed to be paid shall be by way of liquidated
damages ; for in many such cases the sum agreed to be
[b) Ward V. Monaghan, 11 T. L. R. 409; 39 Sol. Jl. 4S5 ; Law
Stud. Jl. (1895), iiS.
{r) Price v. Green, 16 M. & W. 346 ; Hinton v. SparTcs, L. R. 3 C. P.
161 ; 37 L. J. C. P. 8.
{(l) In re Earl of Mcxhoroxigh and Wood, 47 L. T. 516 ; 47 J. P. 151.
OF DAMAGES. 44 1
pnid may really be a penal sum, and if it is so, then
the Court will not enforce it, but will relieve against
it (e). The Court, in doing this, does not at all inter- The Court, in
fere with the power that persons naturally must have looks to the
of estimating; their own damages, but what it does is *^"'? mtent
° o ' or the parties.
to seek the real and true intention of tlie parties (/),
not being bound down by the mere words used by
them, but looking at the whole instrument to arrive
at the true construction. Thus, in the case (already
quoted) of Kcmhlc v. Farrcn (o) the defendant had Kemhu v.
engaged with the plaintiff to perform as a comedian
at the plaintiff's theatre for a fixed time at a certain
remuneration, and it was mutually agreed that if either
of the parties should neglect or refuse to fulfil the
agreement, or any part of it, such party should pay to
the other the sum of ;^iooo, which was thereby de-
clared between the parties to be liquidated and ascer-
tained damages, and not a penalty or penal sum, or in
the nature thereof. Yet the Court held that the stipu-
lated sura of ;^iooo was in the nature of a penalty,
and therefore not recoverable, but that unliquidated
damages only were recoverable. It was indeed but a
penalty in the disguise of liquidated damages ; for it
was to be paid on breach equally by either party, and
it was evident that had the breach been by the plaintiff,
the utmost extent of the damage sustained by the de-
fendant would have been the fixed remuneration he was
to be paid during the time agreed upon, and not such
a sum as this. Had this sum been stipulated to be
paid only on breach by the defendant, then, as the
injury suffered by the plaintiff would manifestly have
been of an uncertain nature and amount, the stipulation
might no doubt have been construed as liquidated
damages and good, for the rule has been laid down that
where the damage is entirely uncertain, and the parties
(e) Kemble v. Farren, 6 BinL,'. 141.
(/)Per Keating, J., in Lea v. Whitnhn; L. R. S C. P. 73 ; Wallis v.
Smith, 21 Ch. D. 243 ; 52 L. J. Ch. 145 ; 47 L. T. 389 ; 31 W. H. 214.
(g) 6 Bing. 141.
442 OF DAMAGES.
agree on a definite and not unreasonable sum by way of
liquidated damages, then that sum will be so construed,
and will be recoverable (h).
Effect of Where a sum is expressed in an agreement to be
a^s^ur/agreeif ^ penalty, it will, as a rule, be so considered, and on
to be paid is breach the action must be brought for unliquidated
by way of 01
penalty. damages, and not for the fixed amount (i) ; it has,
however, been held that where the real damages would
be excessively difficult to arrive at, a sum stipulated
to be paid, although mentioned as a penalty, may be
construed and recovered as liquidated damages (A).
Whether a sum agreed to be paid is really a penalty,
or liquidated and ascertained damages, is a question of
law to be decided by the judge upon a consideration
of the whole instrument (I).
Whether more It appears that no more than the amount of penalty
than a named
penalty can be aiid costs Can be recovered on a bond, because the
recovere . penalty ascertains the extreme damages by the consent
of the parties, and upon payment of the penalty and costs
the Court will order satisfaction to be acknowledged ;
but where the penalty is contained in any other instru-
ment than a bond, it is optional for the plaintiff to sue in
default for the penalty, or to proceed upon the contract ;
and if he adopt the latter course, he is not restricted in
the amount that he may recover to the sum named as
the penalty, but may recover a sum exceeding it (m).
Rule where " Where it is doubtful from the terms of the contract
whether whether the parties meant that the sum should be a
{h) Per Coleridge. J., in Reynohls v. Brvlge, 6 E. & B. 541 ; Mercer v.
Jn-in/j, 27 L. J. Q. B. 291 ; Per Jessel, M. R., in WaUis v. Smith, 21
Ch. D. 258 ; 52 L. J. Ch. 149 ; 47 L. T. 389. See further, as to when
a prtivi.-iioti will be cons^trued to be in the nature of a penalty, Protector
Endowment Loan Co. v. Gricc, 5 Q. B. D. 596 ; 49 L. J. Q. B. 812 ; 43
L. T. 564 ; Catton v. Bennett. 51 L. T. 70.
(/) Smith V. Dirkcyison, t. B. P. 630.
(k-) Saintcr v. Ferguson, 7 C. B. 716.
(/) Ibid.
(»i) Mayne on Damages, 241, 242.
OF DAMAGES. 443
penalty or liquidated damages, the inclination of the penalty or
Court will be to view it as a penalty. But the mere damag^es^
largeness of the amount fixed will not per se be sufii- intended,
cient reason for holding it to be so " (n). It is for
the Court to decide, upon a consideration of the whole
instrument, whether a sum stipulated to be paid is a
penalty or liquidated damages, and the principle to
guide the Court is the real intention of the parties, to intention.
be ascertained from the language they have used (o).
Where a sum of money is made payable by instalments,
and there is a provision that upon default of any one
instalment the whole money shall become due, this is
not a penalty (p).
Wherever there has been actually what the law Wherever
nn • •. there has been
considers an injury committed, the party sunermg it what the law
must always be entitled to maintain an action, for ^""fnjury.^^
every injury imports a damage, although it does not t^iere must be
really cost the party anything (q), but, of course, some action for it.
injuries may entitle a person to a very different amount
of damages to what others would. In some cases Differences
clearly the party complaining may have sustained no nominal,
substantial damage, e.g. in the case of a breach of a ^^^^^^1' ^^^
contract to buy goods where the price of the goods has damages,
afterwards gone up, for here there has been no loss
to the vendor, and it will be the duty of the judge
to direct the jury to award only nominal damages (?•).
In other cases proof may be given of an injury possibly
causing some damage, not necessarily nominal, but
which cannot be estimated except by ordinary opinion
and judgment, e.g. in an action against a banker for
not honouring his customer's cheque, where no specific
{n) Mayne cm Damages, 147.
(0) Ibid., 146, 147 ; In re Earl of Mexborowjh and Wood, 47 L. T.
516; 47 J. P. 151.
[p) Per Bramwell and Brett, L.J.. in Protector Endoicvient Loan
Co. V. Grice. 5 Q. B. D. 596 ; 49 L. J. Q. B. 812 ; 43 L. T. 564.
(7) See Ashhy v. White, I S. L. C. 264 ; Lord R ^ymond, 938 ; ante,
pp. 3. 4-
(r) Mayne on Damages, 4, 5.
444 OF DAMAGES.
liarm can be shewn to have resulted (s). In other
cases there are what are called special damages, that
is, substantial and real damage, reasonably or probably
caused by the act of the defendant (t). In our second
division of the subject of damages, the general rules
to be followed by the jury in assessing these special
damages will be noticed (u).
A person who Where a person has suffered injury from the tortious
damages once, ^^t of another, and has brought an action and recovered
cannot bring Jamaecs for it, he cannot, on further damage resulting
another action /-- ' ' ...
in resi>ect of to him from the act, bring another action, for it is all
presumed to have been contemplated in the original
action. Thus, if A. has met with a railway accident,
and recovered damages for it, and afterwards the injury
turns out more serious, still he cannot bring a fresh
action (x).
An action, It has been stated that the main object of an action
though it . Hi i.- r i.1 • •
usually is, IS generally to recover comp>nsation for the injury
need not coniplaiucd of ('/), but this is not invariably so; for
necessarily be ■t^ \^/5 J J
for damages, instancc, an action may be brought for an injunction
against the commission or continuance of some act by
the defendant, such as waste, and although damages
may be claimed for the injury already done, yet some-
times the injunction is what is particularly desired (2).
Two cases in which the action need not mainly be for
Provision of damages may specially be mentioned, viz : (i) Under
Law Procedure the Common Law Procedure Act, 1854 (a), in any
Act^ 1854, action in respect of the wrongful detention of goods or
(s) See as to such actions, jicr Cresswell, J., in Rolin v. Steward, 14
C. B. 605 ; Larios v. Gurety, L. R. 5 Priv. C. 346 ; Marzetti v. WUUnms,
I B. & A. 415 ; Morris v. London and Woftminster Bank, I C. & E.
498 ; Broom's Corns. 83, 84.
(t) Broom's Corns. 942.
(!/) Post, pp. 446-45.V,
(.t) Per Best, U.J., Richardson v. Mellish, 2 Bing. 240.
{y) Ante, p. 439.
[z) An injunction may be granted by any division of the High Court
of Justice.
(a) 17 i& 18 Vict. c. 125, s. 78.
OF DAMAGES. 445
chattels, the plaiutiff may, on a verdict being given for
him, apply to the Court or a judge to order execution
to issue for the return of the particular goods, with-
out giving to defendant the option of retaining them
on paying their value, and the Court may, at discre-
tion, so order (b). (2) Under the Sale of Goods Act, Provision of
1893 (c), the Court has power to order the specific ^^^^t^^ 1893°° *
performance of contracts for the sale of goods. This ^- s^-
provision has already been referred to in a previous part
of this work (d).
A person agaiust whom damages are awarded is, Liability of an.
of course, liable to have the judgment fully enforced admiuistrator
against him by execution ; but in the case of an executor "^ ^^ action.
or administrator defendant, although he is personally
liable for the costs, yet he is not for the damages, but
only his testator's or intestate's estate, unless he has
set up some defence he knew to be false, when on
default of the estate he will be personally liable. He
will, however, be personally liable to the fullest extent
when he has in writing, for valuable consideration,
agreed to pay his testator's or intestate's debt (e), e.g.
where, in consideration of the creditor forbearing to
take proceedings for the administration of the estate
by the Court, the executor promises personally to see
him paid, or when he is sued on some contract he has
himself entered in to, e.g. where he gave instructions
for the funeral, he will be personally liable. If an
(6) See also <intc, p. 355.
(c) 56 & 57 Vict. c. 71, s. 52.
(rf) Ante, p. 109. Prior to the Acts mentioned above, Courts of Law
had no power of giving specific delivery of chattels. But the Court of
Chancery had long had such a power, though only when the chattel
_^as of some special and peculiar value, for which damages would not
compensate (see Pusei/ v. Pusey, and Duke of Somerset v. Cookson, I
White & Tudor"s Leading Cases in Equity, 820, 821, and notes). It
will be observed that the statutory powers given to the courts of law
are quite irrespective of any special or peculiar value in the chattel.
Under the Judicature Act, 1873, any division of the Court can give
specific delivery of chattels, either under these Acts or on the principle
of special and peculiar value formerly acted on by the Court of
Chancery.
(c) Ante, pp. 49, 50.
446 OF DAMAGES.
executor or administrator sues and fails, he will be
liable for costs in the same way as an ordinary plain-
tiff, unless the Court otherwise orders (/).
Assessment of Damages are, generally speaking, assessed by a jury,
amages. ^^^ wheu they are really and substantially a matter
of calculation — e.g. in cases of complicated accounts
between the parties that cannot be conveniently dis-
posed of by a jury in the ordinary way — they may
be referred for assessment to one of the Masters of
the Court, or to an official or special referee. In all
cases in which damages are to be assessed (whether
at the trial or on an inquiry or reference after inter-
locutory judgment), they are calculated not merely
down to the date of the issuing of the writ, but down
to the date of the assessment {g).
2. The measure 2. Jurics in Essessiug damages are bound by certain
of damages established and recognized rules, which are pointed
generaJly. ° , . ,
out to them by the judge in summmg up the case,
which rules constitute the scale or measure of damages
in an action. Some of these rules equally apply
whether the action is founded upon contract or upon
tort, and some particularly to each class of action.
Damages must The first and most important rule which applies to
not be too ^Yi actions is, that the damages must not be too remote,
remote. ' °
but must be the natural and probable result of the
defendant's wrongful act {h). " Damage is said to be
too remote when, although arising out of the cause
of action, it does not so immediately and necessarily
flow from it as that the offending party can be made
responsible for it " (i).
One or two illustrations will explain what is meant
(/)3&4 Wm. 4, c. 42, s. 31.
(g) Order xxxvi. rule 58.
(h) See per Patteson, J., in KeUy v. Partington, 5 B. & A. 645.
(i) Mayne on Damages, 47.
OF DAMAGES.
447
by this rule, and, firstly, as an instance of its appli- what is meant
cation in an action of contract, we may take the ^^ *^^^"
important case of Hadleij v. BaxendaU (k), which it ffadiey v.
has been said was a case intended to settle the law ■^''=^^"'"^«-
upon the subject (l). In that case the facts were
shortly as follows : The plaintiffs were mill-owners, and
one of the mill shafts being broken, they sent a ser-
vant to the office of the defendants, who were common
carriers, who informed the clerk at their office that
the shaft must be sent at once, the mill being stopped
for want of it, and the clerk told him in reply that
if it were sent any day before twelve o'clock it would
be delivered the following day. Accordingly the shaft
was entrusted to the defendants to carry, and the
carriage paid, but through the defendants' neglect it
was not delivered in the proper time, and the work-
ing of the mill was therefore stopped for several days.
The plaintiffs contended that in estimating the damages
the jury should consider not merely what it would have
cost to have procured another shaft, but that the loss of
profits caused by the stoppage of the mill should be
taken into account ; but the Court decided that this was
not so, for that the rule is, that the damages in respect
of breach of contract must be such as may fairly and
reasonably be considered as either arising naturally
from the breach, or to have been in the contemplation
of both parties at the time they made the contract, as the
probable result of the breach of it. Here the mere fact
of what the servant had told the clerk, in the absence
of any express or implied contract on the carrier's part
that special diligence should be taken on that account,
was not sufficient to make this loss of profits damages
that might reasonably be expected to flow from the
breach. With regard to this case, it should also be
mentioned that, even had the person who delivered the
(^•) 9 Ex. 343. See also Thol v. Henderson, 8 Q. B. D. 41:7; 46
L. T. 483. 't^/ , 4
(I) Per Pollock, C.B., in Wilson v. Newport Dock Co., L. R. i Ex.
i8q.
448
OF DAMAGES.
Difficulty of
api>liuatioM of
tlic rule as to
shaft then informed the carriers that loss of profits
would ensue from any delay, they would not thereby
have been liable in respect of such loss of profits,
because, being common carriers, they were bound to
receive the shaft to carry. The rule that damages
must not be too remote is, indeed, in cases of this
remoteness of kind, most difficult of application, and it is very hard,
if not impossible, to reconcile all the decisions in which
the fact of notice or knowledge of some special cir-
cumstances has been held sufficient to render damages
arising from it recoverable as not being too remote,
and different rules have been laid down upon this
point ; thus in one case : " The damages are to be
what would be the natural consequences of a breach
under circumstances which both parties were aware
of " (in) ; but this rule would appear too wide viewed
by the side of the following one : " The knowledge must
be brought home to the party sought to be charged,
under such circumstances that he must know that the
person he contracts with reasonably believes that he
accepts the contract with the special conditions " {n).
Correct rule. Tlie corrcct rulc appears to be, that where there
are any special circumstances connected with a con-
tract which may cause special damage to follow if it
is broken, mere notice of such special circumstances
given to one party will not render him liable for the
special damage, unless it can be inferred from the
whole transaction that he consented to become liable
for such special damage, and that if the person has an
pption to refuse to enter into the contract, but still after
such notice enters into it, this will be evidence that
he accepted the additional risk in case of breach (o).
(m) Per Blackburn, J., iu Cory v. Thames Iromvorks Co., L. R. 3
Q. B. 186
(n) Per Willes, J., in British Columbia Saiv-mills v. Nettleship, L. R.
4 C. P. 509.
(0) ]\Iayne on Damages, 41 ; and see the case of Hadley v. Baxendale,
and subsequent cases on the subject collected and dealt with in Mayne
on Damages, 10-42.
OF DAMAGES. 449
The case of Kelly v. Partington (p) furnislies cinKeiii/v.
illustration of the rule against remoteness of damages, •''^'■'"'^'<'*'-
arising in an action of tort. That was an action by
a servant for slander, the words not being actionable
in themselves, and the plaintiff sought to prove as
damages the fact that in consequence of the slander
a third person had refused to employ her, which he
otherwise would have done ; but the Court held that
as the words which were made use of were not such
as would have naturally led to such a result, such
damages were too remote. So, to take another in-
stance, in Sharp v. Powell (q) the facts were, that tlie sharp v.
defendant's servant wrongfully washed a van in a ^'^^'''^'^•
public street, and the water ran down a gutter, and
would have run down a drain had it not been ob-
structed by ice, of which fact he was not shewn to be
aware. As it was, the water spread over the road and
formed a sheet of ice, on which the plaintiff's horse
fell and was injured. It was held that the defendant
was not liable for this damage, as it was not the
natural consequence of his servant's act, for in the
ordinary course of events the water might have been
expected to properly pass away.
In actions on contract the measure of damages does in actions ex
not depend upon the motives which led the defendant moti "eVof t'L
to break the contract, for, however evil his intention t^efendant
cannot atiect
may have been in breaking it, that fact cannot be t-l^e damnges.
taken into consideration. Thus, the defendant may,
from motives of annoyance, or even worse, have
refused to pay a debt due until actually compelled to
do so, yet all that can be recovered is the amount of
the debt, with interest in some cases (r), which will
presently be noticed. To this rule, however, there is
ip) 5 B. & A. 645.
(.7) L. R. 7 C. P. 253 ; 41 L. J. C. P. 95 ; 20 W. R. 584 ; see also
Miller v. David, L. R. 9 C. P. 126 ; Chamberlain v. Boyd, 11 Q. B. D.
407 ; 52 L. J. Q. B. 277 ; 48 L. T. 328 ; 31 W. R. 572.
(r) Mayne on Damages, 43-44.
2 F
450
OF DAMAGES.
Except in
breach of
promise of
iiianiaKe.
one exception, viz. an action for breach of promise of
marriage, which, though strictly speaking an action on
a contract, yet so strongly pertains to a tort, that the
motives of the defendant in committing the breach,
and his conduct, are often a most important point, as
also his position in life (s). lu this action, tlierefore,
the principles stated in the next paragraph will gene-
rally apply.
Dut it is
otherwise in
actions ex
delicto.
In actions of tort, the motives of the defendant in
committing the tortious act are all-important, for in
such actions any species of aggravation will give ground
for additional damages (/). Tiius, if two assaults are
committed, the one perhaps unintentionally, or at any
rate liastily, or under circumstances of a somewhat ex-
cusable nature, and the other premeditated and fully
intended, and perhaps accompanied with insulting or
opprobrious expressions or other circumstances of
aggravation ; in the latter case very much heavier
damages will be given than in the former, although
practically the plaintiff may not have sustained any
greater or more substantial injury than in the other
case. Instances might be multiplied to any extent,
for almost every action of tort will be found to con-
stitute an instance in itself more or less striking.
A jury, therefore, in assessing damages in tort, are
governed by far looser principles than in contract (it) ;
and in many cases of tort the jury are justified in
giving damages quite beyond any possible injury sus-
fctions^Jx" '"^ '^aiiied by the plaintifi; on the ground that the action
is brought to a certain extent as a public example,
and damages, when so awarded, are styled exemplary
or vindictive damages {x). As an instance of this
I;Ooser prin-
ciples are
observed in
awarding
damages in
actions ex
contractti.
Vindictive
damatres.
(s) Mayne on Damages, 43.
(t) Ibid. 45.
(«) Ibid. 45, 46.
(x) Buckle V. Money, 2 Wils. 205 ; Fahriyas v. Mostyn, 2 W. Bl. 929 ;
Emblem v. Myers, 30 L. J. (Ex.) 71 ; Bell v, MidZand Ry. Co., 30 L. J.
(C. P.) 273.
OF DAMAGES. 451
an action for seduction may be particularly men-
tioned (y).
It was formerly laid down as a rule in actions of Although it
tort, that not only must the damage be the natural ^^conl^ered,
and probable result of the defendant's act, but also that Ull^'^^^J^y
the ivrongful act of a third person, even although it that damages
might be the natural and probable result of the de- should be the
fendant's act, could never be taken into consideration quenc*eTorthe
in assessing the damages against the defendant, or, in defendant's
other words, that damages must be the natural and legal
consequence of the defendant's act {z). The practical
working of this rule may be well illustrated by an
extreme case. Suppose that the defendant had slan-
dered the plaintiff openly before a number of people,
by using words leading them to believe the plaintiff
guilty of some such disgraceful action that they might
naturally have been expected to set upon him and ill-
use him in consequence of their belief in such words,
as by putting him in an adjacent pond ; and suppose
this to have been not only what might have been
expected, but also what actually occurred, yet as
such an act was, of course, an unlawful one on the
part of such third persons, it could not have been
taken into account by the jury in estimating the
amount of the damages, as though under the circum-
stances the natural, it was not the legal consequence
of the act («). This former rule was manifestly unjust,
and must now be taken as clearly not law (b).
(y) Per Wilmot, C.J., in TulUdge v. Wade, 3 Wils. 18. As to actions
of seduction, see ante, pp. 400-405.
{£) Vicars v. Wilcoclcs, 2 S. L. C. 577 ; 8 East, I ; Morris v. Langdale,
2 B. & P. 284.
(a) See per Lord Wensleydale, in Lynch v. Knight, 9 H. L. Cas.
577.
(6) Lynch v. Knight, 9 H. L. Cas. 577 ; Knight v. Gihhs, I A. & E.
43 ; Green v. Button, 2 C. M. & R. 707 ; Lumley v. Gye, 22 L. J. Q. B. 463
(the facts of which latter case are set out ante, pp. 405, 406) ; iPMahon
V. Field, 7 Q. B. D. 591 ; 50 L. J. Q. B. 552 ; 45 L. T. 381 ; Frangaise
des Asphaltes v. Farrell, I C. & E. 563 ; notes to Vicars v. Wilcoclcs,
2 S. L. C, 580-609, and cases cited and referred to ; Mayne on
Damages, 75.
452 OF DAMAGES.
A\nien interest In actioDS on Contract interest may properly he
awarded by the jury as increasing the amount of the
damages in some cases, though not in all, for the law-
does not allow interest unless the right to it is given
by statute, or contract, or the law merchant (c), though
it may also sometimes be recovered as damages for the
wrongful withholding of money (d). That interest is
allowed in the case of bills of exchange and promissory
notes has been noticed in considering those instruments
(c) ; also interest may, of course, be recovered where
there has been an express contract to pay it, or where
a contract can be implied to that effect, as from the
custom of a banking-houso, known to the defendant,
or where it has been paid in like previous trans-
actions between the parties ; also where a bill or note
has been agreed by the defendant to be given for a
debt, and not given, the plaintiff may recover interest
from the time it would have become due if given,
because then it would have itself carried interest (/).
Provision of It lias also been provided by statute (jj), that upon all
c. 42 a/us.^' debts or sums certain, payable at a certain time or
otherwise, the jury, on the trial of any issue, or on
any inquisition of damages, may, if they shall think
fit, allow interest to a creditor at a rate not exceeding
the current rate of interest, from the time when such
debts or sums certain were payable, if such debts or
sums be payable by virtue of some written instrument
at a certain time, or if payable otherwise, then from
the time when demand of payment shall have been
made in writing, so as such demand shall give notice
to the debtor that interest will be claimed from the
date of such demand until the time of payment (h).
It is also provided that the jury on the trial of any
(c) In re Gosinan, 17 Ch. D. 771 ; 50 L. J. Ch. 624 ; 29 W. R. 793.
(d) Webster v. British Empire Life As&urance Co., 15 Ch. D. 109 ;
49 L. J. Ch. 769 ; 28 W. R. 818.
(e) Ante, p. 191.
(/) MajTie on Damages, 156-158.
(g) 3 & 4 Win. 4, c. 42.
(h) Sect, 28.
OF DAMAGES. 453
issue, or on any inquisition of damages, may, if they
shall think fit, give damages in the nature of interest
over and above the value of the goods, in actions for
wrongful conversion or trespass to goods, and also over
and above all money recoverable on policies of insur-
ance made after the Act (i).
A judgment of the High Court carries interest at interest on
4 per cent, from its date (/.•), and where costs are given jebt.'"^"
by a judgment or order and taxed, interest on such
costs runs from the date of the judgment or order,
and not merely from the date of the taxing-master's
certificate (/). A County Court judgment does not
carry interest (m).
There are some few cases in which it has been pro- Double and
vided by statute that double or treble damages shall daViif-es.
be recoverable, e.g. in the case of a wrongful distress
for rent where no rent was actually due, the party
so wrongfully distraining forfeits double the value of
the chattels distrained on, together with full costs of
suit (n).
3. Damages in every particular case depend mores. Damages in
or less on the general rules as to the measure of trj^far cases.
damages laid down in the preceding pages.
AVhere, on a contract for the sale of land, it turns Damages
out that the vendor has no valid title to convey to the a^purcimser ^
purchaser, naturally the latter has a right of action °^ breach of a,
r ' J o ^ contract to
ajiainst the former, and he is entitled to recover as his sell land.
{i) 3 & 4 Wm. 4, c. 42, s. 29. See hereon Webster v. British Empire
Mutual Life Assui-ance Co., 15 Ch. D. 169 ; 40 L. J. Ch. 769 ; 28 W. R.
818.
(h) I & 2 Vict. c. no, s. 17.
[1) Re London Wharfinr/ arid Warehousing Co., 54 L. J. Ch. I137 ;
30 W. R. 836 ; 53 L. T. 1 12 ; Taylor v. Eoe, (1894), I Ch. 413 ; 63 L.
J. Ch. 282 ; 70 L. T. 232.
(m) Meff. V. Lssex County Court Judge, 18 Q. B. D. 704 ; 56 L. J.
Q. B. 315; 57L. T. 643; 35W. R. 511.
(n) 2 Wm. &. M., sess. i, c. 5, s. 5.
454
OF DAMAGES.
damages any expenses lie has properly incurred in in-
vestigating the title, and also, if he has paid a deposit,
such deposit and interest thereon (o), but he is not
entitled to recover anything for expenses incurred
purely on his own behalf and not actually necessary,
e.g. surveying the estate, nor any expenses he has
incurred before the proper time fur doing so, e.g. the
preparing of the conveyance in anticipation of matters
being all right ( i)). This rule appears to be an absolute
one if the action is simply for damages for breach of the
contract; but there may be circumstances justifying
an action for fraud and deceit, which will enable the
purchaser to recover substantial further damages, as
where the vendor knew he had no title and no means
of acquiring it {q).
In an action against a purchaser of land for refusing
to complete as he should have done, the damages that
]nirc}.aser for \j[^q plaintiff is entitled to recover are not the full price
refusing to ^ ii^iiiiti
«omiiiete. agreed to be paid, or the value of the land, but the
loss he has actually sustained by the defendant's breach
of contract, which will in most cases be the expenses
the plaintiff' has been put to, and any special incon-
venience he has suffered, and the difference between
the price agreed upon and the sum produced on a re-
sale (r). Under the ordinary stipulation, that if the
purchaser fails to comply with the conditions of sale
the deposit shall be forfeited to the vendor, the vendor
is entitled to forfeit it on such an event (s) ; this does
not, however, preclude him from bringing an action
Damages
recoverable
agaiust a
(o) Mayne on Damages, 198.
(p) Ibid. 199.
(q) Flurcau v. ThornJiiU, 2 W. Bl. 1078 ; Bain v. Futhcrgill, L. R.
7 H. L. 158 ; 43 L. J. Ex. 243 ; Rowe v. School Board for London, 36
Ch. D. 619 ; 57 L. T. 1S2, The old case of Hopkins v. Grazebrooke, 6
B. & C. 31, is overruled by Bain v. Fothergill (supra), and the case of
Eiigd V. Fitch (37 L. J. Q. B. 145) must be considered a doubtful
authority, and is questioned in Bain v. Fothergill (supra). It is there-
fore safest to consider Fngel v. Fitch as not being a binding authority,
and that the law is correctly stated above.
(r) Laird v. Fijm, 7 M. & W. 474.
(s) Hinton v. Sparkcs, L. R. 3 C. P. 16 1.
OF DAMAGES. 455
against the vendee also, but if he does so, the amount
of the deposit will be taken into account in calculat-
ing the damages {t).
"Where an action is during the continuance of a Damages
lease brought by the landlord for breach of a cove- a^acUon by"
nant to repair, the measure of damaijes is generally «- landlord
11 , ... , ."^ , ° . "^ for breach of
considered to be the real injury that has been done to a covenant to
the reversion (?/) ; but if the lease has actually expired, "^^P*^'^-
then the measure of damages will ordinarily be what it
has cost, or would cost, to put the premises in proper
repair in accordance with the covenant (x).
In the case of trespass or other injury done to land. Damages for
the actual occupier of it is naturally the person entitled o^iamf may
to brin<T an action, but if the iniury is one of a perma- sometimes
•^ ' J ^ -^ be recovered,
nent nature, that tends to depreciate the value of the both by the
inheritance as well as the immediate ownership, not the^rev^er*'^
only may the occupier sue, but also the reversioner (y), s^o^er.
which has been well instanced by the case of injury
done to trees, where the occupier would have his right
of action in respect of the loss of shade from them, and
the reversioner for the loss of the timber (2). And if
the reversioner would have a right of action for dam-
ages in respect of the injury done to his reversion,
ordinarily he may also sue for an injunction to restrain
the doing of the act, but he must shew that his rever-
sionary property has been or will be injured (a).
With regard to a contract for the sale and purchase Damages
of goods, the Sale of Goods Act, 1893 (&), provides f^-^^^^^"
(«) Ocl-endenv. Henly, 27 L. J. Q. B. 371.
(w) Mayne on Damages, 263 ; Wkitham v. Kershaiv, 16 Q. B. D. 613 ;
34 W. B. 340 ; 54 L. T. 124. See also and compare the recent case of
Abbctts V. Conquest, (1895), 2 Ch. 377.
(x) Mayne on Damages, 267.
{y) Jesser v. Gifford, 4 Burr. 2141.
[z) See Bcdingfidd v. Onslow, 3 Lev. 209. See ante, p. 322.
(a) Cooper v. Crabtree, 19 Ch. D. 193 ; 51 L. J. Q. B. (Apps.) 544.
(6) 56 & 57 Vict. c. 71.
456 OF DAMAGES.
purchaser of that on breach of it by the purchaser the measure of
breach of damages is the estimated loss directly and naturally re-
coiitnict. suiting in the ordinary course of events from the buyer's
breach of contract, and that where there is an available
market for the goods in question the measure of damages
is p^md facie to be ascertained by the difference be-
tween the contract price, and the market or current
price at the time when the goods ought to have been
accepted by the buyer, or, if no time was fixed for
acceptance, then at the time of the refusal to accept {c).
But if there is not merely a contract for the sale of
goods, but the property in them has actually passed
to the purchaser {d), although they may not have been
delivered, here the vendor may usually recover the full
amount of the price agreed to be paid by the pur-
chaser (c).
Damages The Sale of Goods Act, 1893, i^lso provides that on
hrealw'* ""^ the breach of a contract for tlie sale and purchase of
contract to goods bv a Seller in not delivering them, the measure
(leu ver goods. » •' . 1 1 i ■ i i n
of damages is the estimated loss directly and naturally
resulting in the ordinary course of events from the
seller's breach of contract, and that where there is
an available market for the goods in question, the
measure of damage is 2^^'i'^^^'^f' facie to be ascertained
by the difference between the contract price and the
market or current price of the goods at the time when
they ought to have been delivered, or, if no time was
fixed, then from the time of refusal to deliver (/).
If, however, the goods are of such a kind that they are
not procurable in the market, or not at or about the
time of the breach, then some other evidence must be
given to shew what their value was at the time when
the contract was broken ; and a variety of circum-
(c) 56 & 57 Vict. c. 71, s. 50.
{d) As to when the property in goods passes, see ante, pp. 93-98.
(e) 56 & 57 Vict. c. 71, s. 50.
(/)Sect. 51.
OF DAMAGES. 457
stances may be looked at to arrive at an answer to the
question, Wliat was the article worth at the time ? (y)
Then, ascertaining in some way that value, the measure
of damage is the difference between the contract price
and such value. A buyer cannot recover the loss of
profit which he would have made by carrying out a
contract for re-sale at a higher price, made in the
interval between the first contract and the time for
delivering (h). This rule applies equally in the case
of the sale of an unmanufactured article (i). Still,
the price that would have been obtained on a re-sale
may be evidence of the value of the goods (Z). And,
notwithstanding the rule above stated, where a chattel
is purchased for a particular purpose of which the
vendor knows, and for which he expressly sells the
article — e.g. to enable the purchaser to carry out a Case of sub-
sub-contract — on breach, loss of profit may be recovered
as well as any damages the purchaser may have to pay
through not carrying out his contract (/).
"With regard to an action for the breach of any Damases
warranty on a sale of goods, the Sale of Goods Act, cases of breach
1893, provides that the measure of damages is the ^'^ "*^^"'''^"*y"
estimated loss directly and naturally resulting in the
ordinary course of events from the breach of warranty,
and that in the case of breach of warranty of quality
the loss is primd facie the difference between the
value of the goods at the time of delivery to the
buyer, and the value they would have had if they had
answered to the warranty {m). This of course means
that this is the measure of damages where the goods
{g) Mayne on Damages, 181, 182.
(h) Ibid., 177. See also, as shewing that the general rule may be
departed from in some cases through the conduct of the defendant
himself, Ogle v. Earl Vane, L. R. 3 Q. B. 272.
{i) Tredegar Iron and Coal Co. v. Giclgud, i C. & E. 27.
(k) Stroud V. Austin, i C. & E. I19 ; Mayne on Damages, 183.
(l) Hydraulic Engineering Co. v. McIIaffie, L. R. 4 Q. B. (Apps. ) 670 ;
27 W. R. 221 ; Hamilton v. Magill, 12 L. ]!. Ir. 186 ; Ortbert-Borgnis
V. Nugent, 15 Q. B. D. 85 ; 54 L. J. Q. B. 51 1.
{"O56& 57 Vict. c. 71, s. 53.
458
OF DAMAGES.
Damages
recoverable
agiiinsfc a
carrier for
delay.
have not been returned ; and ordinarily the purchaser
has no right to return them (n), but he may have such
a right by express agreement, or the seller may assent
to their being returned. In such cases as this, if the
buyer has not paid the price, then, if he has not suf-
fered any special injury, he will be entitled to nominal
damages only, and if he has paid the price and
suffered no injury beyond that, then the measure of
damages will be the price paid (o).
If a carrier is guilty of delay in carrying either
passengers or goods, he is liable for the natural conse-
quences of his neglect. Thus, where the contract is
to carry a passenger, a failure to do so entitles him to
procure another conveyance, if it was reasonable so to
do, and to charge the carrier with the expense of the
substituted conveyance, and with all other expenses
necessarily and properly incurred {j))- ^s regards
the carriage of goods, where the result of the delay is
absolutely to destroy them, if their nature was known
to the carrier, the whole value is recoverable ; and in
the case of goods sent by land, which are or may be
supposed to be consigned for immediate sale, the de-
faulting carrier is liable for any diminution in their
value caused by a fall in the ordinary market price.
But in the case of goods sent by a long sea-voyage,
no such ground of damage is allowed, but only interest
on the invoice price of the goods is recoverable ; and
the carrier can never be liable for loss of profit on some
special contract lost through the delay in carriage,
unless such special contract was communicated to him,
and he had contracted to be answerable for such special
damage (cj).
With regard to actions against a carrier of passen-
(n) Ante, pp. 109, no.
(0) Mayne on Damages, 191.
(p) Ibid. 298, 299.
(2) Ibid. 299, 300.
OF DAMAGES. 459
gers for some personal injury caused by the defendant's Damages
T ,1 e ^ • i. • i.1 recoverable
negligence, the measure of damages consists in the against a
substantial iniury the plaintiff has suffered by the '^^^"^^ "^^
0 J L ^ >i passengers.
expenses of his cure, his loss of time and consequent
injury to his business, and his inability to continue
that business, and the general pain and discomfort
he has been put to (r) ; and the fact of the plaintiff
having through an insurance received compensation
for his accident cannot be set up by the defendant in
reduction of damages (s).
With regard to actions brought under the provisions Damages
of Lord Campbell's Act (t), the rule has been stated to Campin's
be " that the damages should be calculated in reference ^^t.
to a reasonable expectation of pecuniary benefit, as of
right or otherwise from the continuance of the life " (u),
which means that the jury cannot speculate on mere
probabilities of advantages that might possibly have
ensued to the persons for whose benefit the action is
brought, nor can they look to the grief caused such
persons by the death, but they may consider the fair
loss of comforts and conveniences to such parties
through the death, for this is fairly within the pecu-
niary loss for which the action is brought (.i"). And
in -calculating this pecuniary loss the jury may con-
sider any reasonable probabilities of pecuniary benefit
capable of being estimated in money, c.^. that the
deceased, who had been in the habit of contributing
towards the support of a relative, for whose benefit
the action is brought, would have continued to have
(r) Mayne on Damages, 453, 454, and see, as to how far this principle
will be extended, Armsicorth v. South- Eastern By. Co., 11 Jur. 760;
Phillips V. London and South- Western Ry. Co., 5 C. P. D. 280; 49
L. J. C. P. 233 ; 42 L. T. 6.
(s) Yates v. White, 4 B. N. C. 2S3 ; Bradhurn v. G. W. By., 44 L. J.
Ex.9.
(t) 9 & 10 Vict. c. 93, as to the provisions of which see ante, pp.
418, 419.
(m) Per cur. FranMin v. South-Eastern By. Co., 3 H. & N. 211. See,
as a recent illustration of the above rule, Harrison v. London and
North- Western By. Co., i C. & E. 540.
(x) Franklin v. South-Eastern By. Co., 3 H, & N. 211
460
OF DAMAGES.
Damages
recoverable on
breach of
contract to
lend money.
Damages
recoverable
iu actions for
trespass, or
otht-r injury
to land.
Damages
recoverable
in respect of
nuisances.
done so (//). It has been held that the jury cannot
give damages in respect of the funeral expenses, there
being nothing in the Act to justify their so doing (z).
The ordinary damages recoverable for breach of a
contract to lend money are any excess of interest, and
any additional costs and expenses properly incurred, but
where special damage results from the breach of the
agreement, and the party is deprived of the opportunity
of getting money elsewhere, these circumstances may
also be considered, and substantial damages awarded iu
respect of them (a).
In an action for trespass or other injury to land,
the general measure of damages is tlie diminished
value of the land (h) ; and in cases of trespass, where
no real injury has been sustained, and there are no
special circumstances of aggravation, nominal damages
only will be given. If, however, there are any circum-
stances of aggravation, or the trespass has been com-
mitted after notice not to trespass, exemplary or
vindictive damages may be given, quite beyond any
real injury that the plaintiff has sufTered (c).
In cases of nuisances where no substantial injury
has been done, if it is the first time that an action
has been brought in respect of the nuisance, nominal
damages generally will only be given ; but if it is a
second or subsequent action for the continuance or
re-occurrence of the same nuisance, exemplary damages
may be given with a view to compelling its removal (d).
In any action the plaintiff may also obtain an injunc-
(2/) Dalton V. South-Eastern Ry. Co., 27 L. J. C. P. 227 ; Pym v.
Great Northern Ry. Co., 2 B. & S. 767 ; 4 B. & S. 396.
{z) Dalton v, South-Eastern Ry. Co., 27 L. J. C. P. 227.
(a) Manchester and Oldham Banh v. Cook, 49 L. T. 674.
(6) Jones v. Gooday, 8 M. & W. 146.
(c) Merest v. Uarvey, 5 Taunt. 442. As to trespass to land, see ante,
pp. 320-328.
{d) Battishill y. Reed, 25 L. J. C. P. 290.
OF DAMAGES. 46 1
tion, either in addition to or instead of damages (c). whenarever-
Not only the actual occupier of lands, but also the tl^ln'^ja.nin^es. '
reversioner may obtain damages if the nuisance is of
a permanent nature (/).
In actions for breach of promise of marriage the Damages in
only rule that can be given is that temperate and breach of"^
reasonable damages should be awarded, the iury promise of
o } d J marriage.
fairly considering the grief caused by the breach, and
the probable pecuniary or social loss sustained by
the plaintiff; but any evil motives of the defendant,
or circumstances of aggravation, may be taken into
account.
The damages to be awarded the plaintiff in an action Damages in
for assault and battery (g) must always depend on the assluit ami
circarastances of the case. In the case of a simple and battery, ami
■"■ lalse 1111-
somewhat excusable assault, nominal damages only will piisonment.
generally be given, but exemplary damages may be
given if there has been any special injury, or the
assault has been attended with circumstances of insult,
or has been premeditated. In actions, too, for false
imprisonment (h) the damages must depend on the
same principles (1).
In actions for malicious prosecution (/.•) damages may Damnges
be awarded not only in respect of the actual pecuniary [rrJt^ons^for
loss the plaintiff may have been put to in defendin2 'n=''icious
,.,.,.. , prosecution.
himself, but also m respect of the injury done to his
character (I).
The damages recoverable against a witness who has
(e) 21 & 22 Vict. c. 27. This statute was repealed by 46 & 47 Viot.
c. 49, but its principle is preserved by sect. 5 [Saycrs v. Collyer, 28 Ch.
D. 103 ; 54 L. J. Ch. I ; 51 L. T. 723 ; 33 W. R. 91).
(/) See as to nuisances, ante, pp. 329-334.
{g) As to which see ante, pp. 356-365.
(h) As to which see ante, pp. 365-376.
(i) Mayne on Damages, 457.
{h) As to which see ante, pp. 376-379.
{I) Mayne on Damages, 447.
462
OF DAMAGES.
Damages
recoverable
against a nou-
attending
witness.
Damages
against a
slieriff for
negligence
executing
process.
been served with a subpcena, and whose reasonable
expenses have been tendered, consist of a penalty of
£10, and such further sum as may be awarded for the
injury or loss sustained by the party who subpoenaed
him (m). If, through the non-attendance of the witness,
the party gets the trial postponed, the proper measure
of damages will be the expenses of going down to the
trial and of getting it postponed, and all costs inci-
dental to such postponement.
In an action against a sheriff (n) for having by his
negligence allowed some person arrested by him for
debt to escape, although formerly the damages re-
coverable against him were the full amount of the
debt, yet this is not always so now, for the measure of
damages is the value of the custody of the debtor at
the time of his escape ; that is, if he was reasonably
or probably able to satisfy the debt, the full amount
will be awarded, but if he had no means, or very
slight means of doing so, then the damages will be
very much less. And if the plaintiff has by his con-
duct prevented the defendant from retaking the debtor,
or has in any way aggravated or increased his loss,
this will naturally affect the amount to be recovered (0).
In an action against a sheriff for negligence in not
having levied on goods when he might and ought to
have done so, the damages recoverable are not neces-
sarily the full amount of the debt for which the levy
ought to have been made, or the full value of the
goods ; but the real measure of damages is the benefit
that the plaintiff would have probably derived from the
levy had it been made (p).
In an action by a servant for wrongful dismissal (q),
(7ft) 5 Eliz. c. 9, s. 12, made perpetual by 26 & 27 Vict. c. 125.
(71) As to which see ante, pp. 431, 432.
(0) Ai-den v. Goodacre, 20 L. J. C. P. 184 ; Macrae v. Clarke, 35
L. J. C. P. 247 ; and see also Mayne on Damages, 439, 440.
(p) ffobson V. Thelluson, 36 L. J. Q. B. 302 ; L. R. 2 Q. B. 642.
(q) As to the subject of master and servant generally, see ante, pp.
226-2^0.
OF DAMAGES. 463
tlie measure of damages is obtained " by considering Damages
what is the usual rate of wages for the employment a^aluoVby a
contracted for, and what time would be lost before a servant for
' ■wroiigiul
similar employment could be obtained. The law con- dismissal,
siders that employment in any ordinary branch of
industry can be obtained by a person competent for
the place, that the usual rate of wages for sucli employ-
ment can be proved, and further, that when a promise
for continuing employment is broken by the master,
it is the duty of the servant to use diligence to find
another employment. If, indeed, the particular employ-
ment could not be again obtained without delay, and if
the wages stipulated for in the contract broken were
higher than usual, the damages should be such as to
indemnify for the loss of wages during that delay, and
for the loss of the excess of wages contracted for above
the usual rate," but nothing beyond this (r). Therefore
it follows that only nominal damages are recoverable
for wrongful dismissal if the servant could have at once
obtained other employment of a similar kind which a
reasonable man would have accepted (s).
(?•) Broom's Corns. 702.
(6^) Macdonndl v. Marsdcn, i C. & E. 2S1.
464
OF EVIDENCE IX CIVIL CASES.
CHAPTER II.
OF EVIDENCE IN CIVIL CASE.?.
]Mo<le of con-
sidering the
subject.
Having in the previous pages discussed the different
rii,'hts that a person has in respect of contracts and of
torts, and the damages to be awarded him in an action
in respect of thera, there necessarily remains to be con-
sidered tlie important subject of the evidence to be
given by a person in our courts in support of the right
that he there sets up. The subject may conveniently
be considered in the following order : —
1. The nature of evidence generally.
2. The competency of witnesses and the admissibility
of particular evidence.
3. Cases of privilege.
4. Some miscellaneous points.
I. As to the
nature of
evidence
generally.
Direct and
indirect
evidence.
I. As to the Tvaturc of evidence generally. Evidence
has been defined as the proof, or mode of proving, some
fact or written document, and in its nature may be
direct or indirect (or, as it is more usually styled,
circumstantial), primary or secondary, and there may
also be admissions which may serve as evidence (a).
By direct evidence is meant some positive or conclusive
proof; by indirect or circumstantial evidence, some
proof from particular circumstances (h). The division
of direct and indirect (or circumstantial) evidence, ap-
plies more particularly to criminal than to civil cases,
and therefore that division will not be further discussed
(a) Brown's Law Diet. 212.
\b) See Brown's Law Diet. 93, tit. " Circumstantial Evidence."
OF EVIDENCE IN CIVIL CASES. 465
beyond explaining the distinction by an illustration.
Thus, let us take the case of a man prosecuted for
murder, the death of the deceased having resulted from
a pistol-shot. Proof by some one who saw the prisoner
fire the shot would be direct evidence ; but if it was
not actually seen, but the prisoner was found near the
spot with a pistol recently discharged in his hand, and
the shot fitted the barrel of the pistol, this would be
indirect or circumstantial evidence that he was the
murderer.
Primary evidence may be defined as the highest kind Difference
of evidence which the nature of the case admits of (c), ^'*''^'° ^^'™-
and secondary evidence as everything falling short of
the best or primary evidence (d). Thus, where at a
trial it is required to prove a certain contract entered
into in writing, the production of that writing itself
is the best or primary evidence, and a copy or merely
parol evidence of what that contract contains is
secondary evidence. It is a rule in every case, subject Primary
to some exceptions, that the best or primary evidence possible! must^
must be given (e) ; thus, in our instance of proof re- ^® °^^®°-
quired to be given of a contract that has been entered
into, if it is in the power of the party requiring to prove
it, to produce the original contract, he must do so, for
if he can, then he is not permitted to give proof of it
otherwise than by the very contract itself. " The rule Reason of the
is founded on the presumption that if inferior evidence ^^ '^'
is offered when evidence of a better and more original
nature is attainable, the substitution of the former for
the latter arises either from fraud or from gross negli-
gence, which is tantamount to fraud. Thus, if a copy
of a deed or will be tendered when the original exists
and is producible, it is reasonable to assume that the
person who might have produced the original, but omits
(c) Brown's Law Diet. 212.
{d) Ibid.
(e) Powell's Evidence, 63.
2 G
466
OF EVIDENCE IN CIVIL CASES.
to produce it, has some private and interested motive
for rendering a copy in its place" (/).
A person
though not
having
primary
evidence in
his own
possession,
must do all he
can to obtain
it.
Notice to
produce.
And although a person may not have the best or
primary evidence actually in his possession or power,
yet if he can by any means cause its production he is
bound to do so {g). This is well shewn by the fact
that if at the trial of an action one of the parties
rests his evidence upon some writing in his opponent's
possession, before he can give in evidence a copy of
it, or parol evidence of its contents, he must give
to the other party a notice to produce the original,
and then, if it is not produced, having done all in his
power to get the best or primary evidence, he is
allowed to give secondary evidence. This notice to
produce is practically given before the trial of nearly
every action, there generally being some documents
in the opponent's possession which the other party
considers ought to be laid before the jury {h).
There are no
degrees of
secondary
evidence.
There are no degrees of secondary evidence ; when
a person has done everything he can to get the best
or primary evidence, and thus entitled himself to give
secondary evidence, it may be of any kind {i). Thus,
if an original writing cannot be produced, the party
may give as secondary evidence either a copy of it, or
oral evidence of its contents, though, of course, in such
a case it would always be preferable to give the copy,
as being, from its greater certainty, entitled to more
credence.
When a
document
requiring to
be proved is
in a third
Although if a person gives his opponent notice to
produce a deed or other document, and this is not
done, he may give secondary evidence of its contents ;
(/) Powell's Evidence, 63.
(f/) Ibid. 396.
(A) As to the notice to inspect and admit usually given before going
to trial, see post, p. 482. See also as to both these notices, Indermaur's
Manual of Practice, 131, 132.
(t) Powell's Evidence, 396, 397.
OF EYIDEXCE IN CIVIL CASES. 467
yet if the document is not in that opponent's possession, person's
but in the possession of a third person, not a party to sw^^ana duces
the action, here his proper course is to issue a suhpcena [g^^^^™"^*^®
duces tecum for such person to attend and produce it.
If on such subpoena the witness refuses to produce
the deed or document in question, that does not entitle
the plaintiff or defendant to give secondary evidence,
unless the witness was under no legal obligation to
produce the document (^•).
There are, however, some exceptions to the strict rule Exceptions to
as to the non-admissibility of secondary evidence, e.g. non-admissi-
the probate of a will (l) ; an office copy of a duly secondary
enrolled bargain and sale (in) ; various documents evidence.
in the case of companies {n) ; and in particular copies
of entries in bankers' books (0). As regards the
last-mentioned, it is provided by the Bankers' Books
Evidence Act, 1879 Q?), that a copy of an entry in Bankers' Books
a banker's book {q) shall in all legal proceedings be 18^9.^ ^^ ° '
received as primCi facie evidence of entries therein,
provided that the book was at the time of the entry
one of the ordinary books of the bank, that the entry
was made in the usual course of business, that the
book is in the custody and control of the bank, and
also provided that the copy is duly proved, either
orally or by affidavit, to be a true copy, by some
person who has examined the copy with the original
entry. In all cases in which the bank is not a party
to the action, the banker or officer of the bank cannot
be compelled to produce his books unless specially
ordered to do so, but this course must be adopted.
If the banker will not voluntarily produce books or
(k) Jesus College v. Gibbs, i Y. & C. 156.
(I) See 750S^, pp. 484, 485.
(m) 27 Henry 8, c. 16.
(n) 40 & 41 Vict, c, 26.
(0) 42 Vict. 0. II.
ip) Sects. 3, 4, 5.
(q) This applies even as regards the accounts of third persons,
strangers to the action {Howard v. Beall, 23 Q. B. D. i ; 58 L. J. Q. B.
384 ; 60 L. T. 637).
468
OF EVIDENCE IX CIVIL CASES.
entries to a party to an action, an order may be
obtained for production, and for liberty to take copies
of entries (r). An application for such an order may
in a proper case be made ex parte, but should ordinarily
be made by summons (s).
Definition of
hearsay-
evidence.
Another kind of evidence that is sometimes, though
not usually, allowed to be given is hearsay evidence,
which has been well defined or described as some " oral
or written statement of a person who is not produced
in court, conveyed to the court either by a witness or
by the instrumentality of a document " {t). If a person
appears in court and himself on oath deposes to a cer-
tain fact, this evidence is at first hand ; but if a witness
appears and deposes that a person told him a certain
fact, or if a writing by some person stating a fact is
produced, this is only at secondhand, and is hearsay
evidence.
Reason of The general rule as to hearsay evidence is that it is
e^'deuce not ^^^^ admissible, upon the ground that it really is not on
Sfttetr""'"^ oath at all, and therefore is not entitled to credibility (w);
so that a witness stating that he was told such and
such a fact is at once stopped, an^ not allowed further
Cases in which to proceed witli that testimony. In some cases, how-
t'vidence is ever, hearsay evidence is, contrary to the general rule,
adnutteti. admitted, apparently upon the principle that were it
not, no possible proof of the matters could be given.
The following are the chief cases in which it is so
admitted : —
I. In matters I. It is admitted in matters of public or general
geneia/*^ °^ interest, though not in any matter of merely private
interest. right {x). Here the fact of a popular reputation or
(r) 42 Vict. c. II, ss. 6, 7, 8, 11.
(s) Davics V. White, 53 L. J. Q. B. 275 ; 32 W. R. 320 ; Arnott v.
Hayes, 37 Ch. D. 731 ; 56 L. J. Ch. 844; 59 L. T. 299.
(t) Powell's Evidence, 157.
(m) Ibid ; Doe d. Didshury v. TJiomas, 2 S. L. C. S4I ; 14 East, 323.
(x) Powell's Evidence, 170-185.
OF EVIDENCE IN CIVIL CASES. 469
opinion upon the matter, or a statement made by
some deceased person of competent knowledge, before
any dispute arose, may be given in evidence, the par-
ticular reason for this being, that matters of public and
general interest are usually of a very ancient date, and
consequently there is a great difficulty in obtaining
direct testimony as to their existence, and also because
a general reputation in a matter in which many are
interested, existing when there was no dispute as to
that right, is likely to be true {y). Thus, traditionary
reputation of boundaries between two parishes may
be given in evidence, for this is a matter of public
and general interest to the persons dwelling there {z).
But it must be clearly borne in mind that this case of
the admissibility of hearsay evidence does not extend
to merely private rights ; thus, evidence of reputation
of a boundary between two estates has been rejected,
because it is a matter which only affects the respective
owners {a).
2. In questions of pedigree hearsay evidence is 2. in matters
sometimes admitted (6). Here, if no better proof ° ^'^ ^^^^'
can be found, evidence may be given of the common
reputation in the family, or of any declaration or
statement of any deceased relatives ; thus, common
reputation in a family to prove who was the ancestor
of a member of it is admissible, or to prove how many
children that ancestor had (c) ; and in a case where
it was desired to prove that a member of the family
had not been married. Lord Ellenborough said, " What
other proof could the plaintiff be expected to produce
that such person had not been married than that
none of the family had ever heard that he was ? " {d).
(y) 2 S. L. C. 548.
{2) See note to Doe d. Didsbury v. Thomas, 15 East, 331.
(a) Ibid.
(5) Powell's Evidence, 193-204.
(c) Bull, N. P., 294, cited 15 East, 294 n. See also Re Perton.
deceased, Pearson v. Attarney-Qenernl, 53 L. T. 707.
(d) Doe d. Banning v. Griffin, 15 East, 293.
470 OF EVIDENCE IX CIVIL CASES.
Under this head, too, entries in old family Bibles or
in Prayer-books have been held admissible in evi-
dence (e), as also has a genealogy made by a deceased
member of the family (/), and inscriptions on tomb-
stones (g).
r.ut a deciara- It is important to observe that a declaration made
heaVmust be ^ by a person under this head must have been made by a
from a relative j-glative either by blood or marriage, and a person who is
marriage. illegitimate is not considered as a relation (A). The
person whose declaration or statement is tendered must
be proved to be dead, otherwise his declaration cannot
be admitted (i). It is not necessary that the declara-
tion or statement should have been made at the same
time as the event happened (k), but it must have been
made before the matter came into dispute. Where in
an action the direct issue between the parties is a
question as to some tolerably recent matter of pedigree,
hearsay evidence is not admitted, but strict proof is
necessary (/).
3. Incases 3. Hearsay evidence is admissible when it forms
parTof the ^ part of the actual transaction (res gcstce) which is the
resgestce. subject-matter of the action (???) ; thus in an action for
assault and battery, words or expressions of intention
made use of by the defendant at the time of commit-
ting an assault may be given in evidence. And where
in an action the legitimacy of the plaintiff was in issue,
a witness was allowed to state the declarations and
conduct of the deceased mother when questioned as
(e) See BerJcelcy Peerage Case, 4 Camp. 401 ; Sussex Peerage Case,
II CI. & Fin. 85. See also In re Lambert, 56 L. J. Ch. 122 ; 56 L. T.
IS-
{f)3fonl-ton v. Attorney-General, 2 Russ. & M. 147.
Ig) Raslnm v. Cron, 19 W. E. 969.
(h) Powell's Evidence, 194.
{{) Butler V. Mountgarret, 7 H. L. C. 33.
{k) Monkton v. Attorney-General, supra; and see In the goods of
Thompson, 12 P. D. 100 ; 56 L. J. P. 46 ; 35 W. R. 384.
(I) Berkeley Peerage Case, 4 Camp. 401.
(»?i)See hereon Powell's Evidence, 162-166.
OF EVIDENCE IN CIVIL CASES. 47 1
to the parentage of the child (n). Again, in another
case where the legitimacy of a child born in wedlock
was in issue, previous statements by the mother that
the child was a bastard were held admissible as evidence
of her conduct, although she could not have been
allowed to make such statements in the witness-box (0),
for the rule is that a parent cannot bastardize his or
her issue.
4. A declaration or entry by a deceased person who 4. in the case
had a competent knowledge of a fact, and no interest °^ T ^°*'-^ 4.
to pervert it, and which declaration was against the person's
. , . ^ , „ , , , , pecuniary or
pecuniary or proprietary interest of the declarant at proprietary
the time when it was made, is evidence between third '"*^^®^*-
parties of everything stated in the declaration (p).
The leading case upon this principle is that of Higham Higham v.
V. Pddgivay (q). In that case it was necessary ^q ^''^^^"^z-
prove the precise date of the birth of one William
Fowden, and to prove this an entry made by a man-
midwife (since deceased), who had delivered the
mother, of his having done so on a certain day, and
referring to his ledger, in which he had made a charge
for his attendance, which ivas marked as paid, was
tendered in evidence. It was decided that, though
it was, of course, not testimony on oath, yet it could
be received, because the fact of the entry of payment
made it an entry against the pecuniary interest of the
party (r).
(n) Ilarrjrave v. Hargrave, 2 C. & K. 701. It may be mentioned
that this third instance of hearsay evidence is not treated as hearsay in
Powell on Evidence, but it has been thought advisable to treat it so
here.
(0) The Aylesford Peerage, 11 App. Cas. i; see also Re Perton
deceased, Pearson v. Attorney-General, 53 L. T. 707 ; Barnahy v. Bailee.
42 Ch. D. 2S2 ; 58 L. J. Ch. 842 ; 61 L. T. 634.
(p) Powell's Evidence, 214-225.
iq) 2 S. L. C. 348 ; I East, 109.
(r) As illustrative of what is and what is not an entry against in-
terest, see Vivian v. Moat, Vivian v. Walker, 29 W. R. 504 ; 44 L. T.
210. See also Connor v. Fitzgerald, 11 L. R. Ir. 106, where an entry
was admitted on this ground.
472
OF EVIDENCE IN CIVIL CASES.
Remarks on
Hifjham v.
Ridgicay.
It will be noticed tliat iu this case the portion of
the entry that was really required as evidence, viz.
the fact of the delivery of the mother of the child,
was not at all against the party's interest ; the part
that was against his interest was the acknowledgment
of the payment of the charge for attendance. The
case, therefore, clearly shews that it is quite sufficient
for any part of an entry to be against a person's
interest to render the whole of it admissible in evi-
dence (s). On this point there is an important dis-
tinction between this and the case that will be next
mentioned {t). Although the case of Higham v.
Ridgway only goes to entries against a person's
pecuniary interest, yet the rule equally applies where
the entry is against a 'proprietary interest, but the
interest must be either of a pecuniary or proprietary
character {u).
As to an entry
against
interest,
forming also
the only
evidence of
that interest.
Where a declaration or entry against interest is also
the only evidence of the existence of the interest against
which it tends, it was formerly held that the entry was
not admissible {x). This decision, however, cannot be
considered as good law at the present day, and the rule
must be taken simply to be, that where an entry by a
deceased person is primd facie a clear entry against
interest, it is always admissible in evidence for what
it is worth (y).
Proof of
a declaration.
In the case of a declaration or entry coming within
the rule as being an admission against interest, proof
of the handwriting of the party, and his death, is
(s) See also j-fr Pollock, C.B., Paxival v. Nanson, 7 Ex. i.
\t) See fost, p. 473.
(«) 2 S. L. C. 366 ; Per Cockburn, C.J., Reg. v. Birmingham, i B,
& S. 768 ; BavJey v. Atkinson, 13 Ch. D. 283 ; 49 L. J. Ch. 153 ; 28
W. R. 638.
(cc) Doe V. Gallop v. Voides, i M. & Rob. 261.
ly) Taylor v. Witham, 3 Ch. D. 605 ; 35 L. J. Ch. 798, in which
case Jessel, M.R.. expressly disapproved of Doe d. Gallop v. ToieUs,
supra. Powell's Evidence, 221, 222.
OF EVIDENCE IN CIVIL CASES. 473
enough to authorize its reception, and at whatever time
it was made it is admissible (z).
5. A declaration or entry made by a person strictly 5. in the case
in the course of his trade or business, and in perform- [|^a.de in the
ance of his duty, and without any apparent interest on «='jupe of
_ •' . business, and
his part to misrepresent the truth, if contemporaneous in discharge
with the fact, is evidence after his death against third ° " ^'
persons (a). The entry or declaration must have been
made both in the course of business and in discharge
of duty (b). The leading case upon this principle is
that of Frice v. Uarl of Torrington (c). The plaintiff Price v. Eari
there was a brewer, and the action was for beer sold "-^ ^'''"'""^fi'^"'
and delivered to the defendant. The evidence given to
charge the defendant was, that the plaintiff's drayman,
who had since died, had in the usual course of his
business, and in discharge of his duty, made and signed
a note of the fact of the delivery of the beer in a book
kept for that purpose. It was held that this was good
evidence and admissible.
This class of cases is entirely distinct from that Distinction
previously mentioned where the entry is admitted as efa^^oTc^es
against interest. Here the entry is not admitted at all find the pre-
. vious one.
on that ground, but simply on the ground of duty and
course of business ; it must also be carefully noted that
here, unlike that other class of cases, only so much of the
entry is admitted as it was in the course of the person's
ordinary business and duty to make, and no matter in
the entry extraneous to this can be admitted (d).
In the case of an entry falling under this rule it is The entry
essential to prove that it was made at the time it pur- temporaneous
(z) Per Parke, B., Doc v. Turford, 3 B. & A. 898.
(a) Powell's Evidence, 226-236.
{b) Massey v. Allen, 13 Ch. D. 55S ; 47 L. J. Ch. 76 ; 28 W. R. 212 ;
Trotter v. Maclean, 13 Ch. D. 574 ; 42 L. T. 118 ; 28 W. R. 244.
(c) I S. L. C. 452 ; Salkeld, 285.
(d) Reg. W.Birmingham, i B. & S. 763 ; see also i S. L. C. 354-35S.
474
OF EVIDENCE IX CIVIL CASES.
This and the
previous
class of cases
include oral
statements.
Reputation.
Presumptions
sometimes
furnish
evidence.
Presumption
as to death
after seven
years.
ports to bear date, for it must be a contemporaneous
entry (e).
In both this class of cases and that in which
the matter is admitted as against interest, not only
are statements in writing admitted, but any oral
statement made by a person against his interest, or
in the course of his business and duty, is also equally
admissible (/). There is no distinction in principle
between the written entries of a deceased person
and his verbal declarations. Where the statements
are merely verbal, there is reason for watching more
carefully the evidence by which those declarations
are proved, but if it is clearly shewn that they
were in fact made, there is no reason whatever why
there should be any distinction between the admissi-
bility of the verbal declarations and of the written
entries (g).
Evidence of general reputation, general character,
and general notoriety is original evidence and not
hearsay, so that general evidence is admissible to
prove marriage, except in prosecutions for bigamy or
in divorce proceedings {h).
Presumptions sometimes furnish evidence. Thus,
it is a rule that where a person goes abroad and is
not heard of for seven years, the law presumes that
such person is dead, but not that he died at the
beginning or the end of any particular period during
those seven years (^). This, however, is of course
liable to be rebutted, and although, as stated above,
(e) Per Parke, J., Doe v. Turford, 3 B. & A. 89S.
( f) See Sussex Peerage Case, 1 1 C. & F. 85 ; Staplyton v. Clough, 2
E. & B. 933 ; and 2 S. L. C. 353.
(7) Per Thesiger, L.J., in Bewley v. AtTcinson, 13 Ch. D. 283 ; 49 L.
J. Ch. 153; 28 W. R. 63S.
(A) Powell's Evidence, 167.
\i) Nepean v. Doe, 2 S. L. C. 610 ; 2 M. & W. 910 ; In re Rhodes,
Rhodes v. Rhodes, 36 Ch. D. 586 ; 56 L. J. Ch. 825 ; 57 L. T. 652.
OF EVIDENCE IN CIVIL CASES. 475
there is no presumption of the time of death, such
a presumption may arise from particular circum-
stances (k). This is, however, purely matter of evi-
dence, and the onus of proving that the death took
place at any particular time within the seven years,
lies upon the person who claims the right to the
establishment of which the fact is essential. There
is also no presumption of law in favour of the con-
tinuance of life, though an inference of fact may
legitimately be drawn that a person alive and in health
on a certain day was alive a short time afterwards (I).
It has also been held that where a person has not been
heard of for seven years, and during that period — that
is, before the expiration of the seven years — a gift is
made to him, he must, until the contrary is shewn,
be taken to have been in existence at the date of
the gift, and if the contrary cannot be shewn, there
is no failure of the gift, but it will go to his repre-
sentatives (in).
Deeds and other documents, until the contrary is Deeds, &c.,
shewn, are presumed to have been executed or written f '^^ presumed
^ to have been
at the date they bear (n). executed at
their date.
Public records and documents (0) are evidence of Deeds and
their own authenticity, and deeds or wills which are jj^'jgg'^ft^'jj''^
thirty years old, and come from the proper custody ^'^'^^^^ ^^^
P .ij. .1- 1 ■ 1 •, coming from
or trom that custody in which it was most reasonable the proper
to expect to find them, prove themselves (^j). The thSvir'^^
(k) See In the goods of Thompson, 12 P. D. 100 : i;6 L. J. P. 46 • 26
W. R. 384. ^ ^ ' -^
(I) Wing V. Angravc, 8 H. of L. Cas. 183 ; In re Pheni, L. R. 5 Ch.
239; 39 L. J. Ch. 316 ; Hichnan v. UpsaU, L. R. 20 Eq. 136.
(m) In re Corhishky's Trusts, 14 Ch. D. 846 ; 49 L. J. Ch. 266 • 28
W. R. 536.
(n) Powell's Evidence, 85.
(0) As to what are public documents, see Sturla v. Freccia, 5 App.
Cas. 623 ; 50 L. J. Ch. 86 ; 29 W. R. 217 ; Broole v. Brooke, 17 Ch.
D. 833 ; 50 L. J. Ch. 528 ; 30 W. R. 45 ; 3favor of Manchester v.
Lyons, 22 Ch. D. 299 ; Bidder v. Bridges, 34 W. R. 514 ; 54 L. T. 529,
affirmed by Court of Appeal, \V. N. 1886, p. 148. As to proof of Acts
of Parliament, proclamations, &c., see also 45 Vict. c. 9.
(p) Powell's Evidence, 88.
476 OF EVIDENCE IN CIVIL CASES.
thirty years are computed from the date of the instru-
ment, even in the case of a will (q).
II. As to the II. As to the competency of witnesses and the admissi-
^^netsZ^kc. ^ility ofparticidar evidence.
As a general rule, every person is a competent wit-
Atheists, iiess in an action. Formerly, however, an atheist was
incapable of giving evidence, because he was unable to
take an oath, the rule being that for a person to take
an oath it is necessary that he should believe in the ex-
istence of a God who would punish in a future state (r).
Oaths Act. However, it is now provided by the Oaths Act, 1 888 (s),
that every person who objects to be sworn on the
ground that he has no religious belief, or that the taking
of an oath is contrary to his religious belief, may
make a solemn afiirmatiou instead of taking an oath,
in all places and for all purposes where an oath is or
shall be required l)y law, and that if such person shall
wilfully, falsely, and corruptly affirm anything that, if
on oath, would amount to perjury, he shall be liable to
prosecution as if he had committed perjury. On this
enactment it has been decided that where a witness is
desirous of making an affirmation instead of taking an
oath, it is the duty of the judge presiding at the trial
to himself examine the witness, and ascertain that he
objects to being sworn on the ground either that he
has no religious belief, or that the taking of an oath is
contrary to his religious belief {t).
[q) iPKcnire v. Fraser, 9 Ves. 5. On presumptive evidence generally,
see Powell's Evidence, 70-110. See also, as to presumption between
vendor and purchaser of correctness of facts recited in deeds twenty
years old, 37 & 38 Vict. c. 78, s. 2. See also further, as to the general
effect of recitals as between vendor and purchaser, 44 & 45 Vict. c. 4I,
s- 3 (3)-
(r) Omichtind v. Barker (Willes, 550) decided that if a witness be-
lieved in a God who would punish in this world, that was sufficient, but
in subsequent cases it was laid down as stated in the text.
(s) 51 & 52 Vict. c. 46, repealing the previous provision of 32 & 33
Vict. c. 68, s. 4.
(t) Reg. v. Moore, 61 L. J. M. C. 80 ; 66 L. T. 125 ; 40 W. R. 304 :
Powell's Evidence, 32.
OF EVIDENCE IN CR^L CASES. 477
Persons who were infamous, — as criminals, — were Criminals or
formerly inadmissible as witnesses, but it is now pro- fnfam^uf
vided that no person shall be excluded from givinc^ character were
lormGrlv gx~
evidence by incapacity from crime (u). Any person, eluded from
therefore, whatever he may have been guilty of, is com- evkfence, but
petent as a witness, and it is for the jury to say to what ^^^ "^* "°^-
extent they will credit his testimony. In some cases it
may be important to bring before the jury the fact of
the witness's crime or bad character, to show that he is
not worthy of credence ; and it has been provided that
a witness in any case may be questioned as to whether
he has been convicted of any felony or misdemeanour,
and upon being so questioned, if he either denies the
fact, or refuses to answer, it shall be lawful for the
opposite party to prove his conviction (x) ; and this may
be done although the fact of the conviction be altogether
irrelevant to the matter in issue in the cause (y). It
is also, irrespective of this enactment, quite open to a
party to examine a witness on points affecting his char-
acter, or tending to discredit him ; but if he denies such
points, the evidence of other witnesses to contradict
him is not admissible, unless the fact sought to be
established is material to the issue (s).
A party producing a witness who deposes contrary to Contradictiou
what was expected, is not allowed to impeach the credit ''Jituest''''^''
of his own witness by giving general evidence of his bad
character ; but he may, in case the witness shall, in the
opinion of the judge, prove adverse, contradict him by
other evidence, or, by leave of the judge, prove that he
has made at other times a statement inconsistent with
his present testimony, the circumstances of such state-
ment being first mentioned to him, and he being asked
(u) 6 & 7 Vict. c. 85, s. I (Lord Denman's Act) ; Powell's Evidence,
35-
(x) 17 & 18 Vict. c. 125, s. 25.
iy) Ward v. Sinfidd, 49 L. J. C. P. 696 ; 41 L. T. 252.
(z) See notes in Day's Common Law Procedure Acts to section 2=; of
17 & 18 Vict. c. 125.
478
OF EVIDENCE IN CIVIL CASES.
Persons
interested in
the result of
an action were
formerly
excluded from
giving
evidence, but
not now.
I'rovision of
the Evidence
Amendment
Act, 1869.
whether or not he has made such statement («), and if,
on being so asked, he does not admit that he made such
statement, proof may be given that he did (b). Where
any witness has made a previous contrary statement in
writing, in cross-examining on it it is not necessary to
shew him the writing, but if it is intended afterwards to
contradict him by such writing, then, before the con-
tradictory proof can be given, his attention must first
be called to those parts of the writing which are to be
used for the purpose of so contradicting liim (c).
Persons were also formerly excluded from giving
evidence if in any way interested in the result of
the action, either as parties or otherwise (d), but this
is not so now. Tlie first provision on tlie subject was
made by Lord Denmau's Act (c), which provided that
no person offered as a witness should be thereafter ex-
cluded from giving evidence by reason of incapacity
from interest, but this was not to extend to render
competent any person actually a party to any suit,
action, or proceeding (/). By a later Act (g), however,
it was provided that even the parties to any action
should be both competent and compellable witnesses (Ji),
except in proceedings instituted in consequence of
adultery, or in actions of breach of promise of mar-
riage (i). And it has now been provided by the
Evidence Amendment Act, 1869 (k), that the parties
to any action for breach of promise of marriage shall
be competent to give evidence in such action, provided,
however, that no plaintiff in any such action shall
recover a verdict unless his or her testimony shall be
(a) 17 & 18 Vict. c. 125, s. :
(6) Sect. 23.
(c) Sect. 24.
(d) Powell's Evidence, 35.
(c) 6 & 7 Vict. c. 85.
(/)Sect. I.
(g) 14 & 15 Vict. c. 99.
{h) Sect. 2.
{{) 14 & 15 Vict. c. 99, s. 4.
[k) 32 & 33 Vict. c. 68.
OF EVIDENCE IN CIVIL CASES. 479
corroborated by some other material evidence in support
of such promise (I) ; and that the parties to any pro-
ceedings instituted in consequence of adultery, and the
husbands and wives of such parties, shall be competent
to give evidence in such proceeding ; provided that no
witness in any proceeding, whether a party to the suit
or not, shall be liable to be asked, or bound to answer,
any question tending to shew that he or she has been
guilty of adultery, unless such witness shall have
already given evidence in the same proceeding in dis-
proof of his or her alleged adultery (m).
Not only were the actual parties to actions excluded Husbands and
from giving evidence, but the rule applied to the hus- witnesses.
bands and wives of such witnesses (??.), but this is not
so now (0). The Act upon this subject, however, also
provides that no husband shall be compellable to dis-
close any communication made to him by his wife
during the marriage, and no wife shall be compellable
to disclose any communication made to her by her
husband during the marriage (^).
An idiot is incapable of giving evidence (q), and so
(I) 32 & 33 Vict. c. 68, s. 2.
{m) Sect. 3. The student will bear in mind that what is stated
above as to parties to proceedings giving evidence is not applicable
to criminal law. A prisoner is not capable of giving testimony for
himself — of course the prosecutor may. There are, however, excep-
tions, c.r^. it isprovided by 40 & 41 Vict. c. 14, s. i, that on the
trial of any indictment or other proceeding for the non-repair of any
public highway or bridge, or for a nuisance to any public highway,
river, or bridge, and of any other indictment or proceeding instituted
for the purpose of trying or enforcing a civil right only, every defen-
dant to such indictment or proceeding, and the wife or husband of such
defendant, shall be admissible witnesses, and compellable to give evi-
dence. See also the Criminal Law Amendment Act, 1885 (48 & 49
Vict. c. 69, s. 20). See also further hereon Powell's Evidence, 48-52.
{n) See Powell's Evidence, 48.
(0) 16 & 17 Vict. c. 83, s. 2. Under the Married Women's Property
Acts, 1882 (45 & 46 Vict. c. 75, s. 12) and 1884 (47 & 48 Vict. c. 14,
s. I), in any proceeding, civil or criminal, under the Act of 1882, a
husband and wife are rendered competent to give evidence against each
other. As to the omission from the Act of 1882 which gave rise to the
Act of 1884, see Jieg. v. Britthton, 12 Q. B. D. 266.
ip) 16 & 17 Vict. c. 83, 8. 3. See sect. 4 as to criminal cases.
(q) Powell's Evidence, 27.
48o
OF EVIDENCE IN CIVIL CASES.
An idiot
cannot give
evidence, nor
can a lunatic,
except during
a lucid
interval.
A deaf and
dumb person
can give
evidence.
is a lunatic, except during a lucid interval, when, if
duly proved that it is a lucid interval, he is a perfectly
competent witness (r).
A deaf and dumb person is a competent witness
through the means of signs, or by an interpreter, if it
seems that he has sufficient understanding (s).
As to the
testimony of
children.
Children may or may not be competent witnesses,
the matter entirely depending upon whether they
have sufficient intelligence. " Age is immaterial, and
the question is entirely one of intelligence, which,
whenever a doubt arises, the Court will ascertain to
its own satisfaction by examining the infant on his
knowledge of the obligation of an oath, and the
religious and secular penalties of perjury. Although
tender age is no objection to the infant's competency,
lie cannot, when wholly destitute of religious educa-
tion, be made competent by being superficially
instructed just before a trial with a view to qualify
him. A judge may, in his discretion, postpone a
trial in order that a witness may be instructed in the
nature of an oath, but the inclination of judges is
against this practice " (t).
It has been stated that deeds and other documents
thirty years old, and coming from the proper custody,
prove themselves (w) ; in cases when this is not so it
is important to understand the different ways in which
they may be proved.
(r) Powell's Evidence. The distinction between an idiot and a
lunatic is, that the former has always, even from his birth, been devoid
of understanding, whilst the latter has by some subsequent event been
deprived of it ; see also ante, pp. 252, 253.
(s) Powell's Evidence, 2S.
{t) Powell's Evidence, 29. Under the Criminal Law Amendment
Act, 1885, a child may give evidence though not understanding the
nature of an oath, and the child need not be sworn. Such child's
evidence must, however, be corroborated (48 & 49 Vict. c. 69, s. 4).
(u) Ante, p. 475.
OF EVIDENCE IN CIVIL CASES. 4^1
"It was a common law principle that where a writing it is not now
was attested, the witnesses, or one of them, must be caiTan attest-
called to prove the execution of the instrument ; and t^^j^Jveln
it was not competent to a party to prove it even by instrument
. . p , 1 1 • ^^^ requiring
the admission of the persons by whom it was exe- attestation.
cuted " (x). The most apt and usual way even now of
proving any instrument which has been attested is un-
doubtedly, in the absence of admission, by calling the
attesting witness ; but this is not generally absolutely
necessary, it having been provided that " it shall not
be necessary to prove by the attesting witness any
instrument to the validity of which attestation is not
requisite, and such instrument may be proved by ad-
mission or otherwise, as if there had been no attesting
witness thereto " (y).
Instruments, therefore, not requiring attestation may Different ways
, 1 . p j^t e ^^ ■ in wllicll SUch
be proved in any oi the following ways : — instruments
not requiring
-r» 1 • • attestation
1. By admission. may be proved.
2. By calling the attesting witness, if there is one.
3. By calling any person who actually saw the
writing or signing, or the party who wrote it or signed
it himself.
4. By calling a witness who has acquired a know-
ledge of the writing in question by having seen the
person write at some other time, even though only
once, or by having had correspondence with such
person which has been acted upon.
5. By comparison of the writing in question with
any writing proved to the satisfaction of the judge to
be genuine (z).
(x) Powell's Evidence, 403.
(y) 17 & 18 Vict. c. 125, s. 26 ; see, however, on this enactment, Jn
re Rice, 32 Ch. D. 35 ; 55 L. J. Ch. 799 ; 54 L. T. 589 ; 34 W. R. 749.
(2) Powell's Evidence, 399, 400.
2 H
482 OF EVIDENCE IN CIVIL CASES.
Notice to As to the first of the above modes of proof, it may
admit* ""'^ be mentioned that a notice to inspect and admit, i.e. a
notice to the other party or parties to the action to
inspect some document and admit its execution, is
usually given just before the trial of most actions ;
the other party or parties can then inspect the docu-
ment, and give an admission, and this saves further
proof of execution, and in case of refusal or neglect to
admit, the costs of proving the document have to be
borne by the party so neglecting or refusing, what-
ever may be the result of the action, unless at the
trial the judge certifies that the refusal to admit was
reasonable ; and no costs of proving any document is
allowed unless such notice has been given, unless in the
opinion of the taxing-master the omission to give the
notice has been a saving of expense (a). The object,
therefore, of giving this notice is to get the document
admitted, or to throw the expense of its proof on the
opponent or opponents (&).
MeiininR of an Any admissiou made under such a notice as is last
admission mentioned is made " saving all just exceptions " (c),
being made ^ " ^
;• saving all that is, that the party admits nothing more than the
tions!-^'"''^*" bare execution, so that, for instance, the admission by
a person of his handwriting to a bill, has been held not
to preclude him from objecting to its admissibility in
evidence on the ground of its being unstamped (d).
As to proof by The kst of the before-mentioned modes of proof
comparison of ^f handwriting, viz. by comparsion with other writings
handwriting. »' *' '■ i • i . i
by the same person proved or admitted to be genuine,
was not formerly allowed (e), but it is now otherwise by
reason of the provisions of the Common Law Procedure
(a) 15 & 16 Vict. c. 76, s. 117.
(6) As to the notice to produce usually given before going to trial,
see ante, p. 466 ; and as to both notices, see Inderniaur's Manual of
Practice 1 31, 1 32. Also as to a notice to admit facts, see Order xxxil.
rule 4 ; Inderniaur's Manual of Practice, 87.
(c) 15 & 16 Vict. c. 76, s. 117.
(d) Vane v. Whitlington, 2 Dowl. (N. S.) 757.
(e) Doe d. Mudd v. Sackermore, 5 A. &. E. 703.
OF EVIDENCE IN CIVIL CASES. 483
Act, 1854 (/). Under this enactment experts may be
called, quite unconnected with the writer, to prove
that by a comparison, and a careful observance of the
different letters, and the general style, with a document
or documents proved or admitted to be genuine, they
are of opinion that the handwriting in question is the
work of the same person ; this kind of evidence, however,
from its manifest uncertainty, has, of late years been
much disfavoured. For the purpose of comparison the
disputed writing must always be produced in court,
so that the enactment does not apply to documents
which are not produced, and of which it is sought to
give secondary evidence (y).
But where attestation is necessary to the validity of To prove
an instrument, and actual proof is required of it, the aituaiiy^"*''
attesting witness, or one of the attesting witnesses, if requiring
living, must be called as a witness Qi). The student is the attesting
reminded that some of the chief instruments requiring beSdT'''
attestation are wills and codicils to wills {%), warrants
of attorney and cognovits {k), bills of sale {l), and
powers of appointment, and other instruments which
the person giving the authority for their execution has
directed shall be attested (m). When, however, an unless dead,
attesting witness is dead or abroad, or for some other uot'to'S' '*''
reason cannot be produced after due efibrts to brin^ found,
him before the Court, evidence of his handwriting may
be given ; and if there are several attesting witnesses
who cannot be produced, generally it is sufficient to
prove the handwriting of one of such witnesses {%).
if) 17 & 18 Vict. c. 125, s. 27.
iy) See Day's Common Law Procedure Acts, notes to sect. 27 of 17 &
iS Vict. c. 125.
(h) ]Vhyman v. Garth, 8 Ex. 803.
(i) I Vict. c. 26, s. 9.
{k) I & 2 Vict. c. 1 10, s. 9 ; 32 & 33 Vict. c. 62, s. 24 ; ante, pp. 9, 10.
IJ) 41 & 42 Vict. c. 31, s. 10 ; 45 & 46 Vict. c. 43, s. 8 ; ante, pp.
1 14-122.
(m) As to the execution of powers of appointment by will or deed
respectively, see i Vict. c. 26, s. 10, and 22 & 23 Vict. c. 35, s. 12.
(n) Powell's Evidence, 405 ; and see Baxcndale v. Be 'Valmer, cf
L. T. 556. ' ^'
484
OF EVIDENCE IN CITIL CASES.
"What it is
sufficient for
an attesting
witness to
depose to.
Mode of
jjrovinj; u will
at a trial.
Notice.
Although an attesting witness, on being called to
prove the execution of an instrument, states that he
does not remember the actual fact of the execution, but
yet he deposes that, seeing his signature to the attesta-
tion, he is therefore sure he saw the party execute the
deed or sign the document, this is quite sufficient proof
of the execution (o).
For all ordinary matters, probate of a will, or, if
lost, an examined copy or an exemplification, is the
proper evidence {p). In the case, however, of an action
involving the question of title to lands, or any descrip-
tion of realty, it was formerly necessary to produce the
original will {<i), but it has been now provided that in
any action, where necessary to establish a devise of or
affecting real estate, it shall be lawful for the party
intending to establish in proof such devise, to give to
the opposite party, ten days at least before the trial,
notice that he intends at the trial to give in evidence,
as proof of the devise, probate of the said will, or
administration with the will annexed, or a copy there-
of, stamped with any seal of the Probate Court (r) ;
and in every such case such probate or letters of
administration, or copy thereof respectively, stamped
as aforesaid, shall be sufficient evidence of the will and
its validity, notwithstanding the same may not have
been proved in solemn form, unless the party receiv-
ing such notice shall, within four days after such
receipt, give notice that he disputes the validity of
such devise (s). This enactment was intended to
prevent expense, it being also provided that where
the original will is produced and proved, the Court or
judge before whom the evidence is given shall direct
(o) Per Bayley, J., Maugham v. Hubhard, 8 B. & C. l6 ; Powell's
Evidence, 405.
(p) Powell's Evidence, 362, 363.
\q) Ibid. 364, 365.
(r) Now the Probate, Divorce, and Admiralty Division of the High
Court of Justice.
(a) 20 & 21 Vict. c. 77, s. 64.
OF EVIDENCE IN CIVIL CASES. 485
which of the parties shall bear the costs thereof (t).
It has been decided that even iu the absence of a Effect of
counter-notice the probate is only sufficient, or primd comi'tei-uotice,
facie evidence, and that, therefore, the party omitting
to give such notice is not, on his part, precluded from
giving evidence against the validity of the will {lu).
If the will has been proved in solemn form, it is pro-
vided that the probate shall not only be sufficient, but
conclusive proof (x).
A person is not allowed to make evidence for him- a person is
self, so tliat a person's own books are not evidence toiirnkT^*^
for him, nor, indeed, is anything written, said, or done evidence for
, ... liimself; so,
by a person havmg an interest, any evidence for him, for instance,
for this would be self-serving evidence. But many ailTnot^
documents and facts, not iu themselves evidence, may evidence for
be admitted to refresh a witness's memory {y), for
here he speaks to the facts from separate knowledge,
only assisted from this extraneous matter ; thus, for
instance, a witness may refer to his own books of
account for this purpose, or to some entry in a diary
or other book, and it is not actually necessary that
the entry should have been made at the time, but it is
sufficient if made shortly afterwards, so that he may
be presumed then to have had accurate memory on the
point {z). And where any memorandum or entry is
produced in court to a witness, such memorandum or
entry, or so much thereof as is used to refresh the
witness's memory, must be shewn to the opponent, who
is entitled to cross-examine on it {a).
Witnesses are required to depose to facts, and not There are
to give forth mere matters of opinion, but, notwith- ofTaselT^'
(<) 20 & 21 Vict. c. 77, s. 65.
(m) Barradaufjh v. Greenhoucjh, L. R. 2 Q. B. 612.
{x) 20 & 21 Vict. c. 77, s. 62.
(y) Powell's Evidence, 406-41 1.
(z) Ibid. 410 ; Ileywood v. Dodson, 44 L. T. 285 ; Buxton v. Garjit,
44 L. T. 287.
(a) Powell's Evidence, 409.
486
OF EVIDENCE IX CIVIL CASES,
which evidence standing this, tliere are many cases in which the
consisting of ppj^JQ^ partakes in its nature of fact, and is, there-
fore, receivahle in evidence. In Mr. Powell's work
upon Evidence (h) there are stated to be three classes
of cases in which evidence consisting of matters of
opinion is receivable, viz. : —
matters of
opinion is
receivable.
1. On questions of identification; c.f/. in the case
of a long-absent claimant of property, or in the case
of identification of handwriting.
2. To prove the apparent condition or state of a
person or thing ; e.g. in the case of an assault, to
prove from a person's manner his intention, or to
prove the state of some building or of some goods the
subject of the action.
3. To prove matters strictly of a professional or
scientific character, by skilled or scientific witnesses ;
e.g. in cases of terms having, in some business or
amongst a particular class, a special and peculiar
meaning, or in cases where words of a scientific or
exceptional character are used, or the comparison of
handwriting with other handwriting to tell its genuine-
ness. And not only m.ay a witness be called to prove
the meaning of terras or matters in his opinion, but
even dictionaries or other books may be referred to.
The evidence, however, by experts, of matters of opinion,
is always received with great caution (c).
An affidavit The forcgoiug remarks, of course, apply generally,
interiocutoiy not Only to Oral evidence, but also to affidavits ; but
application ^^ ^^^^ iutcrlocutorv motion an affidavit may contain
may contain " •'
a statement a Statement founded only on the deponent's belief,
the"depouenfs with the grounds of such belief (d).
belief.
(b) Page 114.
(c) See pe7- Lord Campbell, 10 CI. & Fin. 191 ; and see also ante,
p. 482.
{d) Order xxxviii. rule 3.
OF EVIDENCE IN CIVIL CASES. 487
A document requiring a stamp cannot be given in Effect of the
evidence without one, except in criminal proceedings, "f'an ^^^^^^
or for the purpose of proving some collateral or inde- mstrurnent
pendent fact (e). There are some instruments which stamp— time
require to be stamped before execution, e.g. articles of &c.
clerkship to a solicitor; but, generally, after execu-
tion fourteen days are allowed within which to
stamp an agreement, and thirty days within which to
stamp an instrument under seal ; and an instrument
executed abroad may be stamped within thirty days
after being received in the United Kingdom. If not
stamped within these times, the unstamped instrument
can only be stamped on payment of the unpaid duty,
and a penalty of ^10, and also by way of further
penalty, where the unpaid duty exceeds ^10, of
interest on such duty at the rate of ^5 per cent, per
annum from the day upon which the instrument was
first executed up to the time when such interest is
equal in amount to the unpaid duty (/).
If an instrument is not stamped, or has been Who objects
nn ■ .1 . 1 J.1 i. 1 •, • to insufficiency
msumciently stamped, the opponent may, when it is „f stamp,
tendered in evidence, object to it on that ground ; but,
strictly, it is the place of the officer whose duty it is
to read the instrument to call the attention of the
judge to the fact ; and even then, if the instrument
is one which may legally be stamped after execution,
it may, on payment to such officer of the amount of
the unpaid duty and the aforesaid penalty payable
on stamping, and also on payment of a further sum
of ^i, be received in evidence, saving all just excep-
tions on other grounds (g).
III. Cases of Frivileqe. — It has been pointed out, ni. Cases of
■^ "^ privilege.
(e) Powell's Evidence, 654.
(/) 54 & 55 Vict. c. 39, ss. 14, 15. The Commissioners of Inland
Revenue have, however, in special cases, power to remit or reduce the
penalty on memorial to them. See ante, p. 307, note (x).
Uj) Ibid.
488 OF EVIDENCE IN CIVIL CASES.
iu discussing the subject of libel and slander, that
there are certain circumstances in which a party is
privileged to make assertions which in ordinary cases
would be libellous or slanderous, but which are from
such circumstances prevented from being so (h). So,
also, in matters of evidence, generally speaking a wit-
ness must answer all questions put to him relating
to the subject-matter of the action, or in any way
relevant to it ; but there are certain cases in which,
from special circumstances, either the witness is
privileged from being obliged to disclose the matter,
or some third person has a right to object to his
doing so.
There are two chief cases of privilege, viz. : —
1. Facts that I. A wituess is not compellable to disclose any
criminate. matter that may tend to criminate him, or to expose
him to a penalty (i) ; and
2. Professional 2. Professional communications between counsel,
tions. solicitors, or their clerks, and their clients, made in
confidence, cannot be disclosed without the client's
consent, nor can a client be compelled to disclose any
communication made in confidence to his professional
adviser (Jc).
"Who is As to the first class of privilefre. The question at
to determine • i ,. i - i ,
whether oncc presents itself, who is to be the person to judge
a"question °^ whether or not a question asked has a tendency to
may tend criminate or to expose the witness to a penaltv — the
to crimmate ••• ir j
witness. pcrsou askcd the question, or the presiding judge ?
After various conflicting dicta (I) the law may be now
(A) See ante, pp. 3S5-390.
(i) Powell's Evidence, 120.
(l-) Ibid. 12S ; Eadic v. Anderson, 52 L. J. Ch. 81 ; 31 W, R. 320 ;
47 L. T. 543.
(/) See Fisher v. Ronald, 12 C. B. 762 : Heg. v. Garbett, 1 Den. 236 ;
Jieg. V. Boyes, i B. & S. 311 ; and see per Parke, B., in Osborne v.
London Docks Co., 10 Ex. 69S.
OF EVIDENCE IN CIVIL CASES. 489
stated to be as follows : Where a witness refuses to
answer a question put to him on the ground that his
answer may tend to criminate him, his mere state-
ment of his belief that his answer will have that effect
is not enough to excuse him from answering, but the
Court must be satisfied, from the circumstances of the
case, and the nature of the evidence which the witness
is called upon to give, that there is reasonable ground
to apprehend danger to him from his being compelled
to answer. But if it is once made to appear that the
witness is in danger, great latitude should be allowed
to him in judging for himself of the effect of any par-
ticular question. Subject to this reservation, the judge
is bound to insist on the witness answering, unless he
is satisfied that the answer will tend to place him in
peril (m).
Where a question is asked a witness which will not a witness is
actually tend to criminate him or expose him to any boumUo'^^
penalty, but is yet one the answer to which may tend a"swer a
•,,,.... ,, . question
to degrade him, if it is not actually material to the tending to
issue, but merely some point tending to affect his ^^^'^ ^ ^^'
character, and thus reduce damages, or to have some
other incidental effect, he is not bound to answer
it (w).
This first case of privilege has always been wider in Distinction
equity than at law ; for in equity any question the aiuriquity^as^
answer to which might subject the witness to any t^.^i'^t case of
. . "^ privilege.
pains or penalties, or to ecclesiastical censure, or a
forfeiture of interest, has been held to be within the
rule (0) ; and it is presumed that, as the rules of equity
are now generally to prevail (p), this is now the case
in all divisions of the Hi<:h Court of Justice.
(to) Ex parte Reynolds, In re Reynolds, 20 Ch. D. 294 ; 51 L. J. Ch.
766 ; 46 L. T. 508 ; 30 W. R. 651.
(n) Powell's Evidence, 127.
(0) Ibid. 128.
{p) Judicature Act, 1S73, s. 25 (11).
490
OF EVIDENCE IN CIVIL CASES.
Privilege of a
wife.
The rule of privilege upon this ground extends not
only to a man himself, but also to his wife, so that a
wife cannot be compelled to answer any question which
may expose her husband to such consequences (q).
No privilege
by reason that
answer might
expose witness
to a civil
action.
A witness may
■waive his
privilege and
answer a
question
tending to
criminate him
if he chooses.
A witness cannot object to answer any question upon
the mere ground that his answer might expose him to
a civil action (r).
A M'itness may, of course, waive his privilege and
answer at his peril, for he is the party concerned, and
if he chooses to waive the privilege that the law allows
him, there is nothing to prevent his doing so (s).
Til ere are several cases in which it has been expressly
provided by different statutes that a witness cannot
refuse to answer questions as to certain matters on
the ground that the answers would criminate him, but
that such answers shall not be used against him in
a criminal proceeding arising out of the same transac-
tion (t). With regard to a bankrupt being examined
under the Bankruptcy Act, 1883, as to his property,
he is bound to make the fullest disclosure, and is not
entitled to any privilege on the ground that his answer
may tend to criminate him (it).
In tiie case of As to the second chief ground of privilege, this is
communka- of a Very different nature, for in the first case the
(5) Cartioright v. Green, 8 Ves. 410; Powell's Evidence, 118.
(r) Powell's Evidence, 123, 124.
(s) Ibid. 123.
(t) Powell's Evidence, 124, 125. Thus in an inquiry under the Ex-
plosive Substances Act, 18S2 (46 Vict. c. 3), a witness examined there-
under is not excused from answering any question on the ground that
the answer thereto may criminate or tend to criminate him ; but any
statement made by any person in answer to any question put to him on
such an examination is not, except in the case of an indictment or other
criminal proceeding for perjury, admissible in evidence against him in
any proceeding, civil or criminal. (Sect. 6 (2).)
(«) Ex parte Schofield, Re Firth, 6 Ch. D. 230 ; 46 L. J. Bk. 112.
As regards frauds by agents, bankers, or factors, it is, however, pro-
vided that a statement or admission made by any person in any com-
pulsory examination in bankruptcy shall not be evidence against that
person in any proceeding in respect of any such offence (53 & 54 ^ict.
c. 71, s. 27).
OF EVIDENCE IJT CIVIL CASES. 49 1
privilege is always tliat of the witness, which he may tions the
at his option waive, but in this case, where counsel, the^cHeut'I
solicitors, or their clerks are witnesses, the privilege
is not theirs, but that of their client, and it is not in
such a case the witness who may waive the privilege,
but the client ; and if the client does not so waive it,
then the witness is not allowed to make any such dis-
closure (x). And for this case of privilege to exist, it in cases of
is not necessary that the position of solicitor and client upJu this
should be actually subsistino; at the time; it is quite s™und the
. ^ J T. relationship
sufficient if it has existed at some past time, and the of solicitor
communication in question took place whilst that re- neeci'uot be
lationship existed. This rule of privilege is founded t^g^t|||fe'^*'
upon principles of public policy, for if some such rule
did not exist, no man would know what he was safe in Eer/. v. Cnx
disclosing to his professional adviser (y). However, it "" ^»i''on.
must be borne in mind that a communication made by
a client to his solicitor, not with the view of obtainin<-f
advice, but for the purpose of obtaining information
upon some matter of fact, or for some purpose other
than in the ordinary position of solicitor and client,
is not privileged (z) ; and also that professional con-
fidence and professional employment are essential to
render communications between solicitors and their
clients privileged. Where, therefore, the client has
a criminal object in view in his communication with
his solicitor, one of these elements must necessarily be
absent, and a communication between a solicitor and
his client, which was a step preparatory to the com-
mission of a criminal offence, is admissible as evidence
in the prosecution of the client for such offence (a).
A solicitor employed to obtain the execution of a Solicitor,
deed, and who is one of the witnesses, is not precluded.
(x) Wilso7i V. Rastall, 4 T. R. 759.
(y) See per Lord Brougham, Bolton v. Corporation of Liverpool, i M.
& K. 84.
{z) See Powell's Evidence, 140, 141 ; O'Shea v. Wood, 65 L. T. 30.
(a) Reg. v. Cox and Radton, 14 Q. B. D. 153 ; 54 L. J. M. C. 41 ;
52 L. T. 25 ; 33 W. R. 396.
an attesting
witness,
may give
evidence.
492
OF EVIDENCE IN CIVIL CASES.
on the ground of breach of professional confidence,
from giving evidence as to what passed at the time
of execution, by which the deed may be proved
invalid (b).
A client also
cannot be
compelled to
disclose
confidential
communica-
tions made
to bis pro-
fessional
adviser.
The student will observe that part of the rule in
this class of cases of privilege is also that a client
cannot be compelled to disclose any communication
made in confidence to his professional adviser (c).
This seems to follow naturally upon the same reason-
ing, and here, of course, the privilege is that of the
witness. This privilege of the client can always be
waived by him, and if waived, a witness who has
objected to answer a question on the ground of his
client's privilege must then answer it.
It is for a
solicitor to
decide
wbetber a
document be
is called on
to produce is
privileged.
It seems that a solicitor called upon to produce any
document of his client's must exercise his own dis-
cretion as to producing it, and that it is not for the
judge to decide whether or not it ought to be pro-
duced (d). Where, however, an inquiry was directed
as to what separate estate a married woman was
entitled, and the solicitor for the married woman's
trustees was subpoenaed on the inquiry to produce
documents, and he refused on the ground of privilege
to produce a deed under which the married woman
was entitled to certain separate property, and also
refused to state the names of the trustees, it was held
that the privilege could not be claimed, and that he
must both produce the deed and state the names of
the trustees (e).
A.iocument Although some document oriuinally in a solicitor's
a'soiicUor's" posscssion would, had it remained in his possession,
(b) Crawcour v. Salter, i8 Ch. D. 30
(c) Ante, p. 488.
{d) Volant v. Soyer, 12 C. B. 231.
(e) Bursill v. Tanner, 16 Q. B. D. i
35 ; 53 L- T. 446.
45 L. T. 62.
55 L. J. Q. B. 53 ; 34 W. R.
OF EVIDENCE IN CIVIL CASES. 493
have been privileged, yet, if he has parted with it to hands is not
some other person, although he should not have done f"he'paits
so, yet the privilege is gone, and it may be given ^''■h it-
in evidence by the party into whose possession it has
come (/).
This case of privilege does not extend beyond the No privilege
persons named {g) ; thus, medical men Qi) and clergy- J," me^dica!
men (i) are not within the rule, thouoh some doubts "J^"^ ^"'^
clergymen.
nave been expressed as to the latter {k).
All communications in or with reference to litigation Communica-
which are expressed to be "without prejudice" are pi^Jjuai^/''""
privileged (/) ; but when an offer is made in a letter
written " without prejudice," and such offer is accepted,
or when an admission is made in a letter subject to a
condition, and such condition has been performed, the
letter can be used in evidence against the writer,
notwithstanding that it was written " without pre-
judice " (m). A letter cannot be made privileged by
being simply marked " private and confidential " {n).
Anonymous letters sent to a barrister or solicitor with
reference to a matter in which he is concerned are
privileged, but not anonymous letters sent to the party
to the action himself (0). Letters between a country
solicitor and his town agents are privileged (^O-
In addition to the foregoing may be mentioned two
(/) See Cleave v. Jones, 21 L. J. Ex. 105.
{g) See ante. p. 488.
(A) Lee v. Hammerton, 12 W. R. 975.
(t) Broad v. Pitt, M. & M. 233.
(k) See Powell's Evidence, 146, 147. A pursuivant of Heralds'
College is not in the position of a legal adviser, and communications
between him and the person employing him are not privileged {Slade v.
Tucker, 14 Ch, D. 824 ; 49 L. J. Ch. 644 ; 28 W. R. 807).
[I) Walker v. Wilsher, 23 Q. B. D. 337 ; 58 L. J. Q. B. 501 ; 37
W. R. 723.
(m) Powell's Evidence, 303, 304.
(n) Kitcat v. Short, 48 L. T. 641.
(0) In re Holloway, Young v. Holloioay, 12 P. D. 167 ; 56 L. J. P.
81; 57L. T. 515; 35W. R. 751.
{p) Catt V. Tourle, 19 W. R. 56.
494 OF EVIDENCE IN CIVIL CASES.
.Some other other cases of privilege, which, however, are of much
privilege. l^ss importance in civil proceedings than the two chief
cases that have been given. The first is, that a witness
cannot be asked, and will not be allowed to state, any
facts, or to produce any documents, the disclosure of
which may be prejudicial to the public interest {q), e.g.
state docu- in the case of some high documents of State. The
i"eiits. ,.i,-i • 1 111.
second is, tliat evidence may sometimes be excluded m
a civil case on the ground of indecency (r) ; but the
indecency must be something of a very exceptional
character, as tending to outrage all conventional pro-
priety, or involving some matter particularly affecting
domestic morality. It may, however, be safely stated
that this rule is of such a very fine nature as to be
practically of very little importance, or almost of no
importance at all.
\\. Misceiia- IV. Of soiuc miscellaneous 'points on the law of evi-
iieous points on ,
tlie law of dcnCC.
evideuce.
Tiie onus In any action the onus prohandi, or burden of proof,
probandi is on . , , i /v • • i « i
tiie person IS ou the pcrsoii wiio asscrts the amrmative side oi the
affirmatfve hi c[uestion {s), that is to say, that any person who asserts
an action. a fact is bouud to provc that fact to enable him to
succeed in his case, and it is not necessary for the
person alleging the negative to prove it in the first
instance. At a trial, therefore, it is generally for the
person on whom the affirmative lies to begin. In all
cases, by the affirmative is not merely meant the affir-
mative in point of form, but the affirmative in sub-
stance, and the true test for determining on whom
the affirmative lies is this : If no evideuce was offered,
who would be unsuccessful in the action ? It is for
the party who would be unsuccessful in such event to
commence {t).
[q) Powell's Evidence, 150.
{r) Ibid. 155.
(s) See Brown's Law Diet. 374, tit. " Onus probandi."
{t) Amos V. Hughes, 1 M. & Rob. 464.
OF EVIDENCE IN CIVIL CASES. 495
Instances without number to illustrate the foregoing An instimce
remarks could be easily given. Thus, take an ordinary ° * ^^"
action for goods sold and delivered : here, if the de-
fendant in his statement of defence denies the sale
and delivery, or otherwise puts the question in issue,
if the plaintiff offered no evidence the verdict would be
for the defendant, so here the onus prohandi lies on
the plaintiff; but if the defendant admits the sale
and delivery of the goods, but sets up some counter-
claim against the plaintiff, in this case if the de-
fendant gave no evidence, the verdict would be for
the plaintiff, so here the onus prohandi lies on the
defendant.
But there are numerous cases in which, iu conse- But sometimes
quence of presumptions of the law, the omts 2^')^oha7idi tioirof'tife
lies on the party on whom it would not lie, but for '''^^p^'^^*^^^^,.
. rni • • T onus probandi
such presumption. Thus, m an action on any ordinary where it
simple contract, it is for the plaintiff to prove that otherwise be.
the essentials of a simple contract exist, unless the
contract is admitted by the defendant {u) ; but as
bills of exchange and promissory notes are presumed
to have been given for a valuable consideration until
the contrary is shewn {x), here it lies on the party
who denies the consideration to prove his denial. It
is, however, sufficient for a defendant to prove some-
thing in the nature of fraud in the prior dealings
with the instrument ; and if he does this, the plain-
tiff is then bound to shew how he became possessed
of it iy).
Again, where a person takes an interest under a As to the case
voluntary settlement, or any other voluntary instru- settilment^^^
ment, aud proceedings are instituted to set aside or
otherwise question his interest thereunder, the burden
[u) As to what are the essentials of a simple contract, see ante, p. 31.
{x) See ante, p. 192.
[y) Smith v. Braine, 16 Q. B. 244 ; 20 L. J. Q. B. 2Gi,
496
OF EVIDENCE IN CIVIL CASES.
of proof lies on the defendant to prove that such
voluntary instrument was fairly and honestly made,
without any fraud or pressure upon his part, and if
he stood in a fiduciary capacity towards the person
making such voluntary instrument, he must, in addi-
tion, shew how the intention to make it was produced
in the other person (z).
A child born
during
wedlock is
presumed to
be legitimate
until the
contrary is
shewn.
A child born during wedlock is presumed to be
legitimate, a presumption which, however, like other
presumptions, is capable of being rebutted (a), though
the burden of proof lies on the party who denies the
legitimacy (b), unless, indeed, the circumstances are
such as to rebut the presumption of legitimacy, e.g.
non-access between the husband and wife (c). There
are also many other cases in which the presumption of
the law puts the onits prohandi where it would not be
but for that presumption, but to go into them is beyond
the scope of the present work (d).
Eight to It has already been stated that the person on whom
for personal the affirmative lies has the right to begin (e), but it has
injuries, &c. j^^g been an established rule at law that in actions of
libel, slander, and in respect of other personal injuries,
or, indeed, in any action where the plaintiff seeks to
recover actual damages of an unascertained amount,
he is entitled to begin, although the affirmative of the
issue may in point of form be with the defendant (/).
Leading
questions
are not
Leading questions cannot be put to a witness by
the person on whose behalf he is called (g). By a
(z) Per Lord Eldon, Gibson v. Jeyes, 6 Ves. 266 ; Hoghton v. Hoghton,
15 Beav. 299; Cool-e v. Lamotte, 15 Beav. 234.
(a) Bosville v. Attorney-General, 12 P. D. 177 ; 56 L. J. P. 97 ; 57
L. T. 88 ; 36 W. R. 79.
(b) Banbury Peerage Case, i S. & S. 155.
(c) Halves v. Draegar, 23 Ch. D. 173 ; 52 L. J. Ch. 449 ; 48 L. T.
518; 31 w. 11.576.
(d) See some in Powell's Evidence, 325-330.
(e) Ante, p. 494.
(/) Powell's Evidence, 333.
(g) Ibid. 512.
L,
OF EVIDENCE IN CIVIL CASES. 497
" leading question " is meant some question put or allowed in au
framed in such a form as to suggest to the witness fn'chi^/'*^"''
the answer that is desired (h). Thus, if at a trial it is
desired to elicit from a witness the effect of a certain
conversation, the proper way to put the question is to
simply ask the witness what then took place, or to that
effect, and it is not allowable to state in the question
the conversation and ask the witness if it did not take
place, for this would be a leading question (i). The
reason of the rule prohibiting leading questions must
be apparent to all ; and it has been well stated in Mr.
Powell's work on Evidence (k) to be "because the
object of calling witnesses and examining them viva
voce in open court, is that the judge and jury may
hear them tell their own unvarnished tale of the cir-
cumstances which they are called to attest."
In cross-examination of a witness, however, or even Aiiterincross-
in examination in chief of an adverse witness, leading ori^'eTamhi'a-
questions may be asked, for the reason of such questions *^°° jn chief of
, . !j. . ■'■ an adverse
not being ordmarily admitted in the evidence in chief witness.
is because the witness is presumed to be desirous of
assisting the person for whom he is called to give
evidence, but in cross-examination, or in the examina-
tion in chief of an adverse witness, there can be no
such presumption, and the reason for the rule failing,
it does not apply.
If, when an action is called on for trial, the plaintiff Position of a
appears and the defendant does not, the plaintiff does dSifnUf
not necessarily have judgment, but he must prove his Ji^ opponent
claim so far as the burden of proof lies on him (I) ; appear at the
and if, when an action is called on for trial, the de- ™'
fendant appears and the plaintiff does not appear, the
(h) Brown's Law Diet. 307.
{i) See an instance of a leading question in a criminal case in Powell's
Evidence, 513.
(^•) Page 512.
{I) Order xxxvi. rule 31.
2 T
498
OF EVIDENCE IN CIVIL CASES.
defendant, if he has no counter-claim, is entitled to
judgment dismissing the action ; hut if he has a counter-
claim, then he must prove such claim so far as the
burden of proof lies on him ; but any verdict or
judgment obtained where one party does not appear
at the trial, may be set aside by the Court or a judge
upon such terms as he may see fit, upon an application
made within six days after the trial (yn).
Admissions
may do away
with the
necessity of
strict
evidence.
Admissions between the parties to an action may
frequently do away with the necessity that would other-
wise exist for strict evidence. The term " admission "
is here used to denote the mutual concessions which
the parties to an action make in the course of their
pleadings, and the effect of which is to narrow the
area of facts or allegations requiring to be proved by
evidence (??)• The most usual case of admissions that
occurs in ordinary actions is the admission of docu-
ments under a notice to inspect and admit, which has
already been noticed (u) ; but there may be many other
cases of admission, e.g. admissions of facts in any plead-
ing, or on a notice to admit facts, which may be given
by either party not later than nine days before the day
for which notice of trial has been given ( 2^), and any
admission made in any letter of one of the parties,
or of his solicitor or agent, unless such letter has
been expressed to have been written " without pre-
judice." Having reference to the last point, it is usual
and proper, in any letter written with a view to the
compromise of an action, to state that it is written
" without prejudice ; " but when any letter has been
written with such a statement, then all subsequent
letters following thereon are within the rule although
not so expressed (q).
(m) Order xxxvi. rule 32.
(n) Brown's Law Diet. 21.
(o) Ante, p. 482.
ip) Order xxxii. rule 4.
(2) Hogliton v. Hoghton, 15 Beav, 278.
OF EVIDENCE IN CIVIL CASES. 499
If an admission is made in some pleading in one Eflfect in one
action, that pleading can be given in evidence in adSsi'Jn*''
another action as a cogent admission on his part, ™^*^® ^^
• n.p.,1 , . , r ' another action.
especially it it has been put in on oath, as would be
the case as regards an answer to interrogatories (r).
An admission need not necessarily be in writing, Admissions
but it may be by parol, e.g. in the course of conver- ™a^oUr b^y
sation ; and acts, conduct, manner, demeanour, and conduct, &c.
acquiescence may operate as admissions if they can
be so fairly construed (s).
Counsel may at a trial bind their clients by any Effect of
admissions they in their discretion see fit to make (t), co^sei''"' ^^
and where an order has been made by the consent or agents, '&c.
on the admission of counsel, the party for whom such
counsel appeared cannot afterwards arbitrarily with-
draw any such consent or admission, but the other
party is entitled to perfect the judgment or order and
to proceed thereon, subject to the right of the party
objecting to counsel's consent or admission, to apply
to the Court that made the order to be relieved from
the consent or admission on the ground of mistake or
surprise, or for other sufficient reason (u). An agent
can only bind his principal by admissions when the
making of such admissions comes within the scope of
his ordinary and usual authority (x) ; and a wife can
only bind her husband by her admissions so far as
she can be said to have his authority, express or
implied, to do so (?/), so that even in an action against
(r) Fleet v. Perrins, L. R. i Q. B. 536,
(5) Powell's Evidence, 277.
(0 See Swinfen v. Sivinfen, 18 C. B. 485.
(m) Harvey v. Croydon Union Sanitary A uthority, 26 Ch D 24Q •
53 L. J. Ch. 707 ; 50 L. T. 291 ; 32 W. R. 389. ' '
(x) This is simply on the ordinary principle of the power of an agent
to bind his principal, as to which see ante, p. 145.
(y) This, again, is on the ordinary principle of the power of the wife
to bind her husband, as to which see ante, p. 243 et seg.
500
OF EVIDENCE IN CIVIL CASES.
It is for the
judge to
decide on the
admissibility
of evidence ;
but it is for
the jury to
decide as to
the credence
to be given to
it.
a husband for his wife's tort, her admission of it
cannot be given in evidence against him (z).
An infant cannot make admissions, nor generally
can his guardian or next friend do so for him (a).
We have seen in the foregoing pages that there are
many kinds of proof that may be tendered that cannot
or ought not to be received. It is for the presiding
judge to determine as to the admissibility of particular
evidence. There is also another and perhaps even
more important point, viz. as to the credence to be
given to a witness, for very often evidence of a most
conflicting character is given at a trial. It is for the
jury to decide on the point of credence, for they sit
to try the facts of the case, and in exercising their
judgment they should regard the whole circumstances
connected with a witness; they should look to his
demeanour, and see whether he appears to be giving
his evidence in an honest, straightforward, and true
manner, and whether he appears to be an over-zealous
witness, unduly anxious to befriend the party on
whose behalf he is called, in which case he must be
regarded with, at any rate, some suspicion. They
should look, also, in cases of conflicting evidence, not
only to outward circumstances, but to inner matters,
and consider any interest or possible motive that the
witness may have, that may tend to weaken his
evidence, and look even to his general character and
past doings as some criterion on the all-important
question of truth (h).
(s) Bean v. White, 7 T. R. 112.
(a) Powell's Evidence, 297.
(6) As to the mode of taking evidence, and of enforcing the attend-
ance of witnesses, and generally on the practice of the Court thereon,
the student is referred to Indermaur's Manual of Practice, 134-137.
GENERAL INDEX.
A
Abatemext,
Of a nuisance, 333, 334.
Acceptance,
And receipt of goods within the 4th section of Sale of
Goods Act 1893, loi, 102.
Of bills : See Bills of Exchange.
Accident,
A person not liable for accidental injury if free from
fault, 351, 352.
But otherwise if any negligence, or if the party was
doing an unlawful act, 352.
Liability for fire caused by, 429, 430.
What will be an inevitable accident, 433.
Accidental Injury,
A person is not liable for, if he is free from fault,
351. 352.
Accord and Satisfaction,
A smaller sum cannot satisfy a greater, but something
different may, 262.
Definition of, and generally as to, 268, 269.
The value of the satisfaction cannot be inquired into,
269.
Acknowledgment,
To take a case out of the Statutes of Limitation, 5 7 ,
58, 273. ^
An unqualified admission of account being open is
suflficient, 273.
Must always be in writing, 57, 274.
Effect of, by one of several, 274.
Must have been made before action, 274, 275.
502 GENERAL INDEX.
Act of God,
As to what is, 128, note (e).
Actio tersoxalis moritur cum persoka,
Meaning of maxim, 5, 417.
Distinction as to when maxim applies and when it does
not, 5, 6.
Applies generally to actions of breach of promise of
marriage, 5, 6.
Exceptions to maxim, 323, 355, 417.
Provisions of Lord Campbell's Act and decisions
therein, 417, 418.
Actual Partner : See Partnership.
Admissibility of Evidence : See Evidence.
It is for judge to decide as to, 500.
Distinction between admissibility and credence, 500.
Admissions,
An unqualified admission of an account being open is
a sufficient acknowledgment to revive statute barred
debt, 273.
On a notice to inspect and admit, 482.
Meaning of "saving all just exceptions," 482.
^lay do away with necessity of strict exndence, 498.
Effect of, if made in some other action, 499.
]\Iay occur by parol, or even by conduct, 499.
Effect of, by counsel, agents, &c., 499.
Infants cannot make, 500.
Adultery Proceedings,
Parties to, are competent witnesses, 479.
Adverse Witness,
May be contradicted, 477.
If intended to contradict him by a writing, his atten-
tion must first be called to it, 478.
Advertisement,
Action may be brought for reward offered by, 38.
May constitute contempt of Court, 370, 371.
Advocate,
Absolutely privileged in what he may say in the course
of his advocacy, 389.
GENERAL INDEX. 503
Affidavit,
When used on an interlocutory application, may con-
tain a statement founded upon deponent's belief, 486.
Affirmation,
By witness under the Oaths Act, 1888, 476.
Agent : See Principal and Agent.
Agreement : See Simple Contract — Combination.
For lease, effect of going into possession under, 75.
Agricultural Fixtures, 72-74.
Aliens,
Who are, 254.
Their position prior to and since the Naturalization
Act, 1870, 254, 255.
Alterations in Instruments,
Effect of, after execution, 181, 182.
Ambiguity,
Rule as to admissibility of evidence to explain, 27, 28.
Difference between patent and latent, 27, 28.
Distinction as stated by Lord Chief-Justice Tindal,
27, 28.
The case of Goss v. Loj'd Nugent, 28.
If an instrument is so ambiguous as to make it doubt-
ful if a bill or note, it is in the election of the holder
to treat it as either, 190.
Animals.
As to property in, 340.
Injuries done by and to, 344, 345.
Annuity,
Definition of, 58.
Writing is necessary under the Annuity Act, 58.
Apartments,
Agreement for letting of, 63, note (l).
Apology,
Effect of, in an action for libel, 392.
Special provision in the case of libels in newspapers,
392.
504 GENERAL INDEX.
Apportionmext of Rext,
Provisions as to, 87, 88.
Apprentice : See Master and Servant.
Position of, with regard to premium paid, if master dies
or becomes bankrupt, 46.
A master is bound to provide medical attendance for
indoor apprentice, though not for an ordinary ser-
vant, 228.
Liability of an infant apprentice, 238.
Is liable to be reasonably chastised by master, 363.
Appropriation of Payments,
The rule as to, 261, 262.
Exception to general rule, 262, note {t).
Creditor may appropriate even to a statute barred debt,
262.
Arbitrator,
Not liable for mistake or errors of judgment, if he acts
honestly, 318.
Arrest,
"When a constable may arrest without a warrant, 368,
369-
"When a private person may arrest another, 369.
Power of pawnbrokers to, 370.
Under the Debtors Act, 1869, 371-374.
Liability for malicious arrest, 375.
Definition of malicious arrest, 375.
Distinction between, and imprisonment for debt, 375.
Articled Clerk : See Apprentice.
Assault and Battery,
Definition of assault and of battery, 356, 357.
"What will constitute an assault, 357-359.
Instances of assaults, 358, 359.
A merely passive act cannot amount to, 359.
Consenting to an assault, 359.
Distinction between, 359, 360.
May amount to mayhem, 360.
An action may be brought here for, though committed
abroad, 360.
But protection possible by reason of local Act of In-
demnity, 360, 361.
GENERAL INDEX. pqC
Assault and Battery — continued.
May be justifiable in defence of one's person, or in de-
fence of husband, wife, child, relative, neighbour, or
friend, 361.
Or in defence of one's property, 362.
Or on account of a person's peculiar position, ^6^.
May be committed irrespective of malice, 363, 364.
May be committed indirectly, as by the throwing of a
squib, 364.
When principal liable for assault committed by his
agent, 364.
Remedies for, 364.
Wife cannot sue her husband for, not even if she has
since been divorced, 365.
Damages recoverable in respect of, 461.
Assignments of Leases,
Must be by deed, 64.
Association,
Of more than twenty persons illegal if not registered,
224.
Assurance,
Definition of, 204,
Three things generally impliedly warranted in a
marine policy, 205.
But in a time poHcy no implied warranty of seaworthi-
ness, 205, note (0).
Meaning of term "seaworthy," 205, note (0).
Contracts of fire and marine assurance are contracts
of indemnity, 205, 206.
But contracts of life assurance are not, 206.
Rights in respect of insurance by vendor of house he
has agreed to sell, 206.
Wager policies not allowed, 206, 207.
A person to insure must have an insurable interest,
but a person may insure his own life, or a wife her
husband's, 207.
Under Married Women's Property Act, 1882, assur-
ance may be effected for separate use of wife and
children, subject to rights of creditors, 207.
As to effect of concealment on a policy, 207, 208,
Contracts of, are uherrwiae fidei, 207, 208.
5o6 GENERAL INDEX.
Assurance — continued.
Necessity of disclosing alteration of circumstances
occurring after offer to insure, 208.
Effect of suicide on a policy, 208, 209.
Life and marine policies are by statute assignable,
163, 164, 209.
Atheists,
Rule as to evidence of, formerly, 476,
May now give evidence under provisions of Oaths
Act, 18S8, 476.
Attesting Witness,
When it is necessary to call, 483.
Course when he is dead or cannot be found, 483.
What it is sufiBcient for him to depose to, 483.
Attorney : See Solicitors.
Warrant of, 10.
Attornment Clause,
In a mortgage constitutes a bill of sale, 116.
But clause may still be of some value, 116, note {k).
Auction,
Sale of goods by, 102.
Auctioneer,
How he may be liable for conversion, 348.
Is not protected from consequences of a wrongful sale
because he sold in market overt, 348.
Average,
General and particular, 200.
B
Bail,
Agreement to indemnify is illegal, 291, 292.
Bailee,
Estopped from denying the title of his bailor, 17.
Bailiff : See Distress.
Has no claim for his fees against solicitor employing
him, 221.
GENERAL INDEX. 507
Bailments : See also particular titles.
Generally, 122-142.
Lord Holt's division of, 122, 123.
The cases of Coggs v. Bernard and Wilson v. Brett,
123, 124.
Distinction between a pawn, a lien, and a mortgage,
125, 126.
As to pawnbrokers, 126, 127.
Carriers, 129-138.
Innkeepers, 138-141.
Lodging and boarding-house keepers, 141, 142.
Another division of, 142.
Banker and Customer : See Cheque.
Relation between, 192.
Statutory provisions as to bankers' books in evidence,
467.
Bankrupt,
Cannot on his examination object to answer question
on the ground that it may criminate him, 467.
Bankruptcy,
As to proof of judgment debt in, 12.
Administration of estates in, 13.
Position of voluntary settlements in, 19.
Debt barred by, is not revived by mere promise to
pay, 45-
Right of trustee in, to disclaim onerous property, 87.
In event of, trade or business goods comprised in a
conditional bill of sale pass to trustee if in bankrupt's
possession, 121, 122.
Married woman cannot be made a bankrupt unless
trading apart from husband, 245.
Composition with creditors under provision of the
Bankruptcy Act, 1890, 264.
Barristers,
Cannot recover their fees, 2 1 6.
Are not liable for negligence, 216.
Contracts between, and clients as to their services
void, 216.
Battery: See Assault and Battery.
508 GENEKAL INDEX.
Beadle,
Is justified in forcibly removing a person disturbing
congregation, 363.
Begin,
Who has the right to, at trial, 494, 495.
Belief : See Evidence.
An affidavit on an interlocutory application may con-
tain a statement founded only on deponent's belief,
486.
Betting : See Gaming Contracts.
Beyond Seas : See Limitation of Actions.
Meaning of, 272.
Bills of Exchange and Promissory Notes,
Origin of the system of exchange, 165.
This subject now governed by Act of 1S82, 165.
Definitions of a bill, a promissory note, and a cheque,
165, 166.
Advantages derived from, 166, 167.
Forms of, 168.
When negotiable, 168.
Effect of making a bill payable to an unnamed person,
168, 169.
What is a sufiicient acceptance, 1 69.
Two classes of persons liable on bills and notes, 169.
Engagement of the acceptor, 169.
Acceptance for honour or supra protest, 170.
Referee in case of need, 170.
Accommodation acceptance, 170, 171.
The giving of parol evidence to shew no consideration,
171-
Acceptance of, may be either general or qualified, 171,
172.
Distinction between general and qualified acceptance,
172.
Difference between indorsement in blank and special
indorsement, 172, 173.
Right of party to whom instrument payable to order
transferi-ed without indorsement, 172, 173.
Blank indorsement may be converted into special in-
dorsement, 172, 173.
GENERAL INDEX.
509
Bills op Exchange and Promissory Notes — continued.
Position of indorsers of bills or notes, 173.
Indorsement may be restrictive, 173.
Effect of an indorsement "sans recours," 173.
Holder in due course, 174.
Effect of accepting, making, or indorsing "per proc"
174.
Liability of an executor or administrator making,
accepting, or indorsing, 175.
How bills and notes may be made payable, 175.
Days of grace, 175, 176.
Statute of Limitations runs from date of instrument
payable on demand, 176.
But no interest payable until demand, 176, note (n).
Meaning of the term "usance," 176, 177.
Non-dating or wrong dating of instrument, 177.
As to presentment and notice of dishonour generally,
177-181.
What is sufficient notice of dishonour, 179.
To whom given generally, 'and in the case of death,
179, 180.
Time for giving it, 180.
Cannot be sued upon until the day after it is due,
180, note (/).
Delay in giving notice of dishonour, 181.
When notice of dishonour dispensed with, 181.
Effect of alterations after execution, 1 81-183.
Difference in transfer of bills or notes before and after
becoming due, particularly as to a stolen or lost bill,
183-185.
The cases of Miller v. Race and Loridon Joint Stock
Bank V. Simmons, 184, 185.
What is a sufficient consideration for a bill or note, 185.
Forgery of a bill or note cannot confer any title, 186.
The case of Bank of England v. Vagliano, 186, 187.
How liability on bills and notes may be discharged,
187, 188.
When noting and protesting necessaiy, 188.
Difference between an inland and a foreign bill, 188,
189.
Rules as to, when laws conflict, 189, 190.
Receipt on back of a bill or note now requires a
stamp, 190.
510 GENERAL INDEX.
Bills of Exchange axd Promissory Notes — continued.
If it is doubtful whether an instrument is a bill or
note, it is in the election of the holder to treat it
as either, igo.
EfiFect of loss of a bill or note, 190.
Rights in such a case, 191.
Bills and notes carry interest, 191.
Tender after bill due, 191.
Summary of differences in bills and notes from other
simple contracts, 191, 192.
Infants not liable on, 236, 237.
Bills or notes given for gaming debts are not absolutely
void, but only to be taken to be given upon an
illegal consideration, 304, 305.
Difference as regards bills and notes given in payment
of other wagers, 305.
Bill of Lading,
Indorsement of, may affect right to stop in transituy
108, 109.
This rule applies to indorsement of all documents of
title, 108.
"What it is, 202.
Difference between, and a charter-party, 202.
To a certain extent negotiable, 202, 203.
Effect of indorsement of, as regards liability of indorsee
for freight, 203.
Meaning of clause in, as to "perils of the sea," 203,
note {h).
Bill of Sale,
"When a mortgage of fixtures requires registration as
a bill of sale, 74.
If goods removed under, landlord cannot follow them, 82.
Provisions of Bills of Sale Acts, 1878 and 1882, points
decided on, and generally as to, 114-122.
Position of, on the bankruptcy of the giver, 121, 122.
Boardixg-house Keepers,
Liability of, 141, 142.
Books, &c.,
Bankers' books, provision as to admission in evidence,
467.
Companies' books, &c., like provision, 467.
GENEKAL INDEX. 5II
Books, &c. — continued.
A person's own, are not evidence, but he may refresh
his memory by reference to them, 485.
Bottomry Bond,
Definition of, &c., 201.
In such a security the Usury Laws never had any apph-
cation, 202.
Breach of Contract,
Consequences flowing from, 22, 23.
Breach of Promise of Marriage,
The maxim Actio personalis moritur cum persona applies
generally to, 5, 6.
Infant not liable in respect of, 238.
Damages recoverable for, 461.
In actions for, parties are now competent witnesses, 478.
Plaintiff's evidence must be corroborated, 478, 479.
Brokers,
Difference between, and factors, 151.
Builders,
Injuries done by, 412.
Burden of Proof,
Is on party seeking to prove affirmative in an action,
494.
But presumption of law may put it where it would not
otherwise be, 495.
Onus of proof where a voluntary settlement is called in
question, is on the person taking the benefit, 495,
496.
Child born during wedlock is presumed legitimate, 496.
Business,
When entx'ies in the course of, admitted in evidence,
473> 474-
C
Cab Proprietors,
As to the liability of, 410, 411.
Captain or Master of a Ship,
Has power during voyage to sell or hypothecate ship
and cargo, 199.
512 GENERAL INDEX.
Captain or Master op a Ship — continued.
Generally he has unlimited discretion how to act, 200.
Jettison, 200.
May imprison or reasonably chastise sailors, 363.
Carrier,
Non-liability of, for loss of mare, it being " act of God,"
128, note (/).
Reason of extensive liability of carriers of goods, 128.
Definition of a common carrier of goods, 129.
Liability of carriers of goods at common law, 1 29.
Provisions of the Carriers Act, 131, 132.
Provisions of the Railway and Canal Traflac Act, 131,
132.
As to special contracts and conditions under this Act,
132.
Act does not apply to conti-acts by companies to carry
beyond the limits of their own line, 133.
Liabihty where contract to carry partly by sea, 133.
Provisions of the Railway Regulations Act, 1868, 133,
134-
Duty of carrier of goods, 134.
As to carriage by a railway company over their own
and another line, 134.
Who is to sue the carrier, 134.
As to carrying dangerous goods, 1 34.
As to railway passengers' personal luggage, 135.
As to goods deposited in a cloak-room, 136.
As to goods sent to a certain station to be called for, 136.
As to the Equality Clauses relating to railways, and the
powers of the Railway Commissioners, 137, 138.
Liability for injuries to passengers, 138.
Liability of, by sea, 203, 2P4,
Liable for negligence causing injury to passenger, 416,
417.
Damages recoverable against, 458, 459.
Cart,
Injury arising from servant washing, 449.
Cases,
For index of, see ante, p. xi.
GENERAL INDEX. 513
Cats,
Scienter, 344, 345.
Injuries to, 346, 347.
Cattle,
Obligation as to fencing out, 324, 325.
As to liability if they stray, 428.
Caveat Emptor,
As to furnished houses, 90.
Meaning and instance of the rule, 112, 113.
Exception to the rule, 113, i [4.
The rule does not apply to the contract of insurance,
207, 208.
Certified Conveyancers,
May recover their fees, 216.
Champerty,
Definition of, 297.
Character,
Master's position as to giving character to his servant,
230, 386.
Persons of infamous character may yet give evidence,
477-
Evidence affecting a person's, 477.
Charities,
Liability for contract made on behalf of, 225.
Charter-party,
What it is, 202.
Difference between, and a bill of lading, 202.
Meaning of clause in, as to " perils of the sea," 203,
note (li).
Chemists and Druggists,
Cannot recover for advice, 221.
Cheque.
Definition of a, 166.
The rules as to bills and notes generally apply to, 193.
Time within which it should be presented, and conse-
quences of non-presentment, 193.
Position of a person taking an overdue cheque, 194.
Post-dated cheque good, 194.
2 K
514 GENERAL INDEX.
CiiEQ u E — continued.
Consequences of a banker paying a forged cheque or a
cheque with the indorsement forged, 194.
A banker cannot recover the amount of a cheque from
a person to -whom he has paid it on discovering that
his customer's account has been overdrawn, 195.
Crossing of, 195-197.
Crossing it, " not negotiable," 196, 197.
Protection of bankers paying, 197.
When a good tender, 268.
Child: See Infants — Parent and Child.
Rule as to when testimony of children is admitted,
480.
If l)orn during wedlock presumed legitimate, 496.
Chose in Action,
Definition of, 163.
Not generally assignable, but exceptions, 163, 164.
Provision of Judicature Act, 1873. as to, 164.
Remai-ks on this provision, 164, 165.
A future debt may be assigned, 165.
Clergymen,
Have no privilege as to giving evidence, 493.
Cloak-room,
Liability of a railway company for goods deposited in,
136.
Clubs,
Liability for contracts made on behalf of, 225.
Coal,
Liability of worker of, as regards owner of surface,
327> 328.
Code,
As to the advantages of, 2, 3.
First and most recent attempts at, 3, note (c).
Cognovit,
Definition of, 9.
Essentials as to execution of, 9.
Difference between, and a warrant of attorney, i o..
GENERAL INDEX. 51^
Collision : See Contributory Negligence.
Injuries arising from, 416.
Duty as to removing obstruction in the case of, 429.
Combination,
Of employers to decrease or limit wages illegal, 295.
Of employees to increase wages also illegal, 295.
This is subject to Trade Unions Act, 1871, 295, 296.
Committal Order on Judgment Summons,
Cannot be made against married woman, 245.
Must not be conditional, 374.
Common Employment, 228, 421, 422.
Common Law,
Origin of, i.
As distinguished from equity, 3.
Companies,
Difference between limited and unlimited, 223, 224.
More than twenty persons cannot carry on business
without registi-ation as a company, 223.
Contracts by, 224, 225.
Statutory provision as to various documents in evidence,
467.
Comparison of Handwriting,
Proof by, 482, 483.
Composition,
As to rights against a surety after accepting a composi-
tion, 53.
With creditors as an excuse for non -performance of a
contract, 264.
Compulsion : See Duress.
Money paid under compulsion of legal process cannot
be recovered back as money had and received, 281.
Compromise of Claim,
When a valuable consideration, 39.
Condition, distinction between, and warranty and mis-
representation, 109, no.
Conditions on tickets, receipts, &c., constituting a
contract, 38.
Consents to Judgment, to.
5l6 GENERAL INDEX.
Consideration,
What is a valuable, iS.
A simple contract must have a valuable, i8.
A deed does not require one, i8.
But though not requiring one, it is liable practically
to be called in question in three ways, through want
of it, 18, 19.
"What is a good, 18.
Origin of necessity for, 39, note {Jt).
Whether it is sufficient cannot be inquired into, 39, 40.
But it must be real, 40.
Must appear on the face of a written contract, or be
capable of being implied therefrom, except in two
cases, 40, 41.
May be either executed, executory, concurrent, or con-
tinuing, 41.
When an executed consideration will support a pi'o-
mise, 41, 42.
A merely moral consideration is not sufficient for a
simple contract, 43, 44.
But a moral obligation which was once a legal one is,
44.
The doing of an act a person was bound to do is not
a, 45-
Unreality of, 45.
As to an impossible, 45, 46.
A pre-existing debt is sufficient, for the handing over
of a negotiable instrument, 185.
Constable,
As to liability of, 368, 369.
Demand for warrant must be made, 368.
Course then to be taken, 368.
When he may arrest without warrant, 368, 369.
Construction of Contracts,
Rules for, 23-30.
Contempt of Court, 370.
Contracts : For particular contracts, see respective titles.
Diffei-ent divisions of, 7, 8.
Of record, 8-14.
Specialties and simple contracts, differences between,
14-20.
GENERAL INDEX. 517
Contracts — continued.
Express and implied contracts, difference between,
21.
Executed and executory contracts, difference between,
21, 22.
Rules for construction of contracts, 23-30.
A person not a party to a contract cannot sue on it, 32.
When may be made out from different documents,
33-35-
As to offer and acceptance, and revocation of offer,
35-38.
As to, through the post, 36, 37.
When required to be in writing, 47.
In such case the form of writing does not go to the
existence of the contract, 47.
When an agent's authority to sign must be by writing,
57-
One party to a contract cannot sign for the other, 57.
As to land generally, 60-90.
When a liability arises on, 256.
When an action may be brought before the time for
performance, 257, 258.
Performance of, generally, 260-269.
Excuses for the non-performance of, 269-379.
Illegality of, never presumed, 292, 293.
Stricter principles observed in assessing damages for
breaches of, than in respect of torts, 450.
Damages recoverable in various particular cases,
453-463-
Contractor,
Liable for negligence in or consequences of his work,
411, 412.
But a person desiring a dangerous work to be done,
cannot rid himself of liability by employing another
to do it, 412.
Contradiction,
Of an adverse witness, when allowed, 447, 478.
Contribution,
Not allowed between wrongdoers, 319.
Under the Directors' Liability Act, 1890, 319.
5l8 GENERAL INDEX.
CONTKIBUTORY NeGLIGEN'CE,
In cases under Lord Campbell's Act, 419.
Definition of, 434.
Instance of, 434.
"What will anil what will not be, 435.
Necessary for plaintiff to disprove if injury may have
happened from, 435, 436.
The doctrine of, applies to children, &c., 436.
Contributory negligence of servant is that of master,
437-
Doctrine of identification in contributory negligence
now overruled, 437.
Doctrine of, is founded on the maxim, Volenti non fit
injuria, 437, 438.
CONVKRSIOX,
Meaning of, 336.
Distinction between, and trespass, 336.
May be by an agent's act, and even l)y ratification, 347.
Conversion by auctioneers, 348.
When a demand is necessary before action for, 349.
Right to follow proceeds of goods wrongly converted,
350-
Justification of, 350, 351.
Who is the person to sue for, 353.
Remedy for, 354.
CoPYRionT,
Definition of, 2 10.
Term for which it exists, 211.
Enactment of Act of 1882 as to music, 211.
Right of, in article in an encyclopsedia, magazine, &c.,
211.
In lectures, 211.
A novel may be dramatized, 212.
None in a name, 2 1 2.
Assignable by mere entry in register, 212.
What suificient registration of. 212, note {k).
Consequence of omission to register, 212.
Rights in case of infringement of, 212.
As to property in letters, 212, 213.
Corporation,
Definition of, 223.
GENEKAL INDEX. 5 19
Corporation — continued.
May be either sole or aggregate, 223.
Contract by a, 223.
A municipal corporation cannot maintain an action for
libel, 381.
Counsel,
Cannot recover their fees, 216.
Are absolutely privileged in what they say in course
of their advocacy, 389.
]\Iay bind their clients by admissions, 499.
CouN"rER-CLAiM : See Set-off.
Country Notes,
When a good tender, 268.
Covenant,
To pay all taxes, &c., 69, 70.
Crane,
Liability for injury done by, 411.
Credence,
It is for a jury to decide as to credence to be given to
a witness, 500.
Distinction between admissibility and credence, 500.
Crimes,
Distinction between, and torts, 312.
Criminal Act of Servant,
When master liable for, 409, 410.
Criminal Information,
When prosecution can be by, 391.
When prosecution for libel against proprietor, &c., of
newspaper by, fiat of director of public prosecvitions
not necessary, 391.
Criminals,
Formerly were not good witnesses, 477.
But they now are, 477.
Witness may be questioned as to his criminality, and
after denial conviction proved, 477.
Crossed Cheques,
Former position as to, 195.
Provision of Bills of Exchange Act as to, 169.
520 GENERAL INDEX.
Crossed Cheques — continued.
Different modes of crossing, 196.
Effect of crossing cheque "not negotiable," 196, 197.
Custom,
Rights are sometimes given by, 70.
Customs are subject to the maxim, Expressum facit
cessare taciturn, 70.
D
Damages,
Generally as to, 439-446.
Definition of the term, 439.
Distinction between liquidated and unliquidated, 439-
443-
Difference between nominal, general, and special, 443.
An action need not necessarily be for, 444.
Liability of an executor or administrator for, 445, 446.
Need not always be assessed by a jury, 446.
Are assessed not merely to date of issuing writ, but
down to date of assessment, 446.
]Measure of, generally, 446-453.
Must not be too remote, 446-448.
Instance of remoteness of damages in slander, 449.
Instance of remoteness of damages in case of servant
washing cart, 449.
"When defendant's motive may be considered in assess-
ing, 449. 45°-
Vindictive or exemplary, 450.
Need not necessarily be the legal consequences of de-
fendant's acts, 451.
Interest as damages, 452.
Double and treble, 453-
In various particular cases, 453-463.
Recoverable for breach of contract to sell or buy land,
453. 454-
For trespass or other injury to land may sometimes
be recovered both by actual occupier and i-ever-
sioner, 455.
For breach of contract to buy or deliver goods, 455-
457-
For breach of warranty, 457, 458.
Against carriers, and particularly in actions under
Lord Campbell's Act, 458-460.
GENERAL INDEX. $21
Damages — continued.
On breach of contract to lend money, 460.
In respect of injuries to land and nuisances, 460, 461.
For breach of promise of marriage, 461.
For assault and battery, false imprisonment, malicious
prosecutions, 461.
Against a non-attending witness, 462.
Against a sheriff for negligence, 462.
By a servant against a master for wrongful dismissal,
463-
Damnum sine injuria,
Meaning of, 4.
Where there is both damnum and iyijurid then there
is a cause of action, 4, 5.
Dangerous Goods and other Things,
Duty and liability in respect of, 134, 343, 415.
Duty not to let dangerous creatures or things escape,
343-
Days of Grace, 175, 176.
Dead Persox,
Ordinarily no proceedings for libel or slander of, 400.
Deaf or Dumb Persons,
Are good witnesses if of sufl&cient understanding, 480.
Death,
Does not revoke a continuing guarantee until notice,
52.
Effect of death of husband on wife's power to bind for
necessaries, 147, and note {q).
Of princijjal revokes agent's authority, 149.
Special provisions on this last point with regard to
powers of attorney, 149, note (v/).
Usually puts an end to right of action, but there are
exceptions, 5, 6, 323, 355, 417, 422.
AVhat damages are recoverable under Lord Campbell's
Act, 459.
Presumption as to, after seven years, 474, 475.
Debentures,
Contract for the sale of, 62, note {li).
522 GENEKAL INDEX.
Debt : See Imprisonment — Abkest.
Assignment of future, 165.
When interest recoverable on, 452.
Deed,
Is the only true formal contract, 14, 15.
Proves itself after tliirty years, 475.
Provisions of Vendors and Purchasers' Act, 1874, as to
recitals in, 476, note {q).
Defamation : See Libel .vnd 8l.\ndek.
Defence,
Of one's land is justifiable, 326.
Or of one's goods, 352.
Assault and battery committed in defence of person or
property justifiable, 362.
Del ckedeke xVgent, 150, 151.
Delegatus non potest delegare, 144, 410.
Demand,
Sometimes necessary before bringing an action for con-
version, 349.
Dentists,
Must register to entitle them to sue for fees, 221, 222.
Detinue,
Former action of, 355.
Direct and Ix])irect P]vidence,
Difference between, 464, 465.
Directors' Liability Act, 1890, 285, 319.
Discharge of Liability : See Accord and Satisfaction^
Payment.
Disclaimer,
Trustee in bankruptcy may disclaim onerous property,
87.
Time for so doing, 87.
Dishonour,
Notice of, 1 7 7-1 8 1.
GEXEKAL INDEX. 523
Distress,
What it is, 75.
Requisites to enable a landlord to distrain, 75, 76.
Ma}- be made for the whole rent for furnished apart-
ments, 75, note (d).
Things exempted from, 76. 77.
Bill or note taken for rent does not extinguish right of>
Maxim of " every man's house is his castle," and appli-
cation, 80.
Provision of statute of Richard II., 80, 81.
After expiration of lease, or by executor or adminis-
trator, 81.
Landlord may follow goods clandestinely removed,
unless if they had remained on the premises he
would nevertheless have had no right of distress,
81, 82.
Landlord cannot follow goods removed by bill of sale
holder, 82.
Manner of making a distre.-<s, 82. 83.
Decision in Six Carpenters' Case, and provision of 1 1
Geo. 2, c. 19, s. 19, thereon, 83.
Replevin, 83, 84.
Extent of landlord's right under, 84-87.
Attornment clause in mortgage will not give right of,
116.
Divorce,
Does not give a woman a right of suing her husband for
torts committed by him during the coverture, 365.
DocuMEXT OF Title,
AYhat is n, 108, note (x).
Dogs,
Straying and doing injury, 324.
Owners liable for injuries done by, 344-346.
As to scienter, 345, 346.
Injuries to, 346, 347.
Dormant Partner : See PARTNERsnir.
Double Damages, 453.
Drunkards : See Intoxicated Persons.
5^4 GENERAL INDEX.
Dumb or Deaf Persons,
Are good witnesses if of sufficient understanding, 480.
Duress,
What is meant by, 254.
Persons under, not liable on their contracts, 254.
]\Ioney paid under compulsion of legal process cannot
be recovered back, 281.
Duty,
Of a person as to dangerous goods and other things,
134, 343. 415-
Entries made in course of business and discharge of
duty are admitted as evidence, 473, 474.
E
Earnest,
What is meant by, 100.
Easements, 326.
Ejectment,
In respect of non-payment of rent, and as to prior
demand, 84.
The subject of ejectment for non-payment of rent not
afifected by Conveyancing Act, 1881, 84, note ()).
Tenant liable to be ejected on breach of covenant, but
relief long given in certain cases, 88.
Provisions of Conveyancing Act, 18S1, as to relief
against forfeitures of leases, 88, 89.
Electric Tramway,
Causing damage, 430, 431.
Employers,
Common law liability of, for injuries to servants, 420,
421.
Provision of Employers' Liability Act, 1880, and
decision thereon, 422-426.
Ejusdem generis,
The rule of, 306.
Encyclop.edia,
As to copyright in an article written for, 211.
GENEEAL INDEX. 525
Entry,
On premises must not be forcible, 80, 81, 334.
Entries,
When entries made by deceased persons are admissible,
471-473-
Equality Clauses,
As to railways, 137.
Equitable Defences, 279, 280.
Escrow,
Meaning of, 1 5.
Estoppel, '
Generally, 11, 12, 16, 17.
Estoppel ire pa /s, 17.
The doctrine of estoppel does not prevent illegality
being set up, 16, 292.
Bailee is estopped from denying the title of his bailor,
17-
Tenant is estopped from denying his landlord's title,
67, 68.
"Every man's house is his castle,"
Maxim of, 80.
Evidence.
Generally as to, 464-476.
Direct and indirect, 464, 465.
Primary and secondary, 465.
Primary, must always be given where possible, 465.
Object of notice to produce, 466.
No degrees of secondary, 466,
Suhjyoena duces tecum, 467.
Exceptions to the rule as to non-admissibility of
secondary evidence, 467.
Of entries in bankers' books, 467.
Hearsay, definition of, 468.
Cases in which hearsay is admitted, 468-474.
When entries made by deceased persons admitted in,
471-473;
Of reputation, 474.
Different cases in which presumptions furnish evidence,
474, 475-
526 GENERAL INDEX.
Evidence — continued.
As to the competency of witnesses, Sec, 476-487.
As to atheists and the provisions of the Oaths Act,
1888, 476.
Criminals and infamous persons are now good witnesses,
476.
As to contradiction of an adverse witness, 477, 478.
Persons interested in result of an action are now good
^vitnesses in it, 478.
In adultery and breach of promise cases, now tlie
parties are competent witnesses, 478, 479.
In breach of promise cases plaintiff's evidence must be
corroborated, 478, 479.
Of idiots and lunatics, 480.
Of deaf and dumb persons, 480.
Of children, 480.
When necessary to call an attesting witness, 481.
Different ways of proving instruments not requiring
attestation, 481.
Object of notice to inspect and admit, 482.
Meaning of admission "saving all just exceptions,"
482.
As to proof by comparison of handwriting, 482, 483.
To be given if attestation necessary and attesting
witness dead or abroad, 483.
What is sufficient for an attesting witness to depose
to, 484.
Mode of proving a will at a trial, 484.
A person is not allowed to make evidence for himself,
When evidence consisting of matters of opinion is re-
ceivable, 485, 486.
Affidavits used on interlocutory application may con-
tain statements as to belief, 486.
Effect of not stamping an instrument within the
proper time, 487.
Cases of privilege generally, 487-494.
Privilege, meaning of, 488.
A witness is not bound to disclose anything that will
criminate him, 488, 4S9.
Nor a wife that will criminate her husband, 490.
Who is to determine whether answering a question
will tend to criminate, 488, 48 9.
GENERAL INDEX. 527
Evidence — continued.
A witness not always bound to answer questions tend-
ing to degrade him, 489.
No ground of privilege that witness may be exposed
to a civil action, 490.
A witness may waive his privilege of not answering
questions tending to criminate, 490.
No such privilege in the case of a bankrupt being
examined, 490, and note {u).
Professional communications, 490, 491.
Professional confidence and professional employment
are essential to this privilege, 491.
No privilege in the case of medical men and clergy-
men, 493.
Communications " without prejudice " are privileged,
493-
Other cases of privilege, 494.
Miscellaneous points as to, generally, 494-500.
Onus prohandi is on the person asserting affirmative in
an action, 494.
Unless the presumption of the law puts it elsewhere,
495-
Presumption in case of a voluntary settlement, 495,
496.
Presumption as to legitimacy, 496.
As to leading questions, 496, 497.
Effect of plaintiff or defendant not appearing at a
trial, 497, 498.
Admissions may do away with necessity of strict
proof, 498.
Effect in one action of admission made in another, 499.
Admission may be by parol, or even by conduct, 499.
Effect of admissions by counsel, agents, &c., 499.
Admissions cannot be made by an infant, 500.
Functions of judge and jury as to, 500.
Exchange,
Origin of the system of, 165.
ex dolo malo ngn oritur actio, 289.
Executed Consideration, 41-43.
Executed Contracts, 21, 22.
528 GENERAL INDEX.
EXECCTIOX,
Effect of, on land, 14.
Things exempt from, 77, 78.
Effect of, on goods, 340.
Liabilities and duties of sheriff in levying, 431, 432.
Executors and Administrators,
Provisions of Statute of Frauds as to their contracts,
49> 5°-
How they should accept, make, and indorse bills or
notes so as not to be personally liable, 175.
Effect of a creditor appointing his debtor executoi-, 279.
When they may maintain action notwithstanding
maxim, Actio personalis moritur cum j^eisond, 5, 323,
355- 417-
Liability of, in an action, 445, 446.
Executory Coxsideration, 41, 45.
Executory Contracts,
Generally. 22.
When a liability on, may arise before the time for per-
formance of, 256, 257.
Express Contracts and Implied,
Difference between, 21.
EXPRESSUM FACIT CESSARE TACITUM, 21, 70.
Ex turpi causa non oritur actio, 319.
F.
Factors,
Difference between, and brokers, 151, 152.
Their power to bind their principals by pledging at
common law, and under the Factors Act, 1889, 152.
As to right of set-off when action brought by principal,
154.
False Imprisonment,
Definition of, 365.
Distinction between an actual and a constructive deten-
tion, 365.
Cases in which imprisonment justifiable, 366.
As to the liability of justices and constables, 366-369.
GENERAL INDEX. 529
False Imprisoxmext — continued.
A person obtaining a warrant is not liable for false
imprisonment, 368.
When a constable may arrest without warrant, 368, 369.
"When a private person is justified in arresting another,
369-
As to detention for contempt of court, and for debt,
&c., 370-374-
Distinction as to proof of reasonable and probable cause
in action for, and action for malicious pi'osecution,
377> 378-
Damages recoverable for, 461.
False Represextation : See Fraud.
Father : See Parext axd Child.
Feloxy,
Action may generally be brought although tort amounts
to, 313.
Fexces,
Liability to keep in repair, 324, 428.
Ferocious Aximals,
Injuries done by, 344-346.
The doctrine of scienter, 344-346.
Fixder of Goods,
His rights, 336, 337.
Fire : See Assuraxce.
As to liability in respect of injuries through accidental
fires, 429, 430.
Fish,
As to property in, 340.
Fixtures,
Contracts for the sale of, need not be in writing, Gt,.
What are, 70.
Must be removed during tenancy, 71.
Originally fixtures not removable, 71.
Cases in which they are now removable, 71-74.
Agricultui-al, 72-74.
When a mortgage of, requires registration as a bill of
sale, 74.
2 L
530 GENERAL INDEX.
Flats,
Liability for non-repair of common staircase, 427.
Foreign and Inland Bills,
Differences between, 188, 189.
Forfeiture of Leases,
Relief in respect of, 84, 88, 89.
Forgery,
No title can be obtained through, 186.
Formal Contract,
"What is said to be the only true, 14, 15.
Fraud,
Effect of, as regards the Statutes of Limitation, 272.
Definition of, in law, and what representations sufficient
to constitute, 283.
Legal and moral fraud discussed, 284, 285.
A false statement honestly believed in does not con-
stitute, 285.
Directors' Liability Act, 1S90, 285.
A mere lie not sutHcient to constitute, 285, 286.
Nor words amounting merely to puffing, 286.
Misrepresentation as to the legal effect of a document
not, 286.
As to liability of principal for his agent's, 286, 287.
When a fraudulent representation must be in writing,
58, 287.
Provision of 13 Eliz. c. 5, and decision in Timjmi^s
Case, 287, 288.
Provision of 27 Eliz. c. 4, 289.
Provision of Voluntary Conveyances Act, 1893, 289.
Ex dulo malo non oritur actio, 289,
Contract induced by, may nevertheless be enforced by
third person innocently acquiring an interest, 290.
Rescission of a contract on the ground of, must take
place within a reasonable time, 290.
Need not go to the whole of the contract, 290.
In pari delicto potior est conditio defende^itis et possi-
dentis, 290, 291.
Position if a person obtains goods by, and disposes of
them to an innocent party, 338.
GENERAL INDEX. 53 I
Frauds, Statute of,
Provisions of, generally, 47-57.
As to the memorandum required by the statute, 49.
When an agent within, must be authorized by writing,
57;
Provisions of, as to land, 48, 49, 60-62.
Freight,
What it is, 203,
Position of indorsee of bill of lading by way of security
as regards liability for, 203.
Furnished Apartments,
Distress for rent of, 90.
Furnished House,
Condition on taking, 90.
Future Day,
Where action can be maintained before time has arrived
for it to be done, 256, 257.
G
Game,
As to property in, 340, 341.
Provisions of Ground Game Act, 1S80, 341.
Gaming Contracts, 298-306.
Provision of the Gaming Act, 1845, and the Gaming
Act, 1892, 298, 299.
Money won and received by agent may be recovered by
his principal, 299.
Agent paying a bet he has made for principal cannot
recover from principal, 299, 300,
Stock Exchange contracts for differences, 300, 301.
As to the position of a stakeholder, 301, 302.
What is a lawful game within the Gaming Act, 1845,
302, 303.
As to horse-racing and lotteries, 303.
Provision of Leeman's Act, and decisions thereunder,
303, 304-
Bills or notes given for money won at betting on games
are not void, but to be taken as upon an illegal con-
sideration, 304, 305.
532 GENERAL INDEX.
Gaming Contracts — continued.
Difference as regards bills and notes given in payment
of other wager transactions, 305.
Wager policies, 306.
General Average, 200.
General Damages : See Damages.
General or Public Interest,
To prove matters of, hearsay evidence is admitted, 468,
469.
Geographical Description,
Cannot be registered as a trade-mark, 213.
Goods,
Contracts for the sale of, generally, 91-114.
Codification of the law as to sale of, 91.
Points as to delivery and acceptance of, 91, 92.
As to property passing in specific, 93.
Rules for ascertaining intention as to property in,
passing, 94.
Instances of cases in which property in, does not pass,
95. 96-
When property passes in goods part of an entire bulk,
96.
When property passes in goods to be made, 97.
Effect of sale of, at price to be fixed by valuation, and
no such valuation made, 97.
Reservation of right of disposal of, on contract for sale
of, 98.
General answer to question of when property in goods
passes, 98.
Perishing after contract for sale, 98.
Provisions of Statute of Frauds, and Sale of Goods Act,
1893, as to contracts for sale of, 99.
As to earnest and part payment, 100.
As to acceptance and receipt of, within meaning of sec-
tion 4 of Sale of Goods Act, 1893, loi, 102.
Sales of, by auction, 102.
Remedies of vendor and purchaser on breach of con-
tract for sale of, 103.
Vendor's lien on, 103, 104.
Stoppage in transitu, 105-109.
GENEEAL INDEX. 533
Goods — continued.
Effect of exercise of right of lien or stoppage in
ti-ansitu, 107.
Specific performance of contract to sell, 109.
As to warranty, 109-114
As to bills of sale, 1 14-122.
Duty as to dangerous, 134, 343, 413.
Effect of sale of, to an infant, 237, 238.
Failure in delivery of instalment of goods, or in pay-
ment of an instalment for goods, 258.
Torts affecting, two divisions of, t^t^G.
Title to goods, 336-342.
Sale in market overt, 337, 338.
If stolen and sold in market overt may nevertheless
after conviction be obtained back by true owner,
337, ZZ^-
But not if the goods were obtained by fraud not
amounting to larceny, 338.
Distinction between trespass and conversion, 2>3(>i
342.
Interpleader, 350.
Justification of trespass or conversion, 350-352.:'
Miscellaneous points as to, including defence and re-
caption, 352-355.
Goodwill,
Sale of, and right of vendor as to setting up fresh busi-
ness and soliciting former customers, 293-295.
Grace,
Days of, 175, 176.
No days of, in the case of instruments payable
demand, at sight, or on presentation, 176.
Ground Gaaie, 341,
Guarantee : See Surety.
Must always be in writing, by Statute of Frauds, 49,
50-
How this provision was evaded, and provision of Lord
Tenterden's Act, 287.
A promise made to a debtor himself, however, need
not be in writing, 50.
Provision of Mercantile Law Amendment Act, 1856,
as to, 51,
534 GENERAL INDEX.
GuARA^'TEE — continued.
Distinction between, and a contract of indemnity,
151-
Guests,
Of innkeepers, 1 38-141,
Position of, if injury happens to them, 412.
H
Hackkey Carriages,
Position of person letting out, 411.
Handwriting,
Comparison of, 482, 483.
Hearsay Evidence,
Definition of, 468.
Cases in which it is admitted, 46S-474.
Hire Purchase Agreement,
May sometimes constitute a bill of sale, 116.
EfiPect of wrongful sale by person liaving possession of
goods under, 153, 154.
Holder in due course, 174.
Holding : See Landlord and Tenant.
A defendant to bail in a civil action, 374, 375.
Horse,
Injured during voyage, 128, note (/).
Special provisions as to the sale of, 338.
Liability for, if it strays, 428.
Horse-racing, 303.
House,
Implied warranty on taking a furnished, 90.
Housing of the Working Classes,
Implied condition on letting house for, 90.
Husband : See Married Woman.
Liability of, and position generally with regard to his
wife, 240-252.
Still liable for wife's torts during marriage, 252.
No right to detain pex'son of his wife, 366.
GENEKAL INDEX. 535
I
Identification,
Doctrine of, does not now apply in cases of contributory-
negligence, 437.
Idiot : See Non compos mentis.
Distinction between, and lunatic, 252, 253.
Cannot give evidence, 480.
Illegal Associations, 223, 224.
Illegality,
Makes a contract void, 291.
Money paid under illegal contract cannot be recovered,
291.
Unless illegal purpose in no way carried out, 291, 292.
Or parties not m jMJ'i delicto, 291.
The doctrine of estoppel does not prevent its being set
up, 292.
Is never presumed, 292, 293.
Is of two kinds, 293.
As to contracts in restraint of trade, 293-296.
Other particular cases of, 296-307.
An illegal instrument cannot be confirmed, 307.
Non-stamping of an instrument does not render it
illegal, 307, 308.
Illegitimacy,
Evidence of, 469, 470.
Immoral Contracts,
Are always void, 46, 296.
Implied Contract, 21, 70, 90.
Impossible Consideration, 45, 46.
Imprisonment : See False Imprisonment.
For contempt of court, 370.
Cases in which imprisonment for debt still allowed,
371-374-
Distinction from arrest, 375, 376.
Indemnity,
Distinction between contract of, and contract of
guarantee, 151.
When it can be claimed by a wrongdoer, 3 1 9.
536 GENERAL INDEX.
Indictment,
What it is, 331.
Indirect and Direct Evidence,
Difference between, 464, 465.
Infamous Character,
Persons of, may yet give evidence, 477.
Infants,
Who are, 231.
Liability of, on their contracts, 231-239.
Provisions of Infants' Relief Act, 1874, 232, 233.
Position of an infant who continues a marriage engage-
ment after coming of full age, 233.
Functions of judge and jury in action for necessaries,
234-
What are necessaries, and what would be evidence on
this point, 234.
Who is liable for necessaries when infant residing with
his parent, 235, 236.
As to whether liable for money lent to buy necessaries,
236.
Not liable merely on account of misrepresentation of
age, 236.
Never liable on bills or notes, 236, 237.
Infancy is a personal privilege, 237.
Continuous contracts on which liable if not disaffirmed,
237-
Position when an infant has paid for things not
necessaries, 237, 238.
Contracts to marry by, and marriage of, 238.
Liability of apprentices, 238.
Liability of, in respect of torts, 239.
Infidels,
Can now give evidence under provisions of Oaths Act,
1888, 476.
Information,
What it is, 331.
Injunction,
May in certain cases be gi-anted against the publication
of libel, 399, note (r).
GENERAL INDEX. 537
Injuria sine damno,
Meaning of, 3, 4, 192, note (r), 311.
Inland and Foreign Bills,
Differences between, 188, 189.
In pari delicto potior est conditio dependentis et possi-
dentis, 291.
Innkeeper,
Definition of, 138.
His liability at common law for guest's goods, 139.
Reason of this extensive liability, 139,
Who is the guest of, 139.
Calyes Case, 139, 140.
Provisions of the Innkeepers Act, 1863, 140.
Not liable for personal injury to guest unless negli-
gence shewn, 141.
Has a lien on his guest's property, but not on his
person, 141.
No lien on goods of a third person sent to the guest
at the inn, 141.
Effect on lien of taking security, 141,
Provisions of the Innkeepers Act, 1878, 104, 105,
141.
Innuendo in Libel Actions, 382, 383.
Inspect and Admit, Notice to.
Object of, &c., 482.
Instalments,
Failure in delivery or payment by instalments, 258.
Provision for payment of debt by, and that on one
becoming in arrear, whole sliall become due, not a
penalty, 443.
Institutions,
Liability for contracts made on behalf of, 225.
Insurance : See Assurance.
Interest,
Is payable on bills and notes, 192.
When recoverable in other cases, 452, 453.
Payment of, prevents operation of Statutes of Limita-
tion, 275.
53^ GENERAL INDEX.
Interest — continued.
Effect of such a payment by one of several persons
jointly liable on a contract, 275.
Is payable on judgment of High Court, but not on
judgment of County Court, 453.
Interest, Pecuniary or Proprietary,
Entries made contrary to, are admitted, 471.
Even though they form the only evidence of the
interest, 472.
Difference between entries against interest and entries
made in the course of duty, 473.
Intekpleader,
What it is, and generally as to, 350.
Intoxicated Persons,
Liability of, on their contracts, 254.
Invitation,
Doctrine of, 414.
J
Jettison, 200.
Judge,
Not liable for acts done in discharge of his duties and
within his jurisdiction, 389.
Judgment,
Definition of, 8.
As to consents to, 10.
When recovered will merge a covenant contained in a
deed, 10, 11.
Is not conclusive proof of a debt in bankruptcy, 12.
Has priority in payment, 12, 13.
As to charging lands, 13, 14.
Not satisfied by payment of a smaller sum, 262, 263.
Does not by itself affect the title to goods, 340.
Of High Court carries interest, but not judgment of
County Court, 453.
Judgment Summons,
Married woman cannot be committed on, 245.
Now bankruptcy business, 373, 374.
Conditional order for committal not good, 374.
GENEEAL INDEX. 539
Justices,
As to their liability, 366, 367.
Notice need not be given before bringing action
against, 367.
Plight of action barred after six months, 367.
Justification,
Of trespass, 325, 350.
Of an assault, 363.
K
King, The,
Can do no wrong, 317, and note {g).
L
Land,
Contracts for sale of, must be in writing, 60.
But in three cases Chancery has been in the habit of
decreeing specific performance of a parol contract for
the sale of, 60.
What is an interest in, 61, 62.
Title to be shewn to, 63.
Sufficient signature of, and description in, a contract for
the sale of, 63, 64.
Torts affecting, generally, 320-335.
Trespass quare dausum f regit, 320.
Time for bringing action for recovery of, 321.
As to action for trespass to, 321, 322.
Action for trespass to land abroad cannot be brought
here, 321.
When an action may be brought in respect of injuries
to, after death of party, 323, 324.
What will amount to trespass to, 324.
Right of, or building, to adjacent support, 328, 427,
428.
Damages recoverable by a purchaser on breach of con-
tract to sell, 453, 454.
Damages recoverable against a purchaser for refusing
to complete, 454, 455.
Damages for injury to reversion, 455.
540 GENERAL INDEX.
Landlord and Tenant : See Distress.
Different ways in which a tenancy may exist, 64.
When writing necessary for a lease, 64.
Effect of a parol lease for more than three years, 64, 65.
Effect of payment of rent, 65.
Position of tenant holding over after expiration of
lease, 65, 66.
Notice to be given by a tenant on determining tenancy,
65-
What a sufficient notice to quit, 66.
Notice to quit part of demised premises not good except
under Agricultural Holdings Act, 1883, 66.
Tenancy at will arising by construction of law, 67.
Tenant cannot deny his landlord's title, 67, 68.
Position of, as to repairs, 68, 6g.
General position of, with regard to rates and taxes, 69,
70.
Tenant's; right by custom, 70.
Fixtures, 70-74.
Provisions of Agricultural Holdings Act, 1883, 72, 73.
Distress, 75-87.
Position where tenant holds under agreement for lease,
75-_ _
Requisite to enable landlord to distrain, 75, 76.
Things exempt from distress, 76, 77.
General rule to determine whether a person is a lodger,
79-
Amount of rent landlord entitled to sue and distrain
for, 84, 85, and note (t).
Landlord's rights against an execution creditor, and in
the case of bankruptcy, 85-S7.
Apportionment of rent, provisions as to, 88.
As to forfeiture and relief therefrom, 88, 89.
Tenant may appropriate any part of the rent to in-
demnify himself against prior charges, 89, 90.
Condition on the letting of furnished houses or apart-
ments, 90.
Condition on letting to working classes, 90.
A tenant wrongfully holding over may be forcibly
ejected by landlord, though landlord may be liable
for the assault, 81, 325.
Position of responsibility in case of nuisance, 330.
GENERAL INDEX. 54 1
Latent Ambiguity,
Parol evidence is admissible to explain, 27, 28.
Distinction between, and a patent ambiguity, 27, 28.
Lateral Support,
As to the I'ight to. 328, 427, 428.
Leading Questions,
What they are, 496, 497.
Not allowed in examination in chief, but they are in
cross-examination, 497.
Lease,
Provisions of Statute of Frauds as to, 47, 48, 64.
Effect of a parol lease which should have been in
writing, 64, 65.
Effect of going into possession under agreement for, 75.
On bankruptcy of a lessee, trustee may disclaim lease as
onerous property, 87.
Effect of such disclaimer, 87.
Lectures,
As to copyright in, 211.
Legal and Moral Fraud : See Fraud.
Legal Practitioners, 216: See respective titles.
Legitimacy,
Evidence as to, 469, 470.
Presumption as to, 496.
Leeman's Act,
Provision of, and decisions thereunder, 303, 304.
Letters,
Property in, written from one person to another,
212, 213.
Lex non scripta.
Meaning of, i.
Lex scripta.
Meaning of, i.
Liability on Contracts,
When it arises, 256.
When there is liability before day for performance of
contract, 256-258.
542 GENERAL INDEX,
Libel axd Slander, 380-400.
Definition of libel, 380.
Not necessary a libel should have caused any special
damage, 380, 381.
Municipal corporation cannot sue for, 38 1.
Trading corporation may sue for, 381.
Instances of wox-ds held to be libellous, 381.
Mere words of suspicion will not constitute, 381.
Innuendo in, 381, 382.
Publication of libel must be proved, 383.
What will amount to publication, 383, 384,
A person unwittingly publishing a libel is not liable, 384.
Malice in law is essential to constitute a libel, 384.
Privileged communications, 385-390,
Privilege of master giving character to servant, 386,
Comments and criticisms are not privileged, 38 7,
Privilege of Member of Parliament, 387,
Privilege in reporting legal proceedings, 387, 388,
Reports of proceedings in Parliament, meetings, &c,,
387, 3S8.
Provision of Libel Act, 1888, 3S8.
Statements by judges, magistrates, and the like, and by
advocates, are absolutely privileged, 389.
So also are statements made in the witness-box, 389.
Difference between absolute and qualified privilege, 390.
Libel may be prosecuted for, and in certain cases by
criminal information, 390, 391.
Effect of truth of libel in civil and criminal proceedings
respectively, 390, 391.
For prosecution of the proprietor, &c,, of a newspaper
for libel, an order of a judge must first be obtained,
391-
But this does not apply to criminal informations, 391.
Effect of apolog}' in action of libel, 392.
Notice necessary to entitle defendant to give evidence
of circumstances of excuse in publication of, 392,
note (s).
Course to be taken by proprietor of a newspaper in
action for libel published in his paper, 392.
In such a case defendant cannot plead an apology with-
out paying something into court, 392, note (t).
Provision of Libel Act, 1888, as to mitigation of
damages, 393.
GENERAL INDEX. 543
Libel axd Slaxder — continued.
Action for libel must be brought within six years, 393.
Definition of slander, 393.
AVhen a criminal prosecution will lie for slander,
393. 394-
Instances of slandei', 394.
Calling a person a felon who has undergone sentence is
actionable, 394, note (6).
Facts to be proved in an action for slander, 395.
Special damage must be proved in an action for slander,
except in four cases, 395, 396.
Position as regards words spoken of a person holding
a public office, 396, 397.
EfiPect of truth of slander, 397, 398.
Action for slander must be brought within two years,
39S;
Repetition of slander, 398, 399.
Obtaining injunction against, 399, note (r).
Summary of differences between, 399.
As to libel or slander concerning a dead person, 400.
Instance of damage for slander held too remote, 449.
Licence,
To break open premises void, 80, 81.
To trespass may be revoked, 325.
Licensees,
Position of, in respect of injuries, 412.
Lien,
Definition of, 103.
How lost, 103, 104.
No lien where goods sold on credit, 104.
Only exists until delivery, 104.
Solicitor's, 105, 218, 219.
Is generally a mere passive right, 104, 105.
Except in the one case of an innkeeper, 105.
And to a certain extent also in the case of solicitors,
105, 218, 2ig.
Effect of exercise of right of, 107.
Distinction between, and a pawn, and a mortgage,
125, 126.
Extent of innkeeper's, 141.
544 GENERAL INDEX.
Life : See Assurance.
Limitations of Actions,
Periods for, 20, 85, and note (f), 269-276. 321, 367,
393. 398> 399' 4i8, 425-
List of most important periods, 270, note (A).
Nature of an acknowledgment, and what is sufficient
acknowledgment, 57, 58, 273, 274.
Object of the Statutes of Limitation, 269. 270.
The statutory periods apply to claim against separate
estate of married woman, 270, note (k).
Effect of one of several joint debtors being beyond
seas, 271, note (/■)•
jNIeaning of " beyond seas," 272.
The statute only bars the remedy, not the right, as
regards contracts, 272.
Otherwise as regards land, 272, note (/).
Ignorance of rights does not prevent statute running,
except in cases of fraud, 272, 273.
Four ways in which the Statutes of Limitation may be
prevented from applying, 273.
An acknowledgment must alwaysbe in writing, 273, 274.
Effect of acknowledgment by one of several, 274.
Acknowledgment must be before action brought, 274,
275-
Effect of part payment or payment of interest by one
of several, 275.
Difference if by one of several partners. 276, note (r).
As to issuing process to prevent statutes applying, 276.
Liquidated Damages,
Distinction between, and unliquidated damages and
penalties, 439-443-
Question as to whether, or penalty is one of law, 443.
Locomotive,
Causing damage, 430.
Lodger,
His goods cannot now be taken either in distress or
execution, 78, 79.
Rule for determining whether a person is a lodger, 79.
Lodging-house Keepers,
Liability of, 141, 142.
GENERAL INDEX. 545
Lord's Day Act, The, 306, 307.
Loss OF Service : See Seduction.
Actions for, may arise quite irrespective of seduction,
and instance of, 405, 406.
Lotteries, 303.
Luggage,
As to liability of railway company for loss of, 135, 136.
Lunatic : See Non compos mentis.
Distinction between, and an idiot, 252, 253.
To what extent unsoundness of mind is a defence, 253.
Acts done during lucid interval, 253.
Can only give evidence during a lucid interval, 479,
480.
M
Maintenance,
Definition of, 296.
Exceptions to, 297.
Malice,
Difference between, in law and in fact, 378, 379.
Malicious Arrest, 375,
^Ialicious Prosecution,
A person obtaining a warrant may be liable for, 368.
Definition of, 376.
Three essentials in an action for, 376.
Person cannot sue for, if there is a conviction standin<T
against him, 376.
The question of reasonable and probable cause is for
the judge, 377.
Respective functions of judge and jury in an action for,
377-
Distinction as to proof in action for, and in action for
false imprisonment, 377, 378.
A prosecution not at the outset malicious may become
so, 378.
Difference between malice in fact and malice in law,
378.
Nature of the malice necessary in action for, 378, 379.
Difference between the findings as to reasonable and
probable cause, and malice, 379.
2 JI
54^ GENERAL INDEX.
Malicious Prosecution — continued.
Action for, will lie against a company, 379.
Kg action lies for malicious prosecution of a civil action,
379-
Xor by a subordinate against a commanding officer for
bringing him to court-martial, 379.
But action will lie for malicious presentation of a wind-
ing-up petition, 379.
Damages recoverable for, 461.
ISIare,
Injured during voyage, 128, note (/).
Marine Insurance : See Assurance.
Market Overt,
What is meant by, 337.
Advantage of purchasing in, 337.
Notwithstanding sale in, if goods are stolen and the
thief convicted, restitution may be obtained by true
owner, 337, 338.
But not if goods only obtained by fraud not amounting
to larceny, 338.
An auctioneer selling in, is not protected, 348.
Marriage : See Breach of Promise of Marriage.
An agreement made in consideration of, must be in
writing, 49, 53.
Of a female does not now revoke any authority she may
possess as an agent, 149.
Position of an infant continuing a marriage engagement
after attaining full age, 233.
Infants not liable on contracts for, but if marriage takes
place it is generally binding, 238.
* Contracts in general restraint of, are invalid, 293.
Married Woman,
May insure her husband's life, and policy may be ex-
pressed to enure for her separate use, 207.
Position of, and of husband, as to contracts made and
torts committed before marriage, 240-243.
Position of, and of husband, as to contracts made after
marriage and during cohabitation, 243— 24S.
Cases in which a married woman is in the position of a
feme sole, 244.
GENERAL INDEX. 547
Married Woman — continued.
Position of, as to contracts under Married Women's
Property Acts, 1882 and 1893, 244, 245.
Cannot be made a bankrupt unless trading apart from
her husband, 245.
Committal order cannot be made against, 245, 246.
Her position as to suing and being sued under the
Mai-ried Women's Property Act, 1882, 246.
Position of, and of husband, as to contracts made after
marriage, but during separation, 248-250.
Effect of notice in papers by husband that he will not
be liable for his wife's debts, 250, 251.
A husband is liable for the costs of any proceedings
rendered necessary by his conduct, 251.
Money lent to wife to buy necessaries, 251.
Who is liable on a contract by a wife for necessaries
when husband is dead unknown to her, 251, 252.
Committing tort, husband still liable, 252.
Claim against separate estate of, is governed by Statutes
of Limitation, 270, note [k).
Effect of a woman marrying her debtor, 279.
A wife cannot sue her husband for a tort committed
during coverture, even though she has since obtained
a divorce, 365.
Representatives of lunatic husband allowed to sue for
wife's torts in connection with property, 365,
note {p).
Cannot lawfully be detained by her husband, 366.
Master and Servant,
As to hiring of servants, 226.
Doubtful whether a contract for service for life does
not require to be by deed, 226.
A hiring always presumes reasonable wages, 226.
Different kinds of servants, 226.
Effect of a general hiring, 226, 227.
As to the power of a servant to bind his master by
his contracts, 227, 228.
As to master's liability for his servant's torts, 228,
364, 409, 410.
Servant entitled to wages during temporary illness,
228.
548 GENERAL INDEX.
Master and Servant — continued.
Master not bound to provide medical attendance for
his servant, though he is for apprentice, 228.
But if he sends for a medical man he will be liable,
and cannot make deduction from wages, 228.
Position with regard to injuries done by one servant
to another acting in course of common employment,
at common law, 228, 229.
And now under Employers' Liability Act, 1880, 229,
422-426.
Length of notice to determine relationship of, 229.
When master may discharge servant without notice,
229.
Effect of death on relationship of, 230.
Master's position as to giving a character to servant,
230.
Master may reasonably chastise his apprentice, 363.
Liability of master for servant's torts, 409, 410.
Relationship of, may exist between cab proprietor and
driver, 411.
As to the position of a contractor or a sub- contractor,
411-
Servant's claim against railway company when ticket
to travel taken by master, 413, 414.
Master's claim against railway company for his own
property when ticket to travel taken by servant, 414.
Damages recoverable by a servant for wrongful dis-
missal, 463.
Master of a Ship: See Captain or Master of a Ship.
Maxims —
Actio personalis moritur cum persond, 5, 6, 323, 355,
417.
Caveat emptor, 90, 112, 113, 207.
Delegatus lion potest delegare, 144, 410.
Every man's house is his castle, 80.
Ex dole malo non oritur actio, 289.
Expressum facit cessare taciturn, 21, 70.
Ex turpi causa non oritur actio, 319.
In pari delicto potior est conditio defendentis et possi-
dentis, 291.
Nemo dat quod non hahet, 336.
GENEKAL INDEX. 549
Maxims — continued.
Omnis ratihabitio retrotrahitur et mandato priori cnqid-
paratur, 145, 146.
Qui facit 2:)er alium facit per se, 143, 409, 420.
Quod ah initio non valet in tractu temporis non con-
valescit, 307.
Res ipsa loquitur, 407.
Respondeat superior, 409.
Sic utere tuo ut alienum non Icedas, 343.
The king can do no wrong, 3 1 7, and note (^7).
Volenti non Jit injuria, 401, 424, 438.
Mayhem,
What it is, 360.
Medical Men,
When they may recover their fees, 221.
No privilege in giving evidence, 493.
Members of Parliament,
Position of, as regards privilege from slander or libel,
387.
Memorandum,
Or note of contract to satisfy the Statute of Frauds, 49.
Mercantile Agents, 151, 152.
Merger,
What it is, 10, 15.
Is caused by recovering judgment on a deed, 10, 15.
Misrepresentation: See Fraud.
Distinction between, and condition and warranty, 109,
no.
Mistake,
As to recovery of money paid under, 281, 282.
In telegraphic message, 315.
Monopolies : See Patent.
The Statute of, 209.
Month,
Meaning of the term, 30.
Monthly Tenancy,
Notice to determine, 65, 66.
550 GENERAL INDEX.
Moral Consideration,
Is not sufficient to support a simple contract, 43.
But a moral obligation which was once a legal one will
support a promise, 44.
But this does not apply to promises to pay a debt dis-
charged by bankruptcy, 45.
Moral Fraud : See Fraud.
Mortality, Bills of, 222.
Mortgage,
When a mortgage of fixtures requires registration as a
bill of sale, 74.
Distinction between a mortgage of personal property,
a lien, and a pledge, 125, 126.
Remedy of an equitable mortgagee, 126, note {x).
Action on, must be brought within twelve yeai's, 270,
note (/r).
Mortgagor,
Provision of Judicature Act, 1S73, ^^ ^ ^^^ powers,
67, 3-2, 323.
When allowed to make leases, 67.
Motive,
Of a defendant cannot be looked to in an action ex con-
tractu, but ca.n be in an action ex delicto, 449, 450.
Music,
Provision of Act of 1S82 as to copyright in, 211.
Municipal Corporation : See Corporation.
Cannot maintain an action for libel, 381.
Mutual Assent,
Necessary to a simple contract, 32, 33.
N
Necessaries,
For an infant or a married woman, what are, 234, 247.
Negligence : [See also the different headings of specific acts
of Negligence.)
Liability of voluntary bailee for, 123, 124.
GENERAL INDEX. 551
Negligence — continued.
Must be shewn to render innkeeper liable for personal
injury to guest, 141.
Generally as to torts arising peculiarly from, 407-438.
The functions of judge and jury, 407.
Res ipsa loquitur, 407.
Burden of proving is on plaintiff, 407, 40S.
May arise from act of agent or servant, 409, 410.
Injury arising from negligence in driving vehicle, 410,
411.
Injury arising from negligence of a sub-contractor, 411.
Liability in respect of dangerous goods or animals, 411,
412.
An action for, may be maintained irrespective of privity,
413. 414-
Injui'ies from nuisances, 414.
Injuries in respect of faulty erection or building, 414.
The doctrine of invitation, 414.
Liability in respect of engines, shafts, windmills, &c.,
near a public road, 414, 415.
When an injury is done by several, one or all may be
sued, but there is no contribution, 415.
The liability of carriers of passengers depends on ques-
tion of, 416.
Maxim of Actio personalis moritur cum persona, and
statutory provisions thereon, 417-419.
From train overshooting platform, 420.
When master liable for injury done to a servant by
negligence of a co-servant, 420-426.
Causing injury to land or buildings, 426, 427.
Collisions arising through, 429.
Causing fire, 429, 430.
Injury through sparks of an engine is not, 430.
Unless some negligence, 430, and note (r).
Injury from traction or similar engine is, 430.
Causing waste, 431.
By sheriff's officers, 431, 432.
Consisting of non-arrival of train at proper time, 432.
Defences to an action for, 433-436.
Contributory, 434-438.
Necessary for plaintiff to prove no contributory negli-
gence if injury may have happened from that cause,
435» 436.
552 GENERAL INDEX.
Negotiable Instruments : See Bills of Exchange and
Promissory Notes,
Pledge of, by stockbroker or money-dealer, 184, 185.
Nemo cat quod non habet, 336.
Newspaper,
Reports in, of proceedings, privileged to a certain
extent, 387, 388.
Proprietor, editor, or publisher of, not liable to be
prosecuted for libel in, without order of judge, 391.
Course that may be taken by proprietor of, in respect
of libel, 392, 393.
Nominal Damages : See Damages.
Nominal Partner : See Partnership.
Non compos mentis,
Two classes of persons of this kind, and difference be-
tween them, 252.
Liability of such persons on their contracts, 253.
Idiots cannot give evidence, and lunatics only can
during a lucid interval, 4S0.
Nox-PERFORMANCE OF CONTRACTS : See also particular titles.
Excuses for, generally, 269-279.
Notice,
To quit premises, 65, 66.
Of dishonour of bill or note, 17 7-18 1.
Need not now be given before bringing action against
justices, 367.
Required under Employers' Liability Act, 1880, 425.
Notice to Inspect and Admit,
Object of giving, &c., 482.
Notice to Produce,
Object of giving, &c., 466.
Noting and Protesting,
What is meant by, and when necessary, 188, 189.
Nuisance,
Definition of, 329.
"What will constitute, and instances, 329.
GENERAL INDEX. 553
Nuisance — coiitinued.
Party may be liable for, as a probable consequence of
his acts, 330.
Question whether landlord or tenant liable for, in case
it occurs on demised premises, 330.
A person coming to a nuisance has still a right to
have it abated, 330.
An act may be a nuisance, though a benefit to others,
33°-
May be committed, though act authorised by Parlia-
ment, 331.
Position in such case as to onus of proof, 331.
Difference between a public and a private nuisance,
33i» 332.
When a private remedy lies for a public nuisance,
332.
Abatement of, 333, 334.
Notice usually necessary before entering on another's
lands to abate, 334,
A person may not go on another's lands to prevent,
334-
May arise peculiarly from negligence, 414.
Damages recoverable in respect of, 460.
O
Oaths Act, 1888, 476.
Object of a Contract,
Must not be illegal or immoral, 46.
Obligation,
Arising from breach of a contract, 22, 23.
Offer,
Made under seal cannot be withdrawn, 37.
But not under seal may be, 37.
Necessity of withdrawal of offer being communi-
cated, 37.
Officer, Superior,
Not liable for acts done in the course of his duty, or
justified by his position, 318, 319.
Is justified in detaining subordinate, 366.
554 GENERAL INDEX.
Officer, Superior — continued.
No action lies against, for malicious prosecution in
bringing subordinate to court-martial, 379.
OmNIS RATIHABITIO RETROTRAHITUR ET MAXDATO priori iEQUI-
PARATUR, 145, 146.
Onerous Property,
May be disclaimed by trustee in banki'uptcy, 87.
Effect of such disclaimer, 87.
Onus probandi,
Is on party seeking to prove affirmative in an action,
494, 495-
But presumption of law may put it where it would not
otherwise be, 495.
Rule in the case of voluntary settlements, 495, 496.
Opinion,
When matters of, are receivable in evidence, 485, 486.
An affidavit on an interlocutory application may contain
a statement founded only on deponent's belief, 486,
487.
Outgoings,
Covenant to pay all, 70.
Parent and Child : See Infants.
Father justified in chastising his child reasonably, 363.
Or in detaining him, 366.
Evidence as to legitimacy, 469, 470.
Child born during wedlock is presumed to be legitimate,
496.
Parent cannot bastardize his or her issue, 471.
Parol Evidence,
Is not admissible to vary a written contract, but is
admissible to explain a latent ambiguity, 27, 28.
Also admissible to explain technical words, or w^ords
which have by custom acquired a particular mean-
ing, 28. ^
Where there is an executory contract afterwards carried
out by deed, the deed only can be looked to, 28, 29.
GENERAL INDEX 555
Parol Lease,
When good, 64.
Effect of, when required to be in writing, 64, 65.
Particular Average, 200.
Parties to Actions,
Are now good witnesses, 478, 479.
Partnership,
Definition of, 154.
Actual and nominal partners, 155,
"When liability as partner constituted by holding out,
155-
What will constitute a, 155.
Provisions of Partnership Act, 1890, hereon, 155-157.
Quasi- partnership, 157.
Dormant partner, 157.
Liability of partners ez contractu, 157.
Bill given by a partner in the firm's name, 157, 158.
Pledge by partner, 158.
Effect of agreement restricting powers of partners, 158.
Liability is joint, 158, 159.
Liability of partners ex delicto, 159.
Introduction of new partner and retirement of old
partner, 159.
Dissolution of, 160, 161.
Powers of partner after dissolution, 161.
As to infants and others being partners, 161, 162.
Remedies between partners, 162, 163.
Passenger on Railway,
When he has a right of action against railway company
for injuries happening to him during the journey,
416, 417.
Damages recoverable for injury to, 459.
Passengers' Luggage,
Generally as to, 135, 136.
Patent,
Definition of a, 209.
The Statute of Monopolies, 209.
Term for which it may be gx'anted, &c., 209, 210.
Remedy for infringement of, 210.
556 GENERAL INDEX.
Patext Ambiguity,
Parol evidence not admissible in the case of, 27, 28.
Pawn,
Distinction between, and a lien and a mortgage, 125,
126.
Pawnbrokers, 126, 127.
Absolutely liable for loss by fire, 127.
llight of pledgee to redeem on production of pawn-
ticket, 127.
Their special power to arrest, 370.
Paymekt,
Definition of, and generally a.s to, 260-266.
llule as to appropriation of payments, 261, 262.
Exception to rule, 262, note (/).
A smaller sum cannot satisfy a greater, except in some
special cases, 262.
But something different may, 262, 263.
Effect of remitting a smaller sum in full discharge of
disputed account, 263.
Decision in Fnakes v. Beer, 263, 264.
Effect of, by a cheque, bill, or note, 265.
Through the post, 265, 266.
Into court, 268.
Of interest or part-payment of principal prevents
Statutes of Limitation applying, 275.
Effect of such a payment by one of several persons
jointly liable on a contract, 275.
Pecuniary or Proprietary Interest,
Admission of entries against, 471.
Pedigree,
To prove matters of, hearsay evidence is admitted, 469,
470.
Penalty,
Sum agreed to be paid by way of, cannot be enforced,
440, 441.
\Yliether more than a named penalty oin be recovered,
442.
Question of whether penalty or liquidated damages is
one of law, 443.
GENERAL INDEX. 557
Penalty — continued.
Pro\ision that on failure to pay one instalment the
whole to become due, not a penalty, 443.
Performance of Contracts : See also particular titles.
Generally as to, 260-269.
May sometimes be presumed, 264, 265.
Excuses for non-performance generally, 269-279.
Peril,
Of the sea, 203, note (//).
Perishing,
Of goods after contract for their sale, 98.
Person, Torts affecting the, 356-406 : See also particular
titles.
Assault and battery, 356-365.
False imprisonment, 365-376.
Malicious arrest, 375.
Malicious prosecution, 376-379.
Libel and slander, 380-400.
Seduction and loss of service, 400-406.
Injuries to the person from negligence, 407-438.
Personal Luggage,
"What is, 135.
Liability of railway company for, 135, 136.
Physicians,
When they may recover their fees, 221.
Pledge,
Distinction between, and a lien, and a mortgage, 125,
126.
If pledge docs not realize sufficient, pledgee may sell,
126.
A pledgee cannot foreclose, 126, note (x).
Of securities by stockbrokers or money-dealers, 1 84, 1 85.
Policy of Assurance : See Assurance.
Post,
When a contract taking place through, is complete, 36,
37.
Payment made through the, 265, 266.
55S GENERAL INDEX.
Pound Breach, S^.
Power of Attorney,
Provision of Conveyancing Acts as to, 149, note (y).
Presumption,
Cases in wliich presumptions furnish evidence, 474,
475-
May sometimes cause the burden of proof to be where
it would not otherwise be, 495.
Various cases of, 495.
PlUMARY AND SECONDARY EVIDENCE : See EVIDENCE.
Difference between, and reason for difference, 465,
466.
Rules as to, and exceptions, 466, 467.
Principal and Agent,
Wlien an agent must be authorized by writing to sign a
contract, 57.
Qui facit per alium facit per se, 143, 409, 420.
Persons not sui juris may act as agents, 144.
Delegatus no n potest dele<jare, 144.
Three kinds of agencies, and differences between them,
144, 145-
Omnis retihahitio retrotrahitur et mandate priori cequi-
paratur, 145.
Effect of giving credit to an agent, 146.
Effect of payment by principal to his broker or agent,
146, 147.
When an agent is personally liable, 147, 148.
Pemedy against agent acting without authority, 147.
British agent contracting for foreign principal, 148.
The different ways in which an agent's authority may
be revoked, 148, 149.
An agent's authority includes all incidental acts, 149,
The principal is the person to sue on a contract gener-
ally, 150.
Duty of agent, 150.
Bribing agent, 150.
Del credere SLgent, 150, 151.
As to factors and brokers, 151, 152.
As to principal's liability for his agent's fraud, 286.
GENERAL INDEX. 559
Prinx'ipal axd Agext — continued.
Agent recovering bets for principal must pay over, 299.
Principal not now, since Gaming Act, 1892, bound to
indemnify agent making a bet for him, 299, 300.
Liability for assault committed by agent, 364.
Respondeat superior, 409.
Position of principal with regard to agent's torts, 409,
410.
Power of agent to bind principal by his admissions, 499.
Private Nuisance : See NuisAxce.
Private Persons,
"When justified in arresting another, 369, 370.
Privilege,
Definition of a privileged communication in libel or
slander, and generally as to, 385-390.
Statement by advocate absolutely privileged, 389.
Two chief cases of, in evidence, 488.
1. On the ground of criminating one's self or one's
husband or wife, 488-490.
2. In the case of professional communications, 490-
493-
None in the case of medical men and clergymen, 493.
Nor in case of pursuivant of Heralds' College, 493,
note {k).
Miscellaneous cases of, 494.
Privity,
Not necessary in action of tort, 317, 413.
Produce,
Notice to, object of giving, &c., 466.
Professional Communications : See Privilege.
Promissory Notes, 165-192. See Bills of Exchange
AND Promissory Notes.
Property in Goods : See Goods.
When it passes, and effect of its passing, 93-97, 337-
340, 456.
Property Tax,
Is always borne by landlord, 69.
Proprietary or Pecuniary Interest,
Admission of entries against, 471.
560 GENERAL INDEX.
Prosecution : See Malicious Prosecution.
Protesting,
What is meant by, and when necessary, 1S8, 189.
Public Authorities' Protectiox Act, 1S93, 367.
Public Policy, 291, 293.
Public Records and Documents,
Are evidence by themselves, 475.
What are, 475, note (0).
Public or General Interest,
To prove matters of, hearsay evidence is admitted, 468,
469.
Public Nuisance: See Nuisance.
Publication of Libel : See Libel and Slander.
Q
Quality,
(ienernlly no implied warranty of, on a sale, 112, 113.
Cases in which, however, such a warranty exists, 1 13,
114.
Quantity,
AVords may be used amounting to warranty of, 1 1 2.
Quantum meruit.
When a person may recover on, 259.
Quarry,
Obligation to fence, 325, 415.
quasi-partxership, i 5 7.
Qui facit per alium facit per se, 143, 409, 420.
Quod ac initio non valet in tractu temporis non conva-
lescit, 307.
R
Railway and Canal Commission, 137, 138.
Railway Companies : See Carriers.
Position of, as to passenger's personal luggage, 135, 136.
GENERAL INDEX. 56 1
Railway Companies — continued.
When liable for loss of goods in porter's custody, 135,
136.
Liability of, for goods in cloak-room, 136.
Equality clauses in Railway Clauses Consolidation Act,
1845, and other Acts, 137.
Jurisdiction and powers of the Railway and Canal
Commission, 137, 138.
Must afford all reasonable facilities for carrying goods,
138.
Bound to fence out cattle, 325, and note (a).
Liable for injuries to servant though ticket taken for
him by master, 413, 414.
Liable for any injuries to passengers caused by their
negligence, 416, 417.
Injuries done by, and maxim of Actio personaUs vioritnr
cum perwnci, and statutory provisions thereon, 417-
419.
Liability of, for injuries done by a train overshooting a
platform, 420.
Xot liable for injury from sparks emitted from engine,
43°-
Unless some evidence of negligence, 430, and note (r).
Not liable for injuries through vibration or smoke, 431,
Liability of, by reason of unpunctuality of trains, 432,
433-
Effect of a condition on this point, 432, 433.
Recaptiox,
What it is, 352.
How a person is justified in effecting, 352, 353,
Receipt,
And acceptance of goods within 4th section of Sale of
Goods Act, 1893, 1 01, 102.
Recitals,
Possible effect on operative words, 25.
When occurring in deeds and wills twenty years old,
from proof of facts recited, 476, note {q).
Record, Contracts of,
Generally as to, 8-14.
Peculiarities of, 10-14.
How proved, 14.
2 N
562 GENERAL INDEX.
Relative,
When he may maintain action notwithstanding maxim,
Actio personalis moritur cum persona, 323, 355, 417.
Release,
What is meant by, 278.
To one of several jointly liable, discharges all, 278, 279.
Effect of a contract not to sue entered into by one of
two joint creditors, 279.
Instances in which it may occur by operation of law, 279.
Relief,
Against forfeiture of leases, 84, 88, 89.
Remoteness of Damage : See Damages.
Damages must not be too remote, 446-451.
Difficulty in applying this rule, 448.
Correct rule as to, 448.
In action of slander, 449.
In case of servant wasliing master's cart, 450.
Looser damages observed in actions ex delicto than ex
contractu, 450.
Rent,
Amount that can be distrained or sued for, 85, and
note (t).
Apportionment of, 88.
Replevin, 83, 84.
Repair of Houses,
Liability for injuries caused by omission to repair,
426, 427.
RirpoRT,
Of parliamentary or legal proceedings privileged, 387.
Of proceedings at public meetings privileged to a cer-
tain extent, 388.
Representation : See Fraud.
Concerning a person's credit must be in writing, 287.
Reputation,
Evidence admitted as to, 474.
Res gestje,
Hearsay evidence is admitted where it forms part of,
470, 471.
GENERAL INDEX. 563
Res ipsa loquitur, 407.
Respondentia.
Generally as to the contract of, 201, 202.
Respondeat superior, 409.
Restaurant Keeper,
Liability of, 138, note (0).
Restraint of Trade, Contracts in,
On sale of goodwill of business, vendor should be
restrained from carrying on a like business within
a certain distance and soliciting customers, 293.
Are generally illegal, but may sometimes be good,
293-295-
But to be good must be reasonable, and for a valuable
consideration, 293-295.
Part of such contracts may be good and part bad, 294.
As to combination of employers, &c., 295.
Reversioner,
When he may sue for trespass to land, 322.
Instance of such a case, 322.
Damages in such a case, 455.
When he may sue in respect of a nuisance, 461.
Reward,
Offered by advertisement may be recovered, 38.
But probably not if person did not at first know of, 38.
Rights of Common, 326, 327.
Riparian Proprietors, 327.
Road Authority,
Not liable to action for omitting to keep road in
repair, 414.
S
Sailors,
Liable to be reasonably chastised or imprisoned by
captain, 363.
Sale of Goods, 91-114 : See Goods.
Salvage, 200.
564 GENERAL INDEX.
►Sample,
Warranty implied when sale by sample, 1 13.
Goods sold according to sample may be returned if
they do not conform to it, no, 11 3.
Satisfaction : See Accord and Satisfaction.
A smaller sum cannot satisfy a greater, 262.
But anything different, even a negotiable security,
may, 262, 263.
Effect of retaining a smaller sum than a penalty, 263.
Decision in Foahs v. Beer, 263, 264.
If sum paid "in full satisfaction," and creditor retains
it, yet he can sue for balance, 263, 264.
ScANDALUM M.VCiNATL'M, 398.
Schoolmaster,
Is justiiied in reasonably chastising a scholar, 363.
SriEXTEK,
When necessary to be shewn in injuries by animal.^,
344- 345-
W^hat will amount to, 345, 346.
Secondary Evidence : Sfe Evidence.
Seduction,
Nature of action for, and generally as to, 400, 401.
Damages recoverable for, 402.
As to the relationship of master and servant necessary
to enable a person to sue for, 402, 403.
An action may be maintained for seduction of a
married woman. 404.
Effect of woman being in service of seducer, 404.
It is a gooil defence to shew that defendant not the
father of the child, 405.
Action for loss of services irrespective of seduction,
405-
Action for maliciously inducing a person to break his
contract, 405, 406.
Self-serving Evidence, 485.
Separation,
Contract for futuie separation of husband and wife
contrary to public policy and illegal, 29S.
Requisite to separation arrangement, 298.
GENERAL INDEX. 565
Servant : See Master and Servant.
Set-off,
In the case of goods bought of a factor, and principal
suing, 154.
Definition of, 276.
Former rules as to, 277.
Statutory provisions as to, 277, 278.
Defendant may now obtain damages against a plaintiff
in an action, 277.
Sheriff,
Duties of sheriff's officers, 431.
Liability of, if goods he seizes are taken from him,
431. 432.
Damages recoverable against, for officer's negligence,
462.
Ships,
Law as to generally, now contained in Merchant
Shipping Act, 1894. 198.
How shares iu, transferred, 198.
As to ownership of, 198, 199.
Powers of masters of, during voyage, 199,
Jettison, 200.
As to general and particular average, 200.
As to salvage, 200.
Pilot's services, 201.
Rules as to damages in case of collision when both
ships in fault, 201.
Bottomry and respondentia, 201, 202.
Position of person advancing money to pay dock dues,
202.
Differences between a charter-party and a bill of lading,
202.
As to freight, 203.
Liability of owners of, for losses during a voyage,
203, 204.
Meaning of "dangers and accidents of the sea," 203,
note (h).
Position as to contributory negligence, 437.
Sic utere tuo ut alienum non l^das, 343.
566 GENERAL INDEX.
Simple Contracts,
Distinction between, and specialties, 15-20.
Definition of, 31.
Four essentials to, 31.
Mutual assent always necessary, 31-33.
What is necessary to establish a contract from different
instruments, 33, 34.
As to a contract through the post or by telegram,
35. 36-
From the offering of a reward, 38.
As to consideration, 39-46.
If in writing, the writing must usually shew the con-
sideration as well as the promise, 40, 41.
When an executed consideration is sufficient for,
41, 42.
A merely moral consideration is not sufficient for,
43' 44-
Chief cases in which writing necessary for, 47.
Limitation for suing on, 2-1.
Slander : Sec Libel and Slander.
Slander of Title,
What it is, 335.
Special damage must be proved in, 335.
Applies to goods as well as to lands, 335.
Smaller Sum,
Cannot satisfy a greater, 262.
Solicitors,
Must deliver a signed bill before suing for costs ex-
cept leav'e obtained. 217.
On what grounds such leave will be given, 217.
Assignee of bill of costs may sign and deliver bill,
217, note (I).
May contract for reunineration by commission or
otherwise, 217, 21S.
Costs may be made a charge on property recovered
and raised thereout, 218.
Lien of, 218, 21 9.
Lien of London agent, 219.
Their duty, 219.
When proceedings commenced by, may be discontinued,
219.
GENERAL INDEX. 5^7
Solicitors — continued.
Liable for their own or their agents' negligence or
fraud, 219, 220.
When negligence may be set up as a defence to an
action for costs, 220.
Position of, in dealing with clients, 220.
Payment to a solicitor in an action is sulficient, 261.
When privileged in what he has written on behalf of
a client, 386, 387.
When liable for wrongly directing a sheriff to levy
under afi. fa, 432.
Privilege of, with regard to giving evidence, and extent
of such privilege, 490-492.
Son assault demesxe,
Defence of, 362.
Sparks,
From locomotives causing damage, 430.
Special Damages : See Damages.
Special Pleaders,
Not at the bar, may recover their fees, 216.
Specialties,
Distinctions between, and simple contracts, 15-21.
Limitation for suing on, 270.
Specific Delivery op Chattels,
Provisions as to, 355, 444, 445-
Practice of Chancery as to, 445, note {'/).
Specific Performance,
Of contract of sale of goods, 109.
Staging,
Liability for defective, 302.
Stakeholder,
His position, and rights of the parties as to deposit,
301, 302.
Stamping Instruments,
Times allowed for, 307.
Effect of not stamping within proper time, 307.
Proper stamp for and agreement and exemptions,
307> 30S.
568 GENEEAL INDEX.
Stamping Instruments — continued.
Who takes the objection to insufficiency of stamp, 307.
Power to remit penalties for not, 307, note {x).
Statutes : for Index of, see anie, p. xxxi.
Steam Traction-engine.
As to damage caused by, 431.
Stock Exchange,
As to transactions on, being gaming contracts, 300, 301.
Provisions of Leeman's Act, 303, 304.
Stolen Goods,
Rights as to, and eflfect of sale in market overt, 337,
338.^
Provisions of Sale of Goods Act, 1893, 337, 338.
Stoppage ix transitu.
Definition of, 105.
Origin of, 105.
When the goods are in transitu, 105, 106.
How effected, 107.
Notice of, must be given not to shipowner, but to
master of vessel containing the goods, 107.
Effect of, on the contract, 107, 108.
Effect of sale of goods during course of transit, 108.
As to right against a sub-purchaser who has not paid
his purchase-money, 108.
SUBPCENA,
Service of, must be personal, 223.
Subrogation,
Meaning and instance of, 206.
Subsoil,
Position of owner of, as regards surface owner, 327,
328.
Sufferance,
Position of tenant at, 66.
Sufficiency,
Of a consideration cannot be inquired into, 39, 40.
Suicide,
Effect of, on a policy of assurance, 208, 209.
GENERAL INDEX. 569
Support,
As to the right to lateral, 328, 427, 42 8.
Surety : See Guarantee.
Ills rights on paying principal's debt, 51.
To or for a firm, 51, 52.
Acts which will operate to discharge him, 52,
Effect of a principal accepting a composition under the
Bankruptcy Act, 1883, 53.
Surface,
Rights of owner of, as against owner of subsoil 427,
428.
Surgeons,
When they may recover their fees, 221.
Provision of Veterinary Surgeons Act, 1881, 222.
Suspicion,
As to arresting a person on, 368, 369.
T
Telegraphic Message,
Mistake in, 315.
Tender,
What is meant by a, 266.
The essentials to constitute a valid tender, &c., 266,
267.
Must be absolute and unconditional, 267.
In what money it may be made, 267, 268.
When country notes or cheques are a good tender, 268.
If refused, the money must still be kept ready, 268.
Effect of, 268.
Tickets,
Notices on, constituting a contract, 38.
Time,
When of the essence of a contract, 29, 30.
Tithe Rent-charge,
Is a charge on the lands, 69.
Is always payable by owner, 69.
5/0 GENERAL IXDEX.
Title,
To be shewn to lands, 6^.
As to warranty of, on sale of goods, 109-114.
Slander of, 335.
To goods generally, 336-342.
As to stolen goods, 337.
As to goods obtained by fraud, 337, 338.
Rights of a finder of goods, 339.
Treasure trove, 339, 340.
Property in animals, tish, and game, 340.
Torts : For particular torts, see individual titles.
Definition of a tort, 309.
Divisions of, and as to, generally, 309-319.
The newness of a tort is no objection to an action,
310.
Distinction between, and crimes, 312.
Although amounting to crimes, civil remed}- not neces-
sarily suspended until after prosecution, 313.
Cases in which civil and criminal proceedings cannot
both be taken, 313, 314.
As distinguished from contracts, 314-317.
It may sometimes be in a pei-son's election to sue either
in tort or on contract, 316, 317.
Privity is never necessary in torts, 317.
Maxim that the king can do no wrong, 317, note (tf).
Position of judges, superior officers, Arc, as to, 318.
There is no indemnification generally between wron^-
doers, 319.
Affecting land, 320-335.
Affecting goods and other personal propert)-, 336-^55.
Affecting the person, 356-406.
Arising peculiarly from negligence, 407-438.
Looser principles are observed in awarding damages for
torts than in respect of breaches of contract, 450.
Traction-engine,
As to injury done by, 430, 431.
Trade-mark,
The use of, implies a warranty, 114, 215.
Definition of, 213.
What it may and may not consist of, 213.
Remedies for infringement of, 213.
GENERAL INDEX. 57 ^
Trade-Mark — continued.
Provisions of the Patents, Designs, and Trade-marks
Acts, 18S3 and 18S8, 214, 215.
Requisite proof in action for infringement of, 215.
Right of action for infringement of, does not die with
person, 355.
Trade Union Act, 187 i, 295, 296.
Trains,
Overshooting platform, 420.
A company not liable for injury arising from sparks
emitted by, 430.
Unpunctuality of, 432, 433.
Treasure Trove,
Rights as to, 339, 310.
Treble Damages, 453.
Trees,
Overhanging another's land, 333, 343
Trespass to Goods,
Definition of trespass, 336.
Distinction between, and conversion, 336, 342.
Meaning of trespass de bonis asportat/f, 342.
Instances of, 342.
Justification of, 350, 351.
Who is the person to sue in respect of, 353, 354-
Remedy for, 354.
Action survives to executors or administrators, 355.
Trespass quare clausum fregit.
Meaning of, 320.
An action for, tries the titles to land, 321.
Possession is an essential to an action for, 321.
Limitation of action, 321.
Action for in respect of land abroad cannot be brought
here, 321.
When a reversioner may sue for, and damages, he will
recover, 322, 455.
When a mortgagor may sue for, 322, 323.
Special damage need not be proved in action for, 323.
Right of executors or administrators to sue for, 323,
324-
572 GENERAL INDEX.
Trespass quare clausum fregit — contimied.
Liability of estate of deceased person in respect of,
323, 324-
What will amount to, 324.
Obligation as to fencing out cattle, 324.
Owner of cattle not liable for their trespass whilst
passing along highway, 324.
A lawful owner out of possession mny re-enter peace-
ably, but must not use force, 325.
License to trespass may be revoked, 325, 326.
A trespasser may be forcibly ejected after refusal to
leave, 326.
A person is justified in forcibly defending possession
of his lands, 326.
Damages recoverable for, 460.
I'rial,
Effect of a plaintiff or defendant not appearing at,
497, 498.
Trover,
Former action of, 354.
Trusts,
Provision of Statute of Frauds as to, 48.
Truth of Libel or Slander,
Complete defence in civil actions, 390, 397.
At common law no defence to criminal prosecution,
391-
But now it is if also shewn that publication was for
the public good, 391.
Turf Commissioner,
Receiving bets must pay over to principal, 299.
Making a bet for principal not now entitled to be in-
demnified, 299.
U
Uberrimae fidei,
Fire and marine insurances are said to be, 207, 208.
Unliquidated Damages,
Distinction between, and liquidated, 439, 440.
GENERAL INDEX. 573
USAXCE,
Meaning of the term. 176.
Use axd Occupation,
Action for, 76.
Vendor and Purchaser,
When the property in goods passes, 93-98.
When vendor may sue for the price of the goods. 103,
456-
Lien of vendor, 103, 104.
Vendor's right of stoppage in transitu, 105-108.
Rights of vendor on vendee's breach, 109, 456.
Rights of vendee on vendor's breach, 109, 456.
Power of vendor left in possession of goods, 152, 153.
Veterinary Surgeons,
Must register to entitle them to recover their fees,
222.
Voluntary Deed.
In what respects not as good as a deed for valuable
consideration, 18, 19,
If called in question, burden of proof lies on person
taking a benefit under, 495, 496.
Volenti non fit injuria, 401, 424, 438.
W
■Wager Policies : See Assurance.
Are invalid, 206, 306.
Wagers : See Gaming Contracts.
Warrant,
Definition of, and mode of acting thereunder, 366.
As to liability of justice granting, 366, 367.
Protects constable acting under, 368.
Person obtaining, is not liable for false imprisonment,
but may be for malicious prosecution, 368.
574 GENERAL INDEX.
Warrant — continued.
When a constable may arrest without, 368, 369.
When a private person may arrest without, 369.
Warrant of Attorney,
Difference between, and a cognovit, 10.
Warranty,
On the taking of furnished house, 90.
Definition of, 109.
Distinction between, and condition and misrepresenta-
tion, 109, no.
Remedy for breach of warranty, or condition, or in
respect of misrepresentation, 109-111.
Provision of Sale of Goods Act, 1893, ^^ ^o conditions
and warranties, no. iti.
If subsequent to sale, bad, in.
What will amount to a, iii.
May sometimes be implied, 1 1 i-i 14.
Reason of implied warranty, i i i.
As to warranty of title, 112.
As to wai'ranty of quantity and quality. 1 1 2-1 14.
Eflfect of delivery of goods more than, or less than
agreed, 1 1 2.
Cases in which warranties of quality implied, 113, 114.
Does not extend to defects which are apparent, 1 14.
Damages recoverable for breach of, 457, 458.
Waste,
Definition of, 334
Persons liable for, 334.
Water,
As to right to, where flowing in a defined channel, and
where only percolating through the ground, 4, 5, 327.
Must not be fouled in either case, 327.
Weekly Tenancy,
Notice to determine, 65, 66.
AViFE : See Married Woman.
Effect of contracts by, as husband's agent, but after
his death, 147, note ((/), 251, 252.
GENERAL INDEX. 575
AViLL, Tenancy at,
May arise by i-eason of Statute of Frauds, 64, 65.
Wills,
May prove themselves after thirty years, 475, 476.
Eecitals in, 476, note (q).
How proved at trial, 484, 485.
Without Prejudice,
Communications made, are privileged from being given
in evidence, 493.
Witnesses : See Evidence.
Their claim for expenses is not against solicitor, but
the party who has subpoenaed them, 221.
Are entitled to be paid expenses, but not generally for
loss of time unless a professional witness, 222, 223.
Service of subpoena on, must be personal, 223.
Statements of, are absolutely privileged, 389.
Damages recoverable against, for not attending, 462.
Evidence of, by affirmation under the Oaths Act, 1888,
476.
Distinction between admissibility of evidence and cre-
dence of, 500.
Writing,
When necessary for a contract, 47-49'
Not necessary on a contract for sale of fixtures, 63.
Necessary in representations concerning a person's
credit, 287.
Wrongdoers,
No contribution and indemnity between, 3 1 9.
Exception under Directors' Liability Act, 1890, 319.
Wrongful Dismissal: See Master and Servant.
Damages recoverable in action for, 463.
Year,
An agreement not to be performed within a year must
be in writing, 49, 53, 54.
576 GENERAL INIiEX.
Year — continued.
When everything on one side is to be performed within
a year, agreement is not within the statute, 54.
Year to Year,
Liability of tenant from, as to repairs, 68.
Yew-thee,
Liability in respect of injury to neighbour's horse by
eating, 343.
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INDEX OF SUBJECTS.
PAGE
ABSTRACT DRAWING—
Scott 32
ADMINISTRATION ACTIONS—
Walker and Elgood 18
ADMINISTRATORS—
Walker 6
ADMIRALTY LAW-
Kay 17
Smith 23
AFFILIATION—
Martin 7
ARBITRATION—
Slater 7
BANK RU PTC Y-
Balduin ... 15
Ilazliii .29
Inderniaiir (Question A: Anawer) 28
Ringwood I5i 29
BAR EXAMINATION JOURNAL 39
BIHLIOCRArilY 40
BILLS OF KXCHANGE—
Willis 14
BILLS OF LADING—
Caniphell 9
Kay . ■ 17
BILLS OF SALE—
lialdwin .... ... 15
Indcrmaur ... . . 28
Ringwood 15
BUILDING CONTRACTS—
Hudson 12
CAPITAL PUNISHMENT—
Copinger 42
CARRIERS—
Sec RAILWAY LAW.
,, SIII1'M.-\STKRS.
CHANCERY DIYISION, Practice of—
Brown's Edition of Snell ... 22
Imiermaur 25
Williams 7
And see EQUITY.
CHARITABLE TRUSTS—
Cooke 10
Whiteford 20
CHURCH AND CLERGY—
Brice 9
CIYIL LAW— i-6V ROMAN LAW.
CLUB LAW—
Wertheimer 32
CODES— Argles 32
COLLISIONS AT SEA— Kay . . 17
COLONIAL LAW—
Cape Colony "ifZ
Forsyth 14
Tarring 41
COMMERCIAL AGENCY—
Campbell 9
PAGE
COMMERCIAL LAW—
Hurst and Cecil ..... II
COMMON LAW—
Indermaur .... ... 24
COMPANIES LAW -
Brice 16
Buckley 17
Reilly's Reports 29
.Smith 39
Watts 47
COMPENSATION—
Browne 19
Lloyd 13
COMPULSORY PURCHASE—
Browne 19
CONSTABLES—
.•i"^.- POLICE GUIDE.
CONSTITUTIONAL LAW AND
H I. STORY—
Forsyth 14
Txswell-Langmead 21
Thoma-s 28
CONSULAR JURISDICTION—
Tarring 42
CONYFYANCING—
Cnpingcr, Title Deeds .... 45
Copinger, Precedents in . . 40
Deane, Principles of 2^
COPYRIGHT—
Copinger 45
CORPORATIONS—
Brice 16
Browne 19
COSTS, Crown Office-
Short 41
COVENANTS FOR TITLE—
Copinger 45
CREW OF A SHIP—
I^ay 17
CRIMINAL LAW—
Cojiinger 42
Harris . . 27
CROWN LAW—
Forsyth .14
Hall 30
^^elyng 35
Taswell-Langmead 21
Thomas 28
CROWN OFFICE RULES—
Short 10
CROWN PRACTICE—
Comer 10
Short and Mellor 10
CUSTOM AND USAGE—
Browne 19
Mayne . . 38
DAMAGES—
Mayne ii
DICTIONARIES —
Bn-.vn . .26
STEVENS cr- HAYNES, BELL YARD, TEMPLE BAR.
INDEX OF SUBJECTS-'^"^"'"^^''-
DIGESTS— PAGE
Law Magazine Quarterly Digest . 37
Menzies' Digest of Cape Reports. 38
DISCOVERY— Peile 7
DIVORCE— Harrison 23
DOMESTIC RELATIONS—
Eversley 9
DOMICIL— 5.V PRIVATE INTER-
NATIONAL LAW.
DUTCH LAW 38
ECCLESIASTICAL LAW—
Brice 9
Smith .23
EDUCATION ACTS—
See MAGISTERIAL LAW.
ELECTION LAW and PETITIONS—
Hardcastle 33
O'Malley and Hardcastle ... 33
Seager 47 j
EQUITY-
Blyth 22
Choyce Cases 35
Pemberton 32
Snell 22
Story 43
Williams 7
EVIDENCE—
Phipson 20
EXAMINATION OF STUDENTS—
Bar Examination Journal ... 39
Indermaur 24 and 25
Intermediate LL.B 21
EXECUTORS—
Walker and Elgood 6
EXTRADITION—
Clarke 45
See MAGISTERIAL LAW.
FACTORIES—
See MAGISTERL\L LAW.
FISHERIES—
See MAGISTERIAL LAW.
FIXTURES— Brown 33
FOREIGN LAW—
Argles 32
Dutch Law 3^
Foote 36
Pavitt 32
FORESHORE—
Moore 3°
FORGERY— 5^^ MAGISTERIAL LAW.
FRAUDULENT CONVEYANCES-
May 29
GAIUS INSTITUTES-
Harris 20
GAME LAWS—
See MAGISTERIAL LAW.
GUARDIAN AND WARD—
Eversley 9
HACKNEY CARRIAGES—
See NL\GISTERIAL LAW.
HINDU LAW—
Coghlan 28
Cunningham 38 and 42
Mayne 38
HISTORY—
Taswell-Langmead 21
HUSBAND AND WIFE—
Eversley 9
INDEX TO PRECEDENTS—
Copinger 40
INFANTS—
Eversley 9
Simpson 43
INJUNCTIONS—
Joyce 44
INSTITUTE OF THE LAW—
Brown's Law Dictionary ... 26
INSURANCE—
Porter 6
INTERNATIONAL LAW—
Clarke 45
Cobbett 43
Foote 3^'
37
Law Magazme
INTERROGATORIES—
Peile 7
INTOXICATING LIQUORS—
See ^L\GISTERIAL LAW.
JOINT STOCK COMPANIES—
^•^£ COMPANIES.
JUDGMENTS AND ORDERS -
Pemberton ^8
JUDICATURE ACTS—
Cunningliam and Mattinson . . 7
Indermaur 25
Kelke 6
JURISPRUDENCE—
Forsyth >4
Salmond '3
JUSTINIAN'S INSTITUTES-
Campbell 47
Harris 20
LANDLORD AND TENANT—
Foa I'
LANDS CLAUSES CONSOLIDA-
TION ACT—
Lloyd 13
LATIN MAXIMS 2'i
LAW DICTIONARY—
Brown 26
L.\W^ MAGAZINE and REVHIW. 37
LEADING CASES—
Common Law 25
Constitutional Law 28
Equity and Conveyancing ... 25
Hindu Law 28
International Law 43
LEADING STATUTES -
Thomas 2S
STEVENS &- UAYNES, BELL YARD, TEMPLE BAR.
INDEX OF SUBJECTS-^^«"««''^-
PACE
LEASES—
Copinger 45
LEGACY AND SUCCESSION—
Hanson 10
LEGITIMACY AND MARRIAGE—
See PRIVATE INTERNA-
TIONAL LAW.
LICENSES— ^« MAGISTERIAL LAW.
LIFE ASSURANCE—
Buckley 17
Reilly 29
LIMITATION OK ACTIONS—
Banninj; 42
LUNACY—
Williams 7
MAGISTERIAL LAW—
GrccnwcKxl and Martin .... 46
MAINTKNANCK AND DESERTION.
Mnriiii 7
MARRIAGE .ind LEGITIMACY—
Foote 36
MARRIED WOMEN'S I'RO-
rEKTV ACTS—
lircwn's E<lili<)n of Griftith . . 40
MA.STER AND SERVANT-
Evcrslcy 9
.SVt- MAGISTERIAL LAW.
„ SlIir.\L\STERS.'v SE.VMEN.
MERCANTILE L.\W ... 32
CaniplH-ll 9
Duncan .... -33
llursi and Cecil .11
Slater ... . . 7
See SHII'MASTLK.s.
„ .STCil'l'AClE IN TRANSITU.
MERCHANDISE MARKS —
Daniel 42
.MINES—
Harris 47
.^<Y MAGISTERIAL LAW.
MORTMAIN—
.W CHARITABLE TRU.^TS.
NATIONALITY— .S-.v PRIVATE IN-
TERNATIONAL LAW.
NEGLIGENCE—
Beven S
Campliell 40
NEGOTIAIiLE INSTRUMENTS—
Willis 14
NEWSIWI'ER LIBEL—
EUiutt . 14
OBLIGATIONS—
Brown's Savigny .20
PARENT AND CHILD—
Eversley 9
PARLIA^H:NT—
Taswcll Langmead .... 21
Thomas 2S
PAGE
PARTITION—
Walker 43
PA.SSENGERS—
See MAGISTERIAL LAW.
„ RAILWAY LAW.
PASSENGERS AT SEA—
Kay 17
PATENTS—
Daniel 42
Frosi 12
PAWNBROKERS—
See .\L\GISTERIAL LAW.
PETITIONS IN CHANCERY AND
LUNACY—
Willi.-iin^ 7
PILOTS —
Kay .17
POLICE GUIDE—
lirecnwotKl and Martin .... 46
POLLUTION OF RIVERS—
HiRgins 30
PRACTICE BOOKS—
Bankruptcy 15
Companies Law ... 29 and 39
Comj^ensation 13
Compulsory Purchase 19
Convc)-ancinjj 45
Dam.igcs 31
Ecciesiai>tical Law 9
Election Petitions 33
Ecjuity 7, 22 and 32
Injunctions 44
Magisterial 46
Pleading, Precedents of . . . 7
Railways 14
Railway Commission .... 19
Rating '9
.S'lprcme Court of Judicature . . 25
PR.\CTICE STATUTES, ORDERS
AND RULES—
Emden n
PRECEDENTS OF PLEADING—
Cunningham and Mattinson . 7
Mattinson and Macaskie ... 7
PRIMOGENITURE—
Lloyd 13
PRINCIPLES—
Brice (Corporations) 16
Browne (Rating) 19
Deane (Conveyancing) .... 23
Harris (Criminal Law) .... 27
Houston (Mercantile) .... 32
Indennaur (Common Law) . , 24
Joyce (Injunctions) 44
Ringwood (Bankruptcy) . . 15
Snell (E«juity) 22
PRIVATE INTERNATIONAL LAW—
Foole ;;6
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR.
INDEX OF SUBJECT3-'-^«/^>"^.'</.
PAGE
PROBATE—
Hanson lO
Harrison 23
PROMOTERS—
Walts 47
PUBLIC WORSHIP—
Brice 9
QUARTER SESSIONS—
Smith (F. J.) 6
QUEEN'S BENCH DIVISION, PracUce
of—
Indermaur 25
QUESTIONS FOR STUDENTS—
Aldred 21
Bar Examination Journal ... 39
Indermaur 25
Waiie 22
RAILWAYS—
Browne ig
Godefroi and Shortt 47
See MAGISTERIAL LAW.
RATING—
Browne 1 9
REAL PROPERTY—
Deane 23
Edwards 16
Tarring 26
REGISTRATION—
Elliott (Newspaper) .... 14
Seager (Parliamentary) .... 47
REPORTS—
Bellewe 34
Brooke 35
Choyce Cases 35
Cooke 35
Cunningham 34
Election Petitions 33
Finlason 32
Gibbs, Seymour Will Case . . 10
Kelyng, John 35
Kelynge, William 35
Reiliy 29
Shower (Cases in Parliament) . 34
ROMAN DUTCH LAW—
Van Lecuwcn 38
ROMAN LAW—
Brown's Analysis of Savigny . , 20
Campbell 47
Harris . . 20
Salkowski 14
Whitfield 14
SALVAGE—
Jones 47
Kay 17
SANITARY ACTS—
See MAGISTERIAL LAW.
SAVINGS BANKS—
Forbes 18
SCINTILLAE JURIS—
Darling (C.J.) 18
SEA SHORE— PAGE
Hall 30
Moore 30
SHIPMASTERS AND SEAMEN-
Kay 17
SOCIETIES—
See CORPORATIONS.
STAGE CARRIAGES—
See MAGISTERIAL LAW.
STAMP DUTIES—
Copinger 40 and 45
STATUTE OF LIMITATIONS—
Banning 4-2
STATUTES—
Craies ........ 9
Hardcastle 9
Marcy 26
Thomas 28
STOPPAGE IN TRAXSITU —
Campbell 9
Houston 32
Kay 17
STUDENTS' BOOKS . 20— 28, 39, 47
SUCCESSION DUTIES—
Hanson 10
SUCCESSION LAWS-
Lloyd 13
SUPREME COURT OF JUDICA-
TURE, Practice of—
Cunningham and Mattinson . . 7
Indermaur 25
TELEGRAPHS—
See MAGISTERIAL LAW.
TITLE DEEDS—
Copinger 45
TORTS—
Ring wood 13
TRADE MARKS—
Daniel 42
TREASON—
Kelyng 35
Taswell-Langmead ..... 21
TRIALS— Banlett, A. (Murder) . . 32
Queen z'. Gurney 32
ULTRA VIRES—
Brice , . 16
USAGES AND CUSTOMS—
Browne 19
Mayne 38
VOLUNTARY CuNVEYANCES—
May 29
WATER COURSES—
Higgins 30
WILLS, CONSTRUCTION OF—
Gibbs, Report of Wallace v.
Attorney-General . .... 10
WORKING CLASSES, Housing of—
Lloyd 13
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useful companion in the Practitioner's daily routine." — Law Magazine aiid Review.
STEVEtVS &• HAYNES, BELL YARD, TEMPLE BAR.
Second Edition, in two volumes, royal Svo, price 70J., cloth.
NEGLIGENCE IN LAW
Being ihf, ^fcond toriiuN ci- •• I^kincii'i.es 01 thk Law ui Negligence,"
Re-akrani;ed and Re-\vritten.
By THOMAS BEVEN,
OF THE INNER TEMl'LE, BARRISTER-AT-I,AW ; ACTHOR OP "THE I^W OF EMPl-OVKRs" LIAULITV
pr.w -riiK ?.ri.l ir.KNCF OK SKkVASTs CALsIM. IMURV Tu KELLi i\V -SERVANTS."
KErjEllS.
" These volumes, says Mr. Hcvcn in the prei." <•. kiavKc rc-.ir.".c<i xsa s«. on i eJition of his ' Principles
of the Law of Negligence," in so far as i -irc the same ; and the
matcriaiN collected in the one have been u- .inything beyond this,
he conlimici, the iJri-sent is a new work. I , t fr"m that pre%-iousljr
adopted. Nearly a half of the content* nl ; ■ .> new, and of the remainder tb«i«
is very lillle which has not been materially i >-•, J"et in exprcsMon.
"Upon ii ;:ii«d as a
wojk uf llic car upon
his task lai'' h.is been
greatly increa-.tJ :^> tlic iJii.niu^t;u.i jf this ^CuIk^ cditiLLi, and llit L-j.'>. dt><;r\c> a pl.«ce iii the firsl
rank amonx authoritative espocitiao* of the law.
"T' - ■ •■ ' • '• I'r. '^ ' • :> -1— ~ fi,. ;.... v,:„. ...<-..., 1, ...... ^njj
it is >. •: is
clearis li'-
ca-sts I- m;, »"" -"^Ir.
licven, the « "». if 'hey
would jtaiii I taken up
for a hasty r'-U; ciKc, .i; '*«•
On the other h.-\nd, it wm re*
research, .md the style a: -^ or
of general study, it cannot fan to 1 r . c '^c; ly xtcrr'ti-,. . . .
"The al»ve account is but a sketch of Mr. Helen's (treat work. It is impossible within the present
limits to give an adeijuate idea of ihc variety ! ' — .. •i-<!, of the learn .■ >, .i,..f,. .. wuh
wliich they are disi ussrj. Nei;liKciicc ni^'- 'he law ; I .--re
accDrded to it throws into prominence a ho-i t imt>ortain. ^rid
theoretically. By his contribution to the dvi.- uii..t r u. ...k.,; •• iii»~c .Mr. Iteveii .:.i~ j.i..... .i i..^. ,..v/ics.
sion under a Ixsting obhgation, an oblvgauon which no reader of his work will fail to realue." — i>«iieitort'
"The book upon which this is founded, and which is in a measure a former edition of the present
volumes, h.is made Mr. Beven an authority on the subjcti . f the I.ivv of negligence. He has, in writing
these volumes, made full use of h.s former lal>ouis ; but ; in reality the present work is a
new one, and hi.s claim is justified. . . . Just occ .l-»rittcn and ably-conceived law
book is published, and such a one is this of Mr. Beven's. ' .u to conipan.- it «iih other books
Oil the subject would be impossible ; it stands easily the best U>ok o;i t.'^ie subject. I .)sition of
law, for good classihcation of subject-matter, for accuracy of detail, and for e\'er>' .• to facili-
tate reference il cannot be l>caten. We may congratulate Mr. Beven upon the .. tit of his
laborious task ; he has given to the profession a valuable work, and one which will eu..aa».c l»is reputattoa
as a writer on the Law of Negligence." — Lati' Journai, .\ugust 3, 1895.
" He has treated the well-known subject of Negligence in a scientific ■■ • wuh
merely collecting, in more or,Icss relevant positions, a number of cases -elf
i n any Digfsi ot Law Reports, but has endeavoured to reduce from the atic
study of the subject, with clear eniuiciations of the principles he finds goscruiu^ t"<; ^arioUi ucciiious. In
the arrangement of the book the author has been very happy in hb method, a by no means ea.sy task in the
treatment oi a subject in which each branch of it in reality overlaps another. . . . .\ gocnl index and
clear type increase the value of a book vhich will without doubt receive the hearty commendation of the
profession as a successful completion of the author's ambitious task." — La-v Times.
" In respect of the style of treatment of the subject, the book must be highly commended. It u-ill be of
service to ever>- lawj-er who wishes rather to get an intelligent understanding of the Law of Negligence,
than merely to tind correct and reliable legal propositioos for practical use, and that whether he be a student
or a practitioner. To the student the work is valuable for the searching and weil-sustained discussion of the
cases ; and to the practitioner there are presented all the cases that bear on roost points for which he may
be ill search of authority. One of the chief merits of the work is, that all the available authority on each
point is collected and so arranged that it can be easily found." — jHridica.1 Rei'inu.
" Contains e\-idence of much serious work, and ought to receive a fair trial at the hands of the profei>>
sion." — Lazv Quarterly /iezi'cu:
STEFENS &- HAYNES, BELL YARD, TEMPLE BAR. 9
Second Edition, in royal Svo, in the press,
THE LAW OF THE DOMESTIC RELATIONS,
INCLUDING
HUSBAND AND WIFE : PARENT AND CHILD : GUARDIAN AND
WARD : INFANTS : AND MASTER AND SERVANT.
By WILLIAM PINDER EVERSLEY, B.C.L., xM.A.,
OF THE INNER TEMPLE, BARRISTER- AT-LA\V.
" It is essentially readable and interesting, and ought to take a high place among text-books. . . . We
.say, without hesitation, that this is a learned book, wTitten in a peculiarly fascinating style, having regard
to the nature of the subject. ... It can only be said, therefore, that the book is deserving of success upon
the merits ; and that the attempt to combine the treatment of three branches of the law which have hitherto
been unnaturally divided shows, in itself, a comprehensive grasp of principle." — Lazv Times.
"The author may be congratulated upon having produced an excellent treatise on this branch of the
law, well arranged, clearly written, and complete. A word of praise, too, must be accorded to the
laborious care with which he has accumulated references to the various Reports, and constructed his very
full index." — Solicitors Jotintal.
Second Edition, in one volume, royal Svo, price t,2s., cloth,
THE LAW RELATING TO THE
SALE OF GOODS AND COMMERCIAL AGENCY.
SECOND EDITION.
By ROBERT CAMPBELL, ^LA.,
OF Lincoln's inn, barkister-at-law; advocate of the scotch bar.
AUTHOR OF THE " LAW OF NEGLIGENCE," ETC.
"An accurate, careful, and exhaustive handbook on the subject with which it deals. The excellent
index deserves a special word of commendation." — La7o Quarterly Rci'icio.
" We can, therefore, repeat what we said when reviewing the first edition— that the book is a contribu-
tion of value to the subje.t treated of, and that the writer deals with his subject carefully and fully." —
Law younial.
Second Edition, in one volume, Svo, price 28^., cloth,
A TREATISE ON
THE CONSTRUCTION AND EFFECT OF
STATUTE LAW.
WITH APPENDICES CONTAINING WORDS AND EXPRESSIONS USED IN ST.^TUIES
WHICH HAVE BEEN JUDICIALLY OR STATUTABLY CONSTRUED, AND
THE POPULAR AND SHORT TITLES OF CERTAIN STATUTES.
Bv HENRY HARDCASTLE, Barrister-at-law.
SECOND EDITION, REVISED AND ENLARGED, \i\ W. F. CRAIES,
BARRISTER- AT-LAW.
" The result of Mr. Craies' industry is a sound and good piece of work, the new light thrown
on the subject since 1879 having been blended wiih the old in a thorouglily workmanlike
manner. Though less a students manual than a practitioner's text book, it is the sort of
volume an intelligent penisal of which would educate a student better than the readmg of
much substantial law." — Saturday Review.
In one volume, Svo, price 28^., cloth,
THE LAW RELATING TO PUBLIC WORSHIP ;
With special reference to Matters of Ritual and Ornamentation, and the Means of
Securing the Due Observance thereof, and containing in extenso, with Notes and
References, The Public Worship Regulation Act, 1S74 ; The Church Discipline
Act; the various Acts of Uniformity; the Liturgies of 1549, 1552, and 1559,
compared with the Present Rubric ; the Canons ; the Articles ; and the Injunc-
tions, Advertisements, and other Original Documents of Legal Authority. By
Skward Brice, LL.D., of the Inner Temple, Barrister-at-Law.
10 STEVENS cr- HAYNES, BELL YARD, TEMPLE BAR.
In Svo, price 30J., cloth,
THE PRACTICE ON THE CROWN SIDE
Of the Queen's Bench Division of Her Majesty's High Court of Justice
(Founded on Coknek's Ckow n Office Practice ;, including
Api'eai.s krom Inferior Courts; with Aviendices of Rules and Forms,
By FREDERICK HUGH SHORT,
Chief Clerk of ihe Crown OfSce, Author of "Taxation of Costs in the Crown Office," and Editor
of " Crown Office Rules and Forms, 1886 ;" and
FRANCIS HAMILTON MELLOR, M.A.,
Trin. Coll. Camb., Northern Circuit, Inner Temple, Barrister-at-Law.
THE CROWN OFFICE RULES AND FORMS, 1886.
The Supreme Court of Judicature Acts anil Rules of the Supreme Court. 1SS3, relating to
the Practice on the Crown side of the Queen's Bench Division ; including Appeals
from Inferior Courts, Tables of Court Fees, Scales of Costs ; together with Notes,
Cases, and a Full Index. By F. II. SHORT, Chief Clerk of the Crown Office.
In Svo, price 6.f. bd., cloth,
THE CUSTOMS AND INLAND REVENUE ACTS,
ISSO and Ibbl (43 \ ii. 1. <-Ar. 14, and 44 \lCT. cai'. 12),
So far as they Relate to the Probate, Legacy, and Succession Duties, and the Duties on
Accounts. With an Introduction and Notes. By Alfred Hanson, Esq., Comp-
troller of Legacy and Succession Duties.
*,* Thus forms a Supplement to the Third Edition of the Probate, Legacy, and Succession Duty
Acts, by the same .'\uthor.
Fourth Edition, in Svo, in the press,
THE ACTS RELATING TO PROBATE, LEGACY, AND
SUCCESSION DUTIES. Compri.>ing the 36 Geo. HI. c. 52 : 45 Cieo. IIL
c. 2S ; 5S (it >. III. c. 1S4 ; and 16 lV 17 Vict. c. 51 ; the Customs and Inland
Revenue Acts, 43 Vict. c. 14; and 44 Vict. c. 12; also the New Estate Duty
Finance Act, 57 tV 5S Vict. c. 30; with an Introduction, Copious Notes, and
References to all the Decided Cases in England, Scotland, and Ireland. An
Appendix of Statutes, Tables, and a full Index. By Alfred Hanson, of the
Middle Temple, Esq., Barrister-at-Law, Comptroller of Legacy and Succession
Duties. Fourth Edition by Lewis T. Dibdin, M.A., D.C.L., and F. H. L.
Errington, M.A., Barristers-at-Law.
" It is the only complete book upon a subject of 1 " His book is in itself a most useful one ; its
great importance. author knows every in and out of the subject, and
"Mr. Hanson is peculiarly qualified to be the | has presented the whole in a form easily and
adviser at such a time. Hence a volume without I readily handled, and with good arrangement and
a rival." — La7v Times. I clear exposition." — Solicitors' Journal.
In royal Svo, 1877, price I05., cloth,
LES HOSPICES DE PARIS ET DE LONDRES.
THE CASE OF LORD HENRY SEYMOUR'S WILL
(WALLACE r. THE ATTORNEY-GENERAL).
Reported by FREDERICK WAYMOUTH GIBBS, C.B., Barrister at-Law,
LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE.
In Svo, 1S67, price \bs., cloth,
CHARITABLE TRUSTS ACTS, 1853, 1855, 1860:
THE CHARITY COMMISSIONERS' JURISDICTION ACT, 1852;
THE ROMAN CATHOLIC CHARITIES ACTS:
Together with a Collection of Statutes relating to or affecting Charities, including the
Mortmain Acts, Notes of Cases from 1S53 to the present time. Forms of Decla-
rations of Trust, Conditions of Sale, and Conveyance of Charity Land, and a
ver}' copious Index. Second Edition.
By HUGH COOKE and R. G. HARWOOD, of the Charity Commission.
S7EVE.VS &- HAYNES, BELL YARD, TEMPLE BAR. 11
In one Volume, 8vo, price 205., cloth,
THE
PRINCIPLES OF COMMERCIAL LAW;
WITH AN APPENDIX OF STATUTES, ANNOTATED EY MEANS OF
REFERENCES TO THE TEXT.
By JOSEPH HURST and LORD ROBERT CECIL,
OF THE INNER TEMPLE, BARRISTERS-AT-LA\V.
"Their compendium, we believe, will be found a really useful volume, one for the lawj'er and the
business man to keep at his elbow, and which, if not giving them all that they require, will place in their
hands the key to the richer and more elaborate treasures of the Law which lie in larger and more exhaus-
tive works." — La-M Times.
"The object of the authors of this work, they tell us in their preface, is to state, within a moderat
compass, the principles of commercial law. Very considerable pains have obviously been e.vpended on th
task, and the book is in many respects a very serviceable one." — La'a< Jojirnal.
Second Edition, in royal 8vo, price 25j-. cloth,
THE
RELATIONSHIP OF LANDLORD AND TENANT.
By EDGAR FOA,
OF THE INNER TEMPLE, BARRISTER- AT-LAW.
"Will be found of much value to practitioners, and when a second edition has given the author the
opportunity of reconsidering and carefully revising his statements in detail, we think it will take its place
as a very good treatise on the modern law of landlord and X.^n?Ln\.."— Solicitors' Journal.
" Mr. Foa is a bold man to undertake the exposition of a branch of law so full of difficulties and encum-
bered by so many decisions as the Law of Landlord and Tenant. But his boldness is justified by the
excellent arrangement and by the lucid statements which characterise his book." — Law Quarterly Review.
" Mr. Foa's is a compact work, treating (i) of the creation of the relationship ; (2) the incidents of
creation (distress) and determination of the .elationship ; (3) modes and incidents of determination. We
commend it to the attention of the Profession and predict for Foa on Landlord and Tenant a very useful
and very permanent future."— Z^w Times.
" We have nothing but praise for the work, and we shall be astonished if it does not take rank in
course of time as one of the best— if not the best — work for every-day practice on the subject of Landlord
and Tenant." — Law .Votes.
"Without making any invidious comparison with existing works on the subject, we may frankly say
that Mr. Foa's work indisputably possesses merit. . . . Our verdict on the book must be a decidedly
favourable one." — Law Students' Jotirnal.
'.' '.'^"^? Relationship of Landlord and Tenant," written by Mr. Edgar Foa, Barrister-at-Law, affords a
striking instance of accuracy and lucidity of statement. The volume should be found useful not only by
lawyers but by landlords and tenants themselves, the law in each particular being stated with a simplicity
and clearness which bring it within the grasp of the lay iniad."—Law Gazette.
Second Edition, in one Volume, mediinii 8vo, price 355., cloth,
EMDEN'S COMPLETE COLLECTION
OF
PRA.CTICE STATUTES,
ORDERS AND RULES.
Being a Selection of such Practical Parts of all Statutes, Orders and Rules, as are now
in force, and relate to the Practice and Procedure of the Supreme Court. From
1275 to 1886. With Tabulateil Summaries of the Leading Cases and Analytical
Cross-references.
By ALFRED EMDEN,
OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW ; AUTHOR OF " THE PRACTICE IN WINDING-UP
companies;" "the law relating to building, building LEASES, AND CONTRACTS;"
"the shareholder's legal guide," etc.
ASSISTED BY
HERBERT THOMPSON, M.A.,
OF the inner temple, barkister-at-law.
12 STEVENS cr- HAYNES, BELL YARD, TEMPLE BAR.
In royal 8vo, price 28^., cloth,
A TREATISE OX THE
LAW AND PRACTICE
KtLATI.NG 10
LETTERS PATENT FOR INVENTIONS.
V, IT 11 AN
APPENDIX OF STATUTES, INTERNATIONAL CONVENTION,
RULES, FORMS AND PRECEDENTS, ORDERS, &c.
By ROBERT FROST, B.Sc. (Lond.),
FELLOW OF THE CHEMICAL SOCIETY; OF LINCOLN'S INN, ESQLIRB, aARRISTER-AT-LAW.
" In our view a good piece of work may crcat- without disparaging existing literature
upon the sul)jc<;t of patents, we think the care :. . the volume \<y >\r. Frost has been
compiled entitles it to f ocniti n ii! t!i<: i. n..' . . . JtidginR Mr. Frost on this
ground, we find him c ■■ entire volume satisfies us that
great care and much I. ■ .ai^e, and we think that patent
agents, solii.itor.'., the I . c and instruction to the pages
of Mr. F'rost." — Z-itTc Jimn.
" Few practice books cooiain so much in »o reav>oahle a space, and we repeat that it will be found
generally useful by practitioners in this important branch of the law. ... A capital index concludes
the book."— /.rttt' Jcumal.
" The l)ook is, as it professes to be, a treatise on patent law and practice, the several topics being con-
veniently arranged and discussed in the thirteen chapters which form the body of the work, to which
are appended statutes, rules, and forms. The statcjiienls of the law, so far as we have been able to test
them, appear to be clear and accurate, and the author's style is plca-saiu and good. . . . The book is
a good one, and will make its way. The index is better than usual. Itoth (>aper and type are alio
excellent." — Solicitors' Joumtit.
Second Eililion. In two VQliiines, ro)al Svo, price SOf., cloth,
A PR.'\CTICAL TRE.VnSE ON THE
LAW OF BUILDING AND
ENGINEERING CONTRACTS,
And ci THE DUTIES a.nu LIALILITU:.^ of LNGINLEKS, ARCHITECTS,
SURVEYORS .\Nn VALUER.S,
WITH AX APPENDIX OF PRECEDENTS,
ANNOTATED BY MEANS OF REFERENCE TO THE TEXT AND TO CONTR.ACTS
IN USE.
AND AN APPENDIX OF UNREPORTED CASES
ON BUILDING AND ENGINEERING CONTRACTS.
By ALFRED A. HUDSON,
OF THE INNER TEMPLE, BARRISTER-AT-LAW.
" This is a book of ^reat elaboration and completeness. It appears from the preface that the author has
the twofold qualification of technical knowledge uf building, gained as an architect, and devotion to the
legal aspects of building, engineering, and shipbuilding contracts since he became a member of the bar.
.... The li>t ol cases cited covers hfty large pjges, and they include, not merely Engli>h, but American
and Colonial decisions The book as a whole represents a large amount of well-directed labour, and
it ought to become the standard work on its subject." — Solicitors' Jouritai.
"A very full index completes the book. Mr. Hudson has struck out a new line for himself, and pro-
duced a work of considerable merit, and one which will probably be found indispensable by practitioners,
inasmuch as it contains a great deal that is not to be found elsewhere. The Table of Cases refers to all
the reports." — Latu jfrurfutl.
" Mr. Hudson, having aoandoned his profession of an architect to become a barrister, hit upon the idea
of writing this work, and he has done it with a thoroughness which ever}- houseowner would like to see
bestowed upon modern houses The Index and Table of Cases reveal a vast amount of industrj*
expended upon detail, and we shall be much surprised if Mr. Hudson does not r«ap the reward of his
labours by obtaining a large and appreciative public." — LiTv Tinres.
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 13
Second Edition. In 8vo, price los. 6d., cloth,
OUTLINES OF THE LAW OF TORTS.
By RICHARD RINGWOOD, M.A.,
OF THE MIDDLE TEMPLE, BARKISTER-AT-LAW ; AUTHOR OF "PRINCIPLES OF BANKKUPTCV," &C.,
AND LECTURER ON COMMON LAW TO THE INCORPORATED LAW SOCIETY.
"This is a work by the well-known author of a student's book on Bankruptcy. Its groundwork is a
series of lectures delivered in 1887 by Mr. Ringwood, as lecturer appointed by the Incorporated Law
Society. It is clear, concise, well and intelligently written and one rises from its perusal with feelings of
pleasure. . . . After perusing the entire work, we can conscientiously recommend it to students." —
Law Students' Joitmal.
" The work is one we well recommend to law students, and the able way in which it is written reflects
much credit upon the author." — La2v Tttncs.
"Mr. Ringwood's book is a plain and straightforward introduction to this branch of the law." — Law
Joumal.
*<* Prescribed as a text-book by the Incorporated Laiu Society 0/ Ireland.
Si.\th Edition, in 8vo, price 21s., cloth,
THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c.
UNDER THE LANDS CLAUSES CONSOLIDATION ACTS, THE RAILWAYS
CLAUSES CONSOLID.-VTION ACTS, THE PUBLIC HEALTH ACT, 1S75 ;
THE HOUSING OF THE WORKING CLASSES ACT, 1890;
THE METROPOLIS LOCAL MANAGEMENT ACT,
A.ND OTHER ACTS,
WITH A FULL COLLECTION OF FORMS AND PRECEDENTS.
By eyre LLOYD,
OF THE INNER TEMPLE, BARRISTER- AT-LAW.
SIXTH EDITION.
By W. J. BROOKS,
OF THE INNER TK.MPLE, BARRISTEK-AT-LAW.
" In providing the le^al profession ivith a book which contains the decisions of the Courts of Law and
Equity upon the various statutes relating to the Law of Compctisatiou, Mr. Eyre Lloyd has long since
left all competitors in the distance, and /lis book tnay no7u be considered the standard work upon the sub-
ject. The plan of Mr. Lloyds book is geturally kno'.cn, and its lucidity is appreciated ; the present quite
fulfils all tlu promises of the preceding editions, and contains in addition to other matter a complete set
of forms under the Artizans and Labourers Act, 1875, and specimens of Bills of Costs, which 'Mill be found
a navel feature , extremely useful to legal practitioners." — Justice of the Peace.
In 8vo, price Ts., cloth,
THE SUCCESSION LAWS OF CHRISTIAN COUNTRIES,
WITH SPECIAL REFERENCE TO THE LAW OF PRIMOGENITURE
AS IT EXISTS IN ENGLAND.
By eyre LLOYD, B.A., Barrister-at-Law.
In crown 8vo, price 6s. , cloth,
ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY.
By JOHN W. SALMOND, M.A., LL.B. (Lond.),
A BARRISTER OF THE SUPREME COURT OF NEW ZEALAND.
In crown 8vo, price 6s., cloth.
THE FIRST PRINCIPLES OF JURISPRUDENCE,
By JOHN W. SALMOND, M.A., LL.B.,
BARRISTER-AT-LAW ; AUTHOR OF "ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY.'
U STEVENS cr- HAYNES, BELL YARD, TEMPLE BAR.
In the Press, in Svo, and nearly ready.
THE LAW OF
NEGOTIABLE SECURITIES.
CONTAINED IN A COURSE OF SIX lECTURES.
Delivered by WILLIAM WILLIS, Esq., Q.C,
fM>KR TMF AI'SPICF-^ OK
THE COUNCIL OF LEGAL EDUCATION.
In one large vol., Svo, price 3a/., cloth,
INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW,
WITH CATENA OF TEXTS.
By Dr. CARL SALKOWSKI, Professor of Liws, Konigsbcrg.
Translated and Edited by E. E. Whitfield, M.A. (Oxon.).
In Svo, price 4/. r>Y. , rlnih,
Tin:
NEWSPAPER LIBEL AND REGISTRATION ACT, 1881.
WITH A STATEMENT OF THE LAW OF LIliEL Ab AFFECTING
PKOrRIETORS, PUBLISHERS, ani> EDITORS OF NEWSPAPERS.
By G. ELLIOTT, Barrister-at- Law, of the Inner Temple.
In one volume, royal Svo,
CASES AND OPINIONS ON CONSTITUTIONAL LAW,
AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE.
COLLECTED AND DIGESTED FROM OFFICIAL DOCUMENTS
AND OTHER SOURCES.
WITH XOTES.
By WILLIAM FORSYTH, M.A., M.P., Q.C,
STANDING COUNSEL TO THE SECRETARY OF STATE IN COUNCIL OF INDIA,
Author of •' Hortensius," " Historj' of Trial by Jury," "Life of Cicero," etc.,
late Fellow of Trinity College, Cambridge.
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 15
Sixth Edition, in Svo, price lO^. 6il., cloth,
THE PRINCIPLES OF BANKRUPTCY.
WITH AN APPENDIX,
CONTAINING
THE CONSOLIDATED RULES OF 1886, 1890 k 1891, SCALE OF
COSTS, AND THE BILLS OF SALE ACTS, 1878, 1882, 1890 &
1891, AND THE RULES THEREUNDER; THE DEEDS OF
ARRANGEMENT ACT, 1887, AND THE RULES THEREUNDER.
By RICHARD RINGWOOD, M.A.,
OF TilE MIDDLE TEMPLE, BARRISTEK-AT-LAW ; LATE SCHOLAR OF TRINITY COLLEGE, DUBLIN.
" We welcome a new edition of this excellent student's book. We have written favourably of it in
reviewing previous «ditions, and every good word we have written we would now reiterate and perhaps
even more so. . . . In conclusion, we congratulate -Mr. Ringwood on this edition, and have no
hesitation in saying that it is a capital student's \>ook."—Laiu Students Jour-nal.
"This edition is a considerable improvement on the first, and although chiefly written for the use of
Students, the work will be found useful to the practitioner."— Z^rt-o Times.
Seventh Edition, in Svo, price 2ls., cloth,
A TREATISE UPON
THE LAW OF BANKRUPTCY
AND
BILLS OF SALE.
WITH AN APPENDIX
CONTAINING
THE BANKRUPTCY ACTS, 1883—1890; GENERAL RULES,
FORMS, SCALE OF COSTS AND FEES ;
RULES UNDER S. 122 of 1888; DEEDS OF ARRANGEMENT ACTS,
1887—1890; RULES AND FORMS; BOARD OF TRADE AND
COURT ORDERS ; DEBTORS ACTS, 1869, 187S ; RULES AND FORMS;
BILLS OF SALE ACTS, 1878—1891, Etc., Etc.
By EDWARD T. BALDWIN, M.A.,
OF THE INNER TEMPLE, BARRISTEK-AT-LAW.
" The seven editions simply record the constant progress of case growth and statute law. It is a
remarkably useful compendium." — La7v Times, July 20, 1895. >. r
" As a well-arranged and complete collection of case law this book should be found of great use. —Law
'Journal, July 20, 1895.
" Carefully brought down to date."— 5'c/?V-//<'r^'7'""''"'^' ^o^^"*^^"" 9. ^895. ...
" We have always considered the work an admirable one, and the present edition is quite up to the
previous high standard of excellence. We know of no better book on bankruptcy for the practitioner s
library." — Laiu Students' Journal, August, 1805. ...
" Practitioners may, we feel sure, safely rely on its accuracy. A distinct acquisition for reference
purposes to the shelf of any practitioner." — Law Notes.
16 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR.
Second Etliiion, in one vol., price 20s., cloth,
A COMPENDIUM OF THE LAW OF
PROPERTY IN LAND.
FOR THE USE OF STUDESTS AXD 7HE PROFESS/ON.
SECOND EDITION.
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"Another exceHcnt compendittm which ha^ entered a »e<x>nd edition i» Mr. Kdw.- ' -ditim of
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The amount of dcl..i: - ^ i .- ! . It. «' r.m irith
great confidence ret oiiiuici.ii ii t ^ ■ ''"•' it a ■ Of
the modern law. AltoRcther it . 'the author ^e
improved notions of law w^.ich i; ■ , , . . '■ ■ the front.' •-«/.
"This book shows signs of thorough work throughout ihc book i* a buMticwUkc aiiU useful
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Third Edition, royal 8vo, price 381., clolh.
Till".
LAW OF CORPORATIONS AND COMPANIES.
A TKi:.\TI.sE ON THE DOCTRINE OF
ULTRA VIRES:
BEING
An Investigation of the Principles which Limit the Capacities, Powers, and Liabilities of
CORPORATIONS,
ANP MORP. ESPECIALLY OF
JOINT STOCK COMPANIES.
Bv SEWARD BRICE, M.A., LL.D., LONDON,
OF THE INNER TEMPLE, C'NE OF HEK MAJESTY'S COU."«SEL.
THIRD EDITION.
REVISED THROUGHOUT AND ENLARGED, AND CONTAINING THE
UNITED ST.-VTES AND COLONIAL DECISIONS.
RSVISWS.
". . . . On the wkcU, ^m coiisidtr Mr. B rice's exhaustive vmrk a valuable additicn to the liitratunif
ifu /iv/essicni."—SA-TV'RVAY Review.
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" On this doctrine, first introduced in the Common Law Coorts in £asi Anglian Kailu-ay Co. ▼.
EasterH Counties Raihvay Co., Brice on Ultra \ires may be read with advantage. "—yu^fmCTrf 0/
Lord Justice Bramwkll, in the Case 0/ Evershtd v. L. 6- -V. W. Ry. Co. (L. R., 3 Q. B. Diw. 141.).
STEVENS ^ HAYJVES, BELL YARD, TEMPLE BAR. 17
Sixth Edition, in royal Svo, price 34-f., cloth,
BUCKLEY ON THE COMPANIES ACTS.
SIXTH EDITION BY THE AUTHOR.
THE LAW AND PRACTICE UNDER THE COMPANIES ACTS, 1862 to 1890; and
THE LIFE ASSURANCE COMPANIES ACTS, 1S70 to 1S72 ; including
THE COMPANIES (MEMORANDUM OF ASSOCIATION) ACT;
THE COMPANIES (WINDING-UP) ACT, and the
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^ %xtAi\zt on the §;iU) of Joint -Stock (Companies.
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Second Edition, with Supplement, in royal Svo, price 46J., cloth.
THE L.\W RELATING TO
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Second Edition.
WITH A SUPPLEMENT
Comprising THE MERCHANT SHIPPING ACT, 1894, The Rules of
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connected with the rights and duties of a shiii- 1
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well posted up We hope this new
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Titttes, April, 1894.
In royal Svo, pri:e lO.f. 6(/., cloth,
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With the Rules of Court made thereunder. Being a Supplement to KAY'S LAW
RELATING TO SHIPMASTERS AND SEAMEN. To which are added the
(proposed) Regulations for Preventing Collisions at Sea. With Notes. By Hon. J.
W. Mansfield, M.A., and G. W. Duncan, B.A., of the Inner Temple, Barristers-
at-Law.
18 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR.
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THE JUDGMENTS, ORDERS, AND PRACTICE OF
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CIIIKII.V in RESPECT to ACTIONS ASSIGNELMo theCHANCEKV DIVISION.
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One of the registrars of the Supreme Court of Judicature ; and Author of " The Practice
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SCINTILLAE JURIS.
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STEVE A^S &- HAYNES, BELL YARD, TEMPLE BAR. 19
Second Edition, in 8vo, price 25^., cloth,
THE PRINCIPLES OF
THE LAW OF RATING OF HEREDITAMENTS
IN THE OCCUPATION OF COMPANIES.
Bv J. H. BALFOUR BROWNE,
OF THE MIDDLE TEMPLE, Q.C.,
And D. N. McXAUGHTON, of the Middle Temple, Barrister-at-Law.
"The tables and specimen valuations which are
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that all those who are interested in or h.ive to do
with, public rating, will find it of great service.
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In 8vo, 1875, price "js. 6d., cloth,
THE LAW OF USAGES & CUSTOMS:
^ frattical ^ab oTract.
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"We look upon this treatise as a valuable addition to works written on the Science of Law." — Canada
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distinguished when necessary*." — Irish Lniv Times.
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In one volume, Svo, 1S75, price iSj., cloth,
THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS
UNDER TIIK REGULATION OF RAILWAY ACTS, 1873 & 1S74 ;
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By J. H. BALFOUR BROWNE,
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*' Mr. Browne s book is handy and convenient in | work of a man of capable legal attainments, and by
form, and well arranged for the purpose of refer- official position intimate with his subject; and we
ence : its treatment of the subject is fully and therefore think that it cannot fail to meet a real
carefully worked out : it is, so far as we have been want and to prove of service to the legal profession
able to test it, accurate and trustworthy. It is the I and the public." — Law Magazine.
In Svo, 1876, price 7.f. 6(/., cloth,
ON THE COMPULSORY PURCHASE OF THE UNDERTAKINGS
OF COMPANIES BY CORPORATIONS,
And the Practice in Relation to the Passage of Bills for Com]nilsory Purcha.se through
Parliament. By J. H. Bai.fouk Browne, of the Middle Temple, Q.C.
"This is a work of considerable importance to all
Municipal Corporations, and it is hardly too much to
say that everj' meniljcr of these bodies should have
a copy by him for constant reference. Probably at
no very distant date the property of all the existing
gas and water companies will pass under municipal
control, and therefore it is exceedingly desirable
that the principles and conditions under which such
transfers ought to be made should l>e clearly under-
stood. This ta.sk is made easy by the present volume.
The stimulus for the publication of such a work
was given by the action of the Parliamentary
Committee which la^t session pa.ssed the preamble
of the 'Stockton and Middlesborough Corporations
Water Bill, 1876.' The volume accordingly con-
tains a full report of the case as it was presented
both by the promoters and opponents, and as this
was the first time in which the principle of com-
pulsory purchase was definitely recognised, there
can be no doubt that it will long be regarded as a
leading case. As a matter of course, many inci-
dental points of interest arose during the progress
of the case. Thus, besides the mam question of
compulsorj' purchase, and the question as to whether
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questions of water compensations, of appeals fiom
one Committee to another, and other kindred sub-
jects were discussed. These are all treated at length
by the Author in the body of the work, which is
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20 STEVENS dr* HAYNES, BELL YARD, TEMPLE BAR.
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THE LAW OF EVIDENCE.
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In 8vo, 1878, price 6/., cloth,
LAW RELATINg'tO CHARITIES,
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CHARITABLE BEQUESTS AND CONVEYANCES.
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SAVIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW.
L!v ARCIilBAIJ) HROWN, M..\.
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Mr. Hrown has undertaken .1 the
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THE ELEMENTS OF ROMAN LAW.
the French lran«I.iii' n • • : ■-
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Sav
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.J
' \ on
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.." — LatB
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•tohat are the ofinicns of either of these two writers on each foint. From the very exact
and accurate references to title: and sections ji;izen he can at once refer to the original
writers. The concise manner in which Mr. Harris has arranged his digest will render
it most useful, not only to the students for whom it -.vas oripnally written, but also to those
persons w'lo, though they haze not the time to -.cade through the larger treatises of Postt,
Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law. '' —
Oxford and Cambkioc.f IJndf;rgradi- axes' Jocknai..
" J/r. Harris dcserz'cs the credit of having froduccd an epitome which will be of service
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WORKS FOR LA IV STUDENTS. 21
Fourth Edition, in 8vo, price 21^., cloth,
ENGLISH CONSTITUTIONAL HISTORY:
FROM THE TEUTONIC INVASION TO THE PRESENT TIME.
^csignci as a ^c.vt-book for <Stubcnts nab irthcvs,
By T. P. TASWELL-LANGMEAD, B.C.L.,
OP Lincoln's ink, barrister-at-law, formerly vinerian scholar in the university
AND LATE PROFESSOR OF CONSTITUTIONAL LAW AND HISTORY,
UNIVERSITY COLLEGE, LONDON.
Fourth Edition, Revised throughout, with Notes and Appendices.
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accurate knowledge of the history of the constitution." — Linv Times.
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law Mr. Carmichael appears to have done the work of editing, made necessary by the death
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History." — Solicitors' Journal. • • u
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" It is a safe, careful, praiseworthy digest and manual of all constitutional history and law." — GMe.
""The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a
history should be." — Stantiard. _ . > ,-
" Mr. Taswell-Langmead has thoroughly grasped the bearings of his subject. It is, however, in dealim;
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great superiority over its rivals." — Academy.
Second Edition, in 8vo, price 6.f. , cloth,
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CONTRACT LAW.
QUESTIONS ON THE LAW OF CONTRACTS. With Notes tc the
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By Philip Foster Aldred, D.C.L., Hertford College and Gray's Inn ; late
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22 WORKS FOR LAW STUDENTS.
Eleventh Edition, in 8vo, price 21^., cloth,
THE PRINCIPLES OF EQUITY.
INTENDED FOR THE USE OF STUDENTS AXD THE PROFESSION,
By EDMUND H. T. S N E L L,
OF THR MlLiDLE TEMI'LK, B ARRISTER-AT-LAW.
ELEVENTH EDITION.
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REVIEWS.
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he tells us in his prefnre, actii.-illy -■,ic"ccfV<! in riirr. ni«h;n:; the «:.c of the V>-iol-. It i? the Kichth Kdition
which ha?; p.-isseil ll. ' 'C
work hn> certainly n 't
up to date. . . . I'hr ^ i.'.
"This is the Kichth luiitiuit uf ihi.-. ^luUcni > t<:x(-tM..uk waith ti>c i>r<..^ciit editor tt^u> oi^u^i.l uul. . . .
the hook is a good introduction to Ex|uity, .ind i^ additionally useful by having a full index. ' — Solicitvrf
yournal.
" The book rem.iins wh.M it nlwa>-s has l>een, the indispensable guide to the beeinner of the study of
Equity, without ccising to be above the notice ol the more experienced student." — Ox/tmi Afagatine.
" Whether to the licginner in the study of the principles of Equity, or to the practising law^-cr in the
htirry of work, it can be unhesitatingly rccommendeU as a standard and invaluable treatise." — {.ambridge
"This work on the ' Principles <if Equity' has, since the I ■•'. beeu
recojfni'*ed as the l>cn elementary treatise on the subject, .itid more of
this Edition, than to mruM. Ill ihr 1 I. 1 1,1' 11 1 111 ii 111 n «r.. i: : l: .; ; .. , Mr. Snell,
is de.-iil, .ii.d the l.-il> ' i i.jwu. It scliiuiu happens
that a new editor is . or its dctaiU. Hut in the
case of the present v;.... .. ^ .....; ^ ^ .....^ , .„ ^-.i ilic former ones, and well
as Mr. Sncll did his work we discover that Mr. liruwn has liooe it t>ctlcr. ' — /niA Latu Timtt,
" This is now unquestionably the standard book on Equity for students." — Saturday Revittu.
*' U'f /:fiiKC> of fio bctUr infr.yfwff.yn to thf PrincipUs of Equity.^ —
Canad.v Law Journal.
Fifth Edition, in Svo, price 6.<'., cloth,
AN ANALYSIS OF SNELL'S PRINCIPLES OF
EQUITY. Founded ON THE Eleventh Edition. With Notes thereon.
By E. E. Blyth, LL. D., Solicitor.
" Mr. Blyth's l>ook will undoubtedly be ver>- useful to readers of Snell." — Law Tiines.
"This is an .-idmirable anal)-sis of a good treatise ; read with Snell, this little book will be fotmd very
profitable to the student." — Laxv Jourtial.
In Svo, price 2J., sewed,
QUESTIONS ON EQUITY.
FOR STUDENTS PREPARIXG FOR EXAMINATION.
FOUNDED ON THE NINTH EDITION OF
SNELL'S "PRINCIPLES OF EQUITY."
Bv W. T. WAITE,
barrister-.\t-la\v, holt scholar of the honolrabix society of gray's inn.
IFORKS FOR LA IV STUDENTS, 23
Second Edition, in one volume, Svo, price iS^., cloth,
PRINCIPLES OF CONVEYANCING.
AN ELEMENTARY WORK FOR THE USE OF STUDENTS.
By henry C. DEANE,
i OF Lincoln's inn, barrister-at-law, sometime lecturer to the incorporated law society
' OF THE UNITED KINGDOM.
I "^Ft' hope to see this book, like SnelVs Equity, a standard class-book in all Lazv Schools
I where English la-o is /aw^///"."— Canada Law Journal.
I " We like the work, it is well wTitten and is an " In the parts which have been rewritten, Mr.
excellent student's book, and being only just pub- Deanehas preserved the same pleasant style marked
lished, it has the great advantage of having in it all by simplicity and lucidity which distinguished his
the recent important enactments relating to convey- first edition. .After ' Williams on Real Property,'
ancing. It possesses also an excellent index." — j there is no book which we should so strongly
Law Students' Joiirjial. \ recommend to the student entering upon Real Pro-
" Will be found of great use to students entering 1 perty Law as Mr. Deane's ' Principles of Convey,
upon the difficulties of Real Property Law. It has 1 ancing,' and the high character which the first
an unusually exhaustive index covering some fifty I edition attained has been fully kept up in this
pages."— Z,<iw Times. ! second."— Z,(i7</ Journal.
Fourth Edition, in Svo, price lo^-., cloth,
A SUMMARY OF THE
LAW & PRACTICE IN ADMIRALTY.
FOR THE USE OF STUDENTS.
By EUSTACE SMITH,
OK THE INNER TE.MFLE; AUTHOR OF "a SUMMARY OF COMPANY LAW."
"The book is well arranged, and forms a good introduction to the subject." — Solicitors' Jaurnai
" It is, however, in our opinion, a well and carefully written little work, and should be in the hands of
every student who is taking up Admiralty Law at the Final."— /^^jc Students' Jourtial.
'■' Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. The
present work will doubtless be received with satisfaction equal to that with which his previous ' bunimary'
has been met." — Oxford atid Cambridge Utidergraduates' Journal.
Fourth Edition, in Svo., price 8j., cloth,
A SUMMARY OF THE
LAW AND PRACTICE IN THE ECCLESIASTICAL COURTS.
FOR THE USE OF STUDENTS.
By EUSTACE SMITH,
OF THE INNER TEMPLE j AUTHOR OF "a SUMMARY OF COMPANV LAW " AND "a SUMMARY OF
THE LAW AND PRACTICE IN ADMIRALTY."
" His object has been, as he tells us in his preface, to give the student and general reader a fair outline
of the scope and extent of ecclesiastical law, of the principles on which it is founded, of the Courts by
which it is enforced, and the procedure by which these Courts are regulated. We think the book well
fulfils its object. Its value is much enhanced by a profuse citation of authorities for the propositions
contained in it." — Bar Examination Journal.
Fourth Edition, in Svo, price ']s. (id., cloth,
AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE,
FOR THE USE OF STUDENTS FOR HONOURS EXAMINATION.
By J. CARTER HARRISON, Solicitor.
" The work is considerably enlarged, and we think improved, and will be found cf great assistance to
students." — Law Students' Journal.
24 M'OA'A'S FOR LAW STUDENTS.
Sevenlh Edition. In one volume, 8vo, price 20J. , cloth,
PRINCIPLES OF THE COMMON LAW.
INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION.
SEVENTH ED1TI0.\.
J5Y JOHN INDERMAUR, Solicitor,
AUTHOR OK "A MANUAL OF THE PRACTICE OF THE SUPREME COURT,"
" EPITOMES OF LEADING CASES," AND OTHER WORKS,
j " The Student will find in Mr. Inderniaur's l)ook a safe and clear guide to the Prin-
I ciples of Common Law." — Law J(mrnal, 1892.
"The present edition of this elementary treatise has been in general edited with praise-
worthy care. The provisions of the statutes affecting the subjects discussed, which have
been passed since the publication of the Ixst etlition, are clearly summarised, and the effect
of the leading cases is generally verj' well given. In the difTicult task of selecting and
distinguishing principle from detail, Mr. Indcrmaur has been very successful ; the leading
principles are clearly brought out, and ver)' judiciously illustrated."— Solicitors' Jourttal.
"The work is acknowledged to be one of the best written and most useful elementary
works for Law Students that has been published." — La-w Limes.
"The jiraise which we were enabled to bestow upon Mr. Indermaur's very useful com-
jiilation on its flr^t appearance has been justified l>y a demand for a second edition." —
J a-v Afaj^azitte.
" Ws were able, four years ago, to praise the first edition of Mr. Indermaur's book as
likely to be of use to students in acquiring the elements of the law of torts and contracts.
The second edition maintains the character of the book." — LtTw yourtial.
"Mr. Indermaur renders even law light reading. He not only possesses the faculty
of judicious selection, but of lucid exposition and felicitous illustration. And while his
works are all thus characterised, his ' Principles of the Common Law ' especially displays
those features. That it has already reached a second edition, testifies that our estimate of
the work on its first appearance was not unduly favourable, highly as we then signified
approval ; nor needs it that we should add anything to that estimate in reference to the
general scope and execution of the work. It only remains to say, that the present edition
evinces that every care has been taken to insure thorough accuracy, while including all
the modifications in the law that have taken place since the original publication ; and that
the references to the Irish decisions which have been now introduced are calculated to
render the work of greater utility to practitioners and students, both English and Irish."
— Irish Law Times.
" This 7vori, the author tells us in his Preface, is written mainly with a view to the
examinations of the Incorforated Law Society ; but we think it is likely to attain a wider
tuefulness. It seems, so far as we can Judge from the farts we have examined, to be a
careful and clear outline of the principles of the common law. Lt is very readable ; and
not only students, but many pra^'titioners ajui the public might benefit by a perusal of its
pages." — Solicitors' Journal.
WORKS FOR LAW STUDENTS. 25
Sixth Edition, in 8vo, price 14^., cloth,
A MMUAL OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE,
IN THE QUEEN'S BENCH AND CHANCERY DIVISIONS.
Sixth Edition, adapted to the new Rules of Court of November, 1893.
Intended for the use of Students and the Profession.
By John Indermaur, Solicitor.
"Mr. Indermaur has brought out a sixth edition of his excellent ' Manual of Practice' at a very
opportune time, for he has been able to incorporate the effect of the new Rules of Court which came into
force last November, the Trustee Act, 1S93, and Rules, and the Supreme Court !• und Rules, 1893, as
well as that of other Acts of earlier date. A very complete revision of the work has, of course, been
necessary, and Mr. Indermaur, assisted by Mr. Thwaites, has effected this with his usual thoroughness
and careful attention to details. Ihe book is well known and valued by students, but practitione^ also
find it handy in many cases where reference to the bulkier ' White Book ' is unnecessarj-. —Law rimes,
February, 1894. . . . • j ui
" This well-know n students' book may verj' well be consulted by practitioners, as it contains a considerable
amount of reliable information on the practice of the Court. It is written so as to include the new Rules,
and a supplemental note deals with the alterations made in Rule XI. by the Judges in January last. Ihe
praise which we gave to previous editions is quite due to the present issue." — Laiv Jourual, f-eOruary, 1894.
Seventh Edition, in Svo, price 6j., cloth,
AN EPITOME OF LEADING COMMON LAW CASES;
WITH SOME SHORT NOTES THEREON.
Chiefly intended as a Guide to " S.mith's Leading Cases." By John Indermaur,
Solicitor (Clifford's Inn Prizeman, Michaelmas Term, 1872).
" We have received the third edition of the ' Epitome of Leading Common Law Cases,' by Mr. Inder-
maur, Solicitor. The first edition of this work was published in February, 1873, the second in Ap"!, 1874;
and now we have a third edition dated September, 1875. No better proof of the value of this book can be
furnished than the fact that in less than three ye.-irs it has reached a third edition."— Z-aw Journal.
Seventh Edition, in 8vo, price 65., cloth,
AN EPITOME OF LEADING CONVEYANCING AND EQUITY CASES;
WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS.
By John Indermaur, Solicitor, Author of "An Epitome of Lcadmg
Common Law Cases."
"We have received the second edition of Mr. Indermaur's very useful Epitome of Leading Convey-
ancing and Equity Cases. The work is very well done." — Law Junes. , u • ■ -11
"The Epitome well deserves the continued patron.-»ge of the class— Students— for whom it is especially
intended. Mr. Indermaur will soon be known as the ' Students' Friend.' "—Canada Law Journal.
Sixth Edition, 8vo, price bs., cloth,
THE ARTICLED CLERK'S GUIDE TO AND
SELF-PREPARATION FOR THE FINAL EXAMINATION.
Containing a Complete Course of Study, with Books to Read, List of Statutes, Cases,
Test Questions, cSic, and intended for the use of those Articled Clerks who read
by themselves. By John Indermaur, Solicitor.
"In this edition Mr. Indermaur extends his counsels to the whole period from the Intermediate
examination to the Final. His advice is practical .and sensible : and if the course of study he recommends
is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sutbcient
to carry him through the Final Examination." — Solicitors' Journal. ^
Now ready, Fifth Edition, in 8vo, price los., cloth,
THE ARTICLED CLERK'S GUIDE TO AND SELF-
PREPARATION FOR THE INTERMEDIATE EXAMINATION,
As it now exists on Stephen's Commentaries. Containing a complete course of Study,
with Statutes, Questions, and Advice. Also a complete Selected Digest of the
whole of the Questions and Answers set at the E.xaminations on those parts of
" Stephen " now examined on, embracing a period of fourteen and a half years
(58 Examinations), inclusive of the Examination in April, 1894, c^c. c\;c., and
intended for the use of all Articled Clerks who have not yet pas.sed the Inter-
mediate Examination. By John Indermaur, Author of " Principles of Com-
mon Law," and other works.
In 8vo, 1875, price 6s., cloth,
THE STUDENTS' GUIDE TO THE JUDICATURE ACTS,
AND THE RULES THEREUNDER:
Being a book of Questions and Answers intended for the use of Law Students.
By John Indermaur, Solicitor.
26 WORKS FOR LAW STUDENTS.
Fifih Edition, in crown Svo, price I2j. 6^/. , cloth,
AN EPITOME OF CONVEYANCING STATUTES,
Extending from 13 Edw. I. to the End of 55 i: 56 Victori.e. Fifth
Edition, with .Short Notes, By George Nichols Marcy, of Lincobi's Inn,
Barristcr-at-Law.
Second Edition. In 8vo, price 26^., cloth,
A NEW LAW DICTIONARY,
AND INSTITUTE OF THE WHOLE LAW ;
i:mbkaci.\g frknch and latin terms and references to the
AUTIIORiriES, CASES, AND STATUTES.
SECOND EDITION, revised throughout, and considerably enlarged.
By ARCHIBALD BROWN,
M.A. KDIN. ANDOXON., AND B.C.L. OXON., OK THK Ml: ; i K IFMCLK, IIAKKISTER-AT-LAW ; AUTHOR OF
THE "law ok FIXTUMB," "AKALYSI- i.lGATIOhS IS ROMAN LA A," KTC
Reviews of the Second Edition.
"60 Jar as 7ce haie bent at>U to {xanntu the '..crk, it seems to have been most carefully
and accurately executed, the /'resent Edition, besides contain iuj; much new matter, hazing
been thoroughly rcz-iscd m lonsc./ucn^c 0/ the rc<.cnt ihanges in the laic ; cuid xve have no
doubt -whatever that it -will be found extremely useful, not only to students and practitioners,
but to public men, and men of letters." — Irish Law Tl.MEi.
'M/r. Bror.im has revised his Dictiimary, atui otiapted it to the changes effected by the
Judicature Acts, and it ucnu constitutes a very use/ul work to fut into the hands df any
student or articled clerk, and a work which the preutitioner will find of value for reference. "
— Solicitors' Journal.
" // -vill proic a reliable guide to law students, and a handy book of reference for
piiiiii/ioii.is." — I,AU Tim Kn.
In royal Svo, price 5/., cloth,
ANALYTICAL TABLES
of
THE LAW OF REAL PROPERTY;
Drawn up chielly from STEPHEN'S BLACKSTONE, with Notes.
By (.\ J. TARRING, ot the Inner Temple, Barrister-at-l^w.
CONTENTS.
Taui.k I. Tenures. ; Table V. Uses.
,, n. Estates, according to quantity of __ VI. Acquiiition cf Estates in land o(
lcn.-uns Interest. freehold tenure.
,, 111. h-states, according to the time at ,,,. t 1 it j-
which the Interest is to be enjoyed. •• ^ "• Incorporeal Herediiaments.
,, IV. Estates, according to the number and ,, VIll. Incorporeal Hereditaments.
connection of the Tenants. 1
"Great care and considerable skill have been shown in the compilation of these tables, wliich will be
fouiid of much service to students of the Law of Real Property." — Lau/ Tittus.
IVORk'S FOR LA IV STUDENTS. 27
Sixth Edition, in 8vo, price 20s., cloth,
PRINCIPLES OF THE CRIMINAL LAW.
INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR
THE USE OF STUDENTS AND THE PROFESSION.
By SEYMOUR F. HARRIS, B.C.L., iM.A. (Oxon.),
AUTHOR OF "a CONCISE DIGEST OF THE INSTITUTES OF GAICS AND JUSTINIAN."
SIXTH EDITION.
By C. L. ATTENBOROUGIi, of the Inner Temple, Bariister-at-Law.
REVIEWS.
"The characteristic of the present Edition is the restoration to the book of the character of ' a concise ,
exposition ' proclaimed by the title-page. :Mr. Attenborough has carefully pruned away the excrescences |
which had arisen in successive editions, and has improved the work both as reaiards terseness and clearness (
of exposition. In Ixjth respects it is now an excellent student's book. The text is very well broken up \
into headings and paragraphs, with short marginal notes— the importance of which, for the convenience
of the student, is too often overlooked." — Solicitors Journal.
" We think the book— always a favourite with students— has got a new lease of life, and will now prove
the only text-book which most men will care to study until they get beyond the examination stage of their
existence. ... On the whole our verdict is that the new Edition is distinctly a success, and we have no
hesitation in commending it to the student as the best text-book that exists for his purposes. '—Law
Students' Journal.
" The favourable opinion we expressed of the first edition of this work appears to have
been justified by the reception it has met with. Looking through this ne^v Edition, we see
no reason to tnodify the praise ive bcsto-.vcd on the former Edition. The recent cases have
been added and the provisions of the Summary Jurisdiction Act are noticed in the chapter
relating to Summary Convictions. The book is one of the best manuals of Criminal Law
for the student.'' — Solicitors' Journal.
" There is no lack of IVorks on Crimituil Law, but there was room for such a useful
handbook of Principles as Mr. Seymour Harris has supplied. Accustomed, by his previous
labours, to the task of analysing the law, Mr. Harris has brought to bear upon his present
work qualifications well adapted to sccttre the successful accomplishment of the object which
he had set before him. That object is not an ambitious one, Jor it does not pretend to soar
above utility to the young practitioner and the student. For both these classes, and for the
yet wider class who may require a book ofrefeience on the subject, Mr. Harris has produced
a clear and convenient Epitome of the Law. A noticeable feature of Mr. Harris's work,
which is likely to prove of assistance both to the practitioner and the student, consists of a
Table of Offences, with their legal character, their punishment, and the statute under which
it is inflicted, together with a reference to the pages -where a Statement of the Law will be
found.'" — Law Magazine and Review.
"This work purports to contain 'a concise exposition of the nature of crime, the various offences punish-
able by the English law, the law of criminal procedure, and the law of summary convictions,' with tables
of offences, punishments, and sututes. The work is divided into four books. Hook I. treats of crime, its
divisions and essentials ; of persons capable of committing crimes ; and of principals and accessories.
Book II. deals with offences of a public nature ; offences against private persons ; and offences against the
property of individuals. Each crime is discussed in its turn, with as much brevity as could well be used
consistently with a proper explanation of the legal characteristics of the several offences. Book III.
explains criminal procedure, including the jurisdiction of Courts, and the various steps in the apprehension
and trial of criminals from arrest to punishment. This part of the work is extremely well done, the
description of the trial being excellent, and thoroughly calculated to impress the mind of the uninitiated.
Book IV'. contains a short sketch of ' summary convictions before magistrates out of quarter sessions. Ihe
table of offences at the end of the volume is most useful, and there is a very full index. Altogether we
must congratulate Mr. Harris on his adventure." — La7u Journal.
^^ Mr. Harris has undertaken a work, in our opinion, so much needed that he might
diminish its bulk in the next edition by obliterating the apologetic preface. The appearance
of his volume is as -well timed as its execution is satisfactory. The author has shoivn an
ability of omission which is a good test of skill, and from the ovenvhelming mass of the
criminal laiu he has discreetly selected Just so much only as a leartter needs to know, cind
has presented it in terms which render it capable of bei7ig easily taken into the mind." —
Solicitors' Journal.
28 WORKS FOR LAW STUDENTS.
Second E>lition, in crown 8vo, price 5^. 6</., cloth,
THE STUDENTS' GUIDE TO BANKRUPTCY;
Being a Comi)lete Digest of the Law of Bankruptc>' in the shape of Questions and
Answers, and comprising all Questions asked at the Solicitors' Final Examinations
in Bankruptcy since the Bankruptcy Act, 1883, and all important Decisions since
that Act. By John Indermaur, Solicitor, Author of " Principles of Common
Law," &c. &c.
In i2mo, price 51. (xi., cloth,
A CONCISE TREATISE ON THE LAW OF BILLS OF SALE,
FOR THE USE OF LAWYERS, LAW STUDENTS, AND THE PUBLIC.
Embracing the Acts of 1878 and 1882. Part L— Of Bills of Sale ctncrally. Part II.—
Of the Execution, Attestation, and Registration of Bills of Sale and satisfaction
thereof. Part III. — Of the Effects of Bills of .Sale as ag.ainst Creditors. Part IV.
— Of Seizing umler, and Enforcing Bills of Sale. Appendix, Forms, Acts, &c.
ByJOH.s' I,\i)ERMAUR, .Solicitor.
"The object of the book i* thorouRhly practical. Those who w»m to be told cx.ictly what to do and
where to go when they are registering a bill of *ale will find the necessary infonruttion in this little book."
— Law Journal.
Second Edition, in 8vo, price 4.t., cloth,
A COLLECTION of LATIN MAXIMS & PHRASES.
LITERALLY TRANSL.\TEI ).
INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXA.M I NATIONS.
.Second Etiition, by J. N. COTTERELL, Solicitor.
"The book seems admirably ad.nptetl .t* .•« l)ook of reference for ^tudcnn who come across a I-itin tnaxim
in their reading." — Law JourmMi.
In one vulumc, Svn, jiricc 9/., cloth,
LEADING STATUTES SUMMARISED,
FOR THE U.sE OV STUDENTS.
liY ERNEST C. THOM.\S,
BACON SCHOl_AII OF THE HON. SOaETV OF CIIAV'S INK, t^TE SCHOLAR OF TRINITY COLI.BCE, OXFORD;
AITHOK ij\f " UiAUINC CASI^ IN CONSTITITIONAL LAW BRIEFLY STATED."
Second Edilion, in Svo, enlarged, price 6s., doth,
LEADING CASES IN CONSTITUTIONAL LAW
Briefly Statkp, wini Im Koia cui.'N a.nu Nlmes.
By ERNEST C. THOMAS,
BACON SCHOLAR OF THE HON. SOCIETY OF GRAV'S INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD.
" Mr. E. C. Thomas has put together in a slim octavo a digest of the principal cases illustrating C<»-
stitucional I jw, that is to say, all questions as to the rights or authority of the Crown or persons under it,
as regards not merely the constitution and structure given to the governing body, but also the mode i I
which the sovereign power is to be exercUed. In an introductor>- essay Mr. Thonuis gives a very clear and
intelligent survey of the general functions of the Executive, and the principles by which they are regulated ;
and then follows a sumniary of leading cases." — Saturday Kn-iav.
"Mr. Thomas gives a sensible introduction and a brief epitome of the familiar eading cases." — Law
Times.
In Svo, price S.f., cloth,
AN EPITOME OF HINDU LAW CASES. With
Short Notes thereon. And Introductory Chapters on Sources of Law, Marriage,
Adoption, Partition, and Succession. By William M. P. Coghi.an, Bombay
Civil Service, late Judge and Sessions Judge of Tanna.
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR.
29
Second Edition, in crown 8vo, price \2s. 6d., cloth,
THE BANKRUPTCY ACT, 1883,
With Notes of all the Cases decided under the Act ;
The consolidated RULES and FORMS, iS86 ; The Debtors Act, 1869, so
FAR AS applicable TO BANKRUPTCY MATTERS, WITH RULES AND FORMS
THEREUNDER ; THE BiLLS OF SALE ACTS, 1878 AND 18S2 ;
Board of Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs,
Fees, and Percentages, 1886; Orders of the Bankruptcy Judge of the High
Court ; and a Copious Index.
By WILLIAM HAZLITT, Esq., and RICHARD RINGWOOD, M.A.,
SENIOR REGISTRAR IN BANKRIPTCY, OF THE MIDDLE TEMPLE, ESQ., B.\RR1STER-AT-LA\V.
Second Edition, by R. RINGWOOD, M.A., Barrister-at-Law,
" This is a ver>- handy edition of the .-Vet and Rules The cross references and marginal
references to corresponding provisions of the Act of 1869 are exceedingly useful There is a verj-
full index, and the book is admirably primed." — Solicitors' Journal.
Part I., price "js. 6c/., sewed,
LORD WESTBURY'S DECISIONS IN THE
EUROPEAN ARBITRATION. Reported by Francis S. Reilly,
of Lincoln's Inn, Barrister-at-Law. ^
Parts I., II., and III., price 2SJ-., sewed,
LORD CAIRNS'S DECISIONS IN THE ALBERT
ARBITRATION. Reported by Francis S. Reilly, of Lincoln's Inn,
Barrister-at-Law.
Second Edition, in royal 8vo, price 30J., cloth,
A TREATISE ON
THE STATUTES OF ELIZABETH AGAINST
FRAUDULENT CONVEYANCES.
The Bills of Sale Acts 1S78 and 1882 and the LAW OF VOLUNTARY
DISPOSITIONS OF PROPERTY.
By the late H. W. MAY, B.A. (Ch. Ch. Oxford).
Second Edition, thoroughly revised and enlarged, by S. Worthington Worthington,
of the Inner Temple, Barrister-at-Law ; Editor of the " Married Women's
Property Acts," 5th edition, by the late J. R. Griffith.
"In conclusion, wc can heartily recommend this
book to our readers, not only to those who are in
large practice, and who merely want a classified
list of cases, but to those who have both the desire
and the leisure to enter upon a systematic study of
our law." — Solicitors' Jonrttal.
"As Mr. Worthington points out, since Mr. May
wrote, the ' Bills of Sale Acts' of 1878 and 1882
have been passed ; the ' Married Women's Property
Act, 1882 '(making settlements by married women
void as against creditors in cases in which similar
settlements by a man would be void), and the
' Bankruptcy Act, 1883.' These Acts and the deci-
sions upon them have lieen handled by Mr. Worth-
ington in a manner which shows that he is master
of his subject, and not a slavish copyist of sections
and head-notes, which is a vicious propensity of
many modern compilers of text-books. His Table
of Cases (with reference to all the reports), is
admirable, and his Index most exhaustive." — Laiu
Times.
"The results of the authorities appear to be
given well and tersely, and the treatise will, we
think, be found a convenient and trustworthy book
of reference." — Laif Journal.
Mr. Worthington's work appears to have been
conscientious and exhaustive." — Saturday Review.
" Examining Mr. May's book, we find it con-
structed with an intelligence and precision which
render it entirely worthy of being accepted as a
guide in this confessedly difficult subject. The
subject is an involved one, but with clean and clear
handling it is here presented as clearly as it could
be. . . . On the whole, he has produced a very
useful book of an exceptionally scientific character."
— Solicitors' Journal.
" The subject and the work are both very good
The former is well chosen, new, and interesting
the latter has the quality which always distin
guishes original research from borrowed labours.'
— American Law Review.
" We are happy to welcome his (Mr. May's) work
as an addition to the, we regret to say, brief cata-
logue of law books conscientiously executed. We
can corroborate his own description of his labours,
' that no pains have been spared to make the book
as concise and practical as possible, without doing
so at the expense of perspicuity or by the omission
of any important points.'" — Law Times.
30
STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR.
In one volume, medium 8vo, price 38^., cloth ; or in half-roxburgh, 42;.,
A HISTORY OF THE FORESHORE
AND THE LAW RELATING THERETO.
With a Hitherto Unpl-blished Treatise by Lord Hale, Lord Hale's
" De Jure Maris," and the Third Edition of Hall's Essay on the
RIGHTS OF THE CROWN IN THE SEA-SHORE.
With Noies, and an Aii'Kndix relating 10 FijHekies.
By STUART A. MOORE, F.S.A.,
OK THE IN.VEK TEMPLE, DAKRISTER-AT-LAW.
" Tliis work is nominally a third edition of the
late Mr. Hall's essay on the rights of the Crown in
the Sca-shorc, but in rc.ility is t^ V .;im,\- new
production, for out of some 90 Mall's
essay takes up but 227. Mr. M en a
book of >:rcat importance, whif. I: an
epoch in the hi-.tory of the riKht and
the subject in the iitus marit, '■ the
kingdom. Hall's treatise (with I
set out with fresh notes by the ;
is anylhinR but kindly <1i^|>'-.efl 1
for his notes arc net!
of what he deems I'
scntations. Mr. .M
brief for the op|>o-il<- -■■ ■■■V-
ported by H.aII, and a 11 .irgu-
meiilivc treatise we havr lt<
arguments .ire clearly an.'
supported by a wealth i-'.
show the rese.orch of the .■
been most full and claljoralc. ... I li- ri- 1- :.
doubt that this is an important work, which must
have a considerable iiiliui. •• . u tb..;lr..: .K .f the
law with which it t^ ' > • d i'\
ancient and most ii' \jve
now been brought 1 '• c
that iMi)>ortant result* i.> ll.t
therefrom. The Profession, not :
public, owe the learned author ■ .
gratitude for providing ready to Ut^yX kiuit ik
wealth of materials for founding and building tip
arjruments. Mr. Stuart Moore has written a »X)rk
whi. !. '- -r ..-l.-.- ' ■. ■ t,.,
fotr
ih.
■ ' '•■' ! ,1- V are utterly un-
■i\ textbook on
"Its, Dec. ist,
'.■ i .-. v. .^ ...... ..;.;e work on the
Foresnore. ■■ — 1 hf J'tmes.
" Mr. Stuart Moore's work on the title of the
('• -• •■ •' ' '• • •' ' the coast of England
: low water mark is
irv I.1W Nw^k. It is
■ '.nd
of
. ',- r I
..t 1.
Cro«'0 and not to the owner of
mail .r. "ILc lit v.!.! h Mr. M-.r-
wlirr
rail-
ad
ilie
;:ig
i. e»
already
CD the
U valu-
the
•. of
^ -• Cit.
In one volume, Svo, price iZf., cloth,
A TKK.\TI.^1-: ON THE LAW RELATING TO THE
POLLUTION AND OBSTRUCTION OF WATER COURSES ;
TOGFTHFK Willi A llKlKF vSl.MMAkY OK THE VaRIOL S SOL RCES OK Rl\Eki
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By CLEMENT HIGGINS, M.A., F.C.S.,
OF THE INNER TEMPLE, K.^KKISTER-AT-l_AW.
"As a compendium of the law upon a special
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those proceedings when brought." — Irish Lava
Time's.
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"County Court Judges, S.T.nitar>' Authorities,
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Treatise a valu.ible aid in obtaining a clear notion
of the Law on the Subject. Mr. Higgins has
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and the legal aspects of his subject." — Laiu Ma^n'
zinc and Rtfini:
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The Mining youmal.
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youmal.
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 31
In 8vo, Fifth Edition, price 28^., cloth.
MAYNE'S TREATISE
ON
THE LAW OF DAMAGES.
FIFTH EDITION.
REVISED AND PARTLY REWRITTEN.
BY
JOHN D. M A Y N E,
OF THE INNER TEMPLE, BARKISTER-AT-LAW ;
AND
His Honor Judge LUMLEY SMITH, O.C.
" * Mayne on Damages ' has now become almost a classic, and it is one of the books which
we cannot afford to have up to date. We are therefore pleased to have a new Edition, and
one so well WTitten as that before us. With the authors we regret the increasing size of the
volume but bulk in such a case is belter than incompleteness. Every lawyer in practice
should have this book, full as it is of practical learning on all branches of the Common Law.
The work is unique, and this Edition, like its predecessors, is indispensable."— Z.<7M/yt;«/v/c?/,
April, 1894.
" Few books have been better kept up to the current law than this treatise. The earlier part
of the book was remodelled in the last edition, and in the present edition the chapter on
Penalties and Liquidated Damages has been rewritten, no doubt in consequence of, or with
reeard to the elaborate and exhaustive judgment of the late Master of the Rolls in VValhs v.
Smith (^i W. K. 214 ; L. R. 21 Ch. D. 243). The treatment of the subject by the authors is
admirably clear and concise. Upon the point involved in Wallis v. Smith they say : ' The
result is that an agreement with various covenants of different importance is not to be governed
bv any inflexible rule peculiar to itself, but is to be dealt with as coming under the general rule,
that the intention of the parties themselves is to be considered. If they have said that in the
case of any breach a fixed sum is to be paid, then they will be kept to their agreement, unless
it would lead to such an absurdity or injustice that it must be assumed that they did not mean
what they said." This is a very fair summary of the judgments in VValhs v. Smith, especially
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present to a rule for practical guidance. We can heartily commend this as a carefully edited
j edition of a thorouglily good hook."— Solicitors' Jounial.
' " During the twenty-two years which have elapsed since the publication of this well-known
\ work, its reputation has been steadily growing, and it has long since become the recognised
\ authofity on the important subject of which it treats."— 1.\\\ Magazine and Revikw.
what the facts proved in their judgment reiiuired.
And, according to the better opinion, they may give
damages ' for example's sake,' and mulct a rich
man more heavily than a poor one. In actions for
injuries to property, however, 'vindictive' or
'exemplary' damages cannot, except in very raie
cases, he awarded, but must be limited, as in con-
tract, to the actual harm sustained.
" It is needless to comment upon the arrangement
of the subjects in this edition, in which no alteration
has been made. The editors modestly express a
hope that all the English as well as the principal
Irish decisions up to the date have been included,
and we believe from our own examination that the
hope is well founded. We may regret that, warned
by the growing bulk of the book, the editors have
not included any fresh American cases, but we feel
ciples at all In actions for injuries to the person or that the omission was unavoidable. We should add
reputation, for example, a judge cannot do more that the whole work has been thoroughly revised. —
than give a general direction to the jury to give I Solicitors' Journal.
" This text-book is so well known, not only as the highest authority on the subject treated
of but as one of the best text-books ever written, that it would be idle for us to speak of it
in t)u words of commendation that it deserves. It is a work that no practising lawyer can
do without.'-— CA^iADA Law Journal.
"This edition of what has bccorne a standard
work has the advantage of appearing under the
supervision of the original author as well as of
Mr. LumleySmith.theeditor of the second edition.
The result is most satisfactory. Mr. Lumley
Smith's edition was ably and conscientiously pre-
pared, and we are glad to find that the reader still
enjoys the benefit of his accuracy and learning.
At the same time the book has doubtless been
improved by the reappearance of its author as co-
editor. The earlier part, indeed, has been to a
considerable extent entirely rewritten. _
" Mr. Mayne's remarks on damages in actions of
tort are brief We agree with him that in such
actions the courts are governed by far looser prin-
ciples than in contracts ; indeed, sometimes it is
impossible to say they are governed by any prin-
32 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR.
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THE LAW RELATING TO CLUBS.
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TABLE of the FOREIGN MERCANTILE LAWS and CODES
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Ill Svo, price is., scucd.
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In Svo, price lOf., cloili.
THE TRIAL OF ADELAIDE BARTLETT FOR \
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g.c, M.P.
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A REPORT OF THE CASE OF
THE QUEEN v. GURNEY AND OTHERS,
In the Court of Queen's Bench before the Lord Chief Justice Cockbvrn. With Intro- [
duction, containing History of the Case, and E.\amination of the Cases at Law j
and Equity applicable to it. By W. F. FiNLASON, Barrister-at-Law.
In royal Svo, price lOs. b.i'.. cloth.
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THE ANNUAL DIGEST OF MERCANTILE
CASES FOR THE YEAR 1886.
Being a Digest of the Decisions of the English, Scotch and Irish Courts
ON Matters relating to Commerce.
By JAMES A. DUNCAN, M.A., LL.B., Trin. Coll., Camb.,
AND OF THE INNER TEMPLE, BARRISTER- AT-LA\V.
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,,%,, . and containing the essence of a years decisions,
There can only be one opinion, and that a very ^ill be found a valuable addition to office libraries. "
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THE LAW AND PRACTICE OF ELECTION PETITIONS,
With an Appendi.x containing the Parliamentary Elections Acts, the Corrupt and
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Third Edition. By Henry Hardcastle, of the Inner Temple, Barrister-at-Law.
_" Mr. Hardcastle gives us an original treatise I guide. We can thoroughly recommend Mr.
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considerable pains to make his work a reliable | and practice of election petitions." — Law Times.
Vols. I., II., III., and IV., price 4/. 17^.
REPORTS OF THE DECISIONS OF THE
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*,* Vol. IV. Parts I TL, IV. and V. Edited by]. S. Sandars, Barrister-at-Law.
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THE LAW OF FIXTURES,
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LANDLORD AND TENANT,
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FOURTH EDITION.
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OF THE MIDDLE TEMPLE, BAKRISTER-AT-LAW.
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REVISED AND EDITED BY
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and Kel>Tig's Crown Cases, determined to issue a new or fourth Edition of .Shower's Cases
in Parliament.
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type, insie.id of being in the quarto, is in the more contenient octavo form, and contains
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" These are all cases of importance, worthy of being ushered into the light of the
world by enterprising publishers.
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case, the argumentsufcounsel.andthe opinions of the Judges, are all clearly and ably given.
"This new editi<in with an old face of these valuable reports, under the able editorship
of R. L. Lovcland, Esq., should, in the langu.ige of the advertisement, ' be welcomed by
the profession, as well as enable the custodians of public libraries to complete or add to
their series of Engli.sh Law Reports.'" — Canada Law Jounial.
BELLEWES CASES, T. RICHARD II.
In Svo, 1S69, price 3/. 3/., l>ound in calf antique,
LES ANS DU ROY RICHARD LE SECOND.
Collect' enseuibr hurs Ici abria^incais dc iiUihuiu, 1 ilzlicxlicrl cl l;r<j<jkc. Per
Richard Bellewe, de Lincolns Inne. 15S5. Reprbicd from the Original
Edition.
" No public librarj- in the world, where EnglUh | highly crcdiiable 10 the spirit and enterprise of
law finds a place, should be without a copy of this pnvate publishers. The work is an important link
edition of Bellewe." — CiinaJa Laiv Journal. in our legal hisloo- ; there are no year books of the
! reign of Richard 11., and Bellewe supplied the only
" We have here &/iu-simiU edition of Bellewe, substitute by carefully extracting and collecting all
and it is really the most beautiful and admirable I the caKS he could find, and he did it in the most
reprint that has appeared at any time. It is a convenient form — that of alphabetical arrangement
perfect gem of antique printing, and forms a most : in th» order of subjects, so that the work is a digest
interesting monument of our early legal historj-. as well as a book of law reports. It is in fact a
It belongs to the same class of works as the Year collection of cases of the reign of Richard II..
Book of Edward I. and other similar works which arranged according to their subjects in alphabetical
have been printed in our own time under the order. It is therefore one of the most intelli^ble
auspices of the M.ister of the Rolls ; but is far and interesting legal memorials of the Middle
superior to any of them, and is in this respect . Ages." — Law Titnes.
CUNNINGHAM'S REPORTS.
In Svo, 1871, price 3/. 3/., calf antique,
Cunmni-.ha.m's (T.) Reports in K. B., 7 to 10 Geo. II.; to which is prefixed a Proposal
lor rendering the Laws of England clear and certain, humbly offered to the
Consideration of both Houses of Parliament. Third edition, with numerous
Corrections. By Thomas Townsend Bucknill, Barrister-at-Law
"The instructive chapter which precedes the
cases, entitled ' .-V proposal for rendering the Laws
of England clear and certain," gives the volume a
degree of peculiar interest, independent of the value
of many of the reported cases. That chapter begins
peace and prosperity of every nation than good
laws and the due execution of mem.' The history
of the civil law is then rapidly traced. Next a
historj- is given of English Reporters, beginnine
with the reporters of the Year Books from i Edw.
with words which ought, for the information of | III. to 12 Hen. VIlI. — being near 200 years — and
every people, to be printed in letters of gold. They | afterwards to the time of the author." — Canada
are as follows: '>iothing conduces more to the La:u 'jourruil.
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR.
35
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CHOYCE CASES IN CHANCERY.
In 8vo, 1870, price zl. 2s., calf antique,
THE PRACTICE OF THE HIOH COURT OF CHANCERY.
With the Nature of the several Offices belonging to that Court. And the Reports of
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"This volume, in paper, type, and binding (like ' Belle wes Cases') is a fac-simile of the antique edition.
All who buy the one should buy the other." — Canada Law Joitmal.
In Svo, 1 87 2, price 3/. 3^-., calf antique,
SIR G. COOKE'S COMMON PLEAS REPORTS
IN THE REIGNS OF QUEEN ANNE, AND KINGS GEORGE I. and II.
The Third Edition, with Additional Cases and References contained in the Notes
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TowNSEND BUCKNILL, of the Inner Temple, Barrister-at-Law.
" Law books never can die or remain long dead
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modern publishers, whose good taste is only equalled
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BROOKE'S NEW CASES WITH MARCH'S TRANSLATION.
In Svo, 1873, price 4/. 4^., calf antique,
Brooke's (Sir Robert) New Cases in the time of Henry VIII., Edward VI., and
Queen Mary, collected out of Brooke's Abridgement, and arranged under years,
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in the time of Henry VIII., Edward VI., and Queen Mary, collected out of
Brooke's Abridgement, and reduced alphabetically under their proper heads and
titles, with a table of the principal matters. In one handsome volume. Svo. 1873.
Stevens and Haynes have reprinted the two books
in one volume uniform with the preceding volumes
of the series of Early Reports."— Cawo^'a Law
" Both the original and the translation having
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corrected edition peculiarly desirable, Messrs.
Journal.
KELYNGE'S (W.) REPORTS.
In Svo, 1873, P"ce 4/. 4^., calf antique,
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King was Chancellor, and the Lords Raymond and Hardwicke were Chief
Justices of England. To which are added, seventy New Cases not in the First
Edition. Third Edition. In one handsome volume. Svo. 1873.
KELYNG'S (SIR JOHN) CROWN CASES.
In Svo, 1S73, price 4/. 4-r., calf antique,
Kelyng's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign of I<jng
Charles II., with Directions to Justices of the Peace, and others; to which are
added. Three Modern Cases, viz., Armstrong and Lisle, the King and Plummer,
the Queen and Mawgridge. Third Edition, conlaining several additional Cases
never before printed, together with a Treatise ui'ON the Law and Proceed-
ings IN Cases of High Treason, first published in 1793. The whole carefu ly
revised and edited by Richard Loveland Loveland, of the Inner Temple,
Barrister-at-Law
"We look upon this volume as one of the most
important and valuable of the unique reprints of
Messrs. Stevens and Haynes. Little do we know
of the mines of legal wealth that lie buried in the
old law books. But a careful examination, either of
the reports or of the treatise embodied in the volume
now before us, will give the reader some idea of the
good service rendered by Messrs. StevensandHaynes
to the profession. . . . Should occasion arise, the
Crown prosecutor, as well as counsel for the prisoner,
will find in this volume a complete voiie mecum of
the law of high treason and proceedings in relation
thereto." — Canada Law Journal.
36 STEVENS a' HAYNES, BELL YARD, TEMPLE BAR,
Second Edition, in 8vo, price 26j., cloth,
A CONCISE TREATISE ON
PRIVATE INTERNATIONAL JURISPRUDENCE.
BASED OX THE DECISIONS IN THE ENGLISH COURTS.
By JOHN ALDERSON FOOTE,
OF Lincoln's inn, barrister-at-law ; chancellor's legal medallist and senior wHr«vKLL scholak
OF INTERNATIONAL LAW, CAMDRIDGB INIVEBSITT, 1873 ; SBKIOR STUDENT IN JLRISPRIDKNCB
AND ROMAN LAW, INNS OF COVRT KXAJtlMAinoN, HILARY TERM, 1874.
" This work Mems to us likely to prove of coiuiderable use to all English lawyers who have to deal with
questions of private international law. Since the publication of Mr. Westlake'* valuable treatise, twenty
years ago, the judicial decisions of English courts bearing upon difTcrcnt parts of thii ".abject have greatly
increa.<iccl in number, and it is full tiMc that these decisions should be examined, and that the conclusions
to be deduced from them should be s>-suinatically set forth in a treatise. Moreover, Mr. Fooie has done
this well." — SoUcitort' JoHmal.
" Mr. Foole has done his work vcr>- well, and the l>ook will I* uncful to all who have to deal with th«
class of ca.ses in which English law alone is not sufficient to settle the question." — Saturday Rci-ieai,
March 8, 1879.
" The author's object has been to reduce into order the mass of materials already accumulated in tk«
shape of explanation and actual dc< Ision on the ini' , ■ > . •'. to construct a
framework of private international law, not from t?.' ial decisions in
English Courts which have suj«r»eded them. AnJ .: . ,. . „ : - „ing in a concise
form this valuable mnterLiI, that Mr. Koote's wide range of knowledge and legal acumen bear such good
frtiit. As a giiide and assistant to the student of intemalionoJ law, the whole treatise will be invaluable :
while a tabic of cases and a general index will enable him 10 find what he wants «-ithoat trouble." —
Stamdard.
"The recent decisions on points of intemaliorul law (and lher« have b«enalarge number since Weitlalce's
publication) have been well stated. So far as we ha\-e ol>serNxt1, no case of any importance has been
omitted, and the leading ca.scs have been fully analysed, llie author docs not hesitate to criticise the
grounds of a decision when these appear to him 10 conflict with the proper rule of law. Most of his
criticisms seem to us vcr>- jusL .... On the whole, we can recommend Mr. Koote's treatise as a useful
addition to our text-books, and we expect it will rapidly And its way into the haitds of practising lawyers."
— Tht Journal pfJuritprudtHct and Sicttith Lau> Atagasim.
" Mr. Foote hxs evidently borne closely in mind the needs of Students of Jurisprudence as well as those
of the Practitioners. For both, the fact that his work is almost entirely one of Case-law will commend
it as one useful alike in Chamliers and in Court." — Latv Magaxint and Rtt-ieeu.
"Mr. Foote's book will W useful to the student One of the best points of Mr. Foote's book
is the ' Continuous Summar\-,' which occupies about thirty pages, and is divided into four parts — Persons,
Property, Acts, and Procedure. Mr. Foote remarks that these summaries are not in any way intended as
an attempt at codification. However that may be, they are a digest which reflects high credit on the
author's assiduity and capacity. They are ' meant merely to guide the student ; ' but they will do much
more than guide him. They will enable him to get such a grasp of the subject as will render the reading
of the text easy and fruitful." — Laro! "Journal,
" This book is well adapted to be used both as a text-book for studeirts and a book of reference for
practising b.-xrristers." — Bar Examination Journal.
"This is a book which supplies the want which has long been felt for a reall>" good modem treatise on
Prix-ale International Law adapted to the es-ery-day requirements of the English Practitioner. The
whole volume, .-ilthongh designed for the use of the practitioner, is so moderate in size — an octavo of 500
pages only — and the arrangement and development of the subject so well conceived and executed, that it
will amply repay perusal by those who^se immediate o'oject may be not the actual decisions of a knotty
point but the satisfactory disposal of an examination paper." — Oxford and Catnbridgt Under^aduaUt'
Journal.
"Since the publication, some twenty years ago, of Mr. Westlake's Treatise, Mr. Foote's book is, in
our opinion, the best work on private international law which has appeared in the English language. ....
The work is e.vecuted with much ability, and will doubtless be found of great value by all persons who
have to consider questions on private international law." — Athnurum.
STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 37 |
THE
EalD iHaganne ant» a^ebieto, ^
QUARTERLY DIGEST OF ALL REPORTED CASES.
Price FIVE SHILLINGS each Number.
No CCXVIII (Vol. I, No. I. of the New Quarterly Series.) November, 1875.
No. CCXIX. (Vol. I, 4th Series No. II.) February, 1876.
JS\B.— These two Numbers are out of print.
No CCXX (Vol. I, 4th Series No. III.) For May, 1876.
No! CCXXI. (Vol. I. 4th Series No. IV.) For August, 1S76.
Nos CCXXII. toCCXLV. (Vol. 2.4th Series, to Vol. 7,4th Series, Nos. V. to XXVIII.),
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With Corious and Explanatory Notes, and an Appendix of the Acts
RELAIING to MaRRIED WoMEN.
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at-Law.
" Upon the whole, we are of opinion that thU is the best work upon the subject which has been issued
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STEVENS 6- HAYiVES, BELL YARD, TEMPLE BAR.
41
Second Edition, much enlarged, in 8vo, price los., cloth.
CHAPTERS ON THE
LAW RELATING TO THE COLONIES.
To which are appended Topical Indexes of Cases decided in the Privy Council
on Appeal from the Colonies, Channel Islands and the Isle of Man, and of
Cases relating to the Colonies decided in the English Courts otherwise than on
Appeal from the Colonies.
By CHARLES JAMES TARRING, M.A.,
ASSISTANT JIDGE OF H.B.M. SUPREME COXSl LAR COURT, CONSTANTINOPLE, AND H.M.'S CONSUL ;
AUTHOR OF "BRITISH CONSULAR JURISDICTION IN THE EAST," "a TURKISH GRAMMAR, ETC.
CONTENTS.
Table of Cases Cited. | Chapter IV.— The Judiciary and the Bar.
Tableof Statutes Cited. ' Chapter V.— Appeals from the Colonies.
I Chapter VI. — Imperial Statutes relating to the
Introductor>-. — Definition of a Colony. Colonies.
Chapter I.— The laws to which the Colonies are Section i.— Imperial Statutes re ating to the
subject. I Colonies in general.
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Section I.— The Governor. ticular Colonies.
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duties. i Topical Index of Cases decided m the Frivy
B.— Liability' to answer for his acts. ' ; Council on appeal from the Colonies, the
I —Civilly. I Channel Islands, and the Isle of Man.
I. a.— In the courts of his Govern- ! Index of some Topics of English Law dealt with
nient. in the Cases. , ^ , -
b.—ln the English courts. , Topical Index of Cases relating to the Colonies
" ■ decided in the English Courts otherwise than on
appeal from the Colonies.
Index of Names of Cases.
2. — For what causes of action.
II.— Criminally.
Section 2. — The Executive Council.
Chapter III. — The Legislative Power.
Section i. — Classification of colonies.
Section 2. — Colonies with responsible govern-
ment.
Section 3.— Privileges and powers of colonial
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Appendix I.
General Index.
COMI'RISING A COLLECTION OF
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COSTS UrON THE PROSECUTION OF FRAUDULENT BANKRUPTS,
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OF THE HIGH COURT OF JUSTICE.
By FREDK. H. SHORT,
CHIKF CLKKK IN THE CROWN OFFICE.
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observations' constitute a useful feature in this manual." — La7v Ttiites.
"The recent revision of the old scale of costs in the Crown Office renders the appearance of this work
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In 8vo, price lo^., cloth,
THE TAXATION OF COSTS IN THE CROWN OFFICE. I
42 STEVENS dr' hAY.VES, PELL YARD, TEMPLE BAR.
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BRITISH CONSULAR JURISDICTION IN THE EAST,
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Alsu a Collection of Statutes concerning Consuls.
By C. J. TARRING, M.A.,
AS-JISTANT-Jl'DGE OP H.B.M. SUFKEME COSSl'I.AR COVRT FOR THE LEVANT.
In one volume, 8vo, price 8j. 6J., cloth,
A COMTLETE TREATISE UPON THE
NEW LAW OF PATENTS, DESIGNS, & TRADE MARKS,
CON.SISTIX(i OF THE PATENTS. DESKINS. AND TRADE MARKS ACT,
1883, WITH THE RULES AND FOR.NES, FULLY ANNOTATED
WITH CASES, &c.
.•\.nd a Statement of ihc I'rinciplcs of the Law ujxjn those subjects, with a Time Table
and Copious Index.
By EDWARD MORTON DANIEL,
OF Lincoln's inn, dakrister-at-law, associatb of the instititk of fatf-nt agents.
The TRADE MARKS REGISTRATION ACT, 1875,
And the Rules thereur..ici ; THE M1:K( 11 AM )ISE MARKS ACT, 1S62, with an
Introduction ontaininj; a SU.M.MARV OK THE LAW OF TRADE MARKS,
together with practical Notes and Instructions, and a copious Index. By
Edwaku Mokton Daniel, of Lincoln's Inn, Barristcr-at-Law.
Second Edition, in one volume, 8vo, price \6s., cloth,
A CONCISE TREATISE ON THE
STATUTE LAW OF THE LIMITATIONS OF ACTIONS.
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By henry THOMAS BANNINC), M.A.,
OK THE INNER TEMFLE, BARRISTER-AT-LAW.
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In 8vo, price u., sewed,
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Sixth Edition, in 8vo, price 31J. 6</., cloth,
THE INDIAN CONTRACT ACT, No. IX., of 1872.
TOGETHER
H7J// A^ INTRODUCTION AND EXPLANATORY NOTES, TABLE OF
CONTENTS, APPENDIX, AND INDEX.
By H. S. CUNNINGHAM and H. H. SHEPHERD,
BARRISTERS- AT-LAW.
STEVEMS &- HAVNES, BELL YARD, TEMPLE BAR.
43
Second Edition, in 8vo, price 15.^., cloth,
LEADING CASES and OPINIONS on INTERNATIONAL LAI
COLLECTED AND DIGESTED FROM
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and Embodying an Account of some of the more important International Trans-
actions and Controversies.
By PITT COBBETT, M.A., D.C.L.,
OF gray's inn, BARK1STER-AT-LA\V, rKOFESSOK OF LAW, UNIVERSITY OK SYDNEY, N.S.W.
"The book is well arranged, the materials well "The notes are concisely written and trust-
, , , , u ■ -vf 1, worthy The reader will learn from them a
selected, and the comments to the point. ^ Much ^^^^ ^^^^1 ^^ ^j^^ subject, and the book as a
will be found in small space in this book."— i.aa/ | whole seems a convenient introduction to fuller and
Journal. . more systematic works."— O.tr/oni Magazine.
Second Edition, in royal Svo. 1 100 pages, price 45j-., cloth.
STORY'S COMMENTARIES ON EQUITY
JURISPRUDENCE.
Second English Edition, from the Twelfth American Edition.
By W. E. GRIGSBY, LL.D. (Lond.), D.C.L. (Oxon.),
AND OF THE INNER TEMPLE, BARRISTER- AT-LAW.
" It is high testimony to the reputation of Story,
and to the editorship of Dr. Grigsby, that another
edition should have been called for. . . . The work
has been rendered more perfect by addition.-i
indices." — Law Times.
Second Edition, in Svo, price Ss., cloth,
THE PARTITION ACTS, 1868 & 1876.
A Manual of the Law of Tarlition and of Sale, in Lieu of Partition. With the Decided
Cases, and an Appendi.K containing Judgments and Orders. By W. GREGORY
Walker, B.A., of Lincoln's Inn, Barrister-at-Law.
has carefully brought together the cases, and dis-
cussed the difficulties arising upon the language of
the different provisions." — :iolicitors' Journal.
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written, and complete. The subject lends itself
well to the mode of treatment adopted by Mr.
Walker, and in his notes to the various sections he
Second Edition, in Svo, price 22s. cloth,
A TKi'ATISE ON THE
LAW AND PRACTICE RELATING TO INFANTS.
By ARCHIBALD H. SIMPSON, M.A.,
OF LINCOLN'S INN, BARRISTER-AT-LAW, AND FELLOW OF CHRIST'S COLLEGE, CAMBRIDGE.
SECOND E DITTO X. By E. J. Elgood, B.C.L., M.A., of Lincoln's Inn,
Barrister-at-Law.
" Mr. Simpson's book comprises the whole of the yet in comparatively little space. The result is
law relating to infants, both as regards their per- due mainly to the businesslike condensation of his
sons and their property, and we have not observed style. Fulness, however has by no means been
any very important omissions. The author has sacrificed to brevity, and, so far as we have been
evidently e.xpended much trouble and care upon able to test it, the work omits no po'nt o* ^nV 'm-
his work, and has brought together, in a concise 1 portance, from the earliest cases to the last in
and convenient form, the law upon the subject down ' the essenti.tl qualities of clearness, completeness,
to the present time."-iW;V;W yonrnal. \ and orderly arrangement it leaves nothing to be
" Its law is unimpeachable. We have detected I desired. . , , • , „r ,,„, „, „,,.
no errors, and whilst the work might have been '' Lawyers in doubt on any point of aw or prac-
done more scientifically, it is, beyond all question, , tice will find the information they require, if it can
a compendium of sound leg.^l principles. "-^az.; be found at all, in Mr. ,^""Pf " \,'l°°J';^^^"f^,^
Times e. 1- t- writer of whom this can be said may congratulate
"Mr. Simpson hasarranged the whole of the Law i himself on having achieved a considerable success,
relating to Infants with much fulness of detail, and ] —La^v Magazine, tebriiary, 1B76.
44
STEVENS dr^ HAYNES, BELL YARD, TEMPLE BAR.
In one volume, royal 8vo, 1877, price 30^., cloih,
THE DOCTRINES & PRINCIPLES OF
THE LAW OF INJUNCTIONS.
Bv WILLIAM JOYCE,
OP Lincoln's inn, barrister- at- law.
''Mr. Joyce, who>!e Icirned and exhaustive work on ' TTie I^w and Practice of Injunctions' has
gained such a deservedly high repul.ition in the Profession, now brings out a valuable companion volume
on the ' Doctrines and Principles ' uf this important branch i..f if.e L.r.i. I:. I'.c irr^ent work the Law is
enunciated in its abstract rather than its concrete form, as f< ■ cited ; while at the
same time nu si.iltincnt of a principle is made unsup}>ortct; most part the very
languaKC .Tl),- C- um^ Ii.,^ 1 •: .H;':.rr : t-. Writlrn n^ i; :;i.ister of hLs subject,
and wit li I ..,rk cannot fail to prove of
the grt-: ■ 1 from their supcnncum-
l^n''^'! . - . ,-.:.ts of doctrine amidst the
oppressive dcuula of prufcskiwu^ wurii. — X^sw M»i**tn* mtui Ktfitxir.
/?} THE SAME AUTHOR.
In two volumes, rcyal 8vo, 1872, price 70/., clolh,
THE LAW k PRACTICE OF INJUNCTIONS.
KMUK MIS'.
ALL THE SUBJECTS IN WHICH COURTS OF EQUITY
AND COMMON LAW HAVE JURISDICTION.
H V \V I L L I A M JOYCE,
OK linchln's ins, HAKRISTK»'-AT-LAW.
RSVXEWB.
" .'\ work which aims at tieing so atMoluiely
complete, as that of Mr. .Kxm- u).:i .1 vir.jc. t
which is of almost pcrpc.
Courts, cannot fail to be a ^
profession, and doubtless, 1
and largely used, for it is as aUioluicly cuut^.cic ;ki
it aims at being This work Ls therefore.
eminently a work for the practitioner, being full of
practical utility in every page, and every scntetKe,
of it We have to congratulate the pro-
fession on this new acquisition to a digest of the
law, and the author on his production oi a work of
permanent utility and fame." — Latv Magazint
and KiT-ictf.
" Mr. Joyce has produced, not a treatise, but a
complete and compendious txfcsition of the Law
and Practice of Injunctions both in equity and
common law.
"Part in. is devoted to the practice of the
Courts. Ci'Htnins an amottnt cj vaiunbit and
tecJiMifai matter iwTi'Kcre eisi coliectc^x.
I " From these renutrks it will !« suffidently (>er-
cei»cii w!..il <:!.>> rale .11. li p.iii,- t.ikini; lii.'u>ti-\, as
l^;<uut, ai.u i.o i' <:cii uuiillcii »iiu.h
could tend towai. -ion and exemplifi-
cation of the gci ■_ .,. , , !c> of the Law and
Practice of Injunciiuits. — Law Journal.
" He does not attempt to ^o an inch beyond that
for which he has express wntten authorit)- ; he al-
lows the cases to speak, and docs not speak for them.
"The work is something more than a trcatUe on
the Law of Injunctions. It gives us the general
jaw or nlmt«t c\ cr\- subject to which the process of
injui Not only tnglL^h, but
.A.nK- ,;eu, the aggregate number
beinu .autes cited 160, whilst the
incex i-. u-. ti. ;:■.►;. ih-j moKi elaborate we have ever
seen — occup>inc nearly 2<.o ^lages. The work is
protiabiy eniireiy exhaustive.' — Late Times.
"This work, considered either as to its matter or manner of execution, is no ordinary work. It is a
complete and exhaustive treatise both as to the law and the practice oi granting injunctions. It most
supersede all other works on the subject. The terse statement of the practice will be found of incaicolaMe
value. We know of no book as suitable to supply a knowledge of the law of injunctions to our common
law friends as Mr. Joyce's exhausti>-e work. It is alike iniiispen^ble to membiers of the Common Law
and Equity Bars. Mr. Joyce's great work would be a casket without a key unless accompanied by a good
index. His index is very full and well arranged. We feel that this work is destined to take its place
as a standard text-book, and tkt text-book on the particular subject o( which it treats. The author
deserves great credit for the very creat labour bestowed upon it. The publishers, as usual, have
acquitted themselves in a manner deser\-ing of the high reputation they bear." — Canada Law Journal.
STEVENS &- HAVNES, BELL YARD, TEMPLE BAR. 45
Third Edition, in 8vo, price 20j-., cloth,
A TREATISE UPON
THE LAW OF EXTRADITION,
WITH THE CONVENTIONS UPON THE SUBJECT EXISTING BETWEEN
ENGLAND AND FOREIGN NATIONS,
AND THE CASES DECIDED THEREON.
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WORKS OF LITERATURE AND ART," " INDEX TO PRECEDENTS IN CONVEYANCING," "TITLE DEEDS," &C.
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it to the profession. " — Law Times. 1 well arranged, clearly written, and fully elaborated.
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Third Edition, in 8vo, considerably enlarged, price 36^., cloth,
THE LAW OF COPYRIGHT
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CoriNGER, of the Middle Temple, Barrister-at-Law.
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there is an unusually good index. These are I
46
STEVENS &» HAYNES, BELL YARD, TEMPLE BAR.
Third Edition, in One large Volume, 8vo, price 32/., cloth,
A MAGISTERIAL AP POLICE GUIDE:
BEING THE LAW
RELATING TO THB
PROCEDURE, JURISDICTION, AND DUTIES OF MAGISTRATES
AND POLICE AUTHORITIES,
IN THE METROPOLIS AND IN THE COUNTRY.
With an Introduction showing the General Procedure before Magisliates
both in Indictable and Summary Matters.
By henry C. greenwood,
stihendiakv magistrate for the district of the staffurushire rotteeles ; and
TEMPLE CHEVALIER MARTIN,
CMIEK CLF.HK TO THE M AGI'.TR ATE". AT LAMBETH POLICE Cot, KT, LoNlxiN ;
AITIIOR OP "THE LAW Of MAIKTENA.VCE A.NU UEiSRTlOX,' "THE NEW fOBMULIST," ETC
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"Iicnccitistti.it" ' ' "' '" -- - -.-Iv
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year 186S ; together with an Appendix gi\-ing all the other material Acts relating
to Railways, and the Standing Orders of the Houses of Lords and Commons ;
and a copious Index. By Henry Godefroi, of Lincoln's Inn, and John
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In a handy volume, crown 8vo, 1870, price \os. 6t/., cloth,
THE LAW OF SALVAGE,
As administered in the High Court of Admiralty and the County Courts ; with the
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WITH AN APPENDIX OF STATUTES AND FULL INDEX.
By J. R. S EAGER, Registration Agent.
In 8vo, |)rice 5^., cloth,
THE LAW OF PROMOTERS OF PUBLIC COMPANIES.
By NEWMAN WATTS,
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A COMPENDIUM OF ROMAN LAW,
Founded on the Institutes or Jtstinian; together with Examination Questions
Set in the University and Bar Examinations {with Solutions), and Definitions of
Leading Terms in the Words of the Principal Authorities. Second Edition. By
Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College,
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TITLES TO fflNES IN THE UNITED STATES,
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OF THE COURTS RELATING THERETO.
By W. a. HARRIS, B.A. Oxon.,
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tion of the powers and liabilities of promoters, and
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48
STEVENS dr" HA YNES, BELL YARD, TEMPLE BAR.
INDEX
To the Names of Authors and Editor of Works enumerated m this Catalogue.
HiGGINS (C), jO-
Houston (J.), 32-
IIiusoN (A. A.), 12.
Alured (P. ¥.), page 21.
Arolrs (N.), 32-
Atiknhorouch (C. L. ), 27.
Ualdwin (E. T.), 15-
]{ANNINO (II. T.), 42
Heal lE.). 32.
Uellewe (R.), 34-
ISeven (T.), 8.
I5LYTJI (E. E.), 22.
JJRICK (SEWARU), 9, 16.
Urooke (Sir K.), 35.
Urooks (\V. J.). »3-
Brown (ARf hii!AU>), 20, 22, 26, 33, 40.
Browne (J. II. Bai.four), 19.
Buchanan (J.), 38.
Buckley (II. B.), 17.
Bucknill(T. T.), 34, 35-
CA.MlItELL ((]0RI)0N), 47-
tA.MI-|IELL (KoilERT), 9. 4O.
(. ARMICMAEI. (C. H. E.), 21.
( KCM (Lord K.), II.
c iiAsTLR(A.\V.).32. ChittyOJ C.),38.
Clarke (Edward), 45*
C'lUHKTT (IMn), 43-
CO(;HLAN (\V. M.), 28.
Cooke (Sir G.), 35.
Cooke (1Iic:h), io.
Coi-iNCER (\V. A.), 40. 42, 45-
Corner (R. I.), 10.
Ckaies (W. E.). 6. 0.
Cunninc.iiam (II. S.), 3S, 42.
CUNNISr.llAM (J<^"^)' 7-
CUNNLVr.HAM (T.), 34.
Daniel (E. M.), 42-
Darlini; (C. J.), iS.
I)EANE(H. C), 23.
I)E BrIYN (I), r.). 38- I'f \\.\l IJ.'. j-.
DiHDiN. (L. T.). 10. iJi ncan (J. A.), Si.
Edwards (\V. I).), 10, 39.
Ei.c.ooD (E. T.), 6, 18, 43-
Elliott yC], 14. Emden (A.). 11.
Errinoton (F. II. L.), 10.
EVEKSLEY (W. r.), 9-
Kinlason (NV. F.), 32.
Foa(E.), II.
FooiE (]. Aldekson), 36.
FOKliES '^U. A.), 18.
Forsyth (W.), 14.
Frost (R.). 12.
Gibus (F. W.). 10.
GoDEKROi (II.), 47.
Greenwood (H. C), 46-
Griffiths (]. R.), 40.
Grigsby (\V. E.). 43.
Groius (Hugo), 38.
Hall (R. G.), 30.
Hanson (A.), 10.
Hardcastle (H.), 9, 33.
Harris (Seymour F.), 20, 27.
Harris (W. A.), 47-
Harrison (J. C). 23.
Harwood (R. G.), 10.
Hazlitt (W.), 29.
Hurst (}.), u.
Indermair{John), 24. 25, 28.
Jones (E.), 47- Joyce (W.), 44-
Kay (Joseih), 17.
Kelke{\V. II.), 6.
Kelyng (Sir J.), 35.
Kelyni-.e (W.), 35.
KoT/fe (J. G.). 38.
Lloyd (Eyre), 13.
LoKKNZ (C .\.)f 38.
Loveland (R. L.), 30, 34. 35-
Maa-sdorp(A. F. S.), 38.
MArA<iKIP. (S. C), 7-
Ma n..n. J. W.), 17.
SI •). 35-
Ma... . .... .N.), 26.
Martin (Temple C), 7. 46.
Maitin.«.os (M. W.), 7.
May (11. W.). 29.
MayneOohn I> ). 3«. 38.
^^n^oR (K. H.), 10.
Men/.ies(\\.). 38.
M.M.KE (S. A. , 30.
(rMALLEY(E. L.). 33-
pAvrrr (A.), 32. I'eile (C. J.), 7-
I'EMItERTON (L. L.), 18, 32.
ruiI'".ON (S. I- , 20.
POkTEK (I. B.), 6.
Reili.y (F. S.), 29.
RlKG\VOOD(R.), 13, IS. 29
Sa! K"Wski (C), 14.
•.n(T. W.). 13.
v (F. C. Von), 20.
^ v'-. K.). 32-
.^EAi.fcK (J. K.), 47-
Short (F. H.), 10, 41.
Shorti (John), 47.
Shower (Sir B.), 34-
Si MI-SON (A. IL), 43-
Slater (J.), 7.
Smith aii stage), 23, 39.
Smith (F. J.). 6.
Smiih (Lumley), 31.
Snell (E. II. T.), 22.
Story, 43.
Tarring (C. J.), 26, 41, 42.
Taswell-Langmead, 21.
Thomas (Ernest C), 28.
Tyssen (A. D.), 39
Van der Keesel (D. G.), 38.
Van Leei wen, 3& Van Zyl, 38.
Waite (W. T.), 22.
Walker (\N . G.). 6, iS, 43-
\V.\tts (C. N.). 47-
Wertheimer (J.), 32.
Whiteforu (F. M.), 20.
Whitfield (E. E.), 14.
Williams (S. E.), 7.
Willis (W.), 14.
Worth i*«'gton (S. W.), 29.
LONPON : BRADBUKY. AGNEW. & CO. LD., PRINTERS. WHITEFRIARS. E.C.
[A Catalogue of New Law Works may be obtained gratis upon application to S.dH.
STEVENS AND HAYNES' LAW PUBLICATIONS.
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THE PKOBATE, LEGACY, AND SUCCESSION DUTIES
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Vict. c. 51 ; the Custon:s aud Inland Revenue Acts, 43 Vict. c. 14, 44 Vict. c. 12;
and the New Estate Duty Finance Act, 57 & 58 Vict. c. 30 ; with an Introduction and
copious Notes, incorporating the Cases to 1894 ; together with an Appendix of Statutes,
and a full Index. Hy Alfkki> Hanson, Esq., Comptroller of Legacy and Succession
Duties. Fourth Edition, by Lkwis T. Dibdin, M.A., D.C.L., and F. H. L, Ekkington,
M.A., of Lincoln's Inn, Barristers-at-Law. «
Second Edition, in 8r«, price 105. 6rf. cloth,
OUTLINES OF THE LAW OF TOKTS. By Richard Ring-
WOOD, M.A., of the Middle Ttrajile, IWrister-at-Law.
Second Edition, in Svo, price 28s. cloth,
HAKDCASTLE'S TREATISE ON THE CONSTRUCTION
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CuAiEs, of the Inner Temple, Barrister-at-Law.
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Banning, M.A., Bamster-at-Law.
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John Ali>ek.son Fuote, of Lincoln's Inn, Barrister-at-I^w ; ' N Legal
Medallist and Senior Whewell Scholar of International Law, Caii .iversity,
1873, etc.
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QUEENS BENCH DIVISION of Her Majesty's High Court of Justice (founded on
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dices of Ruli's and Forms. By F. Hugh Shout, Chief Clerk of the Crown Office, and
Fkancis H. Mkllob, M.A., Banister at- Law.
Sijcth Edition, Svo, jtrice 10». Qd. cloth,
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RUPTCV ; Embodyuig the Bankruptcy Acts, 1883 and 1890 ; part of the Debtors Act,
1869; the Bankruptcy Appeals (County Courts) Act, 1884. With an ' ' iu-
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Third Edition, in Svo, price Z'2s. cloth,
A MAGISTERIAL AND POLICE GUIDE : Being the brauue
Law relating to the Procedure, Jurisdiction, and Duties of Magistrates and Police
Authorities in the Metropolis and in the Country. With an Introil; ■ ' tin
General Procedure before JIagistrates both in Indictable and Sun V,\
Henry C.Greenwood, Stipendiary Magistrate, and Temple Ci. ^..,.w1n.
Chief Clerk to the Iklagistrates at Ijimbeth Police Court, London. I'hird Edition, in-
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the End of the Year 1889, by Temple Chevalier Martin.
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[A Catalogue of New Law Works
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including tlie Summary Jurisdiction (ilarried Women's) Act of 1895. By Tkmple
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Temple Martin, !M.A., of Lincoln's lun, Barrister-at-Law.
Sixth Edition, in 6vo, price 21a. cloth,
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Act.lS75, Housing of the Working Classes Act, 1890, and other Acts, with a full Collection
of Fomis and Precedents. By Eyrk Lloyd, of the Inner Temple, Barrister-at-Law.
Sixth Edition. By W. J. Brooks, of the Inner Temple, Barrister-at-Law.
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Seconal Edition, in 8vo, price 22s. cloth,
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Second Edition, in royal 8vo, price 30s. cloth,
A TREATISE ON THE STATUTES OF ELIZABETH
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Second Edition, in 8vo, price 21s. cloth,
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GUARANTEE. Embodying Cases in the English, Scotch, Insh, American uid
Canadian Courts. By J. B. Porter and W. F. Craies, Barristers-at-Law.
Seventh Edition. In One VoLume, ^vo, price 20s. cloth,
PRINCIPLES OF THE COMMON LAW.,, intended for the
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