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A SELECTION

OF

LEGAL MAXIMS,

(EksBtficD anb IlluBtvatcb.

By HEEBERT BROOM, LL.D.

THE EIGHTH EDITION

BY

JOSEPH GERALD PEASE,

BARRISTER- AT-LAW ; B.A. (LOND.) ;
AND

HERBERT CHITTY,

BAREISTER-AT-LAW ; M.A. (OXON.).

Maxims are the condensed good sense of nations.— Sir J. Mackintosh.
Juris praBcepta sunt haec ; honeste vivere, alterum non Isedere, suum
cuique tribuere. — I. 1. 1. 3.

LONDON :
SWEET AND MAXWELL, LIMITED,

3, CHANCERY LANE.
1911.

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/^go^f.

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PREFACE TO THE EIGHTH EDITION.

A SHORT account of Dr. Broom, the author of this work,
who died in 1882, is given in the " Dictionary of National
Biography." The book, as the biographer states, was first
published in 1845, and obtained a wide circulation as an
established text-book for legal students. Five editions
were produced by Dr. Broom himself : there was a sixth
edition two years after his death, prepared by Mr. Herbert
F. Manisty and Mr. Charles Cagney: and a seventh, by
Mr. Manisty and Mr. H. Chitty, appeared in 1900.

In his preface to the original edition, which is reprinted
below, Dr. Broom explained the system adopted by him in
arranging the legal maxims he selected for illustration, and
gave the reasons which led to its adoption.

The main idea of the work is to present, under the head
of "Maxims," certain leading principles of English law,
and briefly to illustrate some of the ways in which those
principles have been applied or limited, by reference to a
sufficient number of reported cases. Many subjects are
thus touched upon lightly, and no endeavour is made to
produce an exhaustive digest of the case law upon any
one subject, or to rival treatises devoted exclusively to
particular branches of the law.

The aim of the present editors has been to maintain
and carry out the author's idea. They have incorporated
into the book a selected number of the recent decisions and

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IV PREFACE TO THE EIGHTH EDITION.

enactments which bear upon the principles discussed ; and,
in order to give due weight to the fresh matter, they have
occasionally rearranged or modified a portion of the old.
But no attempt has been made to produce a new book.

J. G. P.
H. C.

Innbb Temple,
October 12th, 1910.

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PREFACE TO THE FIRST EDITION.

In the Legal Science, perhaps more frequently than in
any other, reference must be made to first principles.
Indeed, a very limited acquaintance with the earlier
Eeports will show the importance which was attached to
the acknowledged Maxims of the Law, in periods when
civilization and refinement had made comparatively little
progress. In the ruder ages, without doubt, the great
majority of questions respecting the rights, remedies,
and liabilities of private individuals were determined by
an immediate reference to such Maxims, many of which
obtained in the Koman Law, and are so manifestly
founded in reason, public convenience, and necessity, as
to find a place in the code of every civilized nation. In
more modern times, the increase of commerce, and of
national and social intercourse, has occasioned a corre-
sponding increase in the sources of litigation, and has
introduced many subtleties and nice distinctions, both
in legal reasoning and in the application of legal prin-
ciples, which were formerly unknown. This change,
however, so far from diminishing the value of simple
fundamental rules, has rendered an accurate acquaintance
with them the more necessary, in order that they may be
either directly applied, or qualified, or limited, according
to the exigencies of the particular case, and the novelty of
the circumstances which present themselves. If, then, it
be true, that a knowledge of first principles is at least as
essential in Law as in other sciences, certainly in none

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Vi PEEFACE TO THE FIEST EDITION.

is a knowledge of those principles, unaccompanied by a
sufficient investigation of their bearing and practical
application, more likely to lead into grievous error. In
the present Work I have endeavoured, not only to point out
the most important Legal Maxims, but also to explain and
illustrate their meaning; to show the various exceptions
to the rules which they enunciate, and the qualifications
which must be borne in mind when they are applied.
I have devoted considerable time, and much labour, to
consulting the Eeports, both ancient and modern, and also
the standard Treatises on leading branches of the Law, in
order to ascertain what Maxims are of most practical
importance, and most frequently cited, commented on, and
applied. I have likewise repeatedly referred to the various
Collections of Maxims which have heretofore been
published, and have freely availed myself of such portions
of them as seemed to possess any value or interest at the
present day. I venture, therefore, to hope, that very few
Maxims have been omitted which ought to have found
place in a work like that now submitted to the Profession.
In illustrating each Eule, those Cases have in general been
preferred as examples in which the particular Maxim has
either been cited, or directly stated to apply. It has,
however, been necessary to refer to many other instances
in which no such specific reference has been made, but
which seem clearly to fall within the principle of the Eule ;
and whenever this has been done, sufficient authorities
have, it is hoped, been appended, to enable the reader,
without very laborious research, to decide for himself
whether the application suggested has been correctly made,
or not. In arranging the Maxims which have been selected
as above mentioned, the system of Classification has, after
due reflection, been adopted : first, because this arrange-
ment appeared better calculated to render the Work, to
some extent, interesting as a treatise exhibiting briefly
the most important Eules of Law, and not merely useful

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PREFACE TO THE FIRST EDITION. Vll

as a book of casual reference ; and, secondly, because by
this method alone can the intimate connection which
exists between Maxims appertaining to the same class be
directly brought under notice and appreciated. It was
thought better, therefore, to incur the risk of occasional
false or defective classification, than to pursue the easier
course of alphabetical arrangement. An Alphabetical List
has, however, been appended, so that immediate reference
may be made to any required Maxim. The plan actually
adopted may be thus stated : — I have, in the first Two
Chapters, very briefly treated of Maxims which relate to
Constitutional Principles, and the mode in which the Laws
are administered. These, on account of their comprehen-
sive character, have been placed first in order, and have
been briefly considered, because they are so very generally
known, and so easily comprehended. After these are
placed certain Maxims which are rather deductions of
reason than Rules of Law, and consequently admit of
illustration only. Chapter IV. comprises a few principles
which may be considered as fundamental, and not referable
exclusively to any of the subjects subsequently noticed,
and which follow thus : Maxims relating to Property,
Marriage, and Descent; the Interpretation of Written
Instruments in general ; Contracts ; and Evidence. Of
these latter subjects, the Construction of Written Instru-
ments, and the Admissibility of evidence to explain them,
and also those Maxims which embody the Law of Contracts,
have been thought the most practically important, and
have therefore been noticed at the greatest length. The
vast extent of these subjects has undoubtedly rendered the
work of selection and compression one of considerable
labour ; and it is feared that many useful applications of
the Maxims selected have been omitted, and that some
errors have escaped detection. It must be remarked,
however, that, even had the bulk of this Volume been
materially increased, many important branches of Law to

L.M. Jj

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VIU PREFACE TO THE FIEST EDITION.

which the Maxims apply must necessarily have been dis-
missed with very slight notice ; and it is believed that the
reader will not expect to find, in a Work on Legal Maxims,
subjects considered in detail, of which each presents
sufficient materials for a separate Treatise. One question
which may naturally suggest itself remains to be answered :
For what class of readers is a Work like the present
intended ? I would reply, that it is intended not only for
the use of students purposing to practice at the Bar, or
as attorneys, but also for the occasional reference of the
practising barrister, who may be desirous of applying a
Legal Maxim to the case before him, and who will therefore
search for similar, or, at all events, analogous cases, in
which the same principle has been held applicable and
decisive. The frequency with which Maxims are not only
referred to by the Bench, but cited and relied upon by
Counsel in their arguments ; the importance which has, in
many decided cases, been attached to them ; the caution
which is always exercised in applying, and the subtlety
and ingenuity which have been displayed in distinguishing
between them, seem to afford reasonable grounds for hoping
that the mere Selection of Maxims here given may prove
useful to the Profession, and that the examples adduced,
and the authorities referred to by way of illustration,
qualification, or exception, may, in some limited degree,
add to their utility.

HERBERT BROOM.

Temple,
January 30th, 1845.

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CONTENTS.

CHAPTEE I.
Sect. I. — Eules founded on Public Policy.

PAGE

Salus populi suprema lex 1

Necessitas induoit privilegium quoad jura privata ... 8

Summa ratio est quse pro religione faoit 13

Dies Dominious non est juridicus 15

Sect. II. — Eules of Legislative Policy.

Leges posteriores priores contrarias abrogant .... 18

Nova constitutio futuris formam imponere debet, non prffiteritis . 24

Ad ea quae frequentius accidunt jura adaptantur .... 30

CHAPTEE II.

Maxims relating to the Crov?n.

Eex non debet esse sub homine, sed sub Deo et sub lege, quia lex

facit regem 3-1

Eex nunquam moritur ......... 36

Eex non potest peocare ........ 39

Non potest Eex gratiam facere cum injuria et damno aliorum . 50

Nullum tempus ocourrit Eegi 52

Quando jus Domini Eegis et subditi concurrunt, jus Eegis

prseferri debet 55

Eoy n'est lie per ascun statute, si il ne soit expressement nosme 58
Nemo patriam in qua natus est exuere nee ligeantise debitum

ejurare possit 61

CHAPTEE III.
Sect. L— The Judicial Office.

Boni judiois est ampliare jurisdictionem 63

De fide et officio judiois non reoipitur qilKstio, sed de scientiA sive

sit error juris sive facti 70

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CONTENTS.

Qui jussu judicis aliquod fecerit non videtur dolo malo fecisse,

quia parere necesse est 75

Ad qusestionem faoti non respondent judices, ad qutestionem legis

non respondent juratores ....... 82

In prsesentia majoris oessat potentia minoris .... 90

Sect. II. — The Mode of Administering Justice.

Audi alteram partem

Nemo debet esse judex in propria sua causa

Actus curise neminem gravabit

Actus legis nemini est damnosus .

Executio juris non habet injuriam

In fictione juris semper sequitas cxistit

Oursus curiffi est lex curiae .

Consensus toUit errorem

Communis error facit jus

De minimis non curat lex

Omnis innovatio plus novitate perturbat quam utilitate prodest

91
94
99
102
103
106
110
112
115
118
121

CHAPTER IV.

EuLES OF Logic.

Ubi eadem ratio ibi idem jus

Cessante ratione legis cessat ipsa lex .....
De non apparentibus et non existentibus eadem est ratio .
Non potest adduci exceptio ejusdem rei oujus petitur dissolutio
AUegans contraria non est audiendus .....

Omnc majus continet in se minus

Quod ab initio non valet in tractu temporis non oonvalesoit
Argumentum ab inconvenienti plurimum valet in lege

125
129
131
133
135
141
144
149

CHAPTER V.
Fundamental Legal Principles.
Ubi jus ibi remedium ......

Quod remedio destituitur ipsa re valet si culpa absit
In jure non remota causa sed proxima spectatur .
Actus Dei nemini facit injuriam ....

Lex non cogit ad impossibilia ....

153
175
179
190
201

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CONTENTS. XI

PAGr.:

Ignorantia facti excusat, — ignorantia juris non excusat . . 210

Volenti non fit injuria ......... 223

Nullus oommoduni capere potest de injuria sufi, propria . . 283

Acta exteriora indicant interiora secreta 248

Res ipsa loquitur 253

Actus non facit reum nisi mens sit rea ..... 256

Nemo debet bis vexari pro unH et eadem causa .... 266

CHAPTER VI.
Acquisition, Enjoyment, and Teansfee of Peopeety,

Sect. I. — The Mode of Acqdieing Peopeety.
Qui prior est tempore, potior est jure 278

Sect. II. — Peopeety — its Rights and Liabilities.

Sic utere tuo ut alienum non tedas 289

Cujus est solum ejus est usque ad coelum ..... 809

Quicquid plantatur solo solo oedit 314

Domus sua cuique est tutissimum refugium .... 336

Sect. III. — The Teansfee of Peopeety.

Alienatio rei prEsfertur juri accrescendi 844

Cujus est dare ejus est disponere 356

Assignatus utitur jure auctoris ....... 359

Cuicunque aliquis quid eonoedit concedere videtur et id sine quo

res ipsa esse non potuit ....... 367

Accessorium non ducit sed sequitur suum principale . . . 376
Licet dispositio de interesse future sit inutilis tamen fieri potest
declaratio praecedens quae sortiatur effectum interveniente

novo actu 382

CHAPTER VII.

Rules eelating to Maeeiage and Descent.

Consensus, non ooncubitus, facit matrimonium .
Hseres legitimus est quern nuptise demonstrant .

Nemo est taeres viventis

Haereditas nunquam ascendit ....
Persona conjuncta sequiparatur interesse proprio

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386
394
399
401
405

X]I CONTENTS.

CHAPTER VIII.
The Intehpretation of Deeds and Written Instruments.

PAGF.

Benignse faoiendas sunt interpretationes propter simplieitatem
laioorum ut res magis valeat quam pereat ; et verba intentioni,

non e contra, debent inservire ...... 410

Ex antecedentibus et consequentibus fit optima interpretatio . 440

Nosoitur a sociis 447

Verba cbartarum fortius accipiuntur contra proferentem . . 453
Ambiguitas verborum latens verificatione suppletur ; nam quod

ex facto oritur ambiguum verificatione facti tollitur . . 464
Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra

verba fienda est 474

Certum est quod certum reddi potest 478

Utile per inutile non vitiatur 481

Falsa demonstratio non nocet cum de corpore constat . .483

Verba generalia restringuntur ad habilitatem rei vel personae . 499

Expressio unius est exclusio alterius ...... 504

Expressio eorum quse tacite insunt nihil operatur . . . 519
Verba relata hoc maxima operantur per referentiam ut in eis

inesse videntur 521

Ad proximum antecedens fiat relatio nisi impediatur sententia . 528

Contemporanea expositio est optima et fortissima in lege . . 529

Qui hoeret in litera hseret in cortice 533

OHAPTEE IX.

The Law of Contracts.

Modus et conventio viucunt legem
Quilibet potest renunciare juri pro se introducto .
Qui sentit commodum sentire debet et onus
In aequali jure melior est conditio possidentis
Ex dolo malo non oritur actio ....
Ex nudo pacto non oritm: actio ....

Caveat emptor

Quicquid solvitur, solvitur secundum modum solventis

recipitur, recipitur secundum modum recipientis
Qui per alium faoit per seipsum facere videtur
Eespondeat superior ......

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: quicquid

537
545
551
557
569
583
604

632
639
656

CONTENTS.

Xlll

Omnis ratihabitio retrotrahitur et mandato priori sequiparatur .
Niliil tarn conveniens est naturali sequitati quam unumquodque

dissolvi 60 ligamine quo ligatum est

Vigilantibus, non dormientibus, jura subveniunt ....
Actio personalis moritur cum persona

PAG !■:

672

679
688
697

CHAPTEE X.

Maxims Applicable to the Law of Evidence

Optimus interpres rerum usus
Cuilibet in sua arte perito est credendum .
Omnia praesumuntur contra spoliatorem
Omnia praesumuntur rit^ et solenniter esse acta
Ees inter alios acta alteri nocere non debet .
Nemo tenetur seipsuui aocusare .

714
727
733
737
748
761

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ALPHABETICAL
LIST OF LEGAL MAXIMS.

Throughout this list, Wingate'i Maxims are indicated by the letter (W). I^ofl't's Reports (ed. It90), tn
which is appended a very copious ColZeciion of Maxims, are signified by the letter (L). The Grounds
and Ruditnents of Laui (ed. 1Y51), by the letter (G) ; and Halkerston's Maxims (eti. 1823), by the letter
(H) ; the reference in the last instance only being to the number of the Page, in the others to that of
the Maxim. Of the above Collections, as also of those by Koy ^dthed.), and Branch ibthed.), use has,
in preparing the following list, been freely made. Some few Maxims from the Cii'il Law have also
been inserted, the Digest being referred to by the Utter (D), as in the body of the Work.

The figures at the end of tlie line without the parentlieses denote the pages of this Treatise where the
Maxim is commented upon or cited, either in the text or in the notes.

A costMmfi observantia non est rece-

dendum (W. 203).
A verbis legis non est reoedendum . 478
Ab abusu ad usum non valet conse-

quentia (a).
Absoluta sententia expositore non

indiget (2 Inst. 533).
Abundans cautela non nocet (11

Eep. 6) 521

Acoessorium non ducit, sed sequitur,

suum principale . . . 354, 376
Accessorium non trahit principale . 381
Aoousator post rationabile tempus

non est audiendus, nisi se bene de

omissions excusaverit (Moor, 817).
Acta exteriora indicant interiora

secreta (8 Eep. 146) . . .248
Actio non datur non damnifioato

(Jenk. Cent. 69).
Actio personalis moritur cum person^ G97
Actio quselibet it suit via (Jenk. Cent.

77).
Actionum genera maxime sunt ser-
vanda (L. 460).
Actor sequitur forum rei (Branch

M. 4).
Actore nom probante absolvitur reus

(Hob. 103).
Actori incumbit onus probandi (Hob.

103 ; 4 Eep. 71 b).
Actus curiae neminem gravabit . 99
Actus Dei nemini facit injuriam . 190
Actus Dei nemini nocet . . . 201
Actus incseptus cujus perfectio pendet
ex voluntate partium revocari
potest : si autem pendet ex volun-
tate tertisa personse vel ex con-

(a) In Stockdale v. Hansard, 8 A. & E. 116, Ld.
Denraan observed, that this tnaxim caDnot apply

" where an abuse is directly charged and offered to
be proved."

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XVI

LIST OP LEGAL MAXIMS.

tingenti revoeari non potest (a)
(Bao. Max. reg. 20).
Actus judioiarius coram non judice
iri'itus habetur : de ministeriali
autem a quocunque provenit ratum
esto (L. 458).
Actus legis nemini est damnosus . 102
Actus legis nemini faoit injuriam . 102
Actus legitimi non recipiunt modum

(Hob. 153).
Actus non facit reum nisi mens sit

rea 256,631

Ad ea quae frequentius accidunt jura

adaptautur 30

Ad proximum antecedens fiat relatio,

nisi impediatur sententia . , 528
Ad quEestionem facti non respondent
judices : ad qusestionem legis non
respondent juratores . . ,82
Ad quEestionem legis respondent

judices 733

.SJdificare in tuo proprio solo non

licet quod alteri nooeat . , 292

.^quitas sequitur legem (Branch

M. 8).
^quum et bonum est lex legum.
Affectus punitur licet non sequatur

efiectus (9 Eep. 57 a).
Affirmanti non neganti inoumbit pro-

batio (H. 9) 253

Alienatio licet prohibeatur, consensu

tamen omnium in quorum f avorem

prohibita est potest fieri (Co. Litt.

98).

Alienatio rei praefertur juri accres-

cendi 844

Aliquid conceditur ue injuria reman-
erit impunita quod alias non oon-
cederetur (Co. Litt. 197).
Aliquis non debet esse judex in propria
causS,, quia non potest esse judex
et pars 95

566

464

PAGR

Aliud est oelare — aliud taoere . . 618
Aliud est possidere — aliud esse in

possessione (Hob. 163).
AUegans oontraria non est audiendus 135,

244
AUegans suam turpitudinem non est

audiendus (4 Inst. 279) .
Allegari non debuit quod probatum

non relevat (1 Chan. Gas. 45).
Alterius ciroumventio alii non prsebet

actionem (D. 50, 17, 49).
Ambigua responsio contra proferen-
tem est accipienda (10 Eep. 68).
Ambiguis casibus semper prsesumi-

tur pro rege (L. 248).
Ambiguitas verborum latens verifica-
tione suppletur, nam quod ex facto
oritur ambiguum verifioatione facti

tollitur

Ambiguitas verborum patens nulla

verifioatione exoluditur (L. 249).
Ambulatoria est voluntas defuncti

usque ad vitae supremum exitum . 385
Angliae jura in omni casu libertati

dant favorem (H. 12).
Animus hominis est anima script! (3

Bulstr. 67).
A non posse ad non esse sequitur
argumentum necessarie negative,
licet non affirmative (Hob. 336).
Applioatio est vita regulae (2 Bulstr.

79).
Arbitramentum aequum tribuit

cuique suum (Noy, M. 248).
Argumentum ab auotoritate est for-

tissimum in lege (Go. Litt. 254).
Argumentum ab impossibili pluri-

mum valet in lege (Co. Litt. 92).
Argumentum ab inconvenient! pluri-

mum valet in lege
Argumentum a communiter aociden-
tibus in jure frequens est

149

32

^a) The law, observed Lord Bacon, makes this
difiference, that, if the parties have put it ia th
power of a third person, or of a contingency, to
give a perfection to their act, then they have put
It out of their own reach and liberty to revolve it;
but where the completion of their act or contract

depends upon the mutual consent of the original
parties only, it may be rescinded by express agree-
ment. So, in judicial acts, the rule of the civil
law holds, sententia interloeutoria revoeari potest,
that ia, an order may be revoked, but a judgment
cannot. — Bac. i^i. reg. 20.

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LIST OF LEGAL MAXIMS.

XVll

Argumentum a divisione est fortissi-
mmn in jure (6 Rep. 60) (W. 71).

Argumentum a majori ad minus
negative non valet — ^valet e con-
verso (Jenk. Cent. 281).

Argumentum a simili valet in lege
(Co. Litt. 191).

Assignatus utitur jure auotoris . 359

Aucupia verborum sunt judice in-
digna (Hob. 343).

Audi alteram partem . . .91

A verbis legis non est reoedendum . 478

Bello parta cedunt reipubliose (cited

2 Russ. & My. 56).
Benedicta est expositio quando res

redimitur a destruotione (4 Rep.

26).
Benignfe faciendae sunt interpreta-

tiones, propter simplicitatem laico-

rum, ut res magis valeat quam

pereat 410

Benigne faciendss sunt interpreta-

tiones et verba Intentioni debeut

inservire . . . 410, 430, 498
Benignior sententia, in verbis

generalibus seu dubiis, est pre-

ferenda (4 Rep. 15).
Bonse fidei possessor in id tantum

quod ad se pervenerit, tenetur

(2 Inst. 285).
Bona fides non patitur, ut bis idem

exigatur 266

Boni judicis est ampliare jurisdictio-

nem 65

Boni judicis est judicium sine

dUatione mandare executioni (Co.

Litt. 289).
Boni judicis est lites dirimere, ne lis

ex lite oritur, et interest reipubliose

ut sint fines litium (4 Rep. 15).
Bonus judex secundum sequum et

bonum judioat, et aequitatem

stricto juri praefert . . .66

Casus omissus et oblivioni datus dis-
positioni communis juris relinqui-
tur 33

Causa proxima et non remota speo-
tatur 181

Caveat emptor ; qui ignorare non
debuit quod jus alienum emit 604,

Caveat venditor (L. 328).

Certa debet esse intentio, et nar-
ratio, et certum fundamentum, et
certa res quae deducitur in judi-
cium (Co. Litt. 303 a).

Certum est quod certum reddi potest 478

Cessante causa, oessat efieotus . . 129

Gessante ratione legis, oessa ipsa lex. 129

Cessante statu primitive, oessat deri-
vativus 380

Gharta de non ente non valet (Go.
Litt. 36 a).

Ghirographum apud debitorem reper-
tum prsesumitur solutum (H. 20).

Circuitus est evitandus.

Glausulae inconsuetse semper in-
ducunt suspicionem . . . 240

Clausula generalis de residuo non ea
complectituL' quse non ejusdem sint
generis cum iis quse speoiatim dicta
fuerint (L. 419).

Clausula generalis non refertur ad
expressa (8 Rep. 154).

Clausula vel dispositio inutUis per
presumptionem vel causam remo-
tam ex post facto non fulcitur . 521

Cogitationis poenam nemo patitur.

Gohseredes una persona censentur
propter unitatem juris quod habent
(Co. Litt. 163).

Communis error facit jus . . 115, 123

Conditio benefioialis quse statum con-
struit, benigne, secundum verbo-
rum intentionem, est interpre-
tanda ; odiosa, autem, quse statum
destruit, stricte, secundum verbo-
rum proprietatem, accipienda (8
Rep. 90).

Conditio prsecedens adimpleri debet
priusquam sequatur effectus (Co.
Litt. 201).

Conditiones quselibet odiosae ; maxi-
ma autem contra matrimonium et
commercium (L, 644).

Digitized by Microsoft®

XVlll

LIST OF LEGAL MAXIMS.

Confirmare nemo potest priusquam

jus ei aooiderit (10 Eep. 48).
Confirmatio omnes supplet defeotus,

licet id quod actum est ab initio

non valuit (Co. Litt, 295 b).
Consensus, non oonoubitus, faoit ma-

trimonium ..... 386
Consensus tollit errorem . . . 112
Consentientes et agentes pari poena

pleotentur (5 Rep. 80).
Consentire matrimonio non possunt

infra annos nubiles (5 Eep. 80).
Coustitutiones tempore posteriores

potiores sunt his quae ipsas prseoes-

serunt . .... 19

Construotio legis non faoit injuriam 460
Consuetude ex certa causa rationabili

usitata pri vat communem legem . 716
Consuetudo loci est observanda . 715
Consuetude manerii et loci obser-
vanda est (Branch M. 28).
Consuetudo neque injuria oriri neque

tolli potest (L. 340).
Consuetudo regui Anglise est lex An-
glic (Jenk. Cent. 119).
Consuetudo semel reprobata non

potesb amplius induci (G. 53).
Contemporanea expositio est optima

et fortissima in lege . . . 529
Contra uegantem prinoipia non est

disputandum (G. 57).
Contra non valentem agere nulla cur-

rit prsescriptio .... 696
Conventio privatorum non potest

publico juri derogare (W. 201).
Copulatio verborum indioat accepta-

tionem in eodem sensu . . 447

Corporalis injuria non recipit eesti-

mationem de future . . . 282
Cuicunque aliquis quid concedit,

concedere videtur et id sine quo

res ipsa esse non potuit . . 367

Cuilibet in su^ arte perito est creden-

dum 727

Oui licet quod majua non debet quod

minus est non licere . . . 142
Cujus est dare ejus est disponere i . 356
Oujus est instituere ejus est abro-

gare

. 680

Cujus est solum, ejus est usque ad
caelum 309

Culpa, caret, qui scit, sed prohibere
non potest (D. 50, 17, 50).

Culpa est immiscere se rei ad se non
pertinenti (D. 50, 17, 36).

Cum duo inter se pugnantia repe-
riuntur in testamento, ultimum
ratum est 445

Cum in testamento ambigue aut
etiam perperam scriptum est,
benigne interpretari et secundum
id quod credibile est oogitatum
oredendum est ... . 433

Cum par delictum est duorum
semper oneratur petitor . . 561

Cum principalis causa non consistit,
ne ea quidem quae sequuntur,
locum babent (D. 50, 17, 129, § 1).

Curia parliamenti suis propriis legi-
bus subsistit 69

Cursus curiae est lex curiae . 110

Damnum is dat qui jubet dare.
Damnum sentire non videtur qui

sibi damnum dedit . . . 223
Damnum sentit dominus . . . 611
Damnum sine injurial esse potest (H.

12) 156

Debile fundamentum fallit opus . 147
Debita sequuntur personam debi-

toris (H. 13).
Debitor non praesumitur donare (a)

(H. 13).
Debitorum pactionibus oreditorum

petitio nee tolli nee minui potest . 544
Debitum et contractus sunt nuUius

loci (i) (7 Rep. 61).

(a) See Kippen v. Darley, 3 Macq. Sc. App. Cas.
203.

(b) See the notes to Mostyn v. FabrigaSt 1 Smith
h. C. ; Story, Confl. Laws, lit. " Contracts."

Digitized by Microsoft®

LIST OF LEGAL MAXIMS.

XIX

rAGB I

Deficiente uno non potest esse hseros

(G. 77).
De fide et officio judicis non reoipitur

qusBstio, sed de soientia sive sit

error juris sive faoti . . .70
De gratis, speoiali, certa scientia, et

mere motu ; talis clausula non

valet in his in quibus prsesumitur

principem esse ignorantem (1 Hep.

53) 41

Delegata potestas non potest dele-

gari ...... 653

Delegatus debitor est odiosus in lege

(2 Bulstr. 148).
Delegatus non potest delegare . . 655
De minimis non curat lex . 118, 133
De non apparentibus, et non existen-

tibus, eadem est ratio . . . 131
Derivativa potestas non potest esse

major primitive, (W. 26).
Deus solus hseredem facere potest,

non homo 395

Dies dominious non est juridious . 15
Disoretio est discernere per legem

quid sit justum . . . .68
Divinatio, non interpretatio est, quse

omnino recedit a literS, (Bao. Max,

reg. 3).
Dolo malo pactum se non servabit . 570
Dolosus versatur in generalibus . 240
Dolus cirouitu non purgatur . . 188
Dominium non potest esse in pen-
dent! (H. 39).
Domus sua cuique est tutissimum

refugium 336

Dona olandestina sunt semper suspi-

ciosa ; 240

Donari videtur, quod nuUo jure co-

gente conceditur (D. 50, 17,82).
Donatio non prsesumitur (Jenk.

Cent. 109).
Donatio perficitur possessione aoci-

pientis (Jenk. Cent. 109).

Duo non possunt in solido unam
rem possidere .... 359

Eadem mens prsesumitur regis qua2

est juris, et quse esse debet, prseser-

tim in dubiis 40

Ea quse commendandi causa in ven-

ditionibua dicuntur si palam ap-

pareant venditorem non obligant 616
Ea quse raro aocidunt, non temere

in agendis negotiis computantur

(D. 50,17, 64).
Ecclesia ecclesise decimas solvere

non debet (Ore. El. 479).
Ecclesia meliorari non detoriorari

potest (a).
Ei qui affirmat, non ei qui nogat,

incumbit probatio . . . 253

Ejus est interpretari cujus est con-

dere 12:3

Ejus nulla culpa est cui parere

neoesse sit 10

Electio semel facta non patitur re-

gressum ..... 582

Eodem ligamine quo ligatum est dis-

solvitur 687

Eodem modo quo quid oonstituitur,

eodum modo dissolvitur — destrui-

tur (6 Rep. 53) ... . 680
Ex antecedentibus et consequenti-

bus fit optima interpretatio . 440

Bxoeptio probat regulam (11 Kep. 41)

(6).
Exceptio rei judioatse obstat quoties

eadem qusestio inter easdem per-

sonas revocatur .... 267
Excusat aut extenuat delictum in

capitalibus quod non operatur in

civilibus 264

Ex diuturnitate temporis omnia prse-

sumuntur rite et solenniter esse

acta 737

Co) Arg., A.-G. V. CkomUij, 2 Eden, 313.

(6) " Every exception tbat can be accounted for
is 80 mucli a confirmation of the rale, that it ha3
become a maxim, exceptio probat regulam," per

Ld. Kenyon, C.J., 3 T. E. ?22. See also, Id. 38 ;
4 T. R. 193; 1 East, 641, n. j per Ld. Campbell,
C.J., 4 E. & B. 832; avg. I/ijncU>n v. Standbridge
2 H. & N. 48.

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XX

LIST OF LEGAL MAXIMS.

Ex dolo malo non oritur actio . 569

Exeoutio juris non habet injuriam . 103
Ex facto jus oritur . . . .82
Ex malefloio non oritur contractus . 574
Ex multitudine signorum colligitur

identitas vera .... 492
Ex non scripto jus venit quod usus

comprobavit 715

Ex nudS. submissione non oritur

actio (G. 143).
Ex nudo paoto non oritur actio . 583
Ex paoto illioito non oritur actio . 566
Expedit reipublicsi ne suS. re quis

male utatur 289

Expressa mocent, non expressa non

nocent (D. 50, 17, 195).
Expressio eorum quae tacite insunt

nihil operatur . . . 519, 592
Expressio unius est exclusio alterius 464,

504
Expressum facit cessare taciturn, 464, 504
Extra territorium jus dicenti impune

non paretur . . . .81
Ex turpi causa non oritur actio 224, 569

Factum a judioe, quod ad officium

ejus non pertinet, ratum non est

(D. SO, 17, 170) .... 75
Falsa demonstratio non nocet . . 483
Falsa demonstratione legatum non

perimitur 498

Falsa grammatica non vitiat ohartam 534
Falsus in uno falsus in omnibus (a).
Favorabiliores rei potius quam

actores habentur .... 559
Fere secundum promissorem inter-

pretamur .... 458, 459
Fiat justitia ruat ooelum (4 Burr.

2562).
Fiotio legis inique operatur alioui

damnum vel injuriam , , . 110
Fiotio legis neminem Isedit . . 108

Portior est oustodia legis quam

hominis (2 Eol. Rep. 825).
Fortior et potentior est dispositio

legis quam hominis . . . 544
Fractionem diei non recipit lex (L.

572) 109

Frater fratri uterino non succedet in

hsereditate patern^ . . . 404
Fraus est celare fraudem (1 Vern.

240).
Fraus est odiosa et non prsesumenda

(Oro. Oar. 550).
Fraus et dolus nemini patrocinari

debent 245

Frequentia actus multum operatur

(4 Eep. 78) (W. 192).
Frustra fit per plura, quod fieri potest

per pauoiora (Jenk. Cent. 61) (W.

177) (G. 161).
Frustra legis auxilium quserit qui in

legem committit . . . 233, 245
Frustra probatur quod probatum non

relevat (H. 50).
Furiosi nulla voluntas est . . 263
Puriosus absentis loco est (D. 50, 17,

124, §1).
Puriosus solo furore punitur . . 263
Furtum non est ubi initium habet

detentionis per dominum rei (3

Inst. 197).

Genebale nihil certi implicat (W.

164).
Generalia specialibus non derogant

(Jenk. Cent. 120) (6) . . . 20
Generalia verba sunt generaliter in-

telligenda 500

Generalibus specialia derogant (H.

51
Generalis clausula non porrigitur ad

ea quse antea specialiter sunt com-

prehensa (8 Rep. 154).

(a) This maxim may properly he applied In tliose
cases only where a witness speaks to a fact with
reference to which he cannot be presumed liable
to mistake; see jje?- Story, J., The Santissima

Trinidad, 1 Wheaton (U.S.), H. 338, 339.

(.6) Cited E. of Derby v. Bunj Impt. Corns., L. E.
4 iEx. 226 1 Kidston V. Empire Tns. Co., L. E. 1
0. P. B46.

Digitized by Microsoft®

LIST OF LEGAL MAXIMS.

XXI

Generalis regula generaliter est intel-
ligenda (6 Eep. 65).

Habemds optimum testem conflten-

tem reum (Post. Or. L. 243) (a).
Hseredi magis paroendum est (D. 31,

1, 47).
Hsereditas nihil aliud est quam

suooessio in universum jus quod

defunctus habuerit (D. 50, 17, 62).
Hsereditas numquam asoendit .
Hseres est aut jure proprietatis aut

jure representationis (3 Bep. 40).
Hseres est nomen juris. Alius est

nomen naturae (Bao. M. reg. 11).
Heeres legitimus est quern nuptias

demonstrant .

401

. 394

479
133

Id certum est quod oertum reddi

potest

Idem est non esse et non apparere .
Id possumus quod de jure possumus

(G. 183).
Id, quod nostrum est, sine facto

nostro ad alium transferri non

potest (D. 50, 17, 11).
Ignorantia eorum quae quis scire

tenetur non excusat
Ignorantia facti excusat ; ignorantia

juris non excusat ;
Ignorantia juris quod quisque scire

tenetur, neminem excusat .
Ignorantia legis neminem excusat 211,

228
Imperitia oulpae adnumeratur (D. 50,

17, 132).
Impossibilium nulla obligatio est
Impotentia excusat legem
In sequali jure melior est conditio

possidentis

In ambiguS, voce legis ea potius

accipienda est significatio quae

vitio caret, praesertim cum etiam

222

210

210

206
203

557

voluntas legis ex hoc oolligi possit

In ambiguis orationibus maxime

sententia spoctanda est ejus, qui

eas protulisset
In Anglia non est interregnum
In casu extremae necessitatis omnia

sunt communia
Incaute factum pro non facto habetur

(D. 28, 4, 1).
Incerta pronullis habentur (G. 191).
Incivile est, nisi totS, sententia

perspecta, de aliqua parte judicare

(G. 194)

In consimili casu, consimile debet

esse remedium (G. 195).
In contractis tacite insunt quae suni

moris et consuetudinis ,
In conventionibus contrahentium

voluntas potius quam verba

speotari placuit ....
In criminalibus sufficit generalis

malitia intentionis cum facto

paris gradrls

In criminalibus voluntas pro facto

non reputabitur ....
Index animi sermo est ,
In disjunctivis sufficit alteram

partem esse veram
In eo, quod plus sit, semper inest et

minus (D. 50, 17, 110).
In favorem vitae libertatis et inno-

centiae omnia praesumuntur (L.

125).
In fictione juris semper sequitas
existit . . . . :
In generalibus latet error.
In judicio non creditur nisi juratis

(Gro. Oar. 64).
In jure omnis deflnitio periculosa est.
In jure non remota causa, sod prox-

ima spectatur . . . 168,
Injuria non excusat injuriam .

PAGL

439,
440

432
36

485

. 656

119

:i64

261
478

. 451

106

179
309

(a) In the various treatises upon the law of
evidence will be found remarks as to the weight
which should be attached to the confession of a
party. Respecting the above maxim, Ld, Stowell
has observed, that, " What is taken p-o confesso is

taken as indubitable truth. The plea of guilty
by the party accused shuts out all further inquiry.
Sabemus confitentem reum is demonstration, unless
indirect motives can be assigned to it." Mm'timer
V. Mortimer, •! Hagg. 315.

Digitized by Microsoft®

XXll

LIST OF LEGAL MAXIMS.

Injuria non praesumitur (Go. Litt.

232 b).
In majore summa continetur minor

(5 Rep. 115).
In malefioiis voluntas, non exitus,

spectatur.
In odium spoliatoris omnia praesu

muntur

In omnibus quidem, maxime tamen

in jure, sequitas spectanda sit (D,

50, 17, 90).
In pari oaus^ possessor potior haber

debet

In pari delicto potior est conditio

defendentis ....
In pari delicto potior est conditio

possidentis .... 230,
In poenalibus causis benignius inter-

pretandum est (D. 50, 17, 155, § 1).
In prsesentia majoris cessat potentia

minoris .....

In stipulationibus cum quseritur quid

actum sit verba contra stipulato-

rem interpretanda sunt .
Intentio cseca mala (2 Bulstr. 179) .
Intentio inservire debet legibus,

non leges intentioni (Oo. Litt.

3U b).
Interest reipublicse ne malefioia rema-

neant impunita (Jenk. Cent. 31).

(W. 140)..
Interest reipublicse suprema homi-

num testamenta rata haberi (Co.

Litt. 236 b).
Interest reipublicK ut sit finis litium 69,
75, 267, 689
Interpretare ot conoordare leges

legibus est optimus interpretandi

modus (8 Eep. 169).
Interpretatio chartarum benigne

facienda est ut res magis valeat

quam pereat ....
In testamentis plenius testatoris

intentionem scrutamur .
In testamentis plenius voluntates

testantium interpretantur
In toto et pars continetur (D. 50, 17,

113).

734

558

561

,561

90

459
467

410

423

433

PAGE

. 547

Invito beneficium non datur
Ita semper fiat relatio ut valeat dispo-
sitio (6 Rep. 76).

Judicium a non suo judice datum
nullius est moment! . . 75

Judicium redditur in invitum (Oo.
Litt. 248 b).

Judicis est judioare secundum alle-
gata et probata (H. 73).

Judicis est jus dicere, non dare (L. 42) .

Jura eodem modo destituuntur quo
constituuntxu? . . . 680

Jura naturae sunt immutabilia . . 99

Jura sanguinis nuUo jure civili dirimi
possunt . . ... 405

Jure naturae aequum est neminem cum
alterius detrimento et injuria fieri
locupletiorem (D. 50, 17, 206).

Jus aocrescendi inter mercatores
locum non habet pro beneficio
commercii 354

Jus constitui oportet in his quae ut
plurimum accidunt, non quae ex
inopinato 30

Jus ex injuria non oritur . . . 578

Jus superveniens auctori accrescit
successori (H. 76).

Leges et coustitutiones futuris

certum est dare formam negotiis . 25
Leges posteriores priores oontrarias

abrogant 18

Le salut du peuple est la supreme

loi 2

Lex aliquando sequitur sequitatem (3

Wils. 119).
Lex Angliae sine parliamento mutari

non potest (2 Inst. 619) . . 24

Lex beueficialis rei consimiU reme-

dium prsestat (2 lust. 689).
Lex citius tolerare vult privatum

damnum quam publicum malum

(Co. Litt. 125). . . 171

Lex neminem cogit ad vana seu

inutilia 210

Digitized by Microsoft®

LIST OF LEGAL MAXIMS.

XXlll

Lex neminem oogit ostendere quod

nescire prsesumitur (L. 569).
Lex nil frustra faoit .... 209
Lex non cogit ad impossibilia . 201

Lex non debit defloere conquerentibus

in justitia exbibenda . . . 153
Lex non favet votis delioatorum 301
Lex non requirit verificari quod

apparet curiEe (9 Rep. 54).
Lex plus laudatur quando ratione

probatur . . . . 129

Lex posterior derogat priori . 19

Lex rejicit superflua, puguantia,
incongrua (Jenk. Cent. 133, 140,
176).
Lex semper dabit remedium . . 153
Lex semper intendit quod convenit

ratloni (Co. Litt. 78 b).
Lex speotat naturae ordinem . . 209
Licet dispositio de interesse futuro sit
inutilis, tameu potest fieri decla-
ratio prasoedens quae sortiatur
efiectum, interventiento novo aotu 382
Licita bene misoentur, formula nisi
juris obstet (Bac. Max. reg. 24) (a).
Linea recta semper prsfertur trans-
versal! 403

Locus regit actum (b).

Majtjs dignum trahit ad se minus

dignum ... . . 142

Mala grammatioa non vitiat chartam 534
Maledicta expositio quae corrumpit

textum ... . 478

Malitia supplet setatem . . . 264
Malus usus est abolendus . . 718

Mandata licita strictam reoipiunt

interpretationem, sed illicitalatam

et extensam (Bac. Max. reg. 16) (c).

Mandatarius terminos sibi positos

transgredi non potest (Jenk. Cent.

53).

Matrimonia debent esse libera (H. 86).

Meliorem oonditionem suam faoere

potest minor, deteriorem nequa-

quam (Co. Litt. 387 b).

Melior est conditio possidentis et rei

quam actoris (4 Inst. 180) . 558, 560
Misera est servitus, ubi jus est vagum

aut incertum . . . . 123

Mobilia sequuntur personam . . 339
Modus de non deoimando non valet

(L. 427).
Blodus et conventio vincunt legem . 537
Modus legem dat donation! . . 357
Mora debitoris non debit esse creditori

damnosa 611

Multa conceduntur per obliquum quae
non conceduntur de directo (6 Rep.
47).
Multa in jure communi, contra ratio-
nem disputandl, pro communi
utilitate introduota sunt . . 125

Natubalb est quidlibet dissolvi eo

modo quo ligatur
Necessitas inducit privilegium quoad

jura privata .
Necessitas publioa major est quam

privata

Necessitas quod cogit, defendit
Nemo agit in seipsum

680

13

11

174

(a) "The law," says Ld. Bacon, "giveth that
favour to lawful acts, that, although they be
executed by several authorities, yet the whole act
is good ; " if, therefore, tenant for life and remain-
dermau join in granting a rent, " this is one solid
rent out of both their estates, and no double rent,
or rent by confiimation : " Bac. Max. reg. 24 ; and
if tenant for life and reversioner join in a Itase for
life reserving rent, this shall enure to the tenant
for life only during his life, and afterwards to the
reversioner. See 1 Crabb, Real Prop. 179.
C&) Cited arg. Hodgson v, Beauchesne, 12 Moo,

L.M.

P. C. C. 308 ; Lloyd v. Guibert, L. E. I Q. B.
115.

(c) A principal is civilly liable for tliose acts
only which are within the scope of the agent's
employment. But if a man incite another to do
an unlawful act, he shall not, in the language of
Ld. Bacon, " excuse himself by circumstances uot
pursued ; " as if he command his servant to rob
I. D. on Shooter's Hill, and he does it on Gad's
Hill i or to kill Lim by poison, and he doth it by
violence : Bac. Mac. reg. 16 ; cited Parlces v. Pres-
cott, h. R. 4 Ex. 169, 1S2.

C

Digitized by Microsoft®

XXIV

LIST OF LEGAL MAXIMS.

Nemo aliquam partem reote intel-
ligere potest antequam totum
perlegit . . ... 452

Nemo allegans turpitudinem suam
est audiendus .... 566

Nemo contra factum suum venire po-
test (2 Inst. 66).

Nemo dat quod non habet . 363, 624

Nemo debet bis puniri pro uno delicto 274

Nemo debet bis vexari, si constat
curiae quod sit pro un£l et e4dem
causci 266

Nemo debet esse judex in propria
causS, 94

Nemo debet looupletari aliena
jactura (a).

Nemo debet looupletari ex alterius
ineommodo (Jenk. Cent. 4).

Nemo de domo su^ extrahi debet 336

Nemo ejusdem tenementi simul
potest esse hseres et dominus (1
Beeves, Hist. Eug. L. 106).

Nemo enim aliquam partem recte in-
telligere possit antequam totum
iterum atque iterum perlegerit . 452

Nemo est hseres viventis . . . 899

Nemo ex alterius facto prsegravari
debet (See 1 Poth., by Evans, 133).

Nemo ex proprio dolo consequitur
actionem 245

Nemo ex suo delicto meliorem suam
conditionem faoere potest (D. 50,
17, 134, § 1) 693

Nemo patriam in qua natus est
exuere neo legeantiae debitum
ejurare possit . . . .61

Nemo plus juris ad alium transferre
potest quam ipse baberet 361, 362, 624

Nemo potest contra reoordum verifi-
care per patriam (2 Inst. 380).

Nemo potest esse simul actor et
judex 95

Nemo potest esse tenens et dominus
(Gilb. Ten. 142).

Nemo potest mutare consilium suum

PAGE

in alterius injuriam . . •24

Nemo praesumitur alienam posteri-
tatem suae prsetulisse (W. 285).

Nemo punitur pro alieno delicto (W.
336).

Nemo sibi esse judex vel suis jus
dicere debet 94

Nemo tenetur ad impossibilia . . 204

Nemo tenetur divinare (4 Eep. 28).

Nemo tenetur seipsum aocusare . 761

Neque leges neque senatus-consulta
ita Bcribi possunt ut omnes, &o. . 30

Nihil aliud potest rex quam quod de
jure potest (11 Bep. 74).

Nihil consensu! tam oontrarium est
quam vis et metus (D. 50, 17, 116).

Nihil in lege intolerabilius est ean-
dem rem diverse jure censeri (4
Rep. 93 a).

Nihil perfeotum est dmn aliquid
restat agendum (9 Bep. 9 b).

NihU praesoribitur nisi quod posside-
tur (5 B. & Aid. 277).

Nihil quod est inconveniens est lici-
tum 150, 289

Nihil simul inventum est et perfeo-
tum (6) (Co. Litt. 230).

Nihil tam conveniens est natural!
sequitati quam unumquodque d!s-
solvi eo ligamine quo ligatum est 679

Nil consensu! tam contrarium est
quam vis atque metus . . . 232

Nil facit error nominis cum de cor-
pore vel persona constat . . 489

Nil tam conveniens est natural!
Kquitati quam voluntatem domini
volentis rem suam in alium trans-
ferre ratam haberi (I. 2, 1, 40).

Nimia subtilitas !n jure reprobatur.

Non aocipi debeut verba in demon-
strationem falsam quae competuut
in limitationem veram . . . 496

Non alitor a significatione verborum
recedi oportet quam cum mani-
f estum est aliud sensisse testatorem 433

(a) Cited by BoviU, C'.J., I'Mclier v. Alexar\Mer,
L. E. 3 C. P. 381.

(6) Applied to a palent, Aig., Re Xewal & Klliot,
* C. B., N. S. 290.

Digitized by Microsoft®

LIST OF LEGAL MAXIMS.

XXV

PAGE

Non dat qui non habet . . . 363
Non debeo melioris conditionis esse,

quam auotor meus, a quo jus in me

transit (D. 50, 17, 175, § 1).
Non debet alteri per alterum iniqua

conditio inferri (D. 50, 17, 74).
Non debet, cui plus licet, quod minus

est non lioere .... 142

Non deoipitur qui scit se decipi (5

Bep. 6).
Non dubitatur, etsi specialiter ven-
ditor evictionem non promiserit,

re eviota, ex empto competere

actionem 605

Non est novum ut priores leges ad

posteriores trahantur . . .19
Non ex opiniouibus singulorum sed

ex communi usu nomina exaudiri

debent (D. 3, 10, 7, § 2).
Non impedit clausula derogatoria

quo minus ab eS.dem potestate res

dissolvantur a qua constituuntur . 19
Non in tabulis est jus (10 East, 69).
Non omnium quss a majoribus

nostris constituta sunt ratio reddi

potest 127

Non possessor! incumbit neoessitas

probandi possessiones ad se perti-

nere 558

Non potest adduci exceptio ejusdem

rei oujus petitur dissolutio . . 133
Non potest probari quod probatum

non relevat (a).
Non potest rex gratiam faoere cum

injuria et damno aliorum . . 50
Non potest videri desisse habere,

qui nunquam habuit (D. 50, 17,

208).
Non quod dictum est, sed quod

factum est, in jure inspicitur (Co.

Litt. 36 a) (6).
Non quod voluit testator, sed quod

dixit, iu testamento inspicitur . 424
Non solent quae abundant vitiare

PAGE

soripturas 481

Non videntur qui errant consentire . 217
Non videtur oonsensum retinuisse si

quis ex prsescriptominantis aliquid

immutavit . . . '. 232

Non videtur quisquam id capere,

quod ei neoesse est alii restituere

(D. 50, 17, 51).
Nosoitur a sociis .... 447
Nova constitutio futuris f ormam im-

ponere debet, non praeteritis . 24

Novatio non prsesumitur (H. 109).
Novum judicium non dat novum jus

sed deolarat antiquum (10 Rep. 42).
Nudi consensus obligatio contrario

consensu dissolvitur . . . 685
Nul prendra advantage de son tort

demesne 240

Nulla, pactione effici potest ut dolus

preestetur ... . 543

Nullum simile est idem (G. 467) (c).
Nullum tempus oocurrit regi . . 53
NuHus commodum capere potest de

injuria sua propria . . 137, 231, 233
Nullus videtur dolo facere qui suo

jure utitur 103

Nunquam crescit ex post facto pree-

teriti delicti aestimatio . . .29
Nuptias non concubitus, sed consen-
sus, faoit 386

Omnb jus aut consensus facit aut
necessitas constituit aut firmavit
consuetude 538

Omne majus continet in se minus . 141

Omne quod solo insediflcatur solo
cedit 314

Omne testamentum morte consum-
matum est 385

Omnes licentiam habent his, quae
pro se indulta sunt, renunciare ■ 547

Omnia praesumuntur contra spoliato-
rem ...... 733

(a) See A.-G. v. Sitclicock, 1 Exch. 91, 92, 102.

(&) Cited Wliile v. Trustees of British Museum, 6
Bing. 319 i Hott V. Genge, 3 Curt. 175 ; Croft v.
LuviUy, 6 U. L. Cas. 722, per Martin, B.

(c) Cited 2 Bla. Com., 2Ist ed., 162; Co. Litt. 3
a. ; Arg., 1 M. h S. 172; per BuUer, J., 3 T. R.
664. See, per Kniglit Bruce, L.J., Boyse v. Boss-
borough, 3 De S. M. & S. 846.

Digitized by Microsoft®

XXVI

LIST OF LEGAL MAXIMS.

Omnia prsesmnuntur rite et solen-

niter esse acta doneo probetur in

oontrarium . . . 133, 737, 739
Omnia quae jure contrahuntur, con-

trario jure pereunt (D. 50, 17,

100).
Omnia quae sunt uxoris sunt ipsius

viri (Co. Litt. 112 a).
Omnibus poenalibus judioiis et aetati

et imprudentiae suocuritur . 263

Omnia innovatio plus novitate per-

turbat quam utilitate prodest . 121
Omnis ratihabitio retrotrabitur et

mandate priori aequiparatur . 672
Omnium oontributione saroiatur

quod pro omnibus datum est (4

Bing. 121).
Optima est legis interpres consuetudo 726
Optima est lex quae minimum relin-

quit arbitrio judicis, optimus judex

qui minimum sibi . . . .68
Optimus interpres rerum usus . 714

Optimus legis interpres consuetudo 532
Origiae propria neminemposse volun-

tate sua eximi manifestum est . 63

Pacta conventa quse neque contra
leges neque dole malo inita sunt
omnimodo observanda sunt . . 545

Pacta dant legem contractui (H.
118).

Pacta qu£e contra leges constitu-
tionesque vel contra bonos mores
fiunt, nuUam vim habere, indubi-
tati juris est . . . 541

Pacta quae turpem oausam continent
non sunt observanda . . 571

Paotis privatorum juri publico non
derogatur . . 541

Par in parem imperium non habet
(Jenk. Cent. 174).

Partus sequitur ventrem . . . 395

Pater est quern nuptiae demonstrant 395

Perpetua lex est nullam legem buma-
nam ac positivam perpetuam esse,
et clausula quae abrogationem ex-
oludit ab initio non valet . 19

405

578
178

279

544

541

13

Persona oonjuncta aequiparatur in-

teresse proprio ....
Potestas suprema seipsam dissolvere

potest, ligare non potest (Bac.

Max. reg. 19).
Potior est conditio defendentis
Potior est conditio possidentis .
Praesentia corporis tollit errorem

nominis ; et Veritas uominis tollit

errorem demonstrationis . 491, 493
Prassumptio violenta valet in lege

(Jeuk. Gent. 56).
Prior tempore, potior jure
Privatis pactionibus non dubium est

non laedi jus cseterorum
Privatorum conventio juri publico

non derogat .
Privatum incommodum publico bono

pensatur ....

Privilegium non valet contra rem

publicam
Probandi necessitas incumbit illi qui

agit (I. 2, 20, 4).
Protectio trahit subjeotionem, et

subjectio proteotionem . 64

QuiE ab initio inutilis fuit institutio,
ex post facto convalescore non
potest (D. 50, 17, 210).

Qu» accessionum locum obtinent
extinguuntur cum principales res
peremptae fuerint .... 381

Quae dubitationis toUendae causS,
contraotibus inseruutur, jus com-
mune non laedunt (D. 50, 17, 81).

Quae in curia regis acta sunt rite
agi prassumuntur (3 Bulstr. 43).

Quae in testamento ita sunt scripta,
ut intelligi non possint, perinde
sunt ao si scripta non essent (D.
50, 17, 73, § 3.).

Quae legi communi derogant stricto
interpretantur (Jenk. Cent. 29).

QuaeUbet concessio fortissime contra
donatorem interpretanda est (Go.
Litt. 183 a).

Quae non valeant singula juncta ju-
vant . . ... 447

Digitized by Microsoft®

LIST OF LEGAL MAXIMS.

XXVll

Quando abest provisio partis, adest

provisio legis (cited 13 C. B.

960).
Quando aliquid mandatur, maudatur

et omne per quod pervenitui ad

illud 371

Quando aliquid proliibetur, prohi-

betur et omne per quod devenitur

ad illud 374

Quando duo jura in unit person^

concurrunt sequum est ao si essent

in diversis 404

Quando jus domini regis et subditi

concurrunt, jus regis prseferri debet 55
Quando lex aliquid alioui oonoedit,

conceditur et id sine quo res ipsa

esse non potest .... 372
Quando lex est specialls, ratio autem

generalis, generaliter lex est intel-

ligenda (2 Inst. 83).
Quando plus fit quam fieri debet,

videtur etiam iUud fieri quod

faciendum est .... 143
Quando res non valet ut ago, valeat

quantum valere potest . . 412, 413
Quicquid demonstratae rei additur

satis demonstratae frustra est . 485
Quicquid plantatur solo solo cedit . 314
Quicquid solvitur solvitur secundum

modum solventis : quicquid reoipi-

tur, recipitnr secundum modum

recipieutis 632

Qui cum alio contrahit, vel est, vel

debet esse, non ignarus conditionis

ejus (D. 50, 17, 19).
Qui doit iuheriter al pSre doit in-

heriter al fitz . . . . 396

Qui ex damnato coitu nascuntur

inter liberos non computentur . 397
Qui facit per alium facit per se 44, 639
Qui hseret in liters haeret in cortioe . 533
Qui in jus dominiumve alterius suc-

cedit jure ejus uti debet . 364, 366
Qui jure suo utitur neminem laedit . 302
Qui jusso judicis aliquod fecerit non

videtur dolo malo feoisse, quia

parere neoesse est . . . .75
Quilibet potest renunoiare juri pro se

introduoto 545

Qui non habet in sere luat in corpore

(2 Inst. 172).
Qui non prohibet quod prohibere

potest assentire videtur (2 Inst.

305) (a).
Qui per alium facit per seipsum

facers videtur . . .44, 639

Qui prior est tempore, potior est

jure 278

Qui rationem in omnibus quserunt

rationem subvertunt . . . 127
Qui sentit oommodum sentire debet

et onus 551

Qui sentit onus sentire debet et oom-
modum 556

Qui taeet oonsentire videtur . . 114
Qui vult decipi decipiatur . . 618

Quod a quoquo poense nomine exac-

tum est id eidem resituere nemo

cogitur (D. 50, 17, 46).
Quod ab initio non valet in tractu

temporis non oonvalescit . . 144
Quod approbo non reprobo . . 556
Quod sedificatur in area legate cedit

legato 329

Quod contra legem lit, pro infecto

babetur (G. 405).
Quod contra rationem juris receptum

est, non est produceudum ad con-

sequentias (D. 50, 17, 141) (b). . 128
Quod fieri debet facile prsesumitur

(H. 153).
Quod fieri non debet factum valet

147, 148, 245
Quod meum est sine faoto meo vel

defectu meo amitti vel in alium

transferri non potest . . . 359
Quod non apparet non est . . 132
Quod non habet principium non

habet finem 146

Quod nuUius est, est domini regis . 278

(a) Cited per Parke, B., Morgan
Excb. 304 : Bee also 1 Bl. Com. 430.

TliomaSf 8

(&) See Louisville B,
(U.S.), R. 623.

Litson, 2 Howard

Digitized by Microsoft®

xxvm

LIST OF LEGAL MAXIMS.

Quod nullius est id ratione natural!
oooupanti oonceditur . . . 278

Quod remedio destituitur ipsS, re
valet si culpa absit . . . 175

Quod semel aut bis exiatit prsetereunt
legislatores 33

Quod semel meum est amplius meum
esse non potest .... 359

Quod semel plaouit in eleotionibus
displicere non potest . . 391, 619

Quod subintelligitur non deest (2 Ld.
Eaym. 832).

Quod vero contra rationem juris re-
ceptum est, non est producendum
ad consequentias .... 128

Quotiens dubia interpretatio liber-
tatis est, secundum libertatem
respondendum est (D. 50, 17, 20).

Quotiens idem sermo duas sententias
exprimit : ea potissimum exoipia-
tur, quEe rei generandse aptior est
(D. 50, 17, 67).

Quoties in stipulationibus ambigua
oratio est, oommodissimum est id
aocipi quo res de quS, agitur in tuto
sit (D. 41, 1, 80, and 50, 16, 219).

Quoties in verbis nulla est ambi-
guitas, ibi nulla expositio contra
verba fienda est . . . . 474

Quum principalis causa non oonsistit,
ne ea quidem quae sequuntur locum
babent 381

Ratihaeitio mandate comparatur . 672
Eeceditur a placitis juris potius quam
injurise et deliota maneant im-

punita 8

Recipitur in modo reoipientis . 632

Eegula est, juris quidem ignorantiam
cuique nooere, facti vero ignoran-
tiam non nocere .... 210
Remote impedimento emergit actio

(W. 20).
Bes acoesBoria sequitur rem prinoipa-

lem 376

Res inter alios acta alteri nocere non

debet 271, 748

Ees ipsa loquitur .... 253
Res judicata pro veritate accipitur

266, 740
Resoluto jure oonoedentis resolvitur

jus conoessum .... 361
Res perit suo domino . . 199, 611
Respondeat superior . . .44, 656
Rea sua nemini servit {a).
Rex non debet esse sub homine sed

sub Deo et lege . . .34, 94
Rex non potest fallere nee falli (Q-.

438).
Rex non potest gratiam facere cum

injuria et damno aliorum . . 50
Rex non potest peccare . . .39
Rex nunquam moritur . . 36

Rex quod est injustum facere non

potest 39

Roy n'est lie per ascun statute, si il

ne soit expressement nosme . . 58

Situs populi suprema lex . . 1, 151
Salus reipublicae suprema lex . . 289
Scientia utrinque par pares contra-

hentes faoit.
Soribere est agere .... 761
Secundum naturam est, commoda
cujusque rei eum sequi, quem sequ-
untur incommoda (D. 50, 17, 10).
Seisina facit stipitem . . . 402
Semper in dubiis benigniora pra

ferenda (6).
Semper in obsouria, quod minimum

est sequimur 534

Semper praesumitur pro negante (c) 388
Semper pro legitimatione prae-
sumitur.

(a) Cited by Ld. Wenaleydale, Baird v. Fortune,
4 Macq. Sc. App. Cas. 151.

(6) See Ditcher v. Denison, 11 Moo. P. C. C.
343.

(c) See Iteg. v. Millis, 10 CI. & Fin. 634 (cited

post), where this maxim was applied; A.-O. v.
Bean of Windsor, 8 H. L. Cas. 392 ; Baker v. Lee,
Id. 512 ; Beamish v. Beamish, 9 H. L. Oag. 2V4,
338 ; per Ld. Campbell, Dansey v. Richardson, 3
E. & B. 723.

Digitized by Microsoft®

LIST OP LEGAL MAXIMS.

XXIX

Semper specialia generalibus insunt

(D. 50, 17, 147).
Sententia contra matrimonium nun-

quam transit in rem judioatam (7

Eep. 43).
Sententia interlooutoria revocari

potest, definitiva non potest (Bao.

Max. reg. 20).
Si aes pro auro veneat, non valet . 614
Sic utere tuo ut alienum non Isedas . 289
Simplex oommendatio non obligat

617, 621
Si quidem in nomine, cognomine,

praenomine legatarii testator

erraverit, cum de personS, constat,

nihilominns valet legatum . . 498
Si quid universitati debetur singulis

non debetur nee quod debet univer-

sitas singuli debent (D. 3, 4, 7,

1) (a).
Sive tota res evinoatur, sive pars,

habet regressum emptor in vendi-

torem 605

Socii mei socius, meus socius non

est (D. 50, 17, 47).
Solutio pretii emptionis loco habetur

(Jenk. Cent. 56).
Solvitur in modo solventis . . 632
Specialia generalibus derogant (6).
Spoliatus debet ante omnia restitui (2

Inst. 714) (c).
Stabit praesumptio donee probetur in

contrarium (4 Eep. 71 b) . . 743
Statutum affirmativum non derogat

communi legi (Jenk. Cent. 24).
Stipulator! liberum est verba late

ooncipere 459

Sublato principali'toUitur adjunctum 146

PAGE

Sum ma ratio est quse pro religione
faoit 13

Summum jus, summa injuria (Hob.
125) (G. 464).

Super falso et certo fingitur , . 106

Surplusagium non nocet . . . 481

Talis interpretatio semper fienda

est, ut evitetur absurdum et incon-

veniens, et ne judicium sit illu-

sorium (1 Eep. 52).

Tenor est qui legem dat feudo . . 357

Traditio loqui faoit cbartam (5 Eep.

1) (d).
Transit terra cum onere . . 379, 551
Tutius semper est errare in acqui-
tando quam in puniendo, &c . . 266

Ubi aliquid oonceditur, conceditur et

id sine quo res ipsa esse non potest 367
Ubi oessat remedium ordinarium ibi
decurritur ad extraordinarium et
nunquam decurritur ad extraordi-
narium ubi valet ordinarium
(G. 491).
Ubi damna dantur, victus victori in
expensis condemnari debet (2 Inst.
289) (e).
Ubi eadem est ratio eadem est lex . 125
Ubi eadem ratio ibi idem jus . . 125
Ubi jus ibi remedium . . . 153
Ubi nullum matrimonium ibi nulla

dos (Co. Litt. 32).
Ubi quid generalitur conceditur inest
haeo exceptio si non aliquid sit
contra jus fasque .... 582

(a) See 1 Bla. Com., 2l8t ed., 484.

(6) See Kiditon v. Empire Ins Co., L. E. 1 C. P.
546 ; Earl of Kintore v. Lord Inwrary, 4 Macq. Sc.
App. Ca8. 522.

(c) See 4 Bla. Com., 21st ed., 363 ; Borwood v.
Smith, 2 T. B. 753.

(d) See to tliis maxim, Goddard's case, 2 Eep.
4 ; per Bayley, J., Styles v. Wardle, 4 B. & C. 9H i
per Patteson, J., Browne v. Burton, 11 L. J, Q. B.
50 ; citing Clayton's ease, 5 Eep. T, and recognising

Steele v. Mart, 4 B. & C, 2Y2, 279 ; Tupper v.
Foulkes, 6 C. B., N. S. 797. See, also, Shaw v.
Kay, 1 Exch, 412; per Jarvis, C. J., Davis v.
Jones, 17 C. B. 634 ; Cumberlege v. Lawson, I C
B., N. S. 709, 720 ; Xenos v. Wiclcham, 14 C. B.,'
N. S. 435; S. a, 33 Id. 386, L. E. 2 H. L. 296;
Kidner v. Keith, 15 C. B., N. S. 35.

(e) 3 Bla. Com., 21st ed., 399 ; cited by Tindal,
C. J., 1 Biug., N. C. 622. This maxim is taken
from the Roman law, see C, 3, 1, 13, } 6.

Digitized by Microsoft®

XXX

LIST OF LEGAL JIAXIMS.

Ubi verba oonjuncta non sunt suffioit

alterutrum esse factum (D. 50, 17,

110, §3). . . .
Ultima voluntas testatoris est per-

implenda secundum veram inten-

tionem suam

Unumquodque dissolvitur eodem

ligamine quo ligatur
Unumquodque eodem modo quo ool-

ligatum est dissolvitur .
Usuoapio Gonstituta est ut aliquis

litium finis esset.
Ut res magis valeat quam pereat
Utile per inutile non vitiatur .
Uxor non est sui juris sed sub potes-

tate viri (3 Inst. 108).

Yani timores sunt aestimandi qui non

cadunt in constantem virum (7

Eep. 27).
Vani timoris justa exousatio non est.
Verba accipienda sunt secundum sub-

jectam materiem (6 Rep. 62).
Verba chartarum fortius accipiuntur

contra proferentem
Verba cum effectu accipienda sunt

(Bac. Max. reg. 3).
Verba generalia restriuguntur ad

habilitatem rei vel personam
Verba illata inesse videntur

. 451

481

682

679

410
481

453

499
523

Verba intentioni, non e contra,

debent inservire .... 410
Verba ita sunt intelligenda ut res

magis valeat quam pereat (Bac.
Max. reg. 3).
Verba posteriora propter oertitu-

dinem addita ad priora quae certitu-

dine indigent sunt referenda . . 446
Verba relata hoc maxime operantur

per referentiam ut in eis inesse

videntur (Co. Litt. 359) . . .521
Verborum obligatio verbis tollitur . 685
Veritas est justitise mater.
Veritas nominis tollit errorem

demoustrationis . . . 491, 493
Via trita via tuta . . . Ill

Vicarius non habet vicarium . . 653
Vigilantibus et non dormientibus

jura subveniunt . . .52, 688
Volenti non fit injuria . . 223

Voluntas donatoris, in cbarta doni

sui manifeste expressa, observetur

(Co. Litt. 21 a).
Voluntas facit quod in testamento

scriptum valeat (D. 30, 1, 12, § 3).
Voluntas testatoris est ambulatoria

usque ad extremum vitse exitum

(4 Rep. 61 b) . . . . 385

Vox emissa volat — litera soripta

manet 517

Digitized by Microsoft®

TABLE OF CASES.

AARON'S Reef v. Twiss, 620
Abbott V. Middleton, 432

V. Minister for Lands, 28

Abley v. Dale, 76, 92
Abrahams v. Deakin, 663
Abrath v. N. E. R. Co., 85
Abrey v. Crux, 683

Absor i\ French, 2
Acebal v. Levy, 473
Acey V. Fernie, 643
Ackerley v. Parkinson, 72
Ackroyii v. Smith, 358
Acton V. Blundell, 279, 300
Adam v. Brit. & P. SS. Co., 706
Adams v. Andrews, 685

V. Lane. & Y. R. Co., 225

V. Lloyd, 761

V. Royal JI. S. Pkt. Co.,

204

V. Steer, 413

V. Wordley, 683

Adamson (re), 127

V. .Jarvis, 568

Addison v. Gandasequi, 643
Aga K. Mahomed v. Reg., 340
Agacio V. Forbes, 642
Agar v. Athenaeum Life Ass. Soc,

504
Agius V. G. W. Coll. Co., 188
Agnew V. Jobson, 77
Aheam v. Belman, 123
Aiken v. Short, 67, 216
Ainslie (re), 316
Ainsworth v. Creeke, 677
Aislabie v. Rice, 198
Airey (re), 739
Aitkenhead v. Blades, 250
Aktieselkab Helios v. Ekman, 514
Alabaster v. Harness, 574
Albert v. Grosvenor Inv. C, 681
Albon V. Pike, 514

Albreoht v. Sussman, 63
Alcook (ex p.), 114

■ V. Cooke, 42

Alder v. Boyle, 456
Alderman v. Neate, 415
Alderson v. Davenport, 652
Aldis V. Mason, 481
Aldous V. Cornwell, 126
Aldi-ed's case, 158, 302
Aldridge v. G. W. R. Co., 290

V. Johnson, 236

Alexander v. Alexander, 423
Alhambra (The), 475, 721
Allan V. Waterhouse, 654

V. Lake, 617

Allaway v. Wagstaff, 309
Allcard v. "Wallcer, 210
Allcock V. Hall, 89
Allen V. House, 482

V. Dundas, 450

V. Flood, 86, 156, 157, 158

V. Hay ward, 669

V. Hopkins, 622

V. Maddock, 525

V. Pink, 684

V. Rescous, 571

AUeyne v. Reg., 104
AUhusen v. Brooking, 25
Allinson v. Gen. C. of Med. Educ,

97
Allum V. Boultbee, 118
Allwood V. Heywood, 376
Alner v. George, 67
Alsager v. Close, 83
Alston V. Grant, 301

V. Herring, 309

V. Scales, 5

Altham's case, 83

Alton Woods (Case of), 41, 51

V. Mid. R. Co., 589

Altrincham Union v. Cheshire

Lines, 7, 19
Amalia (The), 506

Digitized by Microsoft®

xxxu

TABLE OF CASES.

Ambergate, N. & B. E. Co. v. Mid.

R. Co., 249
Ambrose v. Kerrison, 406
American Must Co. v. Hendry, 339
Ames V. Waterlow, 233
Amies v. Stevens, 199
Amos V. Smith, 579
Aneona v. Marks, 673
Anderson v. Anderson, 453, 502

V. Berkley, 490

V. Callenson, 750

V. Fitzgerald, 295, 457

V. Gorrie, 71

V. Lanerwille, 399

V. Eadcliff, 574

Andree v. rietcher, 561
Andrews v. Elliott, 112, 135

V. Harris, 73, 75

V. Mookford, 189, 620

V. St. Olave B. of W. , 596

Anglo-American Oil Co. v. Man-
ning, 664

Anglo-Egyptian Co. v. Rennie,

197
Angus V. Clifford, 621

V. Dalton, 100, 293

Annesley v. Anglesea (Earl of),

735
Annot Lyle (The), 253
Anon. (Aleyn, 92), 105

(Cro. Eliz. 68), 633

(2 Falk. 519), 113

(6 Mod. 105), 340

(1 Lev. 68), 105

(Loffl. 442), 4

(1 Salk. 396), 95

Ansell V. Ansell, 28
Anstee v. Nelms, 492
Anthony v. Haney, 252
Apollo (The), 664
Apothecaries Co. v. Jones, 17
Appleby v. Franklin, 173

• V. Myers, 195, 197, 199

Apps V. Day, 118

Archer v. James, 436

Arden v. Goodacre, 245

Arkwi-ight v. Gell, 299

Arlett V. Ellis, 342

Arlington (Ld.) v. Merrick, 500

Armory v. Delamirie, 558, 733

Armstrong's Trusts (re), 280, 382

Armstrong (re), 129

V. Armstrong, 577

V. Burnett, 555

V. Normandy, 748

V. Stokes, 640

Arnison v. Smith,^622

Arnold (re), 609

V. Holbrook, 2

Arthur v. Barton, 651

V. Maokinnon, 119

Ash V. Abdy, 435

V. Daunay, 250

Ashby V. White, 119, 125, 154,
• 155, 162

Asher v. Whitlock, 558
Ashford v. Thornton, 680
Ashforth v. Bedford, 85
Ashmole v. Wainwright, 228
Ashton V. Sherman, 643
Ashworth v. Heyworth, 876
Aspden v. Seddon, 553
Aspdin V. Austin, 416, 505
Assheton Smith v. Owen, 533
Assop V. Yates, 291
Astbury (ex p.), 330
Astley V. Reynolds, 228
Aston V. Heaven, 199
Atkins V. Banwell, 591, 596

V. HiU, 597

V. Kilby, 79

Atkinson v. Denby, 213, 230, 565

V. Fell, 514

V. Newcastle Water-

works Co., 174

V. Ritchie, 204

V. Stephens, 601

Att.-Gen. v. Beech, 3, 375

V. Bradbury, 435

■ V. Brazenose Coll., 725

V. Briant, 2

V. Brighton Co., 300

V. Bristol W. Co., 28

■;;. Chelsea W. Co., 23,

445

V. Clerc, 482

V. Conduit Coll. Co.,

161, 294

V. Donaldson, 58

V. Drummond, 726

V. Ewelme Hosp., 235

V. Forster, 530

v. Hertford (Marq. of),

29

V. HoUingworth, 577

V. Horner, 4

V. Jackson, 32

V. Kent, 108

V. Kbhler, 39

V. Lam.plough, 22

V. Leonard, 57

V. Lockwood, 21, 439

V. Marlborough (Duke

of), 150,1317

Digitized by Microsoft®

TABLE OP CASES.

XXXIU

Att.-Gen, v. Mathiaa, 715

V. Metropolitan E., 162

V. Lord Middleton, 3

V. Newcastle, 45

V. Parker, 529, 726

V. Eadloff, 60

V. Eiokmond (Duke),

375

V. Kochester, 532

V. ShiUibeer, 528

V. Sidney Sussex Coll.,

532

V. Sillem, 27, 436, 514,

530

V. Theobald, 29

V. Tod-Heatley, 259

V. TomUne, 3

V. Trueman, 57

V. Walmsley, 57

V. Windsor (Dean of),

733

V. Wright, 719

for Brit. Honduras v.

Bristowe, 52

for N. S. Wales v.

Curator of Intestates
Estates, 61

for N. S. Wales v.

Macpherson, 483

for Strait Settlements

V. Wemyss, 47

for Trinidad v. Eriohe,

700

Attack V. BramweU, 339
Attenborough (re), 366
Attwood V. Small, 503, 574, 608
Aubert v. Walsh, 562
Auchterarder Presbytery v. Lord

Kinnoul, 240
Audley's (Ld.) case, 407
Aulton V. Atkins, 178
Austiu V. Chambers, 315

-0. G. W. B. Co., 306

V. Holmes, 122

Avery v. Bowden, 207, 208, 738
Aveson v. Kionaird (Ld.), 750
Awde V. Dixon, 362

AjTr Harbour v. Oswald, 551
Az6mar v. Casella, 512

B.

Babcock v. Montgomery County

Mutual Ins. Co., 179
Backhouse v. Bonomi, 294
Baddeley v. Granville, 226

Badische Fabrik v. Johnson, 81
Bagg's case, 91
Baggett V. Meux, 353
Bagnali v. L. & N. W. E. Co., 289,

292
Bagot V. Bagot, 316

(Ld.) V. Williams, 267

Bagshaw v. Goward, 249
Bailey v. Barnes, 281

V. Bidwell, 593, 630

V. De Crespigny, 102, 195,

208, 360

V. Edwards, 550

V. Harris, 579

V. Stephens, 358, 718

Baily v. Clark, 299

Bain v. PothergiU, 118, 124

V. Whitehaven & F. Junct.

E. Co., 399

Bainbridge v. Postmaster-Gen.,
47, 670

V. Wade, 477

Baines v. Ewing, 647
Baird v. Fortune, 477

V. Tunbridge Wells, 92

V. Williamson, 294, 295

Baker v. Bolton, 711

V. Cave, 655, 746

V. Hedgecock, 580

V. Holtzaffel, 194

V. Sebright, 317

V. Snell, 170, 307

• V. Tucker, 411

Balfe V. West, 585
Ball (ex p.), 172, 173
Ballantyne v. Maekinnon, 751
Ballard v. Tomlinson, 300
Balme (goods of), 525
Bamford v. Turnley, 301
Bandon (Earl of) v. Beecher,

267
Bandy v. Cartwright, 607
Bane v. Methven, 371
Bank of Brit. N. America v.
Cuvillier, 499

of England v. Anderson,

530

of Louisiana v. First Nat.

Bank of N. Orleans, 243

of N. S. Wales v. Ouston,

663

of N. Zealand v. Simpson,

84, 473

■ of U. S. V. Owens, 571

Bankart v. Bowers, 603
Banks v. Newton, 244
Banner v. Berridge, 84

Digitized by Microsoft®

XXXIV

TABLE OF CASES.

Bannister v. Hyde, 340
Banwen Iron Co. v. Barnett, 144
Barber v. Butcher, 481

V. Lesiter, 85

V. Pott, 643

Barclay v. Pearson, 565, 567

& Co. V. Poole, 283

Baring v. Christie, 529
Barker (re), 524

V. Allan, 522

1'. Greenwood, 640

(re) V. Highley, 651

V. St. Quintin, 681

V. Stead, 648

Barkworth v. Ellerman, 590

V. Young, 198

Barlow v. Teal, 537
Barnardiston v. Soame, 135
Barnes v. Braithwaite, 67
V. Glenton, 691

V. Keane, 746

V. Lucas, 735

V. Vincent, 508

V. "Ward, 224

Barnett v. Earl of Guildford, 109

V. Lambert, 647, 648

Barnett's Trusts (re), 399
Barraclough v. Brown, 174
Barrett v. Bedford (Duke of), 538

V. Stockton & D. B. Co.,

461

Barrick v. Buba, 63
Barrington (re), 317
Barrington's case, 6
Barronet (re), 222
Barry v. Arnaud, 73

V. Croskey, 188

• V. Eobinson, 701

Barrs v. Jackson, 272, 750
Bartlett v. Baker, 300
-u. Kirwood, 92

v. Eamsden, 107

V. Rendle, 143

V. Smith, 88

V. Viner, 579

V. Wells, 543

Barton v. Dawes, 523

V. Fitzgerald, 440

V. Muvc, 69

V. Taylor, 374

Regis. U. V. Liverpool

Overseers, 26

Bartonshill Coal Co. v. Eeid, 666
Barwick v. English J. S. Banlr,

663
Basebe v, Matthews, 85
Baskerville's case, 54

Bastable v. Poole, 642
Batchelor v. Fortescue, 225
Bateman v. Bailey, 760

V. Faber, 543

V. Poplar D. B., 175

Baten's case, 310

Bathurst Borough ?;. Macpherson,
167

V. Errington, 432

Bath's (Earl of) case, 476
Batthyany v. Walford, 700, 713
Battishill v. Eeed, 310
Baxendalei;. G. W. E. Co., 67, 461
Baxter v. Burfield, 698

■ V. Faulam, 120

Bayley v. Merrel, 617

V. Manch. &c., E. Co., 662

V. Wilkins, 724

■u.Wolverh,W.Co.,291,305

Bayliffe v. Butterworth, 724
Baylis v. Att.-Gen., 466

V. Laurence, 87

V. Le Gros, 417

V. Strickland, 75

Baynei). Walker, 193, 199
Baynes v. Lloyd, 504, 606
Bazeley v. Forder, 406
Beale v. Sanders, 604
Bealey v. Stuart, 416, 603
Beamish v. Beamish, 387, 388
Beard v. Egerton, 42, 421

V. Hall, 581

V. L. G. 0., 663

Beardman v. Wilson, 360
Beardsley v. Beardsley, 750
Beauchamp v. Winn, 218

B eaudry v . Montreal (My r. , of) , 1 1 5
Beaufort (Duke of) v. Swansea

(Mayor of), 725, 726
Beaumont v. Brengeri, 16

V. Field, 488

V. Reeve, 592

Beaurain v. Scott, 73
Beavan v. Delahay, 323
Becher v. G. E. E. Co., 589
Beck V. Eebow, 323
Beckh V. Page, 528
Beckham v. Drake, 365, 698, 699
Bective v. Hodgson, 381
Beddall v. Maitland, 343
Beechey v. Brown, 390

Beer v. Beer, 416

V. Santer, 528

Begbie v. Levi, 17
Behn v. Burness, 419
Belcher v. Samboume, 564
Belfour v. Weston, 193

Digitized by Microsoft®

TABLE OF CASES.

XXXV

Bell V. Balls, 689

V. Gai-diner, 214

V. Graham, 387

V. Mid. E. Co., 210, 310

c. Morrison, 689

V. Oakley, 78

Bellamy v. Majoribanks, 721
Bellairs v. Tucker, 620
BeUcairn (The), 271
Benoe v. Shearman, 638
Benjamin v. Storr, 166
Bennett v. Bays, 657

V. Ireland, 194

Bennison v. Cartwright, 303
Benson v. Paull, 540
Bentick (re), 56

Bentley v. Vilmont, 626
Bentsen v. Taylor, 419
Berdan v. Greenwood, 69
Berdoe v. Spittle, 534
Beresford v. Geddes, 114
Bermondsey V. v. Eamsey, 269
Bernina (The), 169
Bernstein v. Bernstein, 223
Berriman v. Peacock, 318
Berwick v. Horsfall, 83

(Myr. of) V. Oswald, 208

500

Besant v. Cross, 465
Bessell v. Wilson, 93
Beswick v. Swindels, 205
Bethell (re), 386
Betjemann v. Betjemann, 693
Betterbee v. Davis, 141
Bettini v. Gye, 196
Betts V. Armisted, 258
Betts V. Gibbins, 568

V. Menzies, 421

V. Walker, 522

Betty (re), 553
Bevans v. Eees, 141
Bewick v. Wintfield, 317
Beyfus & M.'s Contract (re), 610
Bickerton v. Burrell, 244, 458

V. Walker, 565

Biddulph V. Lees, 477
Bif&n V. Torke, 439
Bigge V. Parkinson, 512, 615
Bignold V. Springfield, 534
Bilbie v. Lumley, 212
Binnington v. Wallis, 592
Birch (re), 741
Bird V. Brown, 677

V. Holbrook, 224

Birkenhead Docks Trustees v.

Laird, 19
Birkett v. Morris, 165

Birkett v. Whitehaven Junction

E. Co., 306
Birks V. Allison, 434
Birmingham Bank v. Eoss, 371
Birrell v. Dryer, 722
Birt V. Boutinez, 395
Birtwhistle v. Vardhill, 397
Bishop's Case (The), 22
Bishop V. Curtis, 360

V. Elliott, 333, 335, 447

V. Pentland, 180

Bize V. Dickason, 213, 228
Black V. Christohurch Co., 192

V. Smith, 141

V. Williams, 284

Blackmore v. White, 712
Blackwell v. England, 411
Blades v. Higgs, 252, 279, 343
Blaiberg {ex p.), 285
Blake's case, 681, 682

• Trusts (re), 490

Blake v. Foster, 149

V. Midi. E. Co., 706

Blakemore v. Bristol & E. E. Co.,

745

V. Glamorg. Canal Co.,

461, 462
Blakesley v. Whieldon, 368
Blamford v. Blamford, 423
Bland v. Crowley, 412
Blayne v. Gold, 494
Blewett V. Jenkins, 717
Blight V. Page, 205
Block V. Bell, 458
Blofield V. Payne, 164
Blow V. Eussell, 141
Bloxsome v. Williams, 16
Bluck V. Siddaway, 590
Bluett V. Tregonning, 715
Blundell v. Gladstone, 489
Blyth V. Birmingh. W. Co., 291

V. Dennett, 139

V. Fladgate, 700

Boast V. Firth, 196
Boden v. French, 473
Boddington (re), 468, 494
Bodenham v. Purchas, 636
Bodfield V. Padmore, 217
Bodger v. Arch, 579, 703
Boileau v. Eutlin, 749, 752
Bolokow V. Seymour, 85
Bolingbroke v. Kerr, 699
Bolton V. Lambert, 677, 678
Bonaker v. Evans, 92
Bonar v. Maodonald, 550
Bond V. Hopkins, 236

V. Eoslin, 415

Digitized by Microsoft®

XXXVl

TABLE OF CASES.

Bone V. Eckless, 567
Bonelli (re), 733

Boaham (re), ex p. Postmaster-
Gen., 58
Bonnard v. Dott, 566
Bonomi v. Backhouse, 160, 289
Boodle V. Campbell, 235
Boorman v. Brown, 160
Boosey v. Purday, 118
Booth V. Alcock, 235

V. Bank of England, 374

V. Olive, 114

V. Kennard, 84, 287

Boraston v. Green, 324
Borradaile v. Hunter, 413, 449,

501
Bosanquet v. Wray, 635
Bostook V. Hume, 639

^. N. Staff. B. Co., 514

Botten V. Tomlinson, 652
Bottomley's case, 150, 412
Bottomley v. Hayward, 688
Boughton V. James, 431
Boulter v. Clarke, 223
Boulton V. BuU, 287

V. Crowther, 5

V. Jones, 458

Bourgoise (re), 64
Bourne v. GatUfif, 722

V. Mason, 590

Bousfield V. WUson, 527, 566, 574
Bovill V. Pimm, 84
Boville V. Wood, 110
Bowden v. Waithman, 653
Bowen v. Anderson, 667

V. Hall, 159, 160

• V. Lewis, 429

V. Owen, 142, 520

Bower v. Hodges, 504

V. Peate, 661

Bowerbank v. Monteiro, 684
Bowes V. Foster, 565

V. Shand, 84, 473, 733

Bowker v. Evans, 699, 705
Bowman v. Horsey, 512
Bowring v. Stevens, 618
Bowyer v. Cook, 310, 525
Boydell v. Drummond, 522
Boyes v. Bluck, 441

Boyle V. Wiseman, 88, 762
Boyse v. Bossborough, 232
Brabant v. King, 190
Brace v. Marlborough (Duchess

of), 282
Bracewell v. Wilhams, 586
Bradbee v. London (Myr. of), 292
Bradburne v. Botfield, 416

Bradbury v. Anderton, 510

V. Morgan, 700

Bradford Bank v. Briggs, 283

Corporation v. Pickles,

156, 159, 300

Bradford Corpn. v. Ferrand, 300
Bradlaugh v. Clarke, 168

V. De Bin, 742

V. Evans, 761

V. Gossett, 170, 747

Bradley v. Carr, 73

V. Cartwright, 429

V. James, 755

V. Newcastle Pilots, 775

V. Washington S. Packet

Co., 469
Bradlie v. Maryland Ins. Co., 181
Bradshaw v. Beard, 406

■y.L.&Y.E. Co., 700,705

V. Lawson, 345

Brady v. Warren, 306
Brain v. Harris, 522
Braithwaite v. Coleman, 736

V. Gardiner, 244

Bramston v. Bobins, 213
Brandao v. Barnett, 539, 721
Brandon's Patent (re), 23
Brandon v. Brandon, 554

V. Bobinson, 356

V. Scott, 138, 245

Branson v. Didsbury, 118
Brass v. IMaitland, 617
Braunstein v. Acoid. Death Ins.

Co., 457
Bray v. Ford, 89
Braye Peerage (The), 741
Breadalbane (Marq. of) v. Marq.

of Chandos, 220
Brecknock Co. v. Pritchard, 194
Bree v. Holbeoh, 606
Bremer v. Freeman, 399
Bremneri). Hidl, 740
Brett V. Clowser, 609

V. Marsh, 634

Brewer v. Jones, 590

■ V. Sparrow, 136

Briddon v. G. N. E. Co., 200
Bridgeman v. Green, 353

V. Holt, 94

Bridger v. Savage, 566

Bridges v. Garrett, 639, 640, 656

V. Hawkesworth, 280

Bridgman v. Dean, 587
Bright V. Legerton, 757

V. Tyndall, 267

Bright- Smith (re), 484
Briggs V. Oliver, 254

Digitized by Microsoft®

TABLE OF OASES.

XXXVU

Brighty v. Norton, 88
Brindson v. Allen, 545
Brinkley v. A.-G., 386
Brinsdon v. Allard, 549
Brinsniead v. Harrison, 269
Brisbane v. Daores, 213
Bristol Bank v. Midi. B. Co., 363
Bristol & E. E. Co. v. Garton, 528
Bristol & N. Som. B. Co. (re), 204
Bristow V. Sequeville, 733

V. Whitmore, 553

Britain v. Eossiter, 686

British Empire Co. v. Somes, 229

British Mutual Bank v. Oharn-

wood F. E. Co., 663
British N. America v. Cavillier,

499
British S. Africa Co. v. C. de

Mocambique, 81
British Wagon Co. v. Gray, 112,542
Brittain v. Lloyd, 595

V. Kinnaird, 70

Britton v. Cole, 657

Broadbent v . Imperial Gas Co. , 162

V. Wilkes, 715

V. Eamsbotham, 292

Brochett (re), 486

Brogden v. Marriott, 207
Bromage v. Lloyd, 360
Bromage v. Vaughan, 132
Bromley v. Holland, 213
Brook (re), 92, 93

■«. Brook, 387, 393

V. Hook, 676

V. Jenney, 302

Brooke (re), 331

Brookes v. Tichbourne, 730

Brooks V. Bookett, 28

V. Hodgkinson, 103

V. Mason, 258

V. Elvers (Earl of), 95

Broom v. Batchelor, 411, 418
Broomfield v. Kirber, 180

■;;. Williams, 159

Broughton v. Conway, 442
Brown (re), 198
V. Alabaster, 371

V. Annandale, 286

V. Brine, 574

V. Byrne, 514

V. Chapman, 103

V. Copley, 73

V. Dean, 75

V. Edgington, 615

V. Fletcher, 535

V. Foot, 258

0. Glenn, 339

Brown v. Hawkes, 86

V. Hodgson, 641

V. Jones, 75

V. Langley, 684

V. London (Myr. of), 197,

208
V. Mallett, 300

V. McICinally, 230

V. Eoyal Ins. Co., 207

V. Windsor, 292

Browne v. Dawson, 342

V. Eobins, 160

Browning v. Daon, 340

V. Morris, 561, 564

Brownlie v. Campbell, 117, 214,

609
Brownlow v. Metr. B of Works,

668
Brudenell v. Elwes, 430
Bruff V. Conybeare, 469
Brune v. Thompson, 725
Brunsden v. Humphrey, 269
Brunswick (Duke of) v. Slowman,

341, 523
Brunton v. Hawkes, 42
Bryant v. Banque du Peuple, 629
V. Beattie, 205

V. Busk, 199

V. Foot, 719, 743

V. Lefever, 159

V. Warden, 367, 528

Brydges v. Brydges, 711

V. Phillips, 509

V. Smith, 100

Buccleuoh (Duke of) v. Metr. B.

of Works, 4
Bucoleuch (Duke of) v. Wakefield,

718
Buckhurst's (Ld.) case, 377
Buckhurst Peerage, 41
Buokland v. Butterfield, 333
Buckley v. Gross, 280

V. Hull Docks Co., 109,

112

Buckmaster v. Eussell, 84
Budd V. Fairmaner, 617
BuUard v. Harrison, 2
Bullen V. Denning, 455

V. Sharp, 557

V. Ward, 16

BuUer v. Mountgarret, 731
Bulli Co. V. Osborne, 694
Bullwant v. Att.-Gen. for Victoria,

375
Bullock V. Dommitt, 193
Bulwer v. Bulwer, 320
Bunbury v. Hewson, 712

Digitized by Microsoft®

XXXVlll

TABLE OF CASES.

Bunch V. Kennington, 283
Burbidge v. Morris, 649
Burder v. Veley, 3
Burdett (re), 375

V. Abbot, 338, 339

Burge V. Ashley, 567
Burgess v. Braoher, 457
Burland v. Nash, 634
Burling v. Bead, 342, 343
Burmester v. Norris, 651
Burns v. Chapman, 101
Burnand v. Eodoconachi, 139
Burnby v. BoUett, 614
Burnett v. Berry, 580
Bin:nside v. Dayrell, 648
Buron v. Denman, 671, 678
Burridge v. Nioholetts, 251
Burrows v. March Gas Co., 186

V. Bhodes, 568

Burt V. Haslett, 323, 447
Burton v. Griffiths, 88

V. Eeevell, 415

V. English, 454

V. Thompeon, 118

Bushell's case, 70, 82, 87
Busher v. Thompson, 715
Busk V. B. E. A. Co., 180
Butcher v. Butcher, 342, 343

V. Henderson, 22

Bute (Marq. of) v. Thompson,

204
Butler V. Butler, 271

V. Knight, 163

and Baker's case, 108

Butterfields v. Burroughs, 616
Butterfield v. Forrester, 166
Button V. Thompson, 510
Bwlch-y-Plwm Co. u. Baynes, 582
Byles V. Cox, 742
Byrne v. Boadle, 254

V. Manning, 134

C.

Cadaval (Duke de) v. Collins, 230
Cadell V. Palmer, 115, 351
Cadge (re), 127
Cage V. Acton, 110

V. Paxton, 442

Cahn V. Pookett's Co., 364
Caine v. Horsfall, 724
Caines v. Smith, 604
Caldecott v. Smythies, 324
Calder v. Halket, 70, 72
Calder & Hebble Navig. Co. v.
Pilling, 18

Caledonian Ins. Co. v. Gilmour,

542
Caledonian B. Co. v. Colt, 514

V, Lookhart,

547

V. N. Brit. B.

Co., 438
V. Walker's

Trustees, 5, 162
Calisher v. Forbes, 283
Calland v. Troward, 102
Callisher v. Bisohoffheim, 588
Calvin's case, 62, 64, 766
Calye's case, 163, 708
Camberwell Bent charge (re), 94
Cambridge v. Eous, 485
Camidge v. Allenby, 689
Camoys (Ld.) v. Blundell, 491,

489
Campbell (re), 563, 572

■ V. Campbell, 117, 476,

568

V. Fleming, 582

V. Eace, 2

V. Eickards, 730

V. Strangeways, 118

V. Webster, 510

Canadian Prisoner's case, 81
Candler v. Candler, 733
Canham v. Barry, 558, 570
Cann v. Clipperton, 80
Cannam v. Farmer, 244, 543
Cannan v. Eeynolds, 217
Canterbury (Vise.) v. A.-G., 36,

44, 305, 670, 711
Canterbury's (Archb. of) case, 503
Capel V. Child, 91
Cardigan v. Armitage, 313
Cargey v. Aitcheson, 480
Carlile v. Carbolic Smoke Ball

Co., 587
Carlyon v. Lovering, 715
Carmichael v. Carmichael, 233
Carpue v. L. B. & S. C. E. Co., 253
Carr v. Allatt, 384

V. Jackson, 458

. V. L. & N. W. E. Co., 241

— '0. Martinson, 141

V. Montefiore, 422

■ V. Koberts, 698

V. Eoyal Exchange Ass. Co.,

439
Carratt v. Morley, 73, 76
Carter v. Boehm, 618, 730, 731
V. Carter, 540

V. Crick, 616, 722

V. Thomas, 2

Digitized by Microsoft®

TABLE OP CASES.

XXXIX

Cartwright (re), 193, S58, 763

V. Cartwright, 733

V. Green, 763

CashUl V. WrigM, 291
Castellain v. Preston, 611
Castellani v. Thompson, 243
Castleden v. Castleden, 688
Castledon v. Turner, 465
Castrique v. Behrens, 85

V. Imrie, 751

Caswell V. Cook, 485

V. Worth, 306

Catchpole r. Ambergate E. Co.,

155
Gates V. Knight, 514
Catherwood v. Caslon, 388
Catlln V. Bell, 654
Catterall v. Hindle, 82, 639
Oandrey's case, 131
Cave V. Hastings, 523

V. Mills, 136

V. Mountain, 72

Cavelier v. Pope, 668

Central E. Co. of Venezuela v.

Kisoh, 618
Chad V. Tilsed, 925
Chadwick ■;;. Manning, 682

V. Trower, 292

Chamberlain v. Chester & B. E.

Co., 167

V. liing, 80

V. Williamson, 699

Chambers v. Bemasconi, 758

V. Miller, 215

Chandelor v. Lopus, 608, 616
Chandler (re), 95

V. Doulton, 163

V. Webster, 196, 197

Chandos (Marq. of) v. Inl. Eev.

Commrs., 435
Chanel v. Robotham, 377
Chaney v. Payne, 482
Channon v. Patch, 318
Chanter v. Hopkins, 615

V. Leese, 205

Chapman v. Bluck, 530

u. Dalton, 534

V. Freston, 246

V. Fylde Waterworks

Co., 167

V. Pickersgill, 155

V. Eothwell, 305, 706

V. Shepherd, 724

-V. Walton, 730, 731

V. Wither3,l 95

Chappell V. Purday, 26
Chappie V. Cooper, 406

L.M.

Charleton v. Spencer, 441
Charlotta (The), 222
Chase v. Cox, 635
Chasemore v. Richards, 279, 289,
296, 300

V. Turner, 84

Chastey v. Ackland, 159, 303
Chatterton v. Cave, 118
Chauntler v. Robinson, 293
Cheesman v. Exall, 366
Chelsea Vestry v. King, 4
Cheney v. Courtois, 407, 746
Cherry v. Colonial Bk. of A., 644
Cheshire v. Bailey, 663
Chesman v. Nainby, 580
Chesterfield v. Bolton, 193

Co. V. Hawkins, 415

Chette V. Chette, 393
Ohevely v. FuUer, 84
Cheyney's case, 465, 469, 529
Chishohn v. Doulton, 258
Cholmeley v. Paxton, 317
Oholmondeley (Marq. of) v. Clin-
ton (Ld.), 413, 441, 465

Chope V. Reynolds, 182
Chorlton v. Lings, 499
Chown V. Baylis, 172
Christohurch (Dean of) v. Buck-
ingham (Duke of), 233
Christianborg (The), 270
Christie v. Boulbee, 604

V. Gosling, 352, 426

Christopherson v. IBurton, 12, 285
Chuck V. Cremer, 134

Church V. Mundy, 502
Churchill (re Ld.), 57

V. Churchill, 136

V. Siggers, 105

Churchward v. Ford, 505

V. Reg., 48, 416, 518

Citizen's Life Assurance ■v.Brown,

664

City Discount Co. v. McLean, 637

CivU Service Co-operative Society

V. General Steam Navigation

Co., 196

Clarence E. Co. v. G. N. E. Co.,

4,369
Claridge's Patent (re), 28
Clark V. Adie, 138, 421

V. Alexander, 381

V. Chambers, 169, 186

V. Glasgow Co., 193

V. Lon. Genl. Omnibus Co. ,

706, 711

V. Woods, 77, 231

Clarke (re), 383

d

Digitized by Microsoft®

xl

TABLE OP OASES.

Clarke v. Arden, 380

V. Army and Navy Stores,

806

V. Bradlaugh, 23, 57, 60,

109, 118, 168

V. Cogg, 312

V. Oolls, 428

V. Crofts, 699

V. Dickson, 582, 618

V. Dixon, 246

V. Holford, 332

V. Holmes, 226

V, Eamuz, 611

V. Eoyston, 323, 514

V. Shee, 564, 630

V. Tinker, 130

V. Wright, 32

Clay V. Turley, 683, 637
Claydon v. Green, 435
Clay hards v. Dethick, 225
Clayton's case, 636, 637
Clayton {ex p.), 435

V. A.-G., 139

V. Corby, 718

V. Kynaston, 549

V. Leech, 610

V. Nugent (Ld.), 466, 525

Clement v. Weaver, 68
Clements v. Scudamore, 280
Clere's case, 107

Cleveland v. Spier, 301

Clift V. Sohwabe, 420, 449, 477,
530

Clifton V. Cockburn, 212
V. Hooper, 162

Climie v. Wood, 329

Close V. Phipps, 229

Clothier v. Webster, 668

Clough V. L. & N. W. E. Co., 618

Clow V. Brogden, 165

Clubb V. Hutson, 573

Clunnes v. Pezzey, 734

Clyde Navigation Trustees v.
Laird, 533

Cobb V. Beoke, 590, 653

V. G. W. R. Co., 168

V. Mid- Wales E. Co., 33

V. Selby, 368

Coburn v. Colledge, 696

Cock V. Gent, 6

Cockburn v. Alexander, 459, 723

Cocker v. Tempest, 110

Cookerill v. Cholmeley, 220, 317

Cocking V. Ward, 600

Cockran v. Irlam, 654

Cockrill V. Sparkes, 84

Cocks V. Masterman, 216

Cocks V. Nash, 681
Coddington v. Paleologo, 722
Codrington v. Codrington, 140
Coe V. Lawrance, 426
Coggs V. Bernard, 199
Colburn v. Patmore, 569
Colchester (May. of) v. Brooke

300
Colegravei). Dias Santos, 326, 329,

330
Coleman v. Eiohes, 671
Coles V. Hulme, 440, 441

V. Pack, 458

V. Trecothick, 654

CoUen V. Wright, 644, 645
CoUett V. Foster, 106, 657
Collingridge v. E. Exchange Ins.

Co., 165, 611
Collingwood v. Berkeley, 648
Collins V. Aron, 68

v. Blantern, 68, 374, 542,

562, 564, 571, 572

V. Bristol & Ex. K. Co., 199

u. Brook, 590

u. Look, 542

V. Middle Level Commis-
sioners, 296

Colls V. Home and Colonial, 292,

804
Collyer v. Isaacs, 383
Colman v. E. Counties E. Co., 6

V. Poster, 364

Colmore v. Tyndall, 414
Colonial Bank v. Exchange Bank,

215

Sugar Eefining Co. v.

Irving, 27

Colquhoun v. Brooks, 82, 506

V. Heddon, 82

Columbine Ins. Co. v. Lawrence,

180
Colwill V. Eeeves, 236
Combe's case, 653
Commercial Bank of Tasmania v.

Jones, 550
Commercial S. S. Co. ■y.Boulton,118
Compania Naviera Vascoryada v.

Churchill, 651
Comyns v. Boyer, 627
Concha v. Concha, 241, 272, 751

— — V. Murietta, 712
Congreve v. Evetts, 384
Connelly v. Steer, 283
Conradi v. Conradi, 271
Consolidated E. & F. Co. v. Mus-

grave, 573
Constable v. Nicholson, 715, 718

Digitized by Microsoft®

TABLE OP CASES.

xli

Conway i'. Wade, 160, 171
Cook {re), 596

i'. Jennings, 205, 507, 510

V. Lister, 683

V. M. & G. W. R., 306

V. Palmer, 653

Cooke V. Birt, 341, 342
V. Eshelby, 554

V. Tanswell, 737

V. Tonkin, 648

V. Waring, 301

V. Wilson, 244, 643

Coombs (re), 96, 653

V. Bristol and Ex. R. Co., 639

Coomer v. Latham, 76

Cooper (ex p.), 562

V. Cooper, 140, 394

V. Crabtree, 310

V. Crane, 392

V. Harding, 452

V. Hawkins, 59

V. Johnson, 698

V. Parker, 287

V. Phibbs, 210, 218

v. Simmons, 222, 698

V. Slade, 671

V. Walker, 508

D. WandsworthB.ofW.,93

V. Whittingham, 174

V. Willomatt, 367

V. WooMtt, 322, 382

Cope V. Albinson, 699

V. Cope, 444

V. Rowlands, 579

Copeland (ex p.), 531
Copeman v. Gallant, 437
Copland v. Laporte, 443
Copley V. Burton, 16
Coppen V. Moore, 258, 259
Coppook V. Bower, 673
Corbet's case, 350
Corbet v. Hill, 311
Corbett v. S. E. B., 463
Corcoran v. Gurney, 180
Comer v. Shew, 701
Comfoot V. Fowke, 608
Cornford v. Carlton Bank, 664
Comforth v. Smithard, 84
Comill V. Hudson, 29
Cornish v. Cleiff, 505

V. Keene, 286

Corsar v. Eeed, 135
Corturier v. Hastie, 723
Cory V. Burr, 182

Costa Rica v. Erlanger, 27
Cotes V. Michil, 75
Cothay v. Fennel, 642

Cotterel n. Jones, 164
Cotton ('. Thurland, 567

V. Wood, 254

Counden v. Gierke, 469
Courtauld v. Legh, 303
Courtenay v. Strong, 205
Courtney v. Taylor, 416
Coverley v. Burrell, 617

Cowan V. Buccleuch (Duke of), 110
V. Milboum, 176, 578

Coward v. Gregory, 708

Cowen V. Truefitt, 484, 485

Cowie V. Barber, 561

Cowley V. Cowley, 680
V. Dunlop, 570

V. Newmarket L. B., 166

Cowper V. Green, 689

Essex V. Acton L. B., 4, 162

Cox V. Burbidge, 307

— V. Glue, 310

— V. Godsalve, 322

— V. Hubbard, 244

— V. Leigh, 726

— V. London (May. of), 719

— V. Mid. Counties R. Co., 642

— V. Morgan, 688

— V. Prentice, 560
Coxhead v. MuUis, 390
Crabtree v. Robinson, 339
CrackneU v. Thetford (May. of),

463
Craig V. Levy, 134
Crane v. Lawrence, 8
■ V. London Dock Co., 627

V. Powell, 622

Craw V. Ramsay, 64
Crawcour v. Salter, 724
Crears v. Hunter, 588
Crease v. Barrett, 756
Creighton v. Rankin, 550
Crepps V. Durden, 17
Crespigny v. Wittenoom, 437
Cripps V. Eeade, 606

Crisp V. Anderson, 734

V. Thomas, 254

Critchley (ex p.), 672
Croft V. Alison, 664

V. Lumley, 632

Crofts V. Waterhouse, 199
Croll V. Edge, 42
Crompton v. Jarratt, 502

V. Lea, 295

Crookenden v. Fuller, 399
Crookewit v. Fletcher, 126, 419
Crooper v. Cook, 724
Cross V. Williams, 648
Crossiield v. Morrison, 500

Digitized by Microsoft®

xlii

TABLE OF CASES.

Crossfield v. Such, 703

cSt Sons V. Man. Ship

Canal Co., 463
Crossing v. Scudamore, 412
Crossley v. Dixon, 138

Bros. V. Lee, 329

Crouoli V. Credit Ponoier, 362
Crow V. Edwards, 112

V. Falk, 526

V. Eogers, 587

Crowder v. Long, 652, 653
Crowhurst v. Amersham, 290
Crowther v. Elgood, 69

V. Parrer, 587

Cuckfleld Burial Board (re), 59
Cuokson V. Stones, 196
CuUen V. Butler, 449

u. Morris, 155

V. Thompson's Trustees,

657

Cumber v. Wane, 100
Cuming v. Tomas, 653
Cumming v. Bedborough, 215, 228

V. Forrester, 42

V. Inoe, 232

Cumpstou V. Haigh, 457
Cunard v. Hyde, 574
Cundell v. Dawson, 571, 578
Cundy v. Le Cocq, 258
Curson v. Belworthy, 570
Curtis V. Stovin, 27
Cuthbert v. Haley, 571
Cuthbertson v. Irving, 148
Cutter D. Powell, 510, 512, 604

D.

Dains v. Heath, 522
Dalby v. Hirst, 324, 717
Dale V. Humfrey, 514
Dalhousie (Countess of) v.

M'Dowall, 396
D'Allex V. Jones, 579
Dalmer v. Barnard, 129
Dalrymple v. Dalrymple, 387
Dalston v. Coatsworth, 733
Dalton V. S. E. E. Co., 706

V. Angus, 32, 117, 658,

660

Daly V. Dublin E. Co., 700

V. Thompson, 233

Dand v. Kingscote, 369
Daniel v. Gracie, 479

V. Morton, 91, 92

■ V. Siaolair, 218

Daniels v Fielding, 231

Danks {ex p.), 141
Dansey v. Eichardson, 291
Danube E. Co. v. Xenos, 207
D'Arcy v. Tamar R. Co., 742
Daroy (Ld.) v. Askwith, 316
Darley M. Coll. Co. v. Mitchell,

161
Darlington v. Eusooe, 713
Darnley (Earl of) v. L. C. & D. E.

Co., 112
Dart V. Dart, 65
Dartmouth (May. of) v. Silly,

208
Dash V. Van Kleeck, 25
Dashwood v. Jermyn, 590

V. Magniac, 316

Davenport v. Eeg., 145, 234, 632

V. Mason, 743

Davidson v. Cooper, 126

V. Sinclair, 117

V. Stanley, 643

Davies v. Davies, 193

V. Humphreys, 696

V. Jenltms, 105

.,. Lowndes, 147, 239, 749

V. Hopkins, 653

V. Pearce, 756

V. Pratt, 739

V. WiUiams, 342

Davis's case, 21

Davis V. Bomford, 390, 684

V. Eyton, 321

V. Haycock, 724

V. Jones, 336

0. Lloyd, 757

V. L. & Blackwall E. Co.,

292

V. Meeker, 616

V. Nisbett, 587

V. Powell, 129

V. Reilly, 638

I'. Scrace, 527

V. Treharne, 294

V. Trevannion, 135

Davison v. Donaldson, 640

V. Gent, 558

V. Wilson, 343

Daw V. Metr. B. of Works, 20
Dawes {ex p.), 441

V. Hawkins, 2

V. Peck, 641

Dawkins v. Ld. Paulet, 171
Dawson v. Fitzgerald, 542

V. Higgins, 477

V. Oliver Massey, 198

V. Morrison, 650

V, Paver, 6

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TABLE OF OASES.

xliii

Dawson r. Surveyors of High-
ways, 738
Day u. McLea, 632

— V. Savadge, 98

— V. Trig, 484, 488
Deacon i\ Grridley, 601
Deakin {re), 428
Dean u. James, 141

— V. Brown, 118
Deane v. Clayton, 150, 301
De Beauvoir v. De Beauvoir, 423
De Begnis v. Armistead, 579
De Bernardy v. Harding, 682
De Bode (Baron) v. Eeg., 44, 48,

58, 733
De Bussohe v. Alt, 656
Debenham v. Mellon, 651
De Cadaval v. CoUus, 230
Deeley's Patent (re), 271
Deering v. Farrington, 504
Degg V. Midi. K. Co., 291
De Gondouin v. Lewis, 341
De la Bere v. Pearson (Ld.), 170,

186
De Lancey (re), 107
Delany v. Fox, 342
De la Warr v. Miles, 719
De Medina v. Grove, 232
De Mesnil v. Dakin, 231, 237
De Montmorency v. Devereux, 145
De Moranda v. Dunkin, 652
Dempster v. Purnell, 746
Denby v. Moore, 228
De Nichols v. Curlier, 399
Denison v. Holliday, 312, 515
Denn v. Diamond, 3, 435
Dennis v. Whetham, 285
Dent V. Auction Mart Co., 305

— v. Smith, 182
Denton v. G. N. B. Co., 199
Depperman v. Hubbersty, 639
Derby (Earl of), case of, 95

ti-BuryCommrs.,

740
Derring v. Tarrington, 504
Derry v. Peek, 608, 621
Des Barres v. Shey, 43
Deutsche Bank v. Beriro, 216
Devaux v. ConoUy, 560, 723
De Vaux v. Salvador, 183
Devaynes v. Noble, 115
Dew V. Parsons, 213
De Wilton (in re), 81, 393
Dews V. Eiley, 76
D'Eyncourt v. Gregory, 329
Dibbins v. Dibbins, 677
Dibden v. Skirrow, 158, 557

Dioas V. Ld. Brougham, 72
Dickinson v. Gr. Junct. Canal

Co., 165
Dickenson v. Jardine, 514, 723

V. Naul, 624

V. Stidolph, 524

Dickson v. G. N. E. Co., 227

V. Eeg., 436

0. Swansea Vale E. Co.,

364

('. Zizinia, 510

Dietrichsen v. Giubilei, 595
Dillon V. Balfour, 170
Dimeck v. Corlett, 419
Dimes (re), 95

V. Gr. Junct. E. Co., 95

u. Petley, 300

Dimmock v. Bowley, 105
Di Sora v. Phillips, 85, 733
Ditcham v. Worrall, 390
Dixon ('. Bell, 306

V. Bovill, 362

V. Caledonian Co., 32, 440

V. Clarke, 141, 633

V. Fauous, 568

V. G. W. E. Co., 308

V, Lond. Sm. Arms Co., 44

V. Metr. B. of Works, 5

■ V. Stansfeld, 539

Dobell V. Stevens, 617

Dobbs V. G. June. Waterworks, 19

Dobson V. Blackmore, 300

Dobson V. Espie, 683

Dod V. Monger, 250, 340

Dodd V. Churton, 204

- — V. Holme, 292

Dodgson V. Scott, 575

Doe V. Acklam, 63, 149

V. Adams, 414

('. Alexander, 519

y. Allen, 123

('. Arkwright, 63

I'. Ashley, 490

y. Bancks, 145, 233

('. Benyon, 471

V. Beviss, 726, 755

V. Bower, 486, 496

y. Brandling, 446

V. Burdett, 508

V. Burrough, 359

V. Burt, 312, 472

y. Brydges, 749

y. Carew, 434, 444

— y. Carpenter, 487

-- y. Carter, 102, 374, 544

y. Catomore, 127, 741

V, Chichester, 476

Digitized by Microsoft®

xliv

TABLE OF CASES.

Olift, 716
CoUinge, 144
Cooke, 451
Coombs, 83
Cranstoun, 488, 489
Davis, 413, 422, 730
Day, 415
Donston, 626
Duntze, 267

Earles, 450

Edmonds, 84

Evans, 739

Ewart, 129

Eyre, 359

Fawoett, 506

Gallini, 503

Galloway, 486, 488

Gardiner, 738

Garlick, 428, 425, 502

Gladwin, 235

Glover, 423

Godwin, 442

Goldwin, 677

Gore, 744

Greathed, 490

Groves, 242

Guest, 440

Gwillim, 466

Hicks, 423

Hiscocks, 488

Holton, 472

Hopkinson, 423

Home, 235

Hubbard, 486, 487

Huddart, 272

Huthwaite, 491

Ingleby, 507

Jefferson, 688

Jersey (Earl of), 472

Keeling, 301

V. King, 338

V. Langton, 529

V. Lord, 338

V. Lloyd, 564

V. Ludlam, 123

V. Lyfford, 465

V. Lyford, 496

V. Manch. & E. E. Co., 4, 463

V. Manning, 586

V. Marohant, 445

V. Mattbews, 143

V. Maxey, 524

• V, Meyriok, 440

V. Miobael, 755

V. Morris, 52

V. Nail, 529

V. Needs, 465, 469, 470

Doe 0.

V,

V.

V.

V.

V.

v.

V.

V.

V.

V.

V.

V.

V.

■ V.

V.

V.

V.

V.

Doe V. Norton, 151

V. Owens, 439

V. Oxenden, 496

V. Palmer, 127, 741

V. Parry, 488

V. Peach, 50.9

V. Pearse, 509

V. Permewen, 422

V. Perratt, 400, 466, 469

V. Poole, 545

V. Powell, 742

V. Price, 415

V. Pullen, 511

V. Bies, 530

V. Eoacb, 428

V. Eoberts, 53

V. Eogers, 698

V. Boss, 737

• V. Bouse, 494

V. Simpson, 427

('. Skinner, 758

,.. Smith, 102

V. Steele, 480

V. St. Helen's E. Co., 454

y. Strickland, 84

V. Suckermore, 780

('. Taniere, 144

u. Tatham, 759

V. Thomas, 502

V. Thompson, 743

V. Tofield, 144

V. Trye, 651

u. Turford, 757

t>. Underdown, 422

V. Vardhill, 396

V. Vowles, 755

V. Walker, 427

V. Webber, 754, 756

u. Webster, 472

V. Westlake, 470

V. Willetts, 472

V. Williams, 456

V. Wilson, 519

V. Wittcomb, 758

V. Wood, 545

■ V. WoodaU, 524

V. WoodrofCe, 176, 413

V. Wright, 272

V. York (Arohb. of), 58

V. Young, 740

Doglioni v. CrispLa, 399
Dominion Gas Co. v. Collins, 306
Donovan v. Laing, 658
Don's Estate (re), 894, 896
Dormay v. Borrodaile, 449
Dorset (Duke of) v. Ld. Hawarden,
470

Digitized by Microsoft®

TABLE OF CASES.

xlv

Dost Aly Khan (re) 733

Douglas V. Dysart, 718

V. Patrick, 141

V. Watson, 684

Dowell V. Gen. St. Navig. Co., 184
Downing v. Capel, 80
Downman v. Williams, 643
Downs y. Ship, 688
Downshire v. Sandys, 317
Doyle V. Falconer, 33, 372
Drake v. Drake, 491

• V. Pywell, 301

Dresser v. Bosanquet, 244, 589
Drewe v. Lanson, 285
Drouet c. Taylor, 752
Drummond v. Van Ingen, 512, 614
Drury v. De la Fontaine, 16
Duberley v. Gunning, 223
Dublin & W. E. Co. u. Slattery,

89
Duckmanton v. Duckmanton, 467
Duckworth v. Johnson, 291, 706
Dudgeon v. Pembroke, 180
Dudley (Ld.) v. Ward (Ld.), 327,

328, 332
Dugdale (re), 356

V. Levering, 568

V. 'Reg., 261

Duke V. Ashby, 148

V. Forbes, 483

Dumergue v. Eumsey, 332, 335
Dmnpor's case, 102

Dyke v. Gower, 258

Dunbar (Mags, of) v. Duchess of

Koxburghe, 532
Duncan (re), 711
Duncombe v. Brighton Club Co.,

481
Dundee Harbour u. Dougal, 690
Dungannon (Ld.) v. Smith, 352,

426
Dunkley v. Farris, 671
Dunlop V. Lambert, 641
Dimn V. Macdonald, 48, 645

V. Reg., 48

V. Sales, 416, 505

V. Spurrier, 455

Dunston v. Paterson, 244
Durant v. Eoberts, 595
Durham v. Durham, 392
Durrant v. Ecoles. Commrs., 216
Duvergier v. Fellows, 206, 574
Dyer v. Green, 522

V. Munday, 663

Dyke v. Walford, 278
Dyne v. Nutley, 486
Dysart Peerage, 387

E.

Eager v. Grimwood, 163
Eagleton v. Gutteridge, 340
Earl V. Lubbock, 158
Earle v. Hopwood, 574

V. Oliver, 598, 601

Early v. Benbow, 428

0. Garrett, 613

East V. Twyford, 430

East Anglian E. Co. v. E. Coun-
ties E. Co., 582
Eastern Archipelago Co. v. Eeg.,
46, 50, 464

Counties E. Co. v. Broom,

657, 674, 678

Counties E. Co. v. Mar-

riage, 438, 528

Telegraph Co. v. Cape

Town Co., 296

Union E. Co. w. Symonds,

758

East India Co. v. Tritton, 559

Eastwood V. Avison, 429

V. Kenyon, 592, 597

Eaton V. Swansea Waterworks
Co., 304

Ecroyd v. Coulthard, 100

Eden v. Blake, 683

Edevain v. Cohen, 268

Edgar v. Fowler, 561, 562

Edgington v. Fitzmaurioe, 621

Edie V. Kingsford, 755

Edinburgh & Gl. E. Co. v. Lin-
lithgow Mags., 514

Edis V. Bury, 458

Edmonds i'. Lawley, 26

Edmunds v. Bushell, 647

■ V. Downes, 509

• V. Walliagford, 596

Edward v. Trevillick, 232

Edwards (ex p.), 591, 754

V. Bates, 67

V. Baugh, 687

V. Byms, 477

V. Carter, 547

V. Edwards, 426

V. Grace, 698

V. HaU, 375

V. Hodges, 437

■ V. Jenkins, 717

V. Martyn, 110

V. Walters, 683

V. Ward, 211

Edwick V. Hawkes, 343
Egerton v. Earl Brownlow, 289,

361, 358, 400, 571

Digitized by Microsoft®

xlvi

TABLE OF CASES.

Egremont (Earl of) v. Saul, 725
Eichholz V. Bannister, 622
Eldrioh's case, 478
Eldridge v. Stacey, 840
Electric Telegr. Co. v. Brett, 528

V. Salford, 300

Eliott V. N. E. B. Co., 522

V. S. Devon E. Co., 83

V. Turner, 421

Elkin V. Baker, 135
EUcock V. Mapp, 545
Ellesmere Br. Co. v. Cooper, 126
Elliot (re), 849

Ellis y. Bridgnorth (May. of), 358,
737

V. Glover, 330

V. Gorton, 230

u. Goulton, 230

V. Griffith, 127

V. Hopper, 95

V. Lofthouse Iron Co., 807

V. Rogers, 605

■ V. Sheffield Gas Co., 657

■ u. Smith, 121

Elphick V. Barnes, 195

Elsee V. Gatward, 585

Elwes V. Brigg Gas Co., 559, 631

V. Maw, 824, 826, 827

Elwood V. Bullock, 717
Embry v. Owen, 165, 279, 296
Emerson v. Brown, 288

V. Emerson, 702

Emery v. Webster, 217

Emilie (The), 733

Emmens v. Elderton, 505, 595,

602
Emmerson v. Maddison, 52
Emmerton v. Mathews, 614
Empress Engineering Co. (re),

676
Engelhart v. Parrant, 169, 186,

806
Englishman (The), 567
Enohin v. Wylie, 485, 547
Entick V. Carrington, 3, 30, 76,

888, 580, 655
Esdaile v. Lund, 98

V. Maclean, 528

Esposito V. Bowden, 207, 203
Etherington v. Lane. & York Aoc.

Insurance Co., 179
Ethingi;. U. S. B., 85
Evans v. Earl, 500

V. Edmonds, 570

'.'. Hutton, 203

-'. Jones, 57, 118,589

f. Bees, 100

Evans v. Scott, 478
Everard v. Poppleton, 478
Everet v. WiUiams, 566
Everett v. London Assur., 179
Every v. Smith, 558
Ewart V. Cochrane, 379

V. Jones, 76, 87

Ewin V. Lancaster, 684
Exeter (Bp. of) v. Marshall, 128,
146

F.

Facey v. Hurdom, 539

Fagg V. Nudd, 600

Fairhm-st i. Liverpool Adelphi

Loan Ass., 244
Paloke V. Scottish Co., 595
Falmouth (Ld.) v. George, 717
Fane v. Fane, 220
Farmer v. Arundel, 228

V. Mottram, 681

V. Bussell, 566

Farnell v. Bowman, 47
Farquharson v. King, 236, 242
Farrall v. Hilditoh, 415
Farrant v. Nichols, 429
Farrar v. Hutchinson, 665
Farrer v. Close, 309
Farrow v. Wilson, 196
Faulkner v. Johnson, 740

. V. Lowe, 178

Faunsett v. Carpenter, 419
Faviell v. Gaskoin, 323
Fawcett & H. (re), 610
Fav V. Prentice, 292, 310, 311
Feather v. Beg., 44, 46, 59, 117,

464, 670, 671, 672
Featherstone v. Featherstone, 502

V. Hutchinson, 580

Fector v. Beacon, 653
Fellowes v. Clay, 434
Felix, Hadley & Co. v. Hadley, 638
Fenn i'. Bittleston, 367

V. Harrison, 643

Fenna v. Clare, 255
Peimell v. Eidler, 16
Penner v. Taylor, 551
Fenton v. Emblers, 696

V. Hampton, 38, 872

V. Livingstone, 144, 396,

399

Penwick v. Schmalz, 199
Peret v. Hill, 246, 558, 570
Ferguson u. Earl of Kiunoul, 74
V. Mahon, 92

Digitized by Microsoft®

TABLE OF CASES.

xlvii

FergusBon v. Norman, 579
Fermor's case, 239
Fermoy Peerage case, 531, 726
Farnandes (re), 761
Fernandez (ex2}-), 76, 761, 763
Fernie v. Young, 82
Fcronia (The), 553
Ferrand c. Bischoffsheim, 642
Ferrier v. Howden, 110
Festing v. Allen, 423, 429
Fetherston v. Fetherston, 430
Feversham v. Emerson, 272, 749
Tield V. Adames, 233

1'. Lelean, 723

Fielding v. Morley, 438
Field's Marriage BiU, 287
Filburn v. People's Palace Co.,

306
Filliter c. Phippard, 192, 305
Finch V. Miller, 141
Findon v. Parker, 233
Fineux v. Hovenden, 112
Finlay v. Chinery, 699, 711
Finney v. Beesley, 110

V. Finney, 271

Firbank's Executors v. Hum-
phrey's, 645

Fish V. Broket, 15

V. Kelly, 591

Fisher v. ApoUinaris Co., 573

V. Bridges, 577

)'. Dixon, 328, 329

u. Keane, 92

I'. Magnay, 237

V. Konalds, 761

V. Waltham, 587

Fishmongers' Co. v. Dimsdale, 522

■ c.Kobertson, 100

Fitton V. Acoid. Death Ins. Co.,

179, 457
Fitzgerald's case, 445
Fitzgerald v. Dressier, 789
Fitzhardinge v. Purcell, 717
Fitzjohn v. Mackiader, 188
Fitzmaurice v. Bayley, 521
Fivaz V. NichoUs, 562, 569
Fleckner v. United States Bank,

672
Fleming v. Dunlop, 110

■ V. Fleming, 469, 470

Fletcher v. Calthrop, 436

V. Eylands, 296, 661

V. Smith, 295

V. Sondes (Ld.), 150, 155

Flemyng v. Hector, 647

Flight 0. Gray, 683
u. Beed, 600

Flight V. Thomas, 304
Flower v. Sadler, 573
Florence v. Drayson, 381

■ V. Jennings, 381

Foakes v. Beer, 587, 687
Fobbing Commrs. v. Eeg., 97
Foley (Ld.) v. Inl. Eev. Commrs.,
435

('. Addenbrooke, 335, 416

V. Fletcher, 435

Foljamb's case, 372
Forbes v. Cochrane, 14

V. Forbes, 381

V. Marshall, 458

Ford V. Beech, 411

V. EUiott, 759

V. Laoey, 119

u. Leche, 652

. V. Stier, 392

V. Tynte, 279

Fordyce v. Bridges, 433
Foreman v. Free Fishers of Whit-
stable, 719, 725

Forman v. The Liddesdale, 678

V. Wright, 593

Formby v. Barker, 698
Foster's case, 21
Forsyth v. Eiviere, 286
Fortescue v. St. Matthew, Beth-

nal G., 21
Forward v. Pittard, 190
Foster v. Bates, 677, 699, 703

V. Dawber, 682, 683

V. Dodd, 76, 77

V. Mackmnon, 575, 629

y. Mentor Life Ass. Co., 723

V. Warblington M. C, 296

Foimtaine v. Amherst, 757

Fowell V. Tranter, 412

Fowkes V. Manch. & L. Lite Ass.

Co., 457, 607, 510
Fowler v. Padget, 534
Fox V. Star Co., 881
Fragano v. Long, 641
Francis v. Hawkesley, 84

V. Hayward, 879

Frank v. Frank, 540
Franklin v. Neate, 366

V. S. E. E. Co., 706

Franklyn v. Lamond, 643
Eraser v. Pendlebmy, 229
Fray v. Voules, 162
Frazer v. Jordan, 550

V. Hatton, 573

Freake v. Cranefeldt, 697
Freegard i). Barnes, 103
Freeman v. Bead, 138

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xlviii

TABLE OF CASES.

Freeman v. Baker, 617

V. Cooke, 242, 625

V. Jefeies, 216

V. Bosher, 678

V. Steggall, 244

V. Tranah, 100

Freke v. Carberry, 399
Fremlin v. Hamilton, 110, 587
French v. Phillips, 163
Frewen v. Phillips, 303
Friend v. Young, 635

Frisby (re), 691

Frith V. Stames, 678

Fritz V. Hobson, 166

Frost V. Aylesbury Dairy, 60, 615

Furber v. Sturmey, 66

Furnival v. Ooombes, 444

V. Stringer, 112

Furze v. Sharwood, 419
Fussell it. Daniell, 414

G.

Gadsby v. Barrow, 478
Gahan v. Lafitte, 70
Gainsford v. Griffith, 504
Gale V. Abbott, 305

V. Beed, 440, 442

Galley v. Barrington, 448, 529
Galliard v. Laxton, 77
Galloway v. Jackson, 587
Galway v. Baker, 522
Gamble v. Kurtz, 287
Games (ex p.), 681
Ganly v. Ledwidge, 627
Gapp V. Bond, 284
Garden v. Bruce, 696
Gardiner v. Lucas, 27
Gardner v. Campbell, 251
Garland v. CarUsle, 11, 109, 115
Garnett v. Bradley, 20

V. Ferrand, 72

Garrett v. Handley, 642
Garton v. Bristol & E. E. Co., 67
Gartside v. Eatcliff, 733
GaskeU v. King, 580
Gas Float Whitton (The), 596
Gaslight & Coke Co. v. Turner,

672, 676
Gateward's case, 717
Gathercole v. Miall, 74
Gattorno v. Adams, 419
Gatty V. Field, 667
Gaunt V. Fymney, 301
Gauntlettf. King, 657
Gautret v. Bgerton, 225

Gaved v. Martyn, 298, 299
Gaylard v. Morris, 233
Gedhardt v. Saunders, 696
Geddis v. Bann Eeservoir Co., 161
Gee V. Metr. B. Co., 225
Geere v. Mare, 546
Gelen v. Hall, 72
General Mutual Insurance Co. v.

Sherwood, 180
General St. Nav. Co. v. Brit. &

Colonial St. Nav. Co., 669
General St. Nav. Co. v. Eolt, 550
General St. Nav. Co. v. Slipper,

136
Generous (The), 203
Genner v. Sparkes, 340
George v. Skivington, 306
Gerhard v. Bates, 690
Gerish v. Chartier, 754
Gether v. Capper, 459
Gibbs V. FUght, 718

V. Guild, 693

('. Lawrence, 604

V. Ealph, 271

V. Stead, 93

Giblin u. M'Mullen, 89

Giblan v. Labourers' Union, 159

Gibson v. Bruce, 213

V. Dickie, 369

V. Doeg, 738

V. Hammersmith B. Co.,

332

V. Minet, 413

V. Preston (Myr. of), 669

Gidley v. Ld. Palmerston, 669
Gifford V. Livingstone, 124

v. Yarborough (Ld.), 133

Gildart v. Gladstone, 461
Gilding v. Eyre, 103

Giles V. Grover, 57

V. Spencer, 684

• V. Taff Vale E. Co., 664

V. Walker, 158

Gill (goods of), 625

V. Dickinson, 718

Gillett V. Offor, 643

Gilmore v. Shuter, 26

Gingell v. Purkins, 213

Gipps V. Hume, 674

Girdlestone v. Brighton Aquarium,

17, 272
Gjers (re), 562
Glaholm v. Hays, 419
Glamorgan Coal Co. v. S. W.

Miners Federation, 159
Glanville v. Stacey, 119
Glasder Copper Mines (re), 335

Digitized by Microsoft®

TABLE OF CASES.

xlix

Gleadow v. Atkin, 754
Gledstanes v. Earl of Sandwich, 40
Glenwood Lumber Go. v. Phillips,

280
Gloucester (Myr. of) v. Osborn, 467
Gluckstein v. Barnes, 620
Glyn V. B. & W. India Dock Co.,

149, 364
Glynn < . Thomas, 163
Goblet V. Beechy, 467
Goddard v. Cox, 635

V. Hodges, 635

V. Jeffreys, 221

Goddart v. Cox, 635
Godefroi v. Jay, 162
Godfrey v. BuUook, 280
Godts t'. Eose, Y22
Godwin v. Culling, 84
Goetz (re), 724

Goff V. G. N. R. Co., 664
Goldham v. Edwards, 683
Goldstein v. Vaughan, 15
Gollan ('. Gollan, 534
Gomery v. Bond, 212, 213
Good« V. Burton, 377
Goodhart v. Hyett, 368
Goodman v. Edwards, 489

V. Saltash, 717, 719, 738

Goodright v. Richardson, 479
Goodtitle v. Bailey, 413

V. Baldwin, 52

V. Gibbs, 146, 486

V. Southern, 488

Goodwin v. Hubbard, 559
Goodwyn v. Oheveley, 88
Gordon v. EUis, 245

V. Whitehouse, 481

Gorgier v. MievUle, 626

V. Morris, 588

Gorham v. Bp. of Exeter, 94, 532
Gorris v. Scott, 174
Gorrissen v. Perrin, 723
Gorton Local Bd. v. Prison

Commrs., 60, 61
Gosling V. Veley, 3, 115, 124, 156
Goss V. Nugent (Ld.), 684, 687
Gosset V. Howard, 76, 746, 747
Gott V. Gandy, 193, 505, 538
Gough V. Findon, 588

V. Wood, 330

Gould V. Stuart, 48
Gowdy V. Dimcombe, 129
Grace v. Clinch, 101
Graff V. Evans, 436
Graham v. Berry, 118

V. Commrs. of Works,

48, 670

Graham o. Darcey, 481
V. Ewart, 379

V. Furber, 239

V. Ingleby, 546, 551

V. VanD.'s Land Co., 88

Grand Junct. Canal v. Shugar,

159, 300
Grand Junct. R. Co. v. White, 526
Grant v. Grant, 471

V. Norway, 651

Grantham Canal Nav. Co. v. Hall,

461
Grath V. Ross, 481
Graves v. Legg, 514

■ V. Weld, 319

Gray v. Liverpool & B. R. Co., 463

V. Pullen, 660

V. Reg., 265

Great Central Gas Co. v. Clarke, 19

Great Eastern (The), 651

Great E. E. Co. v. Goldsmid, 51,

738
Great N. Fishing Co. v. Edgehill,

173
Great N. R. Co. u. Harrison, 306,
416

I'. Witham, 588

Great N. W. Centr. R. Co. v.

Charlebois, 271
Great W. E. Co. v. Crouch, 88

V. Goodman, 641

w. McCarthy, 227

V. Swindon R.

Co., 19

Great W. E. Co. of Canada v.

Braid, 200
Greathead v. Bromley, 267
Greaves v. Tofleld, 446
Grebut-Bornis v. Nugent, 168
Green v. Cobden, 100
V. Duckett, 229, 249

V. Elgie, 76, 106

V. Ehnslie, 180

• V. Humphreys, 546

.;. Kopke, 643

V. Reg., 19, 24

V. Sichel, 136

Greenwich v. Maudslay, 3
Greenwood v. RothweU, 427

■ V. Sutoliffe, 142, 445

Gregg V. Wells, 242
Gregory's case, 20
Gregory v. Brunswick (Duke of),
110

V. Cotterell, 12, 652

V. Des Anges, 514

Gregson v. Gilbert, 181

Digitized by Microsoft®

1

TABLE OF CASES.

Grell V. Levy, 14, 574
Greville i>. Chapman, 730
Grey v. Pearson, 424, 438
Grice v. Kenrick, 624
Griffin V. Langfield, 641
Griffiths V. Puleston, 323, 324
Grill V. Gen. Iron Screw Coll. Co.,

180
Grimman v. Legge, 510
Grinnell v. Wells, 407
Grissell v. Bristowe, 724
Grocers' Co., v. Canterbury
(Arohbp. of), 102
V. Donne, 290, 292
Groenvelt i'. Burwell, 70
Grosvenor Hotel Co. v. Hamilton,

371
Grote V. Chester & H. E. Co.,

291
Grove v. Aldridge, 57

V. Dubois, 642

Grover v. Burningham, 423, 424
Groves v. Wimborne (Ld.), 174,

666
Grymes v. Boweren, 333
Gullett V. Lopez, 130
Gulliver v. Cosens, 249
Gunn V. Boberts, 651
Gurly V. Gurly, 525
Gurney v. Behrend, 364

V. Evans, 243

Gurrin v. Kopera, 415
Guthrie v. Fiske, 32
GwUlim V. Stone, 603
Gwilliam v. Twist, 653
Gwinnell v. Eamer, 667
Gwyn V. Neath Canal Co., 444
Gwynne v. Burnell, 132

V. Davy, 681

V. Drewitt, 21

Gynes v. Kemsley, 486
Gyse V. Ellis, 641

H.

Habergham v. Vincent, 551
Haddon v. Ayres, 416
Haden (re), 416
Hadldnson v. Eobinson, 183
Hadley v. Baxendale, 168

V. Clarke, 204

Hadwell v. Eighton, 185, 308
Hagedorne v. Whitmore, 180
Haggerston v, Hanbury, 413
Hahn v. Corbett, 180
Haine v. Davy, 119

Haines u. E. India Co., 136

V. Eobei-ts, 294

V. Welch, 321

Halbot V. Lens, 645
Hale V. Eawson, 204, 206

0. Webb, 541

Halestrap v. Gregory, 186
Halhead v. Young, 183, 684
Hall's case, 287
Hall V. Conder, 613
V. Dysen, 574

0. Janson, 723

V. Levy, 267

V. London Brewery Co., 607

V. Nottingham, 717

V. Warren, 427, 529

V. Wright, 390

Hallas V. Eobinson, 384
HaUett's Estate (re), 239, 637
Hallett V. Dowdall, 545
HaUewell v. Morrell, 419
Halley (The), 669
Halliday v. Holgate, 366, 626
Hallifax v. Lyle, 244
Halliwell v. Trappes, 539
Halton V. Cave, 437
Hambleton v. Veere, 156
Hambly v. Trott, 708, 713
Hamilton v. Anderson, 70, 73

V. Hamilton, 387

Eraser & Co. v. Pandarf ,

185

Hamlet v. Eichardson, 230
Hamlyn v. Wood, 236, 518
Hammack v. White, 254
Hammersley v. Knowlys, 635
Hammersmith E. Co. v. Brand,

734
Hammersmith Eent Charge (re),

90, 94
Hammersmith & City B. Co. v.

Brand, 161, 162, 310, 438
Hammond v. Bendyshe, 93

V. Bussey, 168

V. Schofield, 217, 268

u. St. Panoras, 175

Hancock v. Austin, 339

-u. Smith, 637

V. Petty, 392

■!). York, N. &B. E.Co.,

300
Hanson v. Waller, 663
Hannaford v. Syms, 591
Hannan v. Mockett, 279
Hardaker v. Idle Distr. Co., 659,

660, 661
Hardcastle r. Dennison, 427

Digitized by Microsoft®

TABLE OF OASES.

li

Harden v. Clifton, 681
Harding v. Pollock, 376

)'. Queensland Commrs.,

531

Hardingham v. Allen, 141
Hard\viok c. Hardwick, 484, 496
Hardwioke (Earl of) v. Douglas,
424

V. Ld. Sandys, 511

Hardy v. Tingey, 452

Hare v. Groves, 194

u. Horton, 330, 508

Hargreave v. Smee, 457

• V. Spink, 626

Hargreaves v. Parsons, 684

& Co. V. Hartopp, 668

Harlow v. Eead, 482

Harman v. Cam, 219
Harnor v. Groves, 582
Harper v. Carr, 91

V. Williams, 590, 643

Harratt v. Wise, 214
Harrington v. Victoria Dock Co.,

580
Harris v. Anderson, 291

V. Davis, 534

V. James, 667

V. Knight, 742

V. Lincoln (Bp. of), 465

V. Mobbs, 186

V. Truman, 237

V. WaU, 546

Harrison (re), 484, 635

V. Blackburne, 441

V. Cage, 603

V. G. N. E. Co., 296

V. Heathorn, 100

V. Hyde, 485

p. Muncaster, 607

V. Euscoe, 244

V. Seymour, 550

V. Southampton (Mayor

of), 741

V. Wright, 114

Harrold v. Watney, 224, 255

V. "SVhitaker, 416

Harrop v. Hirst, 120, 165
Harrup v. Bayley, 227, 561
Harse v. Pearl Life Ass., 211
Hart V. Miles, 587

• V. Standard, M. Ins. Co., 422

V. Windsor, 607

Hartley v. Ponsonby, 587
Hartnall v. Eyde Commrs., 167
Harvey v. Brydges, 343

V. Famie, 395

V. Gibbons, 206

Harvey v. Grabham, 687

V. Harvey, 328, 338

V. Pocook, 250

Harwood v. G. N. E. Co., 288

V. Goodright, 736

Hastelow v. Jackson, 567
Hastings Peerage (The), 742

V. Pearson, 626

Hatch V. Trayes, 592
Hatchard v. Mege, 703, 711
Hawkes v. E. Counties E. Co., 574

■ V. Sanders, 597

Hawkins v. Alder, 118

V. Gathercole, 20

V. Hall, 239

Hay V. Coventry (Earl of), 450
Hayoraft v. Creasy, 290
Hayden v. Hayward, 734
Hayes v. Warren, 595
Hayles v. Pease, 313
Haynes v. Doman, 580
Hayton v. Irvin, 721
Hayward v. Bennett, 205

V. Duff, 551

Hazeldine v. Grove, 70
Heald v. Carey, 642

V. Kenworthy, 643

Heap V. Barton, 335
Heard i: Wadham, 681
Heame v. Garthon, 671
Heath v. Brewer, 80

V. Durant, 685

V. Elliott, 130

V. Unwin, 265, 287

Heathcote v. Wing, 100
Heather v. Webb, 599
Heaven v. Pender, 291
Hebditch v. Macllwaine, 157
Hedges v. Tagg, 163
Hefaeld v. Meadows, 411, 683
Heilbutt V. Hiokson, 249

V. Nevill, 245

HeUawell v. Eastwood, 22
Helby v. Matthews, 626
Helps V, Clayton, 591
Hemans v. Picciotto, 417
Hemming v. Hale, 654
Hemmings v. Gasson, 87
Hemp V. Garland, 696
Henderson v. Barnwell, 654

V. L. & N. W. E. Co.,

381

V. Sherborne, 21, 436

V. Stobart, 441

Henley (re), 68, 59
Henniker v. Wigge, 637
Henson v, Coope, 684

Digitized by Microsoft®

lii

TABLE OF OASES.

Henwood v. Oliver, 520
Hercules (The), 172
Herman v. Charlesworth, 563

V. Jeuohner, 563, 573

Heme Bay Steamboat Co. v.

Hutton, 196
Herron v. Bathmines Commrs.,

7,463
Heseltine v. Siggers, 419
Heslop V. Chapman, 88
Hesse v. Stevenson, 442
Heston U.D.C. v. Grout, 23
Hewitt V. Isham, 129, 368
Hettihewage S. A.'s case, 47
Hey V. Moorhouse, 343
Heydon's case, 330
Heyman v. Beg., 146
Heysham v. Forster, 144
Hibblewhite v. M'Morine, 385,

544
Hickman v. Haynes, 686
Higgins V. Andrews, 252

II. Hopkins, 648

V. M'Adam, 653

V. Searle, 308

V. Senior, 556, 642, 643

Higgs V. Assam Tea Co., 364

V. Scott, 214

Higham v. Eidgway, 755
Hill V. Brown, 524
Hick V. Eodaoanachi, 203
Hill V. Crook, 428

V. Grange, 419

V. Hall, 21

V. Mitson, 574

V. Smith, 627

V. Thompson, 42

V. Tupper, 858

(Vise.) V. BuUook, 327, 332

Hills V. London Gas Light Co., 42

V. Sughrue, 204

Hilton V. Eckersley, 309

V. Granville, 718

V. Whitehead, 294

Hinoholiffe v. Kinnoul (Earl of),

368
Hine v. Eeynolds, 445
Hipkins v. Birmingham Gas L.

Co., 297
Hitchcock V. Way, 26
Hitchin v. Groom, 475
Hitchman v. Walton, 320
Hix V. Gardiner, 127
Hoare v. Graham, 684

V. Nislett, 268

Hobbs V. Henning, 272

V. Winchester Corpn., 257

Hobson V. Blackburn, 468

V. Gorringe, 329, 330, 337

, V. TheUuson, 163, 286

Hochster v. De la Tour, 207
Hodder v. Williams, 339
Hodges V. Horsfall, 523
Hodgkinson v. Bnnor, 291

V. Fernie, 670

V. Wyatt, 28

Hodgson (re), 268, 547

V. Ambrose, 423

i). De Beauchesne, 399

!'. Field, 368

i'. Malcolm, 180

V. Towling, 340

Hodsoll V. Stallebrass, 156
Hodson (re), 547

Hogan V. Jackson, 502
Hogg V. Ward, 88
Holden v. Smallbrooke, 279
Holder v. Soulby, 291
Holding V. Elhott, 723
Holdsworth v. Barsham, 481
Hole V. Sittingbourne E. Co., 660
Holford V. George, 719
Holland v. Hodgson, 330
HoUiday v. Morgan, 616

i;. Nat.TelephoneCo.,661

HolUer v. Eyre, 465
HoUingshead (re), 696

Hollis V. Palmer, 381
Holman v. Johnson, 562, 578
Holme V. Guppy, 205
Holmes v. Goring, 370

V. Kerrison, 696

■«. L. &N.W. B. Co.,287

V. Maokrell, 84

V. Mather, 254

V. N. E. E., 305

V. Penney, 587

V. Simmons, 130, 392

V. Wilson, 310

Holroyd v. Breare, 73

V. Marshall, 382

Holt V. Ely, 67

V. Ward, 391

Homfray v. Scroope, 697
Honywood v. Honywood, 316,

317
Hood-Barrs v. Heriot, 354
Hooper v. Exeter, 229

V. Keay, 636

V. Lane, 12, 104, 246

V. Treffry, 590

Hope V. Hope, 81
Hopkins v. Francis, 740

V. G. N. E. Co., 158, 557

Digitized by Microsoft®

TABLE OP CASES.

liii

Hopkins v. Hitchcock, 491

V. Logan, 600

V. Smethwiok L. B., 93

V. Tanqueray, 613

V. "Ware, 692

Hopkinson v. Lee, 416

V. Bolt, 282

Hopwood {ex j).), 92

V. Whaley, 700

Horn V. Baker, 333
Hornby v. Close, 309

V. Lacy, 642

Home V. Mid. E. Co., 168
Homsey U. D. C. (re), 60
Horsey ■;;. Graham, 472
Horton v. Sayer, 542

V. Westminster Imp.

Comm., 574, 740
Horwood V. Smith, 626
Hough V. Windus, 26
Houlden v. Smith, 70, 72,
Hotdder v. Soulby, 291
Houldsworth v. Evans, 115

«. Glasgow Bank,

248, 663
Hounsell v. Smith, 225
Househill Co. v. Neilson, 286
How V. Kirchner, 539
Howard v. Gossett, 36

V. Patent Ivory Co., 676

V. Sheward, 647

■ V. Shrewsbury (Earl of),

488
Howden v. Standish, 11, 372
Howe V. Malkin, 756
Howell V. Coupland, 195

V. Eichards, 525

Howson V. Hancock, 567
Hoye V. Bush, 79
Hoyt V. Thompson, 81
Hubbard v. Lees, 740

V. Mace, 340

Hubbersty v. Ward, 651
Hudson V. Clementson, 724

V. Ede, 460

V. Eoberts, 307

V. Stewart, 535

V. Tabor, 190

Huffer V. Allen, 103, 232, 271
Huggett V. Miers, 668
Huggins V. Coates, 696
Hughes V. Buckland, 79

Clark, 738
G. W. E. Co.,

, Jones, 655
Peroival, 292

, Statham, 683

114

Hughill V. Masker, 686
Hulse V. Hulse, 332, 587
Humble v. Hunter, 244
Humblestone v. Welham, 135
Humphrey v. Dale, 515, 643
Humphreys v. Pensam, 748
Humphries v. Brogden, 294

V. Humphries, 271

Hunt V. Bate, 594

V. Chambers, 69

V. Goodlake, 87

V. Hort, 466

V. Hunt, 545

Hunter (The), 733
Hunter v. Gibbons, 693

V. Leathley, 422

Huntley v. Eussell, 708
Hurdman v. N. E. E. Co., 290, 295
Hurst V. G. W. E. Co., 723
Husband v. Davis, 245
Hutchinson v. Birch, 340

V. Sydney, 595

V. Tatham, 515

V. York, N., and B.

E. Co., 662, 665

Hutt V. Morrell, 321
Hutton V. Balme, 117

V. Warren, 323, 513

Huxham v. Wheeler, 24, 434
Hyams v. Webster, 669
Hyatt V. Griffiths, 324
Hybart v. Parker, 544
Hyde v. Hyde, 386, 394

V. Johnson, 439, 653

V. Windsor (Dean of), 700

Hydraulic Eng. Co. v. MoHaffie,
168

Ibbotson V. Peat, 279

Iggulden V. May, 442

Ilott V. Wilkes, 224

Imperial Bank v. L. & St. K.

Docks, 515
Imperial Gas Co. v. London Gas

Co., 693
Imray v. Magnay, 285
Indermaur v. Dames, 225, 667
India (Sec. of St. of) v. Sahaba,

678
Indus (The), 253
Inglis V. Butterby, 475
Inman v. Jenkins, 67
lonides v. Pinder, 731

V. Universal Mar. Ins.

Co., 182

Digitized by Microsoft®

liv

TABLli! OP OASES.

Ireland (Bank of) v. Archer, 584

Irnham (Ld.) v. Child, 517

Ironmongers' Co. v. A.-G., 431

Ironsides (The), 29

Irvine v. Watson, 640

Irving V. Veitoh, 509

Irwin V. Grey, 740

Isaacson (re), 580

Isherwood v. Oldlmow, 116, 142

Islington Market Bill (re), 51

Ivat V. Pinch, 756

Ivay V. Hedges, 225

Ivimey v. Stocker, 299

Izon V. Gorton, 194

J.

Jack V. M'Intyre, 427, 486
Jackson v. Clark, 494

V. Oobbin, 687

V. Duchaire, 577

V. Galloway, 110

V. Pesked, 146, 310

V. Smithson, 306

V. Union Mar. Ins. Co.,

196

V. Watson, 712

V. WooUey, 27

Jacobs V. Layborn, 110

V. Seward, 209

Jacobsohn v. Blake, 248, 251
Jacques v. Chambers, 467
James [ex p.), 218

V. Cochrane, 415

V. Dodd, 368

Janes v. Whitbread, 482, 489
Janvrin v. De la Mare, 115
Jarmain v. Hooper, 105, 652
Jay V. Johnstone, 690
Jefferys v. Boosey, 81, 288
Jeffries v. Alexander, 188

V. G. W. E. Co., 280

V. Williams, 289

Jeffrys V. Evans, 379
Jegon V. Vivian, 426, 450
Jendwine v. Slade, 617
Jenkin v. Peace, 83
Jenkins v. Durraveir, 757

V. Harvey, 719

0. Hughes, 427, 503

V. Hutchinson, 644

V. Jackson, 667

Jenks V. Clifden, 704
Jenner v. Jenner, 502
Jennings v. Brown, 592

- V. G. N. E. Co., 589

Jenoure v. Dehnege, 157
Jervis v. Tomkinson, 204
Jesse V. Eoy, 474
Jessel V. Bath, 651
Jesson V. Wright, 503
Jessopp V. Lutwyche, 579
Jewison v. Dyson, 530
Jewsbury v. Mummery, 267
Joel V. L. Union & Crown Ins.

Co., 457
Johns u. Dickinson, 508
Johnson p. Clark, 716

V. Dodgson, 641

V. Hudson, 579

V. Johnson, 606

V. Leigh, 341

V. Lindsay, 665

V. Oserton, 654

V. Eailton, 654

V. Eoyal M. St. Packet

Co., 590, 596

V. Simcook, 451

V. Smith, 108

V. Windle, 629

Johnston v. Stear, 626
Johnstone v. Sutton, 72, 142, 171,

728

V. Usborne, 614, 722

Jonassohn v. Young, 207, 417
Jones (re), 528, 596

V. Bowden, 615

u. Brown, 531

V. Carter, 145

V. Chapman, 75, 638

V. Clarke, 617

v. Davies, 404

('. Pestiniog E. Co., 161,

290, 295, 805

V. Foley, 342

V. Giles, 579

V. Gordon, 629

V. Hart, 657

V. Jones, 281, 342

■ V. Just, 613

V. Littledale, 514

V. Liverpool Corp., 659

V. MerionethshireSoc.,2.30,

374, 565, 573

V. Newman, 469

V. Peppercorn, 721

V. Randall, 211

V. Eobin, 130

V. Eyde, 560

V. St. John's College, 204,

206
V. Scullard, 659

V. Simes, 704

Digitized by Microsoft®

TABLE OP CASES.

Iv

Jones i: Smart, 33
V. Taplia, 115, 801

i: Yaughan, 78

V. Waite, 571, 574, 581

V. Yates, 245

Jordan v. Adams, 503
Jorden r. Money, 243, 682
Jordeson v. Sutton Co., 294
Jordin u. Crvimp, 224
Joseph V. Lyons, 384
Josh V. Josh, 485, 496
Jowett V. Spencer, 442
Jowle V. Taylor, 80'

Joyce c. Metr. B. of W., 118

K.

Karnak (The), 651
Kaltenberg c. Mackenzie, 627
Karberg's case, 621
Katharina (The), 222
Kaufman v. Gerson, 14
Kaye v. Brett, 641

<•. Button, 587, 592, 600

0. Waghom, 681

Kearley v. Thompson, 573
Kearney v. L. B. & S. C. K. Co.,

254

■ V. 'Whitehaven Co., 581

Kearon v. Pearson, 200

Kearsley v. Cole, 549

Keates v. Earl of Cadogan, 607,

619
Keech i'. Hall, 283, 607
Keen v. Denny, 102

V. Henry, 660

Keep V. St. Mary's N., 21

Keighley's case, 191

Keighley, Maxtead & Co. y.

Durant, 674
Keir v. Leeman, 572, 573
Kelly V. Lawrence, 237
■ 1/. Eogers, 610

V. Solari, 214

Kelner v. Baxter, 444, 644
Kelsall V. Marshall, 66

V. Tyler, 543

Kemp V. Falk, 363

V. NeviUe, 70, 72

Kempson v. Boyle, 723
Kendal v. Wood, 229
Kendall v. Hamilton, 268

V. King, 651

Kennedy v. Panama N. Z. & A.

B. M. Co., 608
Kenney ?'. Browne, 315

L.M.

,684

Kensit v. G. E. E. Co., 299
Kenyon v. Birk, 443

0. Hart, 311

Kepp V. Wiggett, 128
Kerbey v. Denby, 840
Kerr c. Wauohope, 140, 6f6
Kidgill V. Moor, 310

Kidston v. Empire Mar. Ins. Co.,

724
Kildare County CI. r. Regom, 44
Kimbray v. Draper, 27
Kimpton v. Eve, 324
King V. Bryant, 184

V. GiUett, 603,

• V. Hind, 725

('. Hoare, 268

V. Jones, 698

V. Lond. Cab Co., 660

■ V. Melling, 447

V. Norman, 749, 752

V. Sears, 595

• V. Winn, 477

Kingdon v. Nottle, 698
Kingsbury v. Collins, 319, 820
Kingston's (Duchess of) case, 137,

267, 271, 749
Kingston-upon-Hull Dock Co. v.

Browne, 461
Kinloch v. Sec. for India, 49
Kinning v. Buchanan, 76, 133
Kintore (Earl of) v. Ld. Inverury,

528
ICirby v. Duke of Marlborough,

684
Ku-chner v. Venus, 539
liirk V. Todd, 704
Kirkland v. Nisbett, 783
Blirwan v. Goodman, 573
Kitohin v. Hawkins, 210, 632
Kitson V. Julian, 500
Knapp V. Harden, 684
ICnevett v. Pool, 320
Knight V. Bennett, 828

■ V. Gravesend Waterworks

Co., 416

V. Lee, 27

V. Selby, 450

Knights V. Quarles, 699
Krell V. Henry, 191, 196, 197
Kutner v. Phillips, 20
Kynnaird v. Leslie, 396

L.

La Banque Jaques Cartier v. La
Banque de Bparque, 678

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Ivi

TAELE OF CASES.

Laidlaw i'. Organ, 618
Lamb v. Brewster, 228

V. Evans, 518

Lambert v. Bessey, 290

V. a. E. E., 665

V. Taylor, 53

Lammine c. Dorrell, 675
Lamond v. Eiobard, 249
Lampleigh v. Bratbwait, 579
Lamprell v. Billericay, 635
Lancasbire Wagon Co. v. Fitz-

bugh, 366
Lancaster v. Eve, 336
Lancaster & C. E. Co. v. Heaton,

95
Lane v. Bennett, 33

r. Capsey, 342

■ V. Cox, 158, 668

Langden v. Stokes, 685
Langley v. Hammond, 378

V. Headland, 550

Langmead v. Maple, 267
Langston v. Langston, 411, 414
Lanman v. Ld. Audley, 100
Lanyon v. Carne, 474
Lapsley v. Grierson, 741
Larios v. Gurety, 162
Larpent v. Bibbey, 27
Larson v. Sylvester & Co., 449
La Toucbe v. Hutton, 756

V. La Toucbe, 597

Latbam v. Atwood, 319

V. Lafone, 528

Latimer v. Batson, 240
Lattimore v, Garrard, 601
Lauderdale Peerage, 388, 741
Laugber v. Pointer, 657
Laughter's case, 198
Launock v. Brown, 337
Lam-i v. Eenard, 25
Laurie v. Douglas, 180

V. Scbolefield, 688

Law V. Blackburrow, 419
Lawes v. Purser, 138

V. Band, 692, 739

Lawiance v. Boston, 519
Lawrence v. Fletcber, 591

• V. G. N. E. Co., 501

V. Hitcb, 719, 743

■ V. Hodgson, 100

V. Sydebotbam, 510

V. Walmsley, 550

V. Wilcock, 112

Lawton v. Lawton, 328, 332

V. Salmon, 327, 328

V. Sweeney, 734

Lax V. Darlington Corp., 225

Lay V. Mottram, 416

Lay ton v. Hurry, 249

Lea V. Facey, 80

Leacb v. Money, 77

Leak v. Howell, 616

Leask v. Scott, 363

Leatber Clotb Co. v. American

L. C. Co., 688
Leatbley v. Spyer, 477
Le Cas de Tanistry, 715
Ledsam v. Eussell, 58, 528
Lee V. Bayes, 173, 627

— V. Butler, 626

— V. Cooke, 234

— c. Evans, 119

— r. Everest, 639

— V. Dangar, 250, 251

— V. Gansell, 340

— V. Jobnston, 740, 743

— !'. L. & Y. E. Co., 565

— i'. Men-ett, 213

— V. Milner, 461, 462

— V. Muggeridge, 591

— V. Eeed, 551

— V. Eiley, 308

— V. Simpson, 265
Leech v. Lamb, 101
Leeds Bank v. Walker, 126
Leeds (Dulie of) v. Earl Amherst,

432

V. Cheetbam, 193

Lees V. Moseley, 427
Leete v. Hart, 80
Legge V. Boyd, 279
Leggotti'. G. N. E. Co., 271
Leidemann v. Scbultz, 724
Leigh V. Dickeson, 596

V. Taylor, 328, 332

Leith V. Irvine, 127

Le Lievre v. Gould, 158, 291, 559

Le Mason v. Dixon, 708

Le Mesurier v. Le Mesurier, 395

Lemmon v. Webb, 252, 302, 310

Lenzberg {re), 230

Leonard v. Baker, 240

Leuckbart v. Cooper, 127

Leslie v. French, 595

Levi V. Sanderson, 22

Levy V. Moylan, 76

Lewis V. Campbell, 595

V. Clay, 575, 629

V. Clifton, 207

V. Davison, 582

• V. Jones, 684

V. linigbt, 265

V. Lane, 718

-■. Marshall, 420, 723

Digitized by Microsoft®

TABLE OF CASES.

Ivii

Lewis V. Nicholson, 644

1-. Puxley, 502

Ley V. Ley, 422
Leyfield's (Dr.) case, 83
Lichfield (Myi-. of) v. Simpson, 73

Union v. Greene, 689

Lickbarrow v. Mason, 363
Liddiard v. Kain, 616
Liford's case, 109, 129, 368
Lightfoot V. Tenant, 578
LiUey v. Boney, 170
Lilly V. Hays, 587

V. Eankin, 681

V. Smales, 645

Limpus V. L. G. Omnibus Co.,

662, 664
Lincoln College case, 452
Lindgren v. Lindgren, 488
Lindsay v. Cundy, 247

V. Gibbs, 382

V. Janson, 84

Petroleimi Co. v. Hurd,

619

Lindus v. Melrose, 453
Line v. Stephenson, 505
Lion (The), 439, 669
Lister v. Lobley, 4

V. Ferryman, 86

Litt f. Martindale, 66, 590
Little V. Newton, 655
Littlefield v. Shee, 591
Liver Alkali Works v. Johnson,

199, 200
Liverpool Adelphi Loan Ass. v.
Fairhurst, 543

Borough Bank v.

Turner, 434

Marine Credit Co. v.

Hunter, 14

(Myr. of) V. Chorley

Waterworks, 5

Liversidge v. Broadbent, 590
Livie V. Janson, 180
Livingston v. Ealli, 542
Llanbeblig Llandyfrydog (re), 101
Llewellin (re), 316
Llewellyn v. Jersey (Earl of), 485,
523

V. Llewellyn, 587

Lloyd V. Crispe, 205

V. Gen. Iron Screw Collier

Co., 182

V. Great Western Dairies

Co., 115

d. Guibert, 194, 412

V. Harrison, 75

V. Lloyd, 417

Lloyd 0. Oliver, 458

r. Eoberts, 742

V. Sandilands, 340

Lloyd's Bank v. Bullock, 565
Look V. Ashton, 103
Lockett V. Nicklin, 683
Lockwood c. Ewer, 626

c. Wood, 530

Lockyer v. Ferryman, 267
Lofft V. Dennis, 193
Logan V. Hall, 247

V. Le Mesurier, 199

London (Myr. of) v. A.-G. 59

V. Cox, 744, 746

V. Parkinson,

435

V. B., 24

London Corp. v. Biggs, 570
London, B. & S. C. B. Co. u.

Truman, 5, 161, 162

London, Ch. & D. E. Co. t. S. E. R.
Co., 481

London, &c. Co. c. Creasey, 384

London Founders' Ass. v. Clarke,
117, 227

London Gas Light Co. v. Chelsea
Vestry, 417

London Gr. Junct. E. Co. v. Free-
man, 486

London J. S. Bank v. Simmonds,
629

London J. S. Bank r. Mayor of
London, 506

London Loan Co. v. Drake, 333,
335, 380

London Street Tram. Co. v. L.C.C.,
69

London E. Co. v. L. & N. W. B.,
456

London C. Bank v. London & E. P.
Bank, 630

London & N. W. E. Co. v. Evans,
369

London & N. W. E. Co. v. Ever-
shed, 229

London & N. W. E. Co. v. Lind-
say, 95

London & E. P. Bank v. Bank of
Liverpool, 217

London & S. W. E. Co. v. Gomm,
352

Long V. Clarke, 339

V. MiUar, 523

Longbottom v. Berry, 326, 328, 330
Longworth v. Yelverton, 761
Lonsdale (Earl) v. Bigg, 379
Loosemore v. Tiverton E. Co., 6

Digitized by Microsoft®

Iviii

TABLE OF CASES.

Lopez V. Burslam, 81
Lorymer v. Smith, 614
Losh V. Hague, 287
Lothiam v. Henderson, 213
Louisiana Bank v. First N. Bank

of N. 0., 243
Loukes ». Holbeach, 134
Lound V. Grimwade, 572
Love V. Bell, 718

■ V. Pares, 460

Lovick V. Crowder, 285
Low V. Little, 110
Lowe V. Fox, 126, 694
Lowestoft Manor (re), 59
Lowndes v. Norton, 317
Lowry v. Bourdieu, 213, 561
Lows V. Telford, 343
Lowther v. Eadnor (Earl of), 73
Lozon V. Pryse, 124
Lubbock V. Potts, 561
Lucas V. Nookells, 554

V. Tarleton, 249

Lucy V. Levington, 7, 697
Lumley v. Gye, 159, 740

V. Wagner, 736

Lunn V. Thornton, 384

Lunt V. L. & N. W. R. Co., 305

Lupton V. White, 236

Lusty (re), 330

Lutterell v. Reynell, 172

Lyall V. Edwards, 499

Lybbe v. Hart, 20

Lygo V. Newbold, 306

Lyle V. Richards, 84, 472, 523

Lyn V. Wynn, 20

Lynch v. Knight, 170

V. Nurdin, 306

Lyndon v. Stanbridge, 504
Lyon V. Fishmongers' Co., 166

■ V. L. C. & M. Bank, 327

v. Reed, 545

Lyons v. De Pass, 626

V. Tucker, 284

Lysaght v. Bryant, 360
Lyth V. Ault, 587
Lythgoe v. Vernon, 136
Lyttleton v. Cross, 109, 740

M.

M'Call V. Taylor, 468
M'Callan v. Mortimer, 147, 566
M'Canoe v. L. & N. W. R. Co.,

139
M'Carthy v. Deoaix, 219, 220
M'Cawley v. Furness R. Co., 227

M'Collin V. Gilpin, 473
M'Cormack v. Grogan, 41
M'Donnel v. White, 688
M'Dougal V. Robertson, 699
M'Dowell V. G. W. R. Co., 186,

306
M'Gahey v. Alston, 740
M'Grather v. Pitcher, 365
M'Gregor v. Barrett, 104

V. Graves, 595

v. Topham, 741

M'Guire v. Sculley, 505
M'Henry v. Lewis, 270
M'Intyre v. Belcher, 255
M'Kennav. Pape, 73
jM'Kenzie v. Brit. Linen Co., 241
M'Kune v. Joynson, 365
M'Lanaham v. Universal Ins. Co.,

731
M'Leod V. Power, 268
M'Mahon v. Lennard, 740
M'Manus v. Bark, 584
M'Nagten's case, 729
M'Nab V. Robertson, 300
M'Neil V. Reid, 207
M'Swiney c. Royal Exch. Ass.

Co., 182
Macartney v. Loughswilly R.,

296
Macbeath i
Macdonald

473

Maodougal v. liJiight, 269
Mace V. Cammel, 240
Macfarlane v. Lister, 590
Machell v. Clarke, 361
Mack V. Postle, 283
Mackally's case, 16
Maokay i'. Commercial Bank of
N. Brunswick, 663

V. Ford, 170

Maolcenzie [re), 532

■ V. Devonshire (Duke

of), 501

V. Dunlop, 721

V. Sligo R. Co., 28

Mackintosh v. Mid. Counties R.

Co., 417

V. Trotter, 333

Maclae v. Sutherland, 482, 483

Maclean v. Dunn, 673

Maoleod v. A.-G. forN. S. Wales,

81
Macrow v. Hull, 118
Mactaggart i'. Watson, 650
Maddick v. Marshall, 649
Maddison v. Alderson, 682

Haldimand, 670
V. Longbottom, 471,

Digitized by Microsoft®

TABLE OF CASES.

lix

Maddison r. Gill, 489
MadeU v. Thomas, 874
Madrazo v. WiUes, 47
Magdalen College, case of, 60
Magee v. Atkinson, 514

V. LoveU, 477

Magnay v. Edwards, 416
Magrath v. Hardy, 272, 740
Maitland v. Maokinnon, 440
Malcolmson v. O'Dea, 767
Malins v. Freeman, 238
Mallan v. May, 420, 580
Malpas V. Clements, 739

V. L. & S. W. E. Co.,

684

Manby v. Bewioke, 690

V. Scott, 651

Jlanchester, S. & L. E. Co. v.

Anderson, 208,

607

E. Co. V. FuUarton,

291

8. & L. E. Co. ,..

Brown, 538

Warehouse Co. v.

Carr, 193
Mandrel {ex p.), 324
Mangan v. Atterton, 306
Mangles v. Dixon, 364
Manley v. Boycot, 560, 684

V. St. Helen's Can. Co.,

292

Mann v. Mann, 486

V. Pearson, 400

Manning v. Bailey, 330

V. E. Counties E. Co.,

744

V. Westerne, 635

Manon and Woods v. Cooper, 258
Mansell v. Eeg., 260
Mansergh (re), 81
Mansfield (Earl of) v. Blaokburne,

333, 335
Manton v. Bales, 118
Manzoni v. Douglas, 254
Maplebaek (re), 564, 573
MardaU v. Thelluson, 701
Mare v. Charles, 411
Margetson v. Wright, 616
Marianna Flora (The), 300
Marine Inv. Co. v. Haviside, 734,

739
Markham v. Stanford, 546
Marks v. Lahee, 756
Marlborough (Duke of) v. Ld.

Godolphin, 107
Marriott v. Hampton, 213

Marsden v. City & County Ass.
Co., 179, 182
V. Moore, 417

V. Saville Str. F. Co., 287

Marsh v. Higgins, 26

V. Jones, 678

V. Keating, 173, 646

■ V. Lee, 282

V. Loader, 263

Marshall v. Berridge, 479

V. Broadhurst, 700

V. Lamb, 75

■ V. Sohofield, 194

Marshalsea ease, 76
Marson v. Short, 209
Marston v. Downes, 737
Martin v. Andrews, 67

V. G. N. E. Co., 115

V. Lee, 422

V. Mackonochie, 726

V. Pycroft, 465, 683

V. Eead, 626

V. Eeid, 366

V. Straohan, 558

Martmdale v. Booth, 240

V. Falkner, 211

V. Smith, 540

Martyn v. Gray, 243
Marzetti v. Williams, 162
Mason v. HUl, 296, 297

V. Morley, 736

Massey v. Allen, 758
V. Goodall, 604

V. Morris, 258

V. Sladen, 88

Master v. Miller, 68, 126
Masters' Clerks' case, 655
Masters v. Lewis, 135
Mather v. Eraser, 328, 329, 508
Mathew v. Blaokmore, 504, 508
Matthews v. Discount Corp., 165

V. Gibson, 134

Maugham v. Sharpe, 479
Maxted v. Paine, 30, 724
May V. Burdett, 307
Mayer v. Harding, 209

V. Isaac, 456

Mays y. Cannell, 419
Mears v. Cullender, 333, 334

V. L. & S. W. E. Co., 310

Meath (Bp. of) v. Winchester

(Marq. of), 82
Mecca (The), 633, 634, 637
Meddoworoft v. Huguenin, 748
Mediana (The), 186
Medway Nav. Co. v. Eomney

(Earl of), 165

Digitized by Microsoft®

Ix

TABLE OF CASES.

Medwin {ex p.), 94
Meek v. Wendt, 645
Meeus v. Thellusson, 92
Mellersh v. Eippen, 132
Mellisli V. Richardson, 110
Mellor V. Walmesley, 758
Melville v. De Wolf, 207

V. Doidge, 291

Melville's (Ld.) Trial, 733
Memberry v. Q. W. E. Co., 224
Menhennet (ex p.), 96
Mercantile, &c. Co. v. Eiver Plate,

&o. Co., 271, 750
Mercer v. Denne, 717, 719, 758
Merchant Shipping Co. v. Armi-

tage, 486
Merchant Tailors' Co. v, Truscott,

24
Merrill v. Frame, 504, 505
Merry v. Green, 280, 631
Merryweather v. Nixan, 567
Mersey Docks v. Gibbs, 99, 161,
301, 668

V. Cameron, 59

(J. Henderson, 33

Messenger v. Andrews, 140, 555
Messent i;. Eeynolds, 505
Metrop. Assoc, v. Fetch, 310

• Asylum Bd. v. Hill, 5,

161
• Bank v. Pooley, 164, 232

Board of W. v. M'Carthv,

5

Board of W. v. Metr. R.

Co., 292

R. Co. V. Wright, 89

Meux V. Jacobs, 330

Mews V. Carr, 639

Mexborough (Earl of) v. Whit-
wood, 762

Mexican & S. Amer. Co. (re), 762

Meyer v. Haworth, 599
V. Ralli, 14

Meyerstein v. Barber, 366

Micklethwait v. Micklethwait, 440

Micklethwaite (re), 435

Middleton v. Earned, 741

V. Crofts, 20, 222

■ V. Melton, 754, 756

aiidland G. W. R. Co. v. Johnson,
218

Midland Ins. Co. v. Smith, 172
— - R. Co. V. Martin, 269

E. Co. V. Pye, 26

MilboTirn v. Ewart, 103
Mildmay's case, 349
Miles V. Bough, 100, 654

Miles V. Fowkes, 634

V. Mcllwraith, 242

■ V. N. Zealand Co., 588

V. Williams, 100

Miller v. Handcock, 668
- — V. Knox, 372

V. Eace, 626

V. Salomons, 30, 121

V. Tetherington, 723

V. Travers, 469, 470, 488,

489

Milligan v. Wedge, 658
Mills V. Armstrong, 121, 124

V. Parmer, 431

V. Fowkes, 633

V. Ladbroke, 416

V. Wright, 443

Millward v. Littlewood, 587
Milne v. Bayle, 17

V. Leister, 758, 759

MUner v. Maclean, 343

Minna Craig Co. v. Chartered

Merc. Bank, 751
Minshall v. Lloyd, 326, 333
Mirams (?-e), 581
Mirehouse v. Eennell, 122, 150
Mirfin v. Attwood, 22
Misa V. Currie, 539
Mitcalfe v. Westaway, 360
Mitchell V. Crassweller, 663

V. Brown, 21

V. Darthez, 507, 510

V. Reg., 670

Mittelholzer v. Fullarton, 574
Mody V. Gregson, 512
Moffat V. Dixon, 650
Moffiit V. Laurie, 512

V. Parsons, 641

Mogul Co. V. McGregor, 158
MoUneux v. Molineux, 524
MoUett V. Wackerbath, 126
MoUwo V. Court of Wards, 531
Molton V. Camroux, 245
Monck V. Hilton, 453

Monk (re), 712

V. Cooper, 193

Monke v. Butler, 740
Montagu v. Forwood, 554
Montefiore v. Lloyd, 472, 477
Montefiori v. Montefiori, 577
Montgomery v. Liebenthal, 542
Monti V. Barnes, 327
Monypenny v. Deering, 430

V. Monypemiy, 505

Moon V. Dm-den, 25

V. Witney Union, 512

Moone v. Eose, 251

Digitized by Microsoft®

TABLE OP CASES.

Ixi

Moor V. Eoberts, 97
Moorcock (The), 518
Moore (ex p.), 114

V. Bushell, 590

■ V. Campbell, 686, 687

V. Fulham V., 230

V. M'Grath, 501

V. Metr. E. Co., 665

V. N. W. Banlv, 283

V. Phillips, 26

V. Eawlins, '199

Moorhouse v. Lord, 62
Moorish v. Murrey, 341, 342
Moorsom v. Kymer, 510
Moran v. Pitt, 627
Morant v. Chamberlin, 300
Moravia v. Sloper, 75, 746
Morgan (ea;jj.), 114;

V. Abergavenny (Earl of),

279

V. Bridges, 237

V. Couchman, 135, 241

V. Crawshay, 515, 531

V. Morris, 101

■ V. Nioholl, 749

■ V. Eavey, 700, 708

V. Eowlands, 546

V. Seaward, 42, 421

V. Thomas, 703

- V. Whitmore, 737
Morgenery (The), 567
Morley v. Attenborough, 613
Morrall ■;;. Sutton, 445
Morrell v. Cowan, 477

V. Fisher, 484, 486, 467,

496

V. Frith, 8-1

u. Martin, 75

Morrioe v. Langham, 425
Morris v. Blackman, 374

u. Cleasby, 642

V. Davies, 741

V. Delobbel-Flipo, 884

V. Matthews, 200

■ V. Ogden, 740

V. Parkinson, 73

V. Pugh, 110

■ V. Eichards, 15

V. Salberg, 652

Morrish v. Murrey, 114
Morrison v. Chadwiok, 545

V. Univ. Mar. Ins., 138

Morten v. Marshall, 547
Mortimer v. Cradook, 280, 733

V. Hartley, 451

Mortlock V. Buller, 609
Mortimore v. Wright, 406

Morton V. Brammer, 120

V. "Woods, 444

Moseley v. Motteux, 378, 412, 501

V. Simpson, 114

Moses V. Macfarlane, 66
Mosley v. Massey, 486
Moss V. Hall, 586

V. Hancock, 630

V. Moss, 392

Mostyn v. Atherton, 299

— — V. Coles, 119

V. Fabrigas, 70, 108

V. Mostyn, 490, 491

Moule V. Garrett, 552
Moulis V. Owen, 14.
Moult V. Halhday, 719
Mounsey v. Ismay, 719
Mount V. Taylor, 22
Mountjoy v. Wood, 59
Mouseley v. Ludham, 717
Moverley v. Lee, 534
Moxham v. Grant, 568
Moyce v. Newington, 627
Muggleton v. Barnett, 280, 716
Muir V. City of Glasgow Bank,

457
Mulcahy v. Eeg., 265
Mullins V. CoUins, 259
Mumford v. Hitchcocks, 15

V. Oxford, &o. E. Co.,

301, 310
Munoey v. Dennis, 323
Munday v. Stubbs, 75
Munn V. Baker, 458
Munro v. Munro, 396
Munster v. Lamb, 178
Munt V. Stokes, 561
Miarray v. Eeg., 436
Musurus Bey v. Gadban, 696
Myerhoff v. Froelioh, 84

N.

Nadin v. Battle, 103
Napier v. Bruce, 441, 500
Nash V. Armstrong, 587

V. De Freville, 680

V. Lucas, 339

Natal Land Co. v. Good, 749
National Guaranteed Manure Co.

V. Donald, 377
Naylor v. Palmer, 182
Nazer v. Wade, 101
Needham v. Bremner, 749
Neill V. Duke of Devonshire, 717
Neilson's Patent, 421

Digitized by Microsoft®

Ixii

TABLE OF CASES.

NeilBOn v. Harford, 84, 420
Nelson (re), 591

(Earl) V. Ld. Bridport, 733

V. Couoh, 268, 270

V. Liverpool Brewery, 667

Nelson Line v. Nelson, 457
Nerot V. Wallace, 206

Ness V. Angas, 139

Neve V. Hollands, 598

Nevill V. Fine Arts and Gen.
Ins. Co., 115

Newall V. Tomlinson, 216

Newbigging v. Adam, 608

Newcastle Corp. v. A.-G., 531

Newfoundland Gov. v. Newf. E.
Co., 364, 554

New London Credit Co. v. Neale,
684

Newman v. Jones, 259

Newmarch. v. Clay, 634

New South "Wales Commrs. Taxa-
tion I'. Palmer, 58

New S. Wales Bk. v. Piper, 257

Newton v. Belcher, 211

V. Boodle, 110, 201

V. Cowie, 121, 533

V. Cubitt, 557

V. Ellis, 669

■ V. Gr. Junct. E. Co., 287

V. Harland, 343

V. Holford, 514

V. Liddiard, 211

V. Lucas, 489

V. Eioketts, 508, 730

V. Eouse, 541

V. Vaucher, 287

New Windsor Corp. v. Taylor, 435
New Zealand Bank v. Simpson,

84, 473
Niehol V. Godts, 465
Nicholl V. NichoU, 430

& Knight V. Ashton, 195

Nichols V. Marsland, 190, 192
Nicholson v. Gooch, 566, 574

V. Harper, 626

■ V. Lane. & Y. E. Co.,

365

V. Paget, 456

V. Eevill, 549

Nickels v. Atherstone, 242, 545

V. Eoss, 42

Nicoll V. Chambers, 491
Nield V. L. & N. W. E., 159
Nifa (The), 475
Nightingall v. Smith, 487
Nind V. Marshall, 500
Nireaha Tamaki v. Baker, 47

Nitro-phosphate Co. v. St. Kath.

Docks Co., 190, 191
Nixon V. Freeman, 339
Noble V. Nat. Discount Co., 587

V. Noble, 211

V. Ward, 686, 687

Nokes's case, 504
Nordenstrom v. Pitt, 600
Norfolk (Duke of) v. Worthy, 642
Norman (re), 25

N. E. E. V. Dalton Overseers, 750,

751
North (re), 57

(Ld.) V. Ely (Bp. of), 440

V. L. & S. W. E. Co., 248

■ V. Smith, 291

■ Brit. E. Co. V. Tod, 522

E. E. Co. V. Hastings, 531,

725

W. Bank v. Poynter, 366

W. E. Co. V. Whinray, 500

Northam v. Hurley, 165
Northeote v. Doughty, 890
Northumberland Av. Hotel (re),

676

(Duke of) V.

Errington, 442.
Norton v. Dashwood, 329

. V. Monokton, 231

V. Powell, 16

Norwood V. Eead, 701
Notman v. Anchor Ass. Co., 457
Nott V. Shoolbred, 310
Nottingham Corp. (re), 725
Nottidge V. Pritohard, 634
Netting Hill (The), 186
Nouvion V. Freeman, 266
Novello V. Sudlow, 155
Nugent V. Cuthbert, 193

V. Smith, 190, 199

Nunn V. Trott, 714
Nuttall V. Bracewell, 298

O.

Oakeley v. Pasheller, 550
Oakes v. Turquand, 247, 582
Oakey v. Dalton, 703
Gates V. Hudson, 229
O'Byrne v. Hartington, 47
Ockford V. Freston, 246
O'Connell v. Eeg., 117
O'Conner v. Bradshaw, 577
O'Flaherty v. M'Dowell, 20, 435
Ogden V. Graham, 519
■ V. Ogden, 393, 394

Digitized by Microsoft®

TABLE OP OASES.

Ixiii

Oglesby v. Yglesias, 643

Palyart v. Leckie, 561

Oldershaw v. King, 411

Panama Telegraph Co. v. India

Oliver v. Fielding, 419

Bubber Works, 207

Ollerton (re), 95

Pannell v. Mill, 378, 414

OUive V. Booker, 419

Panton v. Holland, 301

Onions v. Bowdler, 689

V. Williams, 86

Onslow V. , 324

Pape V. Westacott, 640

Opera, Ld. (re), 217

Paradine v. Jane, 190, 193, 194,

Orchis (The), 596

203

Oriental Bank {re), 59

Pado V. Bingham, 29

V. Wright, 3

Pargeter v. Harris, 149

Oriental SS. Co. v. Tylor, 518

Parke v. Harris, 479

Orme v. Broughton, 698

Parker v. Alder, 258

Ormerod v. Chadwiok, 486

V. Bristol & E. E. Co., 229

V. Todmorden Co., 69,

V. G. W. E. Co., 229, 463

296

V. Ibbotson, 84

Ormrod v. Huth, 613

V. Kett, 656

Osbaldistone v. Simpson, 565

V. Marchant, 489

Osborn v. GiUett, 173, 711

V. EoUs, 359

Osborne's case, 534

V. Tootal, 423

Osborne v. Chockqueel, 307

V. Winlow, 643

V. L. & N. W. B. Co., 226

Parkes v. Prescott, 671

Osman v. Sheaf, 413

Parkhurst v. Smith, 414, 443

Ostler V. Cooke, 5, 75

Parmiter v. Coupland, 87

Oulds V. Harrison, 579

Parnaby v. Lane. Canal Co., 305

Owen V. Cronk, 230

Parr's Bank v. Yates, 381, 637

V. Homan, 550

Barrett Nav. Co. v. Eobins, 463

r. Smith, 529

Parrott v. Anderson, 640, 641

V. Thomas, 480

Parsons v. St. Mathew, B. G., 669

Oxley V. Watts, 249

u. Thompson, 574

Partridge v. Medical Educ. Gen.

Council, 174

P.

V. Scott, 292

Pasley v. Freeman, 155, 616, 619

Packer v. Gibbins, 194

Patapsoo Ins. Co. v. Coulter, 180

Packington's case, 317

Patent B. E. Co. v. Seymer, 287

Paddock v. Forester, 526

Paterson v. Gandasequi, 643

— r. Fradley, 422

Patmore v. Colburn, 684

Paddon v. Bartlett, 26

Patrick v. Colerick, 251

Padwick v. Knight, 715

V. Eeynolds, 650

Page V. Bennett, 29

Patten v. Holmes, 23

V. Eduljee, 540

Pattinson v. Luckley, 126

V. Moore, 118

Pattle V. Hornibrook, 517, 684

Paget V. Foley, 23

Paull V. Simpson, 233

Paine v. MeUer, 199

Paxton V. Popham, 572, 576

V. Patrick, 556, 611

Payler v. Homersham, 441, 499

Painter v. Abel, 590

Payne v. Wilson, 626

• V. Liverpool Gas Co., 93

V. Eogers, 666

Palk V. Force, 526

Paynter v. Williams, 696

Palmer v. Blackburn, 514

Peaceable v. Watson, 756

V. Evans, 671

Peacock v. Purssel, 638

■ V. Hutchinson, 48, 670

V. Bell, 746

■ V. Johnson, 610

V. Stockford, 529

V. Mallett, 416

Peake v. Screech, 528

u. Moxon, 480

Pearce v. Brooks, 577

V. Snow, 16

Pearson (re), 82

V. Wick, 568

V. IDawson, 136

Digitized by Microsoft®

Ixiv

TABLE OF CASES.

Pearson v. Hull L. B., 452

V. Spencer, 370

V. Skelton, 568

Pease v. Chaytor, 70, 72
Peate v. Dioken, 16, 590
Pedley v. Davis, 72

V. Goddard, 480

V. Morris, 170

Peebles «. Oswaldtwistle XJ. D. C,

174, 713
Peek V. Gurney, 619, 620, 622

V. N. Staff. E. Co., 723

Peer v. Hmnplirey, 627
Pell y. Liimell, 201
Pemberton v. Chapman, 703
Penny v. Brice, 697

V. Wimbledon U. C, 661

Penrose v. Martyn, 411
Penruddocke's case, 292
Penryn (Myr. of) v. Best, 737
Penton v. Browne, 839

V. Robart, 338

Peppercorn v. Hofman, 79

V. Peacock, 529

Peroival v. Hughes, 292, 661

V. Nanson, 755

V. Stamp, 250, 840

Perkins v. Bell, 612

V. Smith, 657

Perkinson v. Guildford, 701
Perren v. Monm. R. Co., 199, 291
Perrin v. Blake, 350

Perry v, Barnett, 725

V. Davis, 115

V. Fitzhowe, 233, 342

-— V. Watts, 413

Perrott v. Palmer, 815
Perth Peerage (The), 738
Peruvian Guano Co. v. Bockwoldt,

270
Peshall V. Layton, 652
Petch V. Lyon, 244

V. Tutin, 507

Peter v. Daniel, 411
Peters v. Anderson, 634

V. Clarson, 248

Petrel (The), 665
Petrie v. Hannay, 574

V. Nuttall, 761

Pettamberdass v. Thackoorseydas,

25
Pettitt V. Mitchell, 512
Peytoe's case, 681
Peyton v. London (Myr. of), 292
Philipps V. Halliday, 737
Philipson v. Egremont (Earl of),

575

Phillips V. Ball, 717, 718

V. Edwards, 458

V. Eyre, 14, 24, 70, 99,

678

V. Homfray, 709

V. London School Bd., 67

V. Nairne, 180, 183

V. PhiUips, 281

V. Smith, 316

Philpott V, Jones, 634
Phipps V. Ackers, 115

V. New Claridges Hotel,

254

Piatt V. Ashley, 528

Pickard v. Sears, 241, 243, 625

■ V. Smith, 661

Pickering v. Ilfraeombe K. Co.,
580

V. James, 174

V. Eudd, 311

Pickford v. Gr. Junct. E. Co., 642
Pidgeon v. Burslem, 579

Piers V. Piers, 388, 741

Piggot V. E. Counties B. Co., 290

Pigot's case, 126

Pigot V. Bullock, 817

V. Cubley, 626

Pike V. Carter, 73

V. Hoare, 150

V. Ongley, 515

PQbrow V. Pilbrow's Atmospheric

E. Co., 582
Pilgrim v. Southampton & D. E.

Co., 5
Pillans V. Van Mierop, 583
Pindar v. Wadsworth, 120, 164
Pinhorn v. Souster, 27
Pinington v. Galland, 367
Pitcher v. King, 78
Pitt V. Coombes, 230

- V. Pitt, 557
Pitts V. George, 288
Plant V. Bourne, 480

V. Taylor, 754

Plasterers' Co. v. Parish Clerks'

Co., 303
Plate Glass Co. v. Meredith, 2, 5
Piatt V. Bromage, 213
Playfair v. Musgrove, 250
Playford v. U. K. Telegr. Co., 589
Plenty v. West, 445
Plevins v. Downing, 686
Plimpton V. Malcolmson, 421
Plumer v. Briscoe, 785
Plumstead Bd. v. Spackman, 4
Pochin V. Dunoombe, 532
Pocock V. Pickering, 457

Digitized by Microsoft®

TABLE OF CASES.

Ixv

Pole V. Cetcovitch, 208,

V. Hari'obin, 571

Polhill V. Walter, 643, 644

Polini V. Grey, 758

Pollard (re), 92
V. Bank of England, 216

Pollen V. Brewer, 342

PoUitt u. Forest, 479

Pollock V. Stables, 724

Polley V. Fordham, 69, 72

Pomfret v. Ricroft, 368

Pontlfex V. Bignold, 165

Poole V. Dicas, 758

V. Poole, 439

V. Whitcombe, 119, 211

(May. of) V. Whitt, 234

Pooley V. Brown, 210

V. Harradine, 550, 684

Pope V. Bavidge, 206

V. Fleming, 245

Popplewell V. Hodkinson, 294, 300
Pordage v. Cole, 417
Porter v. Bradley, 129
Portington's case, 347, 350
Portsmouth Fl. Br. Co. v. Nanoe,

461
Portuguese Con. Mines (re), 677
Postlethwaite (re), 741
Potez V. Glossop, 737
Pothoneir v. Dawson, 626
Potter V. Faulkner, 291, 306
Poulsum V. Thirst, 80
Poulton V. L. & S. W. E. Co., 642,

665
Poussard v. Spiers, 196
Powell V. Borraston, 333

V. Divett, 126

V. Edmunds, 511

V. FaU, 161

V. Farmer, 333

V. Graham, 700

V. Gudgeon, 181

V. Hoyland, 232

V. KemptonPark Co.,453,

531, 583
■ V. Lond. & Pr. Bank, 283,

561
• V. Eees, 707

V. Sonnett, 739

Power V. Barham, 517, 616
Powley V. Walker, 604
Pratt V. Inman, 712

Prehn v. E. Bank of Liverpool,

186
Prentice v, Harrison, 75
V. Lond. Building Soc,

137

Preston v, Liverpool & M. E. Co.,
514

V. Merceau, 511

P retty v. Biokmore, 677
Price V. Barker, 441, 549, 550

V. Carter, 244

V. Easton, 587

■ V. G. W. R. Co., 506

V. Kirkham, 550

V. Macaulay, 618

V. Messenger, 79

V. Peek, 652

V. Torrington (Earl of), 757

V. Woodhouse, 250

V. Worwood, 737

Prichard v. Powell, 130
Priestley v. Foules, 461

V. Fowler, 665

Priestman v. Thomas, 750
Prince v. Nicholson, 523
Prior V. Hembrow, 701
Pritchett v. Smart, 762
Proctor V. Mainwaring, 436
Prohibitions (case of), 35, 94
Prole V. Wiggins, 572
Prosser v. Wagner, 750
Provincial Bill P. Co. v. Low

Moor Iron Co., 329
Prowse V. Spurway, 392
Prudential Ins. Co. v. Edmunds,

89
Pryce v. Belcher, 156
Pugh V. Griffith, 340

V. Stringfield, 411, 416

Pulborough School B. (re), 25, 28
Pulling V. a. E. E. Co., 705
Pmmett (ex p.), 831
Purchase v. Shallis, 487
Purnell v. Wolverhampton New

Waterworks Co., 19
Pusey V. Desbouvrie, 219
Pym V. Blackburn, 193

V. Campbell, 514

V. G. N. E. Co., 706, 707

Pyne (re), 135
V. Dor, 318

Q.

Quarman v. Burnett, 659
Quartz Hill Co. v. Eyre, 164
Quick V. Ludborrow, 701
QuickC V. Leach, 424, 425
Quilter v. Mapleson, 27, 29
Quincey (ex p.), 828

V. Sharpe, 84

Quinn v. Leatham, 156, 158, 159

Digitized by Microsoft®

Ixvi

TABLE OF CASES.

R.

R. V. Clewortb, 504
— V. Ooaks, 204

R. f. Aberdare Canal Co., 96

— V. Coben, 12

— V. Abingdon, 170

— V. Collins, 262

— V. Alleyne, 572

— V. Commrs. of Inl. R., 46

— V. All Saints, Southon., 744

— V. Coney, 223

— V. AU Saints, Wore, 763

— V. Copland, 61

— V. Ambergate R. Co., 203,

204,

— V. Cotton, 57

748

— • V. Cresswell, 741

— V. Amery, 51

— ©..Croke, 4, 5

— V. Anderson, 81

— V. Cross, 763

— V. Antrobus, 11

— V. Cruse, 260

— V. Asbwell, 263

— V. Cunningbam, 516

— V. Aspinall, 147

— V. Deal (May. of), 97

— V. Austin, 57

— V. Demers, 518

— V. Bailey, 222

— V. Denbigbsbire JJ., 110

— V. Barker, 167

— V. Denton, 22, 33

— V. Beadle, 59

— V. Dixon, 259

— V. Bellringer, 726

— V. Drury, 276

— V. Benn, 91, 372

— V. Duckwortb, 261

— V. Bennett, 189

— •V. Dublin JJ., 97

— r. Bertrand, 89

— V. Dudley, 9

— V. Betts, 42, 120, 300

— V. Dulwicb College, 530, 653

— V. Bird, 340

— V. Dykes, 13

— V. Birmingbam, 392, 549

— V. Eagleton, 262

— V. Birmingbam Overseers,

754

— V. East Mark, 53

— V. Blake, 760

— V. E. Arcbipelago Co., 42, 505

— i'. Blakemore, 572

— V. Edmundson, 504

— V. Bolingbroke, 99

— V. Edwards, 57, 109, 201

— V. Boyes, 762, 763

— V. Eldersbaw, 264

— V. Bradford Nav. Co., 301

— V. Ellis, 140

— V. Brerman, 740

— V. Elrington, 274

— V. Broadbempston (Inh.

of).

— V. Erdbeim, 763, 764

411, 739

— V. Eriswell, 116

— (' . Brown, 262, 528

— V. Esop, 222

— V. Bull, 10

— V. Essex, 740

— V. Burton, 97

— V. Essex Commrs., 191

— V. Butler, 41

— V. Evans, 135

— V. Caledonian R. C, 205,

514,

— V. Eve, 217

522

— V. Exeter, 754

— V. Cambridge (Cb. of Univ.),

— V. Exeter (Chapter of) , 740

91,92

— V. Farrant, 97

— V. Cambridge (Recorder of]

,96

— V. Earrington, 259

— V. Canterbury (Arcbbp. of)

91,

— V. Pisber, 260

530, 680

— V. Flowers, 632

— V. Casterton (Inb. of), 529

— V. Fobbing Commrs., 191

— V. Cbampneys, 20

— V. Fontaine Moreau, 748

— V. Cbandra Dbarma, 27

— v. Fordingbridge (Inb. of), 739

— V. Cbapman, 77

— V. G-aisford, 97

— V. Cbarlesworth, 120

— V. Garbett, 761

— V. Cbeeseman, 261

— V. Gardner, 189, 262

— V. Cbeltenbam Commrs., 98 |

— V. Gaskin, 91

— V. Obesbire L. Com., 92

— V. Gate Fulford (Tnb, of), 744

— V. Cbester (Bp. of), 130

— V. Gaunt, 275

— V. Cbilverscoton, 144, 529,

745

— V. Gibbon, 97

— V. Cbristoburoh, 28

— V. Gillyard, 90, 764

— V. Claviger, 763

1

— V. Clyde, 558

Digitized by Microsoft®

TABLE OF CASES.

Ixvii

K. u. Glynne, 276

E. V. Loxdale, 148

— c. GoodaU, 482

— ('. Lyme Eegis, 740

— 0. G. W. R. Co., 93

— V. M'Cann, 59

— V. Great Yarmouth JJ., 97, 98

— V. McDonald, 264

— i\ Gregory, 518

— V. M'Naghten, 263

— V. Griffiths, 80

— V. M'Pherson, 261

— i\ HaU, 439, 534

— V. Maidenhead (May. of), 68

— i: HaUiday, 259, 763

— V. Manchester, S. & L. E. Co.,

— V. Handsley, 97

97

— v. Hapgood, 262

— V. Man waring, 388

— V. Hardey, 572

— V. Martin, 189, 259, 262

— V. Harvey, 259

— V. Mashiter, 530

— V. Haslingfield, 748, 744

— I'. Meade, 260

— r. Helling, 745

— V. Mellor, 493

— c. Henley, 99

— (,'. Meyers, 97

— ('. Hertfordshire JJ., 98

— i\ Middlesex JJ., 23

— f. HioWin, 259

— 0. Middlesex (Eegistrar of).

— c. HiU, 260

522

— 0. Hodgkiss, 144

- ■ V. Miles, 273

— •-•. Holm, 745

— V. Milledge, 97

— f. Hoseason, 94

— V. Millis, 117, 387, 388, 424

— V. Huggins, 97

— V. Moore, 259, 260

— f. Hughes, 189, 725

— r. Morris, 274

— V. Hulcott, 745

— c. Murphy, 89

— f. Huntingdon, 97

— c. Newborough (Ld.), 144

— V- Hutchins, 750

— f, Newmarket E. Co., 7, 658

— V. Jameson, 81

— ;. N. Nibley, 514

— V. Jarvis, 526, 527

— ('. Nottingham, 740

— ■;;. John, 12

— r. Osboume, 530

— V. Johnson, 64, 72, 437

— r. Owen, 264

— V. Jollifife, 719

— i: Oxford Circuit (CI. of A.),

— V. Jones, 189, 655, 741

189

— t'. Jukes, 526

— V. Oxley, 482

— V. Kempe, 40

— 1-. Pagham Commrs., 169

— V. Kennick, 173

— V. Parker, 483

— V. Kent (Treas. of), 745

— r. Paty, 747

— V. Keyn, 309

— c. Peel, 491

— V. King, 274

— t: Perkin, 655

— V. Kirkman, 260

— c. Pocock, 189

— V. Knock, 10

— i\ Poole, 90

— C-. Lancashire JJ., 98

— V. Poor Law Commrs., 446

— V. Lane. & Y. E. Co., 203

— V. Povey, 733

— V. Larking, 56

— V. Powell, 740

— V. Lee, 97, 326

— V. Price, 12

— V. Leeds K. Co., 29

— V. Prince, 266, 268, 670

— V. Leicester Guardians, 153

— V. Eand, 95, 97

— V. Leicestershire JJ., 200

— V. Eegent's Canal Co., 622

— V. Leigh, 191

— V. Eew, 189

— V. Lewis, 81

— V. Eichards, 529

— V. Lloyd, 655

— V. Eiley, 255

— V. London & N. W. E. Co., 203

— V. Eing, 262

— V. London (Bp. of), 210

— V. Eoberts, 262

— V. London C. C, 98

— V. Eobinson, 437, 768

— V. London JJ., 98

^ V. Eochester (Dean of), 95

— V. London (May. of), 464

— V. Eoderiok, 261

— V. Lovett, 259

■- V. Eose, 10

— V. Lowe, 185

— V. Eotherham, 482

Digitized by Microsoft®

Ixviii

TABLE OF CASES.

R. f. Russell, 120

— V. Russell (Earl), 81

— V. Saddlers' Co., 91, 246

— ('. Salway, 725

— 0. Sandwich (May. of), 244

— v. Scofield, 261

— V. Scott, 763

— V. ScuUy, 837

— V. Selby Dam Commrs., 668

— V. Silkstone, 482, 745

— V. Silverlock, 780

— ('. Silvester, 16
Skeen, 763
Sloper, 56
Smith, 264

Somerset Commrs., 191
Southerton, 105
S. E. R. Co., 203
St. Albans (Bp. of), 96, 99
St. Dunstan, 328
St. Edmund's, Salisbury, 21
St. Margaret's, Westm., 528
St. Mary's, Leic, 529
St. Mary Mag., 739
St. Mary's, Warwick, 118,

758
St. Mary's, Whitechapel, 28
St. Michael's, Southon., 741
St. Paul's, C. G., 739
Stainforth (Inh. of), 77
Stephens, 259, 671
Stockton, 739
Stoke-upon-Trent, 512
Strahan, 764
Stretfield, 486
Suffolk JJ"., 21, 98
Sunderland JJ., 97
Surrey JJ., 98, 209
Sussex JJ., 115
Sutton, 264
Swindall, 189
Taylor, 144
Tempest, 97

Tewkesbury (May. of), 211
Thomas, 260
Thompson, 761
Tolson, 256, 257
Tooley, 77
Torpey, 12, 18
Totness (Inh. of), 77, 93, 745
Treasury Commrs., 170
Upton Gray, 144
Upton St. Leonard's, 98
Verelst, 740
Vme, 28
Waite, 264
Waloot Overseers, 131

— V.

— ('.

— V.

— V.

— V.

— V.

— V.

— V.

— V.

— V.

V.

V.

V,

V,

— V.

V.

V.

— V.

— V.

— V.

— V.

— I'.

V.

V,

— r.

— V.

— V.

— V.

— V.

— V.

— V.

— V.
V.

— V.

— V.
V.

— V.

V.

— V.

V.

R

V.

— V.

— V.

— V.

— V.

V.

— V.

— V.

- V.
■ V.

Walters, 260

Ward, 301

Warwickshire JJ., 739

Watson, 87

Waverton, 524

West Riding JJ., 98

Weston, 10

Westwood, 135, 369
('. Whitchurch, 144
V. Whiteley, 15
V. Whitmarsh, 16
V. Widdop, 114
V. Wilcock, 486
V. Wilkes, 68, 338
V. Williams, 65, 264
V. Woodrow, 123, 257

Woodward, 675

Wooldale (Inh. of), 472, 481,
534

— V. Worth (Inh. of), 758

— V. Wright, 60

— V. Yarborough (Ld.), 133

— V. York & N. Midi. R. Co., 203

— V. York, N. & B. R. Co., 207

— V. Younger, 15
Rackham v. Marriott, 84
Radley v. L. & N. W. E., 186
Raffles V. Nichelhaus, 464
RaU-ton v. Wood, 4
Raleigh v. Goschen, 47, 670
Ralston v. Hamilton, 123, 427
Eamazotti v. Bowring, 243, 642
Rameshur Pershad Narain Singh

V. Koorj Behari Pattuck, 299
Ramsay v. Gilchrist, 586
Ramsden v. Dyson, 112, 140, 241,

315
Ramshay {ex p.), 92
Ramskill v. Edwards, 712
Rand v. Green, 492
Randall v. Newson, 615
Ranger v. G. W. R. Co., 96
Bann v. Hughes, 584
Raphael v. Bank of Engl., 629

v. Goodman, 652

Rashleigh v. S. E. R. Co., 504
Ratoliffe v. Burton, 840, 341
Rawson v. Haigh, 760
Rawstron v. Taylor, 297
Ray V. Jones, 413
Raymond v. Fitch, 698, 701
Rayner v. Grote, 244, 458

V. Mitchell, 663

V. Preston, 611

Rayson v. S. Lond. Tramway Co.

164
Rea V. Sheward, 251

Digitized by Microsoft®

TABLE OF CASES.

Ixix

Kead v. Edwards, 307

V. Friendly Society of Stone-

masons, 159

V. G. E. E. Co., 707

V. Goldring, 141

('. Legard, 406

V. Lincoln (Bp. of), 532

V. Price, 695

Reade v. Conquest, 265
Readhead v. Midi. R. Co., 199,

200
Reason v. Wirdnam, 595
Reay v. Richardson, 684
Rebeckah (The), 464
Reddaway v. Banham, 375
Redgrave v. Hurd, 609, 618
Redman v. Wilson, 180
Redmond v. Smith, 579
Reed v. Harrison, 250

V. Ingham, 453

I'. Jackson, 740

V. Lamb, 738

Reedie v. L. & N. W. R. Co., 658,

661
Rees V. De Bernardy, 574
Reese E. Silver Mining Co. i.

Smith, 682
Reeve v. Palmer, 291
Reeves v. Butcher, 696

V. Heame, 598

Reid V. Bickerstaff, 507

V. Hoskins, 207, 208

V. Reid, 25

V. Wilson, 17

Reis V. Scottish Eq. Life Ass.

Soc, 684
Reischer v. Borwick, 181
Remfry v. Butler, 227
Remington v. Stevens, 693
RendaU v. Blair, 24
Rennie v. Clarke, 650

V. Ritchie, 354

Reward (The), 120, 579
Reynell v. Lewis, 648

V. Sprye, 565, 570, 618

Reynolds (re), 762, 763

V. Ashby, 328, 330

V. A.-G. for Nova Scotia,

29

V. Barford, 456

V. Clarke, 311

V. Fenton, 93

V. Tomlinson, 721

Rhoades (re), 178
Rhodes v. Forwood, 236

V. Haigh, 699

. V. Smethurst, 697

Ribble Joint C. v. Croston U.D.C.,
271
Nav. Co. V, Hargreavcs,

461
Ricard v. Williams, 742
Rice V. Reed, 136

V. Shepherd, 406

Rioht). Ashbury Co., 676

V. Basterfield, 667

V. Jackson, 511

Ricliards v. Bluck, 442

■ . V. Davies, 427, 429

V. Dyke, 21

V. M'Bride, 439

V. Morgan, 749

V. Rose, 292

V. West Mid. Water-
works Co., 663

Richardson v. G. E. R. Co., 199
V. Dubois, 406

V. Dunn, 645

V. MeUish, 561

V. Power, 423, 427

V. Watson, 468, 469

Richmond v. Nicholson, 707
Riokards v. Murdock, 730
Riokett V. Metr. R. Co., 310
Ricketts v. Bennett, 651

V. Weaver, 698

Riddell v. Sutton, 701
Ridgway v. Wharton, 522
Ridley v. Gyde, 760
Eigby V. G. W. R. Co., 415
Rigg V. Lonsdale (Earl of), 279
Right V. Compton, 460

Riley v. Paokington, 649
Ring V. Roxburgh, 483
Ringer v. Cann, 508
Eippinghall v. Lloyd, 681
Risbourg v. Bruckner, 643
Riseley v. Ryle, 106
Rishton v. Cobb, 488
Risney v. Selby, 617
Ritchie v. Atkinson, 419

V. Smith, 571, 579

River Steamer Co. (re), 546
Rivers (Ld.) v. Adams, 370
Eobbins v. Fennell, 590
Eoberts v. Aulton, 67

V. Barker, 324

V. Bethell, 737

V. Brett, 417

V. Bury Commrs., 205

V. G. W. R. Co., 292

V. Orchard, 80

V. Phillips, 508

V. Preston, 671

Digitized by Microsoft®

Ixx

TABLE OF CASES.

Eoberts v. Eose, 302

V. Smith, 291, 592

Kobertson v. Fleming, 591

V. French, 422, 722

V. Gantlett, 2

V. Powell, 423

Eobinson v. Collingwood, 746

■ V. Cook, 141

V. Cotterell, 33

V. Davison, 196

V. Emerson, 21

V. Gleadow, 643

V. Hardcastle, 430

V. Mollett, 725

V. Ommaney, 580

V. Kutter, 624

V. Vaughton, 658

V. Workington, 174

Eobson V. A.-G., 278

Eoohester (Bishop) v. Le Fanu,

61
Bockett V. Chippingdale, 20
Eoddy V. Fitzgerald, 429, 503,

504
Eoden v. Small Arms Co., 472
Eodger v. Comptoir d'Escompto

de Paris, 364, 450
Eodgers v. Maw, 675
Eoe V. Bacon, 524, 526

V. Galliers, 359

V. Harrison, 681

V. Harvey, 735

• V. Lidwell, 485

V. Eeade, 450

V. Tranmarr, 413

V. York (Arohbp. of), 413

Eoifey v. Henderson, 333, 685
Eogers v. Brenton, 715

V. Hadley, 85, 189, 514,

538, 576, 723

V. Ingham, 218

V. Nowill, 164

V. Parker, 165, 249

V. Eajendoo Dutt, 47

V. Spence, 365

V. Taylor, 715, 718

Eolfe V. Flower, 636

Eolin V. Steward, 162, 165

Eollason v. Leon, 415

Eomer (re), 638

Eomney Marsh v. Trinity House,

186
Book V. Worth, 193
Eooke's case, 68
Eooke V. Ld. Kensington, 502
Eoope V. D'Avigdor, 172
Eoret V. Lewis, 105

Eoscorla v. Thomas, 694, 597,
601

Eose V. Buokett, 365

V. Groves, 166

V. Poulton, 178

Eosewarne v. Billing, 579

Eosher (re), 349
Eoss V. Adcock, 712

V. Hill, 199, 305

Eossiter v. Trafalgar Life Ass.

Assoc, 654
Eoswell V. Vaughan, 605
Eothes V. Kirkaldy Commrs., 434
Eourke v. White Moss Co., 659
Eouse V. Bradford Bank, 544, 550
Eousillon V. Eousillon, 14
Eoutledge v. Low, 288
Eowbotham v. Wilson, 294, 358,

368, 538
Eowe (re), 487

■ V. Brenton, 755

Eowles V. Senior, 105

Eoyal Aquarimn v. Parkinson,

170
Eoyal Liver Fr. Soo. (re), 443
Buck V. Buck, 271
Eudd V. Lasoelles, 609
Eiunsey v. N. E. E. Co., 547
Bundle v. Hearle, 167, 744
Eusden v. Pope, 382
Eussell V. Da Bandeira, 205

V. Ledsam, 526

■ V. N. York (May. of), 2

V. Smyth, 66 .

V. Watts, 159, 371

Eussia Steam Navig. Co. v. Silva,

723
Eust V. Nottidge, 416
Bustomjee v. Eeg., 49
Eutland's (Countess of) case, 104,
680

(Earl of) case, 51

Butland v. Doe, 359
Butter V. Chapman, 413, 655
Buttinger v. Temple, 407
Byall V. BoUe, 330, 366
Byan v. Shiloook, 339
Eyder v. Mills, 435, 436

■ V. Wombwell, 88, 406

Eylands v. Fletcher, 290, 294,
295, 306

V. Kreitman, 141

Eyves v, Duke of Wellington, 46

Sadler v. Dixon, 184

Digitized by Microsoft®

TABLE OF CASES.

Ixxi

Sadler v. Henlook, 658

V. Leigh, 642

Saint V. Pilley, 334

St. Helen's Co. v. Tipping, 296

301
St. Margaret's Burial Board v.

Thompson, 31
St. Victor V. Devereux, 114
SaHord (May. of) v. Ackers, 527
Salisbury (Marq. of) v. Gladstone,

358, 717
Salkeld v. Johnson, 433, 437, 438,

531
Salmon v. Webb, 748
Salomons v. Pender, 139
Salters' Co. v. Jay, 24
Salton V. New Beeston Cycle Co.,

645
Salt Union v. Brunner Mond &

Co., 294, 300
Sampson v. Easterby, 441
Samuel v. Green, 641
Sam.uell v. Howorth, 550
Samuel AUen {re), 330
Sanchers (Ld.), case, 90
Sanders v. Coward, 205

V. Davis, 331

Sanderson v. Collins, 663

V. Dobson, 450

Sandilands (re), 739
Sandon v. Jarvis, 340

V. Proctor, 110

Sandrey v. Mitchell, 365
Sands V. Child, 657
Saner v. Bilton, 193
Sansom v. Bell, 500
Sanson v. Eumsay, 733
Santos V. lUidge, 14, 574
Sargent v. Gannon, 211

V. Morris, 642

V. Wedlake, 571

Sarquy v. Hobson, 181
Sarson v. Eoberts, 607

Sasty Velaider i;. Sembecutty, 741
Saunders' case, 367
Saunders v. Evans, 506

V. Graham, 141

V. Holbom D. B., 174

V. Smith, 811

Saunderson v. Piper, 467
Savill V. Eoberts, 163
Savin v. Hoylake E. Co., 537
Saye & Sele Peerage, 741
Sayer v. Wagstaff, 638
Scales V. Cheese, 110
Scarborough v. Borman, 353

(Earl of) V. Doe, 423

L.M.

Scarf V. Jardine, 619
Soarfe v. Morgan, 16
SoarpiUini v. Atcheson, 597
Schilizzi V. Derry, 204
Schmaling v. TomUnson, 654
Schmaltz v. Avery, 244
Schofield (ex p.), 763
Scholfield V. Londesborough, 561,

625
Schooner Eeeside (The), 727
Scotson V. Pegg, 587
Scott V. Avery, 444, 542

V. Brown, 545, 562

V. Gillmore, 580

V. Littledale, 217

V. London Dock Co., 253

V. Manchester (May. of), 73

V. Sebright, 392

V. Shepherd, 290

V. Stansfeld, 70

V. Waithman, 734

Scottish Drainage Co. v. Camp-
bell, 7

Scrimshire v. Alderton, 642
Scrivener v. Pask, 512
Seagram v. Knight, 318, 697
Seagrave o. Union Mar. Ins. Co.,

176
Seal (re), 496

Seaman v. Neatherclift, 171
Searles v. Sadgrave, 141
Sebag V. Abitbol, 291
Secretary of State for War v.

Wynne, 58
Seeger v. Duthie, 419
Seifferth v. Badham, 519
Seignior v. Wolmer, 556
Selby V. Browne, 234
Seller v. Jones, 500
Selwood V. Mildmay, 487, 488
Semayne's case, 340
Semenza v. Brinsley, 554
Senhouse v. Earle, 530
Seward v. Vera Cruz, 20, 706
Sewell V. Burdick, 363
Seymayne's case, 337
Seymour v. Greenwood, 664

V. Pritohett, 635

Shackell v. Eosier, 568
Shadwell v. Shadwell, 587
Shand v. Grant, 560
Sharp V. Grey, 199

V. Nowell, 655

V. Powell, 168, 185

Sharpe (re), 712
Sharpies v. Rickard, 88
Sharpley v. Mablethorpe, 530

/

Digitized by Microsoft®

Ixxii

TABLE OF CASES.

Shattook V. Garden, 285
Shaw V. Beck, 741

V. Gould, 62, 395, 397

V. G. W. R. Co., 543

Shedden v. Patrick, 388, 396
Sheers v. Brooks, 342
Sheffield v. Eadcliffe, 106
Shelburn v. Inohiquin, 517
Sheldon v. Sheldon, 524
Shelter v. London E. L. Co., 162
Shelley's case, 503

Shelton v. Braithwaite, 132

u. Springett, 406

Shenstone v. Hilton, 626
Shephard v. Payne, 719
Shepherd v. Harrison, 363

V. Hills, 33

V. Kain, 617

0. Pybus, 512

V. Sharp, 6

V. Shepherd, 123

Sheppard v. Phillimore, 149
Sherborn v. Ld. Huntingtower,

101
Sherras v. De Eutzen, 257
Sherry (re), 635
Shipway v. Broadwood, 580
Shoe Machinery Co. v. Cutlan,

267
Shore v. Wilson, 84, 476, 725
Shoreditch Vestry v. Hughes, 88,

411
Shorland v. Govett, 251
Shortrede v. Cheek, 465
Shrewsbury v. Blount, 617

Peerage, 461

Shutford V. Borough, 696
Shuttleworth v. Greaves, 472

V. Le Fleming, 436

Siboni v. Kirkman, 700
Sibree v. Tripp, 687
Sibthorpe v. Brunei, 417
Siohel V. Lambert, 741
Sicklemore v. Thistleton, 442
Siddons v. Short, 140, 165
Sidwell V. Mason, 84
Sill V. Worswick, 399
Sillem V. Thornton, 522
Simmonds {ex p.), 217
Simmons v. Heseltine, 218

V. Norton, 193, 316

Simms v. Eegistrar of Probates,

375
Simond v. Bradden, 617
Simons v. Johnson, 441

V. Patehett, 645

Simpson v. Bloss, 562

Simpson v. Eggington, 672

V. Pogo, 14

. ■ V. HoUiday, 83

V. Howden (Ld.), 4, 574

V. Ingham, 634

V. Lamb, 574

V. Lond. Gen. Omn. Co.,

253

V. Margitson, 724

V. Nioholls, 16

V. Ready, 527

V. Savage, 301, 310

V. Thompson, 178

V. Wells, 717, 719

V. Wilkinson, 743

Sims V. Bond, 652
Singleton v. Tomlinson, 525

V. Williamson, 234, 308

Siordet v. Hall, 185

V. Kuczynski, 88

Six Carpenters' case, 102, 248, 251
Skaife v. Jackson, 565
Skeate v. Beale, 229
Skeet V. Lindsay, 84
Skillett V. Fletcher, 550
Skinner v. L. B. & S. C. R. Co.,
253

V. Shew, 507

Skull V. Glenister, 485
Skyring v. Greenwood, 216
Slater v. Burnley, 229
■ V. Dangeriield, 429

V. May. of Stuiderland, 549

Sleddon v. Cruickshank, 334
Slingsby v. Grainger, 424, 488
Small V. Nat. Prov. Bank, 331
Smart v. Hiitton, 652

V. Morton, 292

Smeeton v. Collier, 655
Smethurst v. Mitchell, 643
Smith (re), 69

V. Baker, 137, 224, 614,

665

V. Bell, 439, 463

V. Besty, 635

V. Bickmore, 567

V. Blakey, 755, 756, 758

V. Boucher, 70

V. Bromley, 213

V. Brownlow, 342

V. Chadwick, 622

V. Coffin, 422

V. Colgay, 702

v. Compton, 442

V. Cramer, 760

V. Doe, 123, 460

I'. Eggington, 249, 251

Digitized by Microsoft®

TABLE OF CASES.

Ixxiii

Smith V. Frampton, 305

V. Giddy, 252, 311

V. Hartley, 481

V. Hodson, 136, 675

V. Hughes, 620

V. JefEryes, 423

V. Keal, 656

V. Kenrick, 294

V. King, 546

V. Lajid Corporation, 699,

621

V. L. & S. W. E. Co., 305

V. MaUngs, 234

V. Manners, 236

• V. Marrable, 607

V. Mawhood, 579

V. Midland K. Co., 254

V. Monteith, 104

V. Packhurst, 413

V. Pincomb, 220

V. Pocklington, 414

V. Eeg., 90

V. Eender, 334

V. Eidgway, 378, 496

V. S. E. E. Co., 265

V. Shirley, 338

V. Simonds, 697

V. Sleap, 643

V. Sparrow, 16

V. Stapleton, 145

V. Sydney, 740

V. Thompson, 85, 423

V. Thome, 598

V. Universal Ins. Co., 183

V. Wedderburne, 433

V. Wilson, 513, 722

■ V. Woodfine, 603

V. Wright, 252

Smithies v. National Assn. Plas-
terers, 27, 159

Smith's Estate {re), 20
Smout V. nbery, 645
Smurthwaite v. Hannay, 112, 115
Snark (The), 300, 661
Sneesby v. L. & Y. E. Co., 179
Snowdon v. Davis, 229
Soares v. Glyn, 684
Soci^t^ General v. Walker, 283
Sollers V. Lawrence, 712
SoUy V. Forbes, 441

V. Eathbone, 653

Solomon v. Vintners' Co., 292,

300
Somerville v. Mirehouse, 72
Somes V. Brit. Empire Ship. Co.,

67
Soper V. Arnold, 609

Sorsbie v. Park, 416
Sottomayer v. De Barros, 393
South American Co. (re), 271
South Ireland Coll. Co. v. Waddle,

370
South Staff. W. Co. v. Sharman,

280, 559
Southall V. Eigg, 593
Southampton Dock Co. v. Eich-

ards, 148
Southport Bank v. Thompson,

330, 331
Southwark Co. v. Wandsworth

Bd., 292
Sowerby v. Coleman, 717

V. Fryer, 316

Spaclanaa v. Evans, 688

V. Miller, 367

Sparrow v. Chisman, 245
Spartalit;. Benecke, 475, 514, 540,

723
Spaight V. Tedoastle, 186
Speight V. Gosnay, 166
Spence v. Chadwick, 204

V. Union Mar. Ins. Co.,

237, 280
Spencer's case, 321, 360, 365
Spencer v. Handley, 578

V. Marlborough (Duke

of), 352

Spicer ■;;. Cooper, 722

Spicot's case, 240

Spieres v. Parker, 526, 527, 740

Spill V. Maule, 87

SpUler V. Westlake, 602

Spokes V. Grosvenor Co., 762

Spotswood V. Barrow, 179

Spread v. Morgan, 211

Springwell v. Allen, 613

Spry V. Flood, 508

Sprye v. Porter, 574

Spurling v. Bantoft, 560

Squire v. Ford, 66, 444

Stace V. Griffiths, 87

Staoey v. Whitehurst, 674

Stadhard v. Lee, 538

Stafford Steel Co. v. Ward, 505

Staffordshire & W. Canal Nav. v.

Birmingham Canal Nav., 299
Stallard v. G. W. E. Co., 18
Stamford Bank v. Smith, 646, 703
Stammers v. Dixon, 725

V. Hughes, 110

Standen v. Christmas, 505
Standish v. Eoss, 213, 216, 244
Staniland v. Hopkins, 528
Stanley v. Powell, 158

Digitized by Microsoft®

Ixxiv

TABLE OF CASES.

Stanley v. Stanley, 489

of Alderley v. Wild, 69

Stansfield v. May. of Portsmoutli,

334
Stanton v. Styles, 746
Stapylton v. Clough, 758
Starkey v. Bk. of England, 645
Startup V. Macdonald, 88, 722
Stavers v. Curling, 417, 604
Stead V. Anderson, 265, 287

V. Berrier, 465

V. Carey, 27, 41

V. Dawber, 687

V. Williams, 287

Steavenson v. Oliver, 22
Stebbing v. Spioer, 472
Stedman's case, 260
Steeds v. Steeds, 682
Steel V. S. E. E. Co., 659
Steele v. Haddock, 684

V. Hoe, 411

V. Shomberg, 73

V. Williams, 229

Stephens (e»^.), 334

V. Badcock, 639

V. De Medina, 606

V. Elwall, 657

V. Hill, 764

V. Pell, 457

V. Reynolds, 243

V. Taprell, 452

Stephenson (re), 470

V. Garnett, 270

Stepney Election (re), 64

V. Lloyd, 105

Stevens v. Cbown, 24

V. Gourley, 569

V. Jeacocke, 174

V. Lynch, 213

■ V. Midi. Counties E. Co.,

659

V. Stevens, 526

V. Woodward, 663

Stevenson's Heirs i). SuUivant,

896
Steward v. Greaves, 439

V. Grommett, 85

V. Lombe, 330,

Stewart v. Aberdein, 514, 722

V. Anglo- Calif ornian Co.,

522

V. Gibson, 566

V. Menzies, 387

V. Stewart, 212,''221

Stimson v. Pamham, 163
Stirling v. Maitland, 236
Stockdale v. Hansard, 12, 76

Stockport Schools, 453
Stockton & D. B. Co. v. Barrett,

435, 437
Stokes V. Eussell, 149
Stone V. Godfrey, 218

V. Marsh, 131, 173

Storey v. Ashton, 662

V. Eobinson, 233

Storie V. Bp. of Winchester, 54
Story(ea;jp.), 75, 92, 110

V. Sheard, 713

Stott V. Fairlamb, 684
Stoughton V. Day, 500
Stourbridge Canal Co. v. Wheeley,

461

Stowell V. Zouch (Ld.), 446

Straoey v. Nelson, 4, 439

Strachan v. Univ. Stock Ex-
change, 567

Stradbroke (Ld.) v. Mulcahy, 321

Strauss v. Francis, 271

Strickland v. Hayes, 580
V. Turner, 587

Stringer v. Gardiner, 471

Strode v. Russel, 465

Strong V. Poster, 684

V. Harvey, 141

Strother v. Hutchinson, 134

V. Lucas, 742

Stroud (re), 723
Stroyan v. Knowles, 156
Stuart V. Whitaker, 653
Stubbs V. Holywell E. Co., 197,

698
Stucley V. Baily, 616
Studdy V. Sanders, 604
Sturmy v. Smith, 652
Sturt V. Blagg, 87
Submarine Telegr. Co. v. Dickson,

301
Suffell V. Bk. of England, 126
Suker i>. Neale, 126
Sullivan v. Creid, 306
Sully V. Duranty, 182
Summers v. Solomon, 243
Sumpter v. Hedges, 596
Sunbolf V. Alford, 233
Surplice v. Pamsworth, 194, 607
Surtees v. Ellison, 22

1). Lister, 587

Suse V. Pompe, 514

Sussex Peerage case, 392, 437, 783,

^754, 756

Sutcliffe V. Booth, 299

Sutton (ea;j).), 654

V. Ciceri, 723

u. Clarke, 5

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TABLE OF CASES.

Ixxv

Sutton V. Johnstone, 740

• V. Sutton, 438, 691

Swainson v. N. E. E. Co., 665
Swan V. N. Brit. Australian Co.,

625
Sweeting v. Pearce, 640
Sweetland c. Smith, 511
Swift V. Winterbotham, 622
Swire u. Francis, 663
Sydney v. Bourke, 167
Syers v. Jonas, 512
Sykes v. Giles, 639

V. Sykes, 657

Symes {ex p.), 761

V. Hughes, 563

Symonds v. Lloyd, 723
Synge v. Synge, 207

T.

Taafe v. Downes, 70, 71
Taddy v. Sterious, 355
Tailby v. Off. Eeceiver, 382
Talbot V. Kadnor (Earl of), 140,

535
Taltarum's case, 347
TampUn v. James, 221
Tamvaco v. Simpson, 229
Tancred v. Christy, 130

V. Leyland, 163, 165

Tanistry (le ease de), 715
Tanner v. Hartley, 545

V. Moore, 593

V. Smart, 509, 546

Taplin v. Florence, 685
Tapling v. Jones, 159, 304
Tapp V. Lee, 620
Tappenden v. Bandall, 563
Tarleton v. LiddeU, 177, 239

V. Staniforth, 415

Tasker v. Shepherd, 700
Tatam v. Haslar, 593, 629, 631
Tattersall v. Fearnley, 88
Tattle V. Grimwood, 22
Taunton v. Costar, 342
Tawney v. Lynn & E. E. Co., 4
Tayleur v. Wildin, 139
Taylor (re), 471

V. Best, 135

V. Blakelock, 561

V. Bowers, 563

V. Bullen, 522

V. Burgess, 550

V. CaldweU, 195

V. Chester, 561, 562, 563

V. Clemson, 5, 75, 746

Taylor v. Cook, 739

V. Crowland Gas Co., 579

V. Dunbar, 180

V. Ford, 747

V. G. N. E. Co., 199

V. Hawkins, 87

V. Henniker, 165

V. Hilaryj 684

V. Horde, 347, 350

V. Humphries, 527

V. Laird, 510

V. Lendey, 567

V. Eussell, 282

V. Smith, 523

V. St. Helen's Corp., 235

V. Stray, 724

V. Web, 467

V. Whitehead, 2

V. Witham, 757, 757

Tebb V. Cave, 607

V. Hodge, 330

Teede v. Johnson, 212
Templemaji v. Haydon, 291
Temperton v. EusseU, 159, 160
Tenant v. Elliott, 566

V. Goldwin, 291

Tennant v. Cumberland, 527
Terry v. Brighton Aquarium, 17

V. Hutchinson, 163

Tetley v. Easton, 287

V. WanleSs, 528

Teutonia (The), 208
Thackeray v. Wood, 606
Thames Oonserv. v. Hall, 20

& M. M; I. Co. V. Hamil-
ton, 449

Tharpe v. StalMood, 703
Thelluson v. Ld.'Eendlesham, 428
Thellusson v. Woodford, 351, 352
Thetis (The), 669
Thibault v. Gib?on, 526, 527
Thistlewood v. Cracraffc, 561
Thomas v. Churton, 72
■ V. Edwards, 644

V. Howell, 198

V. Hudson, 75

V. Jennings, 331, 334

-y. Kelly, 384

V. Packer, 324

V. Pearse, 652

V. Quartermaiae, 224

V. Eeg., 44, 45, 48

V. Eussell, 752

— :— V. Searles, 284

V. Thomas, 587, 589

V. Waters, 41

V. Watkins, 32

Digitized by Microsoft®

Ixxvi

TABLE OF CASES.

Thompson (re), 541
• V. Bell, 640

V. BrigMon Corp., 167

V. Gibson, 310

V. Hakewill, 416

V. Hopper, 184, 188

V. Hudson, 634

V. Lack, 550

■ V. Pettit, 330

Thomson v. Davenport, 643

V. Grant, 178

V. Harding, 101, 179

Thorburn ■;;. Barnes, 92, 655
Thornborow v. Whitacre, 206
Thorndike v. Hunt, 561
Thome v. Heard, 663, 693
Thornhill v. HaU, 480

V. Neats, 205

Thornton v. Jenyns, 206, 587, 594,

603
Thorpe v. Adams, 20

■ V. Eyre, 324

■ «)- Priestnall, 17

V. Thorpe, 499, 604

Thurnell v. Balbimie, 207
Thwaites v. Coulthwaite, 566, 583
Tidey v. Mollett, 415
Tiedman v . Ledermann Freres {re),

678
TUbury v. Silva, 719
Tiling V. Hodgson, 238
Tillett V. Ward, 308
Timmins v. Gibbins, 689
Tindal {ex p.), 700
Tinkler v. Hilder, 138
Timiiswood v. Pattison, 75, 377
Tinsley v. Nassau, 72
Tipper v. Bicknell, 590, 603
Titley v. Poxall, 746
Tivnan (re), 81
Tobin V. Keg., 44, 46, 59, 670
Todd V. Emly, 647

V. Flight, 666

Toller V. Wright, 503

ToUerton Overseers (ex. p.), 110

Tomlin v. Fuller, 370

V. Eeg., 45

Tomlinson v. Bullock, 23
Tompkinson v. Eussell, 653
Toms V. Cuming, 653
Toomer v. Beeves, 435
Tooth V. BagweU, 200

V. Power, 69

Toplady v. Sealey, 252
Toplis V. Grane, 568
Toronto Ely. v. Toronto Corp.,
273, 749

Torrington (Ld.) v. Lowe, 724
Toulmin v. Anderson, 100

V. Miller, 89

Toussaint'W. Martinnant, 510
Towler v. Chatterton, 29
Towns V. Wentworth, 427
Townsend v. Crowdy, 214
Tozer v. Child, 155, 175
Traheme v. Gardner, 229
Travel v. Carteret, 42

Traver v. , 591

Travers v. Blundell, 485
Treadwen v. Bourne, 647
Treadwin v. G. E. E. Co., 381
Treharne v. Layton, 116
Trent Navigation v. Wood, 199
Treport's case, 414
Trew V. Perp. Trustee Co., 521
Triokett v. Tomlinson, 243
Trimlestown (Ld.) v. Kemmis,

735, 749, 756
Trinder v. Thames Ins. Co., 153,

543
Trinidad Co. ■«. Ambard, 294
Tripp V. Thomas, 166
Trott V. Trott, 741
Trotter v. Maclean, 758
Trueman v. Fenton, 591

V. Loder, 238, 472, 514

Trufort (re), 64

Tubervil v. Stamp, 192, 305
Tuck V. S. Counties D. Bank, 289
Tuck & Sons v. Priester, 7
Tucker v. Newman, 310

V. Tucker, 695

V. Webster, 526

V. Wilson, 626

Tulk V. Moxhay, 358
Tullett V. Armstrong, 353
Tunbridge Wells v. Baird, 6, 313
Turberville v. Stampe, 290, 662
Turcan (re), 383

Turnbull v. Forman, 26, 27
Turner v. Browne, 589

V. Goldsmith, 195, 204,

236

V. Green, 620

V. Hayden, 291

V. L. & S. W.E. Co., 100

V. Mason, 407

V. Meyers, 392

V. Meymott, 343

V. Sheffield K. Co., 151,

439

V. Walsh, 53

Turquand (ex. p.), 724
Tweddle v. Atkinson, 587, 590

Digitized by Microsoft®

TABLE OF OASES.

Ixxvii

Twigg i\ Potts, 119
Twyoross v. Grant, 703
Twyman v. Knowles, 736
Twynne's case, 239, 240, 375,

425, 586
Tyerman v. Smith, 112, 135
Tyler v. Jones, 699
Tyrringham's case, 251
Tyson v. Smith, 128, 716, 717

U.

Udal V. Walton, 761

Udny V. Udny, 62

Ulmann v. Cowes Harbour Com-
missioners, 59

Underwood v. Nicholls, 640

Union Bank of Manoh. v. Beech,
550

United Collieries v. Simpson, 713

United States v. Fisher, 439

V. Wiltberger, 437

United States' Bank ■v.Dandridge,
739

Universal Stock Exch.'y.Strachan,
374

Upton V. Townhend, 194, 658
V. WeUs, 337

Urquhart v. Macpherson, 618

Valentini v. Canali, 228
VaUeri v. Boyland, 651
Valpy V. Manley, 229
Van Boven's case, 526
Vandelertr v. Vandeleur, 450
Vander Donck v. Thelluson, 733
Vandyck v. Hewitt, 561
Van Grutten v. Foxwell, 426, 503
Van Hasselt v. Sack, 136
Van Ness v. Pacard, 327
Van Omeron v. Dowick, 739
Van Sandau v. Turner, 75
Vansittart v. Taylor, 112
Varley v. Whipp, 613
Vaughan v. Menlove, 290

V. Taff Vale E. Co., 161

V. Wilson, 100

V. Wyatt, 118

Vaux's (Lord) case, 222
Vanx Peerage (The), 742
Vauxhall Bridge Co. ■;;. Sawyer,

435
Vavasour v. Omerod, 526, 527

Vera Cruz (The), 712
Vernede v. Weber, 617
Vernon v. Keyes, 617
Vezey v. Bashleigh, 686
Vickers v. Wilcooks, 169
Victorian R. Commrs. v. Coultas,

168
Victors V. Davies, 595
Vigers v. Dean of St. Paul's, 40

V. Pilre, 244

Vincent v. Bp. of Sodor & M.,
508

V. Slaymaker, 534

Viner v. Hawkins, 231

Viney v. Bignold, 542

Vivian v. Mersey Docks Co., 300

Vlierboom v. Chapman, 507

Vooght v. Winch, 272

Vose V. Lane. & Y. E. Co., 291

Vyner v. Mersey Docks Co., 359

Vyse V. Foster, 591

W.

Waddle v. Dowmnan, 481

Wade's case, 141

Wade V. Simeon, 101, 211, 587

Wadham v. Marlow, 179

Wake V. Hall, 336
V. Harrop, 643, 684

Wakefield v. Bro^vn, 416

V. Newbon, 229

B. of H. V. W. Eiding,

E. Co., 98
Corp. V. Cook, 750

Wakelin v. L. & S. W. E. Co., 255

Wakeley v. Cooke, 452

Walker's case, 235

Walker v. Baird, 47

V. Birch, 539

V. Brit. Guarantee Soc. ,

199

V. Clements, 693

V. Giles, 443

V. G. W. E. Co., 642

V. Hobbs, 607

V. Maitland, 180

V. Matthews, 626

V. Mellor, 624

V. Olding, 103

V. Perkins, 571

V. Thelluson, 135

Wallace v. Jackson, 565

V. Kelsall, 245

Waller (re), 488

Digitized by Microsoft®

Ixxviii

TABLE OF CASES.

Waller v. Drakeford, 280

V. Laoy, 636

Walley v. M'Connell, 105
AVallingford v. Mutual Soc, 69
"Wallis V. Day, 585

■;;. LitteU, 684

Walmsley v. Milne, 330
Walpole (Ld.) v. Cholmondeley

(Earl of), 470
"Walsh V. Bp. of Lincoln, 7
V. See. of St. for India, 537

V. Southworth, 655

V. Trevanion, 441

AValter D. Wallet (The), 164

V. James, 215, 678

Walters v. Morgan, 620
Waltham v. Sparkes, 115
Walton V. Gavin, 741
Wandsworth (Bp. of W.) v. United

Telephone Co., 6, 313
A¥ansey v. Perkins, 150
Ward V. Beck, 434

■ V. Day, 139

V. Duncombe, 283

V. Hobbs, 174, 613, 614, 620

V. Lee, 669

V. Lloyd, 573

V. Wallis, 231

Warde v. Eyre, 236

• V. Stewart, 724

Wardour v. Berisford, 733
Ware v. Cann, 350, 351

V. Begent's Canal Co., 461

Waring v. Dewbury, 110
WarmoU v. Yoimg, 283
Warne (re), 746
Warrington (ex p.), 435
Warwick v. Bruce, 391

V. Nairn, 593

Waterer v. Preeraan, 105
Waterford Peerage, 115, 439
Waterpark v. Pumell, 726
Waters v. Louisville Ins. Co., 180
Watkins v. G. N. E. Co.
Watson's case, 704, 760
Watson (re), 24, 374, 677,

V. Bodell, 75

V. Foxon, 422

V. Little, 739

V. Quilter, 87, 88

— - V. Eussell, 589
V. Swan, 639, 674

V. Turner, 591

Watteau v. Eenwiok, 647
Waugh V. Middleton, 27

v. Morris, 583

Way V. Hearn, 468, 491, 550

,514

,704

Weall V. James, 268
Weaver v. Ward, 290
Webb V. Adkins, 104

V. Austin, 149

V. Beavan, 252

V. Bird, 159, 304

V. Bishop, 561

V. Cowdell, 698

v. East, 762

V. Fox, 366

V. Manch. & L. R. Co., 4,

463

V. Plummer, 456

V. Rhodes, 200

— - V. Weatherby, 632

Webber v. Stanley, 426, 496
Webster v. Power, 237

. V. Watts, 247

Wedderbum v. Athol (Duke of),

535
Weeding (re), 487
Weeks v. Maillardet, 522
Wegg-Prosser v. Evans, 269
Wegmann v. Corcoran, 421
Wear River Commrs. v. Adamson,

24, 192
Welohman v. Sturges, 703
Weld V. Hornby, 530, 726
Wellock V. Constantine, 171
Wells V. Abraham, 172

V. Hopkins, 614

V. Pearcey, 130

V. Watling, 164, 165

Welsh V. Seaborn, 562

V. Trevanion, 500

Welton V. Tanebame, 274
Wemyss v. Hopkins, 273
Wenman v. Mackenzie, 750
Wennall v. Adney, 592, 596, 597,

598

Wentworth v. Cock, 700, 701
V. Lloyd, 733

West V. Blakeway, 333

V. Jackson, 603, 616

V. Lawday, 485

V. Moore, 322

V. Nibbs, 251

Westhead v. Sproson, 603

Westlake v. Adams, 587

West Leigh Colliery Co. v.
Tunnicliffe and Hampson, 161

West London Bank v. Kitson,
621, 645

West London R. Co. v. L. & N.
W. R. Co., 499

Westminster Fire Office v. Glas-
gow Soc, 192

Digitized by Microsoft®

TABLE OF OASES.

Ixxix

West Norfolli F. Co. v. Archdale, 3
Wetherall c. Jones, 571, 579

V. Langston, 416

Weymouth (Myr. of) v. Nugent,

61
Whaley v. Rooliiok, 329
Wtalley v. Laing, 297

V. L. & Y. E. Co., 159

Whatman v. Pearson, 80
Wheatley v. Laaie, 702

V. Thomas, 524

Wheaton v. Maple, 69
Wheeldon v. Burrows, 371
Whincup V. Hughes, 196, 197,

541
Whitaker (re), §93

V. Wisbey, 109

Whitby V. Mitchell, 352
Whitcher v. Hall, 119
White (re), 431

V. Bass, 303

V. Beard, 120

V. Beeton, 419

V. Bluett, 588

V. Burnby, 414

V. Crisp, 300

V. Garden, 247, 582

V. Hancock, 444

V. Jameson, 667

V. M'Cann, 193

V. Mullet, 280

V. Phillips, 301

V. Sayer, 323

V. Sharp, 482, 655

V. Spettigue, 173

V. TyndaU, 416

V. Wiltshire, 340

Whitehead v. Bennett, 334

V. Parkes, 165

Whitehouse v. BirmLngh. C. Co.,

291
Whitfield V. Brand, 724

V. Clement, 498

Whitmore v. Eobertson, 437

V. Smith, 665

Whitmores Ltd. v. Stanford, 296,

299
Whittle V. Frankland, 603
Whittome v. Lamb, 482
Whitwham v. Westm. Co., 238
Whyte V. Bose, 640
Wicks V. Jordan, 322
Wigglesworth v. DaUison, 323,

324, 513, 717, 724
Wigmore v. Jay, 666
Wigney v. Wigney, 69
Wilcox V. Odden, 138

Wild V. Harris, 687
Wildbor v. Eainforth, 342
Wilde V. Gibson, 609

V. Waters, 332

Wildes V. Eussell, 70, 99
Wildman v. Glossop, 480
Wilkes V. Perks, 101

V. Wood, 77

Wilkinson v. Downton, 168

V. Evans, 522

V. Johnston, 213

Willans v. Eyres, 458
Williams (re), 28

V. Bagott (Ld.), 92

• V. Bayley, 665, 673

V. Birmingham Co., 226

V. BurreU, 416

V. Orossling, 534

V. Davis, 275

V. Deacon, 640, 641

V. E. India Co., 744

V. Evans, 639

V. Eyton, 741

V. G. W. E. Co., 95

V. Grey, 234

V. Groucott, 289, 293

V. Jones, 475

V. Lewis, 135, 429

V. Morris, 252

V. Mostyn, 162

V. Newton, 528

V. Paul, 16

V. Pigott, 660

V. Eawliason, 635

V. Eoberts, 32, 339

V. Smith, 27

V. Spence, 340

V. Stern, 243

V. Thomas, 135

V. Williams, 307

Williamson v. AUison, 613

V. Barton, 648

V. Eover Cycle Co.,

733

WilUon V. Berkeley, 68, 60

WilUs V. Howe, 694

WUloughby v. Horridge, 291

Wills V. Murray, 700

Wilson V. Barker, 674

V. Barthrop, 643

V. Carnley, 681

V. Curzon, 650

V. Piuch-Hatton, 607

V. Glossop, 223

V. Hart, 643

V. Knubley, 702

V. Mcintosh, 545

Digitized by Microsoft®

Ixxx

TABLE OF CASES.

Wilson V. Marry at, 63

V. Merry, 666

— - V. N. York (Myr. of), 5
V. Eankin, 671

V. Eastall, 118

V. Thorpe, 655

V. Tumman, 673, 674

V. Waddell, 295

D. WUles, 715

■ V. Wilson, 587

AViltes Peerage, 41, 42
Wilton V. Dunn, 214

V. E. Atlantic Mail Co.,

184
Wiltsheaa- v. Cottrell, 330
AVinohelsea (re), 595
Windiam v. Chetwynd, 533, 572
AVindhill L. Bd. v. Vint, 573
Windsor's (Dean of) case, 552
Windsor & A. E. Co. v. Eeg., 44
Wing V. Mill, 596
Wingate v. Waite, 73
Winn V. Ingleby, 328

V. Mossman, 437

V. Nicholson, 101

Winsor v. Eeg., 15, 147
Winsor's case, 275
Winsmore v. Greenbank, 154
Winspear v. Acoid. Ins. Co., 179
Winterbottom v. Ld. Derby, 166

■ V. Wright, 158

Winterbourne v. Morgan, 249
Witherley v. Eegent's Canal Co.,

707
Withnell v. Gartham, 725
Wolf V. Oxholm, 64
Wolverhampton Water Co. v.

Hawkesford, 21, 173
Wood V. Bell, 377

V. Dixie, 239

V. Dwarris, 135

V. Hewitt, 336

V. Hurd, 110

V. Leadbitter, 685

V. Priestner, 458

V. Kowcliffe, 500, 522

V. Copper Miners' Co., 415

V. Wilson, 481

Woodbridge Unions. Colneis, 741
Woodgate v. KnatchbuU, 652
WoodhoTise v. Walker, 553
Woodin V. Burford, 643
Woodley «. Coventry, 138
Woodward v. Watts, 439
Woolf V. Hamilton, 581
WooUey v. Kay, 436

Wootton V. Dawkins, 224

Wootton V. Steffenoni, 416
Workington Overseers (ex p.), 99
Worrall v. Jacob, 219
Worseley v. Demattos, 240
AVorsley v. S. Devon E. Co., 95
Worth V. Gilliag, 307
Worthington v. Grimsditch, 84

V. Ludlow, 505

V. Warrington, 605

Wren v. Holt, 614

Wright V. Burroughes, 343

©.Child, 652

V. Greenroyd, 27

V. Hale, 27

V. Howard, 296

V. Laing, 685

V. Leonard, 543

V. Lond. Gen. Omn. Co.,

269

V. Mills, 57, 109, 118

V. Pearson, 301

V. Wakeford, 509

V. Wright, 353

Wroughton v. Turtle, 435
Wyatt V. HaiTison, 292

V. Palmer, 164, 232

Wyld V. Pickford, 378
Wylde V. Hopkins, 648
Wynne v. Edwards, 482

X.

Xantho (The), 184

Y.

Yabbicon v. King, 551
Yarmouth v. France, 224
Yates (re), 330

0. Delamayne, 841

V. Dimster, 193

V. Lansing, 70

Ydun (The), 27
Yeatman (ex p.), 114
Yeats V. Pym, 514
Yelverton v. Longworth, 387
Yeomans v. Williams, 682
Yonge V. Toynbee, 645

York & N. Mid. E. Co. v. Eeg.,

462 ^

Y'^oude r. Jones, 444
Young V. Adams, 48

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TABLE OF CASES.

Ixxxi

Yoimg I'. Austen, 684

Holloway, 271, 750
Hughes, 26, 356
Lambert, 366
Raincock, 500
Robertson, 427
Waller, 48

Youngbusband v. Gisborne, 355

Z.

Zioby Ferraris (Countess of) v.
Hertford (Marq. of), 551

Digitized by Microsoft®

Digitized by Microsoft®

TABLE OF STATUTES.

ISEdw. l(St. West. 2), c,
c
c

18 Edw. 1, St. 1, c. 1

17 Edw. 2, c. 6 .

4 Edw. 3, c. 7

25 Edw. 3, St. 5, c. 5

31 Edw. 3, St. 1, c. 11
34 Edw. 3, c. 15
4 Hen. 7, o. 24 .

28 Hen. 8, c. 11

32 Hen. 8, c. 1 .

c. 34
c. 36 .

33 Hen. 8, c. 39

34 & 35 Hen. 8, c. 5

o. 20
2 & 3 Ph. & M. c. 7
13 Eliz. 0. 4 .
c. 5
c. 10 .
27 Eliz. 0. 4 .
31 Eliz. c. 12 .
43 Eliz. c. 2 .
21 Jac. 1, c. 3 .

c. 14 .

c. 16 . 53, 546,

12 Car. 2, c. 24 .
17 Car. 2, o. 8 .

29 Car. 2, c. 3

c. 7 .

30 Car. 2, st. 1, c. 7

2 W. & M., sess. 1, 0. 5

PAGE

1

154

23

697

24

346

345

,

345

702

702

697

346

24

319

348

365

,

347

56

139

348

347

627

56

239

,586

144

571

.

627

59

, 575

.

42

52

653,

689,

692

693

348

,

100

685

15

708

627

PAGE

4 & 5 W. & M. c. 24 . . 708

9 & 10 Will. 3, c. 7 . . 189

10 & 11 Will. 3, c. 23 . . 576

13 & 14 Will. 3, c. 2 . . 72
4 & 5 Ann, c. 16 . . 546, 694

1 G-eo. 1, St. 2, c. 13 . . 81

2 Geo. 2, c. 22 . . . 693
4 Geo. 2, c. 28 . . . 519

8 Geo. 2, c. 24 . . . 693

11 Geo. 2, 0. 19 . 32, 249, 321

12 Geo. 2, c. 28 . . . 576
17 Geo. 2, c. 38 . . 249

24 Geo. 2, o. 44 . . . 78
26 Geo. 2, c. 33 . 148, 387
1 Geo. 3, c. 23 . . . 72

6 Geo. 3, 0. 53 . . . 81

9 Geo. 8, o. 16 . . . 52
12 Geo. 3, c. 11 . . 392

14 Geo. 8, c. 78 . . 192, 538
21 Geo. 3, c. 49 . . 17

25 Geo. 3, c. 18 . . . 90
32 Geo. 3, o. 60 . . 86

38 Geo. 3, c. 13 . . . 23

39 & 40 Geo. 3, c. 98 . 352
43 Geo. 3, c. 99 . . . 132
46 Geo. 3, c. 37 . . 762

3 Geo. 4, 0. 126 . . . 136

4 Geo. 4, 0. 76 . 389, 391, 392

0. 78 . . . 391

5 Geo. 4, c. 88 . . . 453

7 & 8 Geo. 4, c. 29 . 79, 764

0. 52 . . 764

0. 75 . . 452

9 Geo. 4, c. 14 . 546, 653, 695

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Ixxxiv

TABLE OF STATUTES.

PAGE

TAnE

1 & 2 Will. 4, c. 41

. 147

20 & 21 Viot. c. 43

. 208

2 & 3 Will. 4, c. 71 . . 303

C.85

233, 688

0. 76 . . 304

21 & 22 Viot. c. 93

. 62

c. 100 . . 531

22 Viot. 0. 32 .

51

3 &4 Will. 4,0. 27

178, 691, 692,

22 & 23 Vict. 0. 36

102, 398

694, 695

0.93

. 398

c. 42

480, 691, 695,

23 & 24 Viot. c. 34

44, 45, 59

701, 704, 707,

24 & 25 Vict. 0. 62

52

710

c. 96

628, 630, 763

c. 74

. 347

0. 100

257, 337

c. 106

396, 397, 398,

25 & 26 Viot. c. 37

. 38

402, 404

27 & 28 Vict. 0. 95

17£

, 705, 706

6 & 7 Will. 4, c. 85

. 390,391

28 ife 29 Viot. c. 18

,

. 730

1 Vict. c. 26 . 348,

359, 385, 502,

0. 104

56

508, 524

31 & 32 Viot. 0. 20

. 62

2 & 3 Vict. c. 29

26

32 & 33 Vict. 0. 46

56

3 & 4 Viot. c. 9 .

. 76

0. 62

. 162

c. 52

37

c. 68

407, 765

5 & 6 Vict. 0. 45 .

. 288

33 Vict. c. 14

,

63, 64

6 & 7 Vict. 0. 86

. 669

33 & 34 Vict. 0. 23

56

7 & 8 Vict. c. 76 .

. 454, 505

34 & 35 Vict. 0. 43

,

. 712

c. 110

147

c. 102

64

8 & 9 Vict. c. 18 .

. 69

35 & 36 Vict. c. 39

. 64

c. 106

361, 454, 505

0. 93

579, 626

c. 109 .

. 26, 567

36 & 37 Viot. 0. 61

. 38

9 & 10 Vict. c. 93

173, 705, 706

c. 66

681, 693

11 & 12 Viot. c. 42

. 760

37 & 38 Viot. c. 54

. 615

0.44

72

0. 67

. 690

14 & 15 Vict. c. 25

. 321, 334

c. 62

391

, 546, 598

c. 99

765

0. 78

,

382, 605

c. 100

8, 144, 262,

38 & 39 Viot. c. 55

553

275

0.63

. 258

15 & 16 Vict. 0. 24

. 348

c. 87

282

0. 67

. 445

40 Viot. c. 11

. 99

c. 76

. 100, 519

40 & 41 Viot. 0. 14

408, 766

0. 85

31

41 & 42 Vict. 0. 31

284, 331

16 & 17 Vict. 0. 83

. 407, 408,

0. 38

627

766

0. 77

. 713

17 & 18 Vict. c. 90

. 600

42 & 43 Vict. 0. 49

120

c. 126

. 83, 762

43 & 44 Vict. c. 42

667, 705

18 & 19 Vict. c. 15

447

c. 48

17

c, 120,

s. 76 . 93

44 & 45 Viot. 0. 41

102,

282, 365,

19 & 20 Vict. 0. 97

268, 546, 653,

371

605, 645

692, 695

45 & 46 Vict. c. 38

317, 366

0. 119

390, 392

c. 43

284

331, 384

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TABLE OF STATUTES.

Ixxxv

PAGF.

PAGE

45 & 46 Viot. c. 61

16,

126, 244,

55 & 66 Viot. 0. 58

. 352

458,

548, 559,

56&57 Vict, c.21

. 586

592,

598, 629,

c. 61

. 79, 112, 175

676, 683

c. 71

195, 284, 286,

c. 75

853

407, 635

385, 540, 611—

46 & 47 Vict. c. 51

. 768

613, 615—618,

0. 52

57,

865, 586,
763

623, 624, 625,
626, 627, 628,

c. 57

42

117, 287

685

47 & 48 Viot. c. 54

. 282

57 & 58 Viot. 0. 60

. 285, 669

49 & 50 Vict. c. 33

. 288

58 & 59 Vict. 0. 43

64

51 & 52 Vict. c. 21

. 627

59 & 60 Viot. 0. 51

. 270

0.43

75, 655

61 & 62 Viot. c. 29

. 713

0. 50

,

42

c. 36

407, 408, 766

52 & 53 Vict. c. 45

284

625, 626

0. 58

896

0.49

542

62 & 63 Vict. 0. 23

. 615

0. 63

19-

-23, 275,

6 Edw. 7, c. 7 .

. 252

518, 522

0.32 .

. 307

53 & 54 Vict. c. 39

268, 645

0.41 .

180

c. 70

,

. 607

0.47

158, 160, 171

0.71

. 764

0. 58 .

667, 705

54 & 55 Viot. 0. 51

169

8 Edw. 7, c. 7

705, 706

55 & 56 Vict. c. 4

. 546

0.28 .

. 823

0.23

890

391, 392,
398

9 Edw. 7, c. 35

. 251

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LEGAL MAXIMS.

CHAPTER I.

§ I. — RULES FOUNDED ON PUBLIC POLICY.

The Maxims contained in this section being of general
application and resulting so directly from the simple prin-
ciples on which our social relations depend, it has been
thought better to place them first in this collection, — as,
in some measure, introductory to the more precise and
technical rules which embody the elementary doctrines of
English law.

Salus Populi suprbma Lex. {XII. Tables: — Bacon,
Max., reg. 12.) — Regard for the public welfare is the
highest law.

This phrase is based on the implied assent of every Publio safety.

member of society, that his own individual welfare shall,

in cases of necessity, yield to that of the community;

and that his property, liberty, and life shall, under

certain circumstances, be placed in jeopardy or even

sacrificed for the pubHc good (a). " There are," said

(a) AUK cUximus res subditorum fungihtr, Us rebus uti, easque etiam
sub eminenti dormrdo esse civitatis, perderBetaUenarepossit,nontantum
ita ut dvitas, cmt qui civitatis vice ex summa necessitate, qum privatis

L.M. 1

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EULES POUNDED ON PUBLIC POLICY.

Buller, J. (h), " many cases in which individuals sustain an
injury for which the law gives no action ; as, where private
houses are pulled down, or bulwarks raised on private
property, for the preservation and defence of the kingdom
against the king's enemies." Commentators on the civil law,
indeed, have said (c), that, in such cases, those who suffer
have a right to resort to the public for satisfaction ; but no
one ever thought that our own common law gave an action
against the individual who pulled down the house or
raised the bulwark {d). On the same principle, viz. that
a man may justify committing a private injury for the
public good, the pulhng down of a house when necessary,
in order to arrest the progress of a fire, is permitted by
the law (e).

Likewise, in less stringent emergencies, the maxim is,
that a private mischief shall be endured, rather than a
public inconvenience (/) ; and, therefore, if a highway be
out of repair and impassable, a passenger may lawfully
go over the adjoining land, since it is for the public good
that there should be, at all times, free passage along
thoroughfares for subjects of the realm (g).

quoque jus aliquod in aliena coiice- Rep. 12 ; Dyer, 36 b ; Plowd. 322 ;

dit, sed ob puilicam utilitatem, cui Pinch's Law, 39 ; Russell v. Mayor

privatas cedere illi ipsi voluisse cen- of New York, 2 Denio (U.S.), B.

sendi sunt qui in civilem ccetum 461, 474 ; see Carter v. Thomas,

coierunt; Grotius de Jure Belli et [1893] 1 Q. B. 673: 62 L. J. M. C.

Pao. Bk. 3, 0. 20, s. 7, § l.—Le 104.

Salut dupeuple est la supreme loi; (/) Absor v. French, 2 Show. 28;

Mont. Esp. des Lois, L. XXVII. Dawes v. Hawkins, 8 C. B. N. S.

Ch. 23. In casu extremes neeessi- 848, 856, 859; per Pollock, C.B.,

tatis omnia sunt communia ; IHale, A.-O. v. Briant, 15 M. & W. 185.
P. C. 54. (g) Per Ld. Mansfield, Taylor v.

(6) PerB\iRei,3.,Plate Glass Co. Whitehead, 2 Dougl. 749; per Ld.

V. Meredith, 4 T. B. 797 ; Noy, Max., EUenborough, Bullardy. Harrison,

9tb ed. 36 ; Dyer, 60 b ; 12 Eep. 12, 4 M. & S. 393 ; 16 E. B. 493 ; Dawe's

13. V. Hawkins, 8 0. B. N. S. 848 •

(c) See Pufi. de Jure Nat. Bk. 8, Robertson v. Gantlett, 16 M. & W.'
c. 5, s. 7; Grotius de Jure Bell, et 296; Campbell v. Race, 7 Gushing
Pac. Bk. 3, 0. 20, =. 7, § 2. (U.S.), R. 408. Secus, where dedioa-

(d) Per Buller, J., 4 T. E. 797. tion of road to public is not absolute ;

(e) Noy, Max., 9th ed. 36; 12 Arnold v. Holbrook,lj.-R.8 ^.3.96.

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ETJLES FOUNDED ON PUBLIC POLICY. 3

The principle underlying the maxim, as well as the
limitations with which it is applied, is well illustrated by
the following expressions of Cockburn, CJ. : " The power
to erect a sea-wall or embankment as a protection against
the sea, or from the influx of the tide in rivers, is one
of those things which emanate from the prerogative of
the Crown for the general safety of the public (h), and no
doubt the ordinary right of property must give way to that
which is done under that great prerogative authority for the
protection and safety of the public, but only to the extent
to which it is necessary that private rights or public rights
should be sacrificed for the larger public purposes, the
general common weal of the public at large " (i).

Upon the principle we are discussing, also depends the
right of the State to interfere with and place a limit to
rights of property for the purposes of revenue and the
support of government (k). It is, however, a rule of law. Taxes, &o.
which has been designated as a " legal axiom," that " no
pecuniary burden can be imposed upon the subjects of this
country, by whatever name it may be called, whether tax,
due, rate, or toll, except upon clear and distinct legal
authority, established by those who seek to impose the
burden " (l).

In the familiar instance, likewise, of an Act of Parlia- RaUway and
ment for promoting some specific undertaking of public
utility, as a canal, railway, or paving Act, the legislature

{h) See A.-G. v. Tomline, 14 Oh. tax ia lawfuUy imposed." Judgm.,

D. 58 : 49 L. J. Oh. 377; West Nor- Burder v. Veley, 12 A. & E. 247.

folk Farmers' Co. v. ArcMale, 16 " It is a weU settled rule of law that

Q. B. D. 754 : 55 L. J. Q. B. 230. every charge upon the subject must

(i) Greenwich Bd. of W. v. Maud- be imposed by clear and uaamblgu-

slay, L. R. 5 Q. B. 397, 401. ous language." Per Bayley, J.,

Ik) Per -Ld. Camden, Entick v. Dmn v. Diamond, 4 B. & 0. 245 :

Carringion, 19 How. St. Tr. 1066. 28 B. B. 287; per Bramwell, B.,

(I) Per Wilde, C.J., Gosling v. A.-G. v. Ld. Middleton, 3 H. & N.

', 12 Q. B. 407; seealsoS.C.,4 138; see also Oriental Bank v.

H. L. Oas. 727, 781, ■per Martin, B., Wright, 5 App. Gas. 842; A.-G. v.
and iJ«r Ld. Truro. "The law Beec;i,[1899] A.C.53: 68L. J. Q.B.
requires clear demonstration that a 130.

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4 RULES POUNDED ON PUBLIC POLICY.

Railway and Will not scruple to interfere with private property, and will
other Acts. ^^^^ compel the owner of lands to alienate them on receiving
a reasonable compensation for so doing (m) ; but such an
arbitrary exercise of power (n) is indulged with caution ; the
true principle applicable to such cases being, that private
interests are never to be sacrificed to a greater extent than
is necessary to secure a public object of adequate import-
ance (o). The Courts, therefore, will not so construe an
Act as to deprive persons of their estates and transfer them
to others without compensation, in the absence of a manifest
reason of policy for thus doing, unless they are so fettered
by express statutory words as to be unable to extricate
themselves, for they will not suppose that the legislature
had such an intention (p). And "where an Act is sus-
ceptible of two constructions, one of which will have the
effect of destroying the property of large numbers of
the community and the other will not," the Courts will
" assume that the legislature intended the latter " (q). Also,
as it has been judicially observed, where large powers are
entrusted to companies to carry their works through a great
extent of country without the consent of the owners of the
lands through which they are to pass, it is reasonable and
just, that any injury to property which can be shown to
arise from the prosecution of those works should be fairly

(m) As to the items recoverable in Horner, 14 Q. B. D. 245 257 : 54

respect of depreciation of property L. J. Q. B. 232 ; per Ld. Abinger

under the Lands Clauses Act, 1845, Stracey v. Nelson, 12 M. & W. 54o'

see Ditke of Buccleuch v. Metr. Bd. 541 ; per Alderson, B., Doe v. Man-

of W., L. B. 5 H. L. 418 ; Gowper Chester d- Bossendale R. Co., 14 M. &

Essex V. Acton L. B., 14 App. Oas. W. 694 ; Anon., Lofit., 442 ; R. v.

153 : 58 L. J. Q. B. 594. Croke, Cowp. 29 ; Clarence ' R. Co.

(n) SeeiJerLd. Eldon, IMy. &K. v. Q. North of England R. Co., 4

162 ; Judgm., Tawney v. Lynn & Q. B. 46.

Ely B. Co., 16 L. J. Ch. 282 ; Wehh (q) Per Erie, C.J., ChelseH Vestry

V. Manchester d Leeds B. Co., 4 v. King, 17 C. B. N. S. 629 ; cf. per

My. & Cr. 116. Brett, M. R. , Plumstead Bd. 'of W. v

(o) See Judgm., Simpson v. Ld. Spackman, 13 Q. B. D. 878 887- 53

fl-o«)<ic»,l Keen, 598, 599; Listers. L. J. M. 0. 142; Railton\ Wood

Lobley, 7 A. & E. lU. 15 App. Cas. 363, 366: 59 L. j'

(p) 8eeperBiett,M.'R.,A.-G.Y. P. C. 84.

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BULBS FOUNDED ON PUBLIC POLICY.

compensated to the party sustaining it (r), and likewise it
is required that the authority given should be strictly
pursued and executed (s).

In accordance with the maxim under notice, it was held Example,
that, where the commissioners appointed by a paving Act
occasioned damage to an individual, without exceeding their
jurisdiction, neither the commissioners nor the paviors
acting under them were liable to an action, the statute
under which the commissioners acted not giving them
power to award satisfaction to individuals who happened to
suffer ; and it was observed, that some individuals suffer an
inconvenience under all such Acts, but the interests of
individuals must give way to the accommodation of the
public (t) — privatum incommoclihm publico bono pensatur (ii).
And " where authority is given by the legislature to do an
act, parties damaged by the doing of it have no legal
remedy, but should appeal to the legislature " (x). Where,
however, the terms of the statute are not imperative but
permissive, and where it is left to the discretion of the
persons empowered, to determine whether their general
powers shall be put into execution or not, the inference is
that the legislature intended that discretion to be exercised
in strict conformity with private rights, and did not intend
to confer Ucence to commit nuisances in any place which
might be selected for the purpose (y).

(r) Caledonian B. Co. v. Walker's Sutton v. Clarke, 6 Taunt. 29 ; 16

Trustees, 7 App. Cas. 259 ; Metr. Bd. R. E. 563 ; cited 10 0. B. N. S. 777,

of W. V. McCarthy, L. B. 7 H. L. 779 ; Alston v. Scales, 9 Bing. 3 ; 35

243 : 43 L. J. 0. P. 385. E. E. 502.

(s) See Taylor v. Clemson, 2 Q. B. (u) Jenk. Cent. 85.

978, 1031 : 11 CI. & P. 610; ^er Ld. \x) See :per Wilde, C.J., 7 C. B.

Mansfield, B. v. Croke, 1 Cowp. 26 ; 226 ; Mayor of Liverpool v. Charley

Ostler V. Cooke, 13 Q. B. U3. WaUrworhs Co., 2 De G. M. & G.

(t) Plate Glass Co. v. Meredith, 4 852, 860; Dixon v. Metr. Bd. of W.,

T. E. 794, and Boulton v. Crowther, 7 Q. B. D. 418 ; 50 L. J. Q. B. 772 ;

2 B. & C. 708 : 26 E. E. 528 ; cited L. B. & S. C. B. Co. v. Truman, 11

by Williams, J., Pilgrim v. South- App. Cag. 45 : 55 L. J. Ch. 354.
ampton S Dorchester B. Co., 7 C. B. (y) Per Ld. Watson, Metr. Asylum

228 ; Wilson, v. Mayor of New York, Bd. v. Hill, 6 App. Cas. 193, 213 ;

1 Denio (U.S.), E. 595, 598 ; see 50 L. J. Q. B. 353

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EULBS FOUNDED ON PUBLIC POLICY.

Distinction
between
public and
private Acts.

We shall hereafter have occasion to consider further the
general principles applicable for interpreting statutes passed
with a view to the carrying out of undertakings calculated
to interfere with private property. We may, however,
observe, in connection with our present subject, that the
extraordinary powers with which railway and other like
companies are invested by the legislature, are given to
them " in consideration of a benefit which, notwithstanding
all other sacrifices, is, on the whole, hoped to be obtained
by the pubhc ; " and that, since the public interest is to
protect the private rights of all individuals, and to save
them from liabilities beyond those which the powers given
by such Acts necessarily occasion, they must always
be carefully looked to, and must not be extended further
than the legislature has provided, or than is necessarily
and properly required for the purposes which it has
sanctioned (z). It is, moreover, important to notice the
distinction which exists between public and private Acts,
with reference to the obligations which they impose. For
general and public Acts bind all the King's subjects ; but
of private Acts, meaning thereby not merely private estate
Acts, but local and personal (a), as opposed to general
public Acts, "it is said that they do not bind strangers,
unless by express word or necessary implication the
intention of the legislature to affect the rights of strangers
is apparent in the Act ; and whether an Act is public or
private does not depend upon any technical considerations
(such as having a clause or declaration that the Act
shall be deemed a public Act), but upon the nature and
substance of the case"(&). And private Acts passed for

(«) Per Ld. Langdale, Colnum v.
Eastern Counties B. Co., 10 Beav.
14 ; Loosemore v. Tiverton & N.
Devon By., 22 Oh. D. 25. Of. per
Bowen, L.J., Wandsworth Bd. of W.
V. United Telephone Co., 13 Q. B. D.
904, 920 : 53 L. J. Q. B. 457 ; Mayor

of Tunbridge Wells v. Baird, [1896]
A. 0. 434 : 65 L. 3. Q. B. 451.

(a) See Cock v. Gent, 12 M. & W.
234 ; Shepherd v. Sharp, 1 H. & N.
115.

(6) Per 'Wigram, V.-C, Daw-
son V. Paver, 5 Hare, 434 (citing

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RULES FOUNDED ON PUBLIC POLICY. 7

the benefit of an individual are construed strictly against
him (c).

On the other hand, where a statute authorises the Diversion of
stopping up and diverting of a highway, and thus interferes ^'S^'^^y-
with the rights of the public with a view to promoting
the convenience of an individual, such provisions as the
Act contains for ensuring compensation to the public must
receive a liberal construction. " The rights of the public
and the convenience of the individual constantly come into
opposition;" in such cases "there may be sometimes
vexatious opposition on the one hand, but there may be also
on the other very earnest pursuit of individual advantage,
regardless of the rights and convenience of the public.
Full effect, therefore, ought to be given to provisions by
which, while due concession is made to the individual,
proper protection is also afforded to the public " (rf).

From the principle under consideration, and from the Criminailaw.
very nature of the social compact on which municipal law
is theoretically founded, and under which every man,
when he enters society, gives up part of his natural free-
dom, result those laws which, in certain cases, authorise
the infliction of penalties, the privation of liberty, and even
the destruction of life, with a view to put down crime, and
to ensure the welfare of the public. Penal laws, however,
should evidently be restrained within the narrowest limits
which may be deemed compatible with these objects, and
should be iuterpreted by the judges, and administered by
the executive, in a mild and liberal spirit. Before any man
is subjected to a penalty, a clear case for its imposition
should be made out (e). A maxim is, indeed, laid down by

Barrmgton's case, 8 Bep. 138 a, and [1892] A. 0. 523.

Lucy V. Levmgton, 1 Ventr. 175). {d) Beg. v. Newmarket B. Co., 15

(c) Altrincham, Union v. Cheshire Q. B. 703, 713.

Lvnes, 15 Q. B. D. 597; Scottish, (e) Walshv. Bp.of Lincoln,Xj. R.

Drainage Co. v. Campbell, 14 App. 10 0. P. 533 : 44 L. J. C. P. 244 ;

Cas. 142; per Ld. Maonagliten, per Ld. Essher, Ttick & Sons v.

Serron v. Bathmines, <£c., Oomrs., Priester, 19 Q. B, D. 629, 638; 56

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RULES FOUNDED ON PUBLIC POLICY.

Lord Bacon, which might at first sight appear inconsistent
with these remarks; for he observes that the law will
dispense with what he designates as the " jjlacita juris,"
"rather than crimes and wrongs should be unpunished,
quia solus populi suprema lex," and " solus populi is contained
in the repressing offences by punishment," and, therefore,
receditur a placitis juris potius quam injujite et delicto
maneant impunita (/). This maxim must, at the present
day, be understood to apply only to those cases in which
the judges are invested with a discretionary power to permit
such amendments to be made, e.g., in an indictment, as
may prevent justice from being defeated by mere verbal
inaccuracies, or by a non-observance of certain legal tech-
nicalities (g) ; and a distinction must, therefore, still be
remarked between |the " iilacita" and the " regulce" juris,
inasmuch as the law will rather suffer a particular offence
to escape without punishment, than permit a violation of
its fixed and positive rules (h).

Necessitas inducit Privilbgiuji quoad Jura privata. (Boc.
Max., reg. 5.) — In the domain of Jus privatum necessity
imports privilege.

" The law chargeth no man with default where the act
is compulsory and not voluntary, and where there is not a
consent and election ; and therefore if either there be an
impossibility for a man to do otherwise, or so great a per-
turbation of the judgment and reason as in presumption of
law man's nature cannot overcome, such necessity carrieth
a privilege in itself " (i).

L. J. Q. B. 553 ; per Cave, J., Crane trine of our law as to avoiding

V. Lawrence, 25 Q. B. D. 152 ; 59 contracts on the ground that they

L. J. M. 0. 110. are opposed to public policy will be

{/) Bac. Max., reg. 12. considered later.

(g) See li & 15 Vict. c. 100, ss. 1, (i) Bac. Max., reg. 5, cited 1 T. R.

2*- 32 ; Jenk. Cent. 280.

(h) Bac, Max., reg. 12. The doc-

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RULES FOUNDED ON PUBLIC POLICY. 9

Lord Bacon has in this passage fallen into the common Involuntary
error of opposing compulsory to voluntary action. The
opposite to voluntary action is involuntary, and the very
strongest forms of compulsion do not exclude voluntary
action. A criminal walking to execution is under compul-
sion if any one can be said to be so, but his motions are just
as much voluntary actions as if he were leaving his place of
confinement to regain his hberty. That the law will hold
no man responsible for an act, which is involuntary in the
strict metaphysical sense, it is unnecessary to state {k).

" Necessity," said Lord Bacon, " is of three sorts : neces- Bacon's
sity of conservation of life ; necessity of obedience ; and ^®°®^^^ ^'
necessity of the act of God or a stranger " (l). This division
of the subject is scarcely logical, but it is convenient for
the purpose of making some observations which bear upon
the maxim under notice. As we shall see, some of his
illustrations are by no means sound.

1. To preserve one's life is, generally speaking, a duty ; Self-
but it may be the plainest and highest duty to sacrifice it : ^^^^^^
war is full of instances in which it is a man's duty not to
live, but to die ; it is not correct to say that there is any
absolute or unqualified necessity to preserve one's life(wO.
If two persons be shipwrecked together, and one of them,
to escape death from hunger, kill the other for the purpose
of eating his flesh, he is guilty of murder.; and it is no
defence that, when he did the act, he believed, upon reason-
able grounds, that he had no other means of preserving
his life (n). Lord Bacon seems to have thought that if
two persons are in danger of drowning, and one of them
get to a plank to keep himself above water, the other, to
save his own life, may thrust him from it and so cause
him to be drowned (o) ; but it is certainly not law that a

(k) Hist. Or. Law, Stephen, 1, 152. U Q. B. D. 287.

(I) Bac. Max., reg. 5 ; Noy, Max., (n) Beg. v. Dudley, U Q. B. D.

gtlied. 32. 273: 54L. J. M. 0. 32.

(to) Per Ld. Coleridge, C.J., (o) Bao. Max., reg. 5.

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10

EULES FOUNDED ON PUBLIC POLICY.

Self-defence.

Necessity of
obedience to
existing laws.

man may save his life by killing an unoffending neigh-
bour (^j). He also suggests that hunger might be an
excuse for theft ; but the law is plainly otherwise (q).

Our law, however, does recognise that even homicide is
sometimes excusable, when done to preserve life. If a man
be wrongfully assailed, so that he be in danger of his life,
and if then, having no other means of escape, he slay his
assailant in self-defence, the homicide is excused (?■). But,
before proceeding to this extremity, a man ought generally
to retreat as far as he safely can; and if two persons
quarrel and fight, neither is regarded as defending himself,
until he has in good faith fled from the fight as far as he
can (s). Homicide, the result of a blow struck in a mutual
fight, however begun, is therefore not usually excusable.

This doctrine of defence extends, moreover, to the
leading civil and natural relations of hfe ; and what a man
is excused for doing in his own defence, a master or servant,
a parent or child, a husband or wife is excused for doing,
one in defence of the other (t). And it seems that, where
the motive was to defend life, the question, according to
our criminal law, is not whether the act was in fact
necessary, but whether it was done in the reasonable belief
that it was necessary : for instance, if a son honestly
believe, on reasonable grounds, that his father is about to
murder his mother, he is excused for acting upon that
belief, though in fact ill founded (w).

2. The duty to obey existing laws often furnishes
excuse for an act, which of itself would be culpable (x). As,
where the proper officer executes a criminal in strict con-
formity with his sentence, or where an officer of justice, or

(p) U Q. B. D. 286.

(9) 1 Hale, P. 0. 54; see U
Q. B. D. 385.

(r) Fost. Horn. 274 et seq.; see
24 & 25 Vict. 0. 100, s. 7.

(s) 1 Hale, P. 0. 481—483; see
Beg. V. Bull, 9 C. & P. 22 ; Beg. v.

Knock, 14 Cox, 0. 0. 1; Beg. v.
Weston, Id. 346.

(t) 1 Hale, P. 0. 484; 4 Blao.
Comm. 186.

(u) Beg. V. Bose, 15 Cox, C. C. 540.

(x) Ejus vera nulla culpa est cui
parere necesse sit ; D. 50, 17, 169.

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ETJLES FOUNDED ON PUBLIC POLICY. 11

other person acting in his aid, in the legal exercise of a
particular duty, kills a person who resists or prevents him
from executing it (y). And where a known felony is
attempted upon any one, not only the party assaulted may
repel force by force, but his servant attending him, or any
other person present, may interpose to prevent the mis-
chief, and, if death ensue, the party so interposing will be
justified {z). So, in executing process, a sheriff, it has been sherifi.
observed, acts as a ministerial officer in pursuance of the
command he receives in the king's name from a court of
justice, which command he is bound to obey. He is not a
volunteer, acting from his own free will or for his own
benefit, but is imperatively commanded to execute the king's
writ. He is the servant of the law, and the agent of an
overruling necessity ; and if the service of the law be a
reasonable service, he is (in accordance with the above
maxim) justly entitled to expect indemnity (a), so long as
he acts with diligence, caution, and pure good faith ; and,
it should be remembered, he is not at Uberty to accept or
reject the office at his pleasure, but must serve if com-
manded by the Crown (6).

" The law has always held the sheriff strictly, and with
much jealousy, to the performance of his duty in the
execution of writs, both from the danger there is of fraud
and collusion with defendants, and also because it is a
disgrace to the Crown and the administration of justice, if
the king's writ remains unexecuted "(c). In this case,
therefore, the rule of law usually appUes,— wecessttos quod
cogit defendit (d) ; although instances do occur where the

(y) Post. Horn. 270. CI. & F. 701.

(z) Ibid. 274. (") Jugdm., Howden v. Stcmdish,

(a) For 'instance, by interpleader, 6 C. B. 520. As to tbe sberifi's duty

astowliioliseei)6rMaule,J.,3 0.B. in respect of executing criminals

341, 342;i)e»-Eolfe, B., 15M. &W. capitally convicted, see B. v.

197 ; per Alderson, B., 14 Id. 801. Antrobus, 2 A. & E. 788.

(6) Per Vaughan, B., Garland v. (d) 1 Hale, P. C. 54 ; 2 C. & M.

Carlisle, 2 0. & M. 77 ; S. 0., 4 77.

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12

KULES FOUNDED ON PUBLIC POLICY.

Act of
stranger.

Husband
and wife.

sheriff is placed in a situation of difficulty because he is the
mere officer of the Court, and the Court is bound to
see that suitors obtain the fruits of decisions in their
favour (e).

3. The actions of a third person do not, as a rule, afford
a defence for an act in itself criminal, unless they are of
such a nature as to make it strictly involuntary in the
correct sense noticed at the beginning of this chapter.
Thus, if A., by force, take the hand of B., in which is a
weapon, and therewith kill C, A. is guilty of murder, but
B. is excused ; though, if merely a moral force be used, as
threats, duress of imprisonment, or even an assault to the
peril of his life, in order to compel him to kill C, this is-
no legal excuse (/).

To the rule that the moral force of another is no excuse
for a crime, there is one, and perhaps only one, exception.
A wife who, in her husband's presence, and under his co-
ercion, commits a crime, is, generally, excused, and when a
wife has committed a crime in her husband's presence, it
is presumed, until the contrary be proved, that she did it
under his coercion ; but this presumption is always rebut-
table (g) ; and moreover the husband's coercion is never an
excuse for crimes done by the wife in his absence (h) .

There has been some uncertainty upon the question, for
what crimes may the wife be excused upon the ground of
her husband's coercion (i). The better opinion seems to be
that she may be excused upon that ground for all crimes,
including misdemeanors (/c), except murder or treason, for

(e) See particularly StocTcdale v.
Hansard, 11 A. & E. 253 ; Christo-
pherson v. Burton, 3 Exch. 160 ; per
Jervis, O.J., Oregory v. Cotterell, 5
E. & B. 584; Hooper v. Lane, 6
H. L. Gas. 443.

(/) 1 Hale, P. 0. 434; 1 East,
P. 0. 225.

(g) 1 Hale, P. 0. 516; Beg. v.
Cohen, 11 Cox, 0. C. 99; Reg. v.

Torpey, 12 Cox, 0. 0. 45.

(h) 1 Hale, P. C. 45 ; Beg. v. John,
13 Cox, 100 ; Brown's Case, [1898]
A. 0. 234.

(i) See the oases collected in
Archbold, Cr. PL, 22nd ed., p. 29.

{k) See B. v. Price, 8 C. & P. 19 ;
Beg. V. Torpey, 12 Cox, 0. C. 45, 49 ;
Stephen, Dig. Cr. L., 5th ed., § 31.

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ETJLES FOUNDED ON PUBLIC POLICY. 13

which she cannot be so excused on account of the
heinousness of those crimes (l).

The reason, given by Lord Bacon, why the husband's
coercion does not excuse the wife if she join him in com-
mitting treason, is because it is against the commonwealth ;
and he cites the maxims, privilegium non valet contra rem-
fuhlicam, and necessitas publica major est quam privata. He
seems to be on firm ground, when he observes, in respect
of these maxims, that " death is the last and farthest point
of particular necessity, and the law imposeth it upon every
subject, that he prefer the urgent service of his prince and
country before the safety of his life " (m).

SuMMA Ratio est qvm peo Eeligione facit. {Co. Litt.
341 a.) The best rule is that ivhich advances religion.

This saying, which Coke cites to support the proposition
that a parson cannot alienate his glebe to his successor's
prejudice, is borrowed from the Roman law, where Papinian
observes (n) that it ought never to be overlooked in ambiguis
religionum qucestionibus.

Under this maxim Noy (o) states that if any general cus-
tom were " directly against the law of God," or if a statute
were made directly contrary thereto— for instance, if it were
enacted that no one should give alms to any object in ever
so necessitous a condition— such custom or statute would
be void ; and similarly Blackstone (p) says that if any
human law should enjoin us to commit an offence against
the divine law, we are bound to transgress that human law.
But such statements are not to be regarded as legal

(T) 1 Hale, P. 0. 45, 47, 48 ; 1 tion of our eocleaiastical law to the

Hawk. c. 1, s. 11, where robbery is civil law, see 6 App. Cas. 446.

also excepted; but see Beg. v. (o) Noy, Max., 9th ed. 2, citing

Torpey, supra; Beg. v. Dykes, 15 Boot. & Stud., 18th ed. 15, 16.

Cox 0. 0. 771. (P) 1 ^1- Comm. 43 ; cited 2 B. &

(m) Bao. Mex., reg. 5. 0. 470 ; of. Finch, L. 75, 76.

(n) Dig. 11, 7, 43. As to the rela-

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14 RULES POUNDED ON PUBLIC POLICY.

propositions. In deciding doubtful points of law our courts
can give due weight to moral considerations ; but where
our law, whether by statute or otherwise, is clear, they are
bound to administer the law as they find it, irrespective of
opinions upon its morality {q) ; and there is no remedy but
an appeal to ParHament for its reform.

With regard to foreign laws, however, when they are
brought to their notice, the attitude of our courts is
different. They do not feel compelled by what is called
the comity of nations to violate our own laws, or the laws
of God and nature, upon which our laws have been con-
sidered to be founded (r). For alleged wrongs committed
abroad, actions do not lie in this country, if nothing has
been done which our laws regard as an actionable wrong (s),
nor can contracts, made abroad with reference to foreign
laws, and legal thereunder, be enforced by action here, if
the contracts conflict with what are deemed in England to
be essential public or moral interests (t) ; or if they are to
be performed in this country and the performance would
according to our laws be illegal (u). Similarly, although
actions can generally be maintained here upon foreign
judgments (»), yet there have been cases in which our
judges have refused to recognise such judgments on the
ground that, in their opinion, they were given in violation
of elementary principles of natural justice (x).

(g) "If it were mischievous in 841: 8 Id. 861 ; Grell -v. Levy, 16 Id.

its operation and necessarily mis- 73; Kaufman v. Oerson, [1904] 1

chievous, it would, to my mind, be K. B. 591.

no argument, if the statute expressly (u) Bousillon v. Bousillon, 14 Ch.

authorised the thing;" per Ld. D. 351 ; 49 L. J. Ch. 36 ; MowZis v.

Halsbury, [1896] A. 0. 467. " Our Owen, [1907] 1 K. B. 746 : 76

duty upon this occasion is to ad- L. J. K. B. 396.
minister and not to make the law ; " (v) See cases collected in 2 Smith,

per Ld. HerscheU, [1897] A. C. 460. L.O., 10th ed. 765 et seq.

(r) Seeder Best, 3.,ForhesY. Goch- (x) See Simpson v. Fogo, 32 L J

rane, 2 B. & 0. 471 ; 26 R. R. 402. Ch. 249 : 29 Id. 657 ; Liverpool

is) Phillips V. Eyre, L. R. 6 Q. B. Marine Credit Co. v. Hunter, L. R.

1, 28 : 40 L. J. Q. B. 28. i Bq. 62 ; Meyer v. RalU, 1 0. P. D

(t) Santos V. Illidge, 6 C. B. N. S. 358.

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RULES FOUNDED ON PUBLIC POLICY. 15

Dies Dominicus non est juridicus. (Noy, Max. 2.) —
Sunday is not a day for judicial or legal proceedings.

The Sabbath-day is not dies juridicits, for that day ought
to be consecrated to divine service {y). The keeping one
day in seven holy as a time of relaxation and refreshment,
as well as for public worship, is, indeed, of admirable service
to a state considered merely as a civil institution ; and it is
the duty of the legislature to remove, as much as possible,
impediments to the due observance of the Lord's day (z).
The Houses of Parliament indeed may, in case of necessity,
sit on a Sunday (a) ; but the judges cannot do so, that day
being exempt from all legal business by the common law (b).

It has been remarked by an eminent Judge that full statute.
effect should be given to laws passed for the purpose of
preserving the sanctity of the day of rest (c). The principal
of these, The Lord's Day Act, 29 Car. 2, c. 7, s. 1, enacts,
that no tradesman, artificer, workman, labourer, or other
person whatsoever, shall do or exercise any worldly labour,
business, or work of his ordinary calling on Sunday (works
of necessity and charity only excepted), and that every
person of the age of fourteen years offending in the
premises shall forfeit 5s. (d). The effect of which enactment

(y) Co. Litt. 135 a ; Wing. Max. 5 Mackalley's case, 11 Eep. 65 a ; 3 &

(p. 7) ; Pinch's Law, 7; arg. Winsor i Will. 4. o. 42, s. 43. See E. S. 0.,

V. Beg., 6 B. & S. 143, 164. Query 1883, 0. LXIV., rr. 2, 3 ; and iforris

whether the verdict in a criminal v. Richards, 45 L. T. 210.

case can be taken and recorded on a (c) Per Willes, J., Copley v.

Sunday ? Id. Burton, L. E. 5 C. P. 489, 498 ; 89

(a) See the preamble of 3 & 4 L. J. M. 0. 141. See Goldstein v.

Will. 4, c. 31. Vaughan, [1897] 1 Q. B. 549 ; 66

(a) Per Sir Geo. Grey, Feb. 19, L. J. Q. B. 380.

1866, Hans. Pari. Deb., 3rd Series, (d) Exceptions to the general rule

vol. 181, p. 763. are in certain cases allowed by

(b) Per Patteson, J., 3 D. & L. statute, see B. v. Totmger, 5 T. E.
330; per Erie, C.J.. Mumford v. 449; 2E. E. 688; Beg.y.WhiteUy,
mtchcocks, 14 C. B. N. S. 369 ; Fish 3 H. & N. 143 ; BulUn v. Ward, 74
V. BroTcet, Plowd. 265 ; S. C, Dyer, L. J. K. B. 916.

181 b; Noy, Max., 9th ed. 2;

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16 ETJLES FOUNDED ON PUBLIC POLICY.

is, that if a man, in the exercise of his ordinary calling (e),
make a contract on a Sunday, that contract is void,
so as to prevent a party, who was privy to what made it
illegal, from suing upon it, but not so as to defeat a claim
made upon it by an innocent party (/). A horse-dealer, for
instance, cannot maintain an action upon a contract for the
sale of a horse made by him upon a Sunday (ry) ; though, if
the contract be not completed on the Sunday, it will not be
affected by the statute (h).

It has been decided that farmers and barbers are not
included in the description " tradesman, artificer, workman
or labourer or other person whatsoever ", for " other
person " means " other person ejusdem generis with those
before enumerated " (i).

Where, in an action for breach of the warranty of a
horse, it appeared that the defendant alone was exercising
his ordinary calling, and the plaintiff did not know what
his calling was, so that only the defendant had violated the
statute, the Court held that it would be against justice to
allow the defendant to take advantage of his own wrong, so
as to defeat the rights of the plaintiff, who was innocent (it).
For the like reason, in an action by the indorsee against
the acceptor of a bill of exchange drawn on a Sunday (Z), it
was held that the plaintiff might recover, there being no

(e) See B. v. WMtmarsh, 7 B. & 0. See also Williams v. Paul, 6 Bing.

596 ; Smith v. Sparrow, i Bing. 84 ; 653 ; 31 R. R. 512 (observed upon in

29 B'. R. 514 ; Peate v, Dicken, 1 Cr., Simpson v. Nicholls, 3 M. & W. 240) ;

M. & R. 422; Scarf e v. Morgan, 4 Beaumont v. Brengeii, 5 C. B. 301 ;

M. & W. 270. Norton v. Powell, 4 M. & Gr. 42.

(/) Judgm., Fennell v. Ridler, 5 (i) B. v. Silvester, 33 L. J. M. C.

B. & 0. 408 ; 29 R. R. 278, explain- 39 ; Palmar v. Snow, [1900] 1 Q. B.

ing Sir J. Mansfield's remarks in 725 ; 69 L. J. Q. B. 356.

Drury v. De la Fontaine, 1 Taunt. (k) Bloxsome v. Williams, 3 B. &

135 ; 29 R. R. 278. C. 232 ; 27 R. B. 337 ; cited 5 B. &

{g) Fennell v. Bidler, 5 B. & C. C. 408, 409.

406 ; 29 R. B. 279. (Z) A bill is not invalid by reason

{h) Bloxsome v. Williams, 3 B. & only that it bears date on a Sunday ;

0. 232 ; 27 R. B. 337 ; Smith v. 45 & 46 Vict. o. 61, s. 13 (2).
Sparrow, 4 Bing. 84 ; 29 B. R. 514.

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RULES FOUNDED ON PUBLIC POLICY. 17

evidence that it had been accepted on that day ; but the
Court said that, if it had been accepted on a Sunday, and
such acceptance had been made in the ordinary calHng of
the defendant, and if the plaintiff had known these facts
when he took the bill, he would be precluded from recovering
on it, though the defendant would not be permitted to set
up his own illegal act as a defence to an action by an
innocent holder ((^O- A bill of exchange falling due on a
Sunday is usually payable on the preceding day (n).

A person, however, can commit but one offence on the
same day by exercising his worldly calling in violation of
the statute of Charles; and if a justice convict him in more
than one penalty for the same day, it is an excess of
jurisdiction (o). By the Sunday Observance Prosecution
Act, 1871, no proceeding can be instituted for an offence
against the statute, except with the consent in writing of
the chief officer of police of the district or of two justices {p).

The Sunday Observance Act, 1780 (g), imposes penalties for
opening houses, rooms, or other places of entertainment, and
conducting entertainments therein, on Sundays (v).

In addition to cases decided under the Lord's Day Act,
we may refer to one of a somewhat different description, in
which, however, the principle of public policy which dictated
that statute was discussed. In this case a question arose
as to the validity of a bye-law, by which the navigation of

(to) Begbie v. Levi, 1 Cr. & J. see Thorpe v. Priestnall, [1897] 1

180. Q- B. 159 : 66 L. J. Q. B. 248.

(to) See Bills of Exchange Act, (q) 21 Geo III. c. 49.

1882 (45 & 46 Vict. c. 61, s. (r) Terry v. Brighton Aq^uarium

14). Co., L. B. 10 Q. B. 306 : 44 L. J.

(o) Orepps V. Durden, Oowp. 640 ; M. 0. 173 ; Girdlestone v. The Same,

cited 4 E. & B. 322. As to circum- 4 Ex. D. 107 : 48 L. J. Ex. 373 ;

stances under which cumulative Beid v. Wilson, [1895] 1 Q. B. 315 :

penalties may be recovered for 64 L. J". M. G. 60. It was a matter

separate acts, see Milne v. Bale, of doubt whether the Crown had

L. E. 10 0. P. 591 : 44 L. J. 0. P. power to remit the whole or any

336 ; Apothecaries Co. v. Jmes, part of the penalties, but the Re-

[1893] 1 Q. B. 89. mission of Penalties Act, 1875,

(p) 43 & 44 Vict, c. 48, s. 1 ; and expressly conferred the power.

L.M.

2

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18 BULBS OF LBGISLATIVB POLICY.

a canal was ordered to be closed on every Sunday (works of
necessity alone excepted). In support of this bye-law was
urged the reasonableness of the restriction sought to be
imposed thereby, and its conformity in spirit with enact-
ments prohibiting Sunday trading; the Court, however,
held that the navigation company had no power, under
their Act, to make the bye-law, their power being confined
to the making of laws for the government and orderly use
of the navigation, and not extending to the regulation of
moral or religious conduct, which must be left to the
general law of the land, and to the laws of God (s).
Eailway companies are bound to deliver up luggage
deposited at their luggage and cloak offices, on Sunday as
on other days, unless protected by special conditions
printed on the receipt tickets (i).

§ II. — KULES OF LBGISLATIVB POLICY.

In this section certain maxims are considered relating to
the operation of statutes, and the leading canons of their
construction. These maxims are : 1, that a later repeals
an earlier and conflicting statute ; 2, that laws should not
have a retrospective operation ; and 3, that enactments are
framed with a view to ordinary rather than extraordinary
occurrences. We shall hereafter have occasion to consider
the rules applicable to the construction of statutes, and
may for the present confine our attention to the three
maxims of legislative policy just enumerated.

Leges postbeioees peioees conteaeias abeogant. (1 Bcp.
25 b ; 11 Rej). 62 h.) — Later laws repeal earlier laws
inconsistent theretciih.

Clausula The legislature which possesses the supreme power in

derogatoria. ,ir-i.i ■•■,,■,.■,

the State, possesses, as mcidental thereto, the right to

(s) Calder & Hebble Nav. Co. v. (t) Stallard v. G. W, B. Co., 2

Pilling, U M. & V7. 76. B. & S. 419.

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KULBS OF LEGISLATIVE POLICY. 19

change, modify, and abrogate the existing laws. To assert
that one Parliament can by its ordinances bind another,
would in fact be to contradict this plain proposition ; if,
therefore, an Act of Parliament contain a clause, "that it
shall not be lawful for the King, by authority of Parliament
during the space of seven years, to repeal this Act," such a
clause, which is technically termed " clausula dcrogatoria,"
is void, and the Act may be repealed within seven years,
for non impedit clausula dcrogatoria quo minus ah cadem
potcstate res dissolvantur a quibus constituentur (u) ; and
pcrpetua lex est nullam legem liumanam ac positivam
perpetuam esse, ct clausula quce abrogationem excludit ah initio
non valet (u). The principle thus set forth seems to be of
universal application ; and as regards our own Parliament,
an Act may be altered, amended, or repealed in the same
session in which it is passed (i) .

It is, then, an elementary rule, that an earlier Act must Eepeai by
give place to a later, if the two cannot be reconciled — ^™^ ^°* '°**'
lex posterior derogat priori (x) — non est novum ut j^riores leges
ad posteriores trahantur (y) — and one Act may repeal another
by express words or by implication; for it is enough if
there be words which by necessary implication repeal it (z).
But a repeal by implication is never to be favoured, and
must not be imputed to the legislature without necessity (a),
or strong reason (6), to be shown by the party imputing

(m) Bao. Max., reg. 19. by express enactment, but this die-

[v) Interpretation Act, 1889 (52 & turn is not to be found in S. C, 4

53 Vict. 0. 63), s. 10. D- M. & G. 732, and is perhaps

(x) See Mackeld, Civ. L. 5. slightly too wide. (See Green v.

(y) D. 1, 3, 26. ConstUutioties The Queen, 1 App. Caa. 513 ; AUmi-

tempore posteriores potiores sunt Ms cham Union v. Cheshire Lines, 15

gucB ipsas prcecesserant. D. 1, 4, 4. Q. B. D. 597.) It was, however,

(a) Per WiUes, J., Great Central accepted by Byles, J., Purnell v.

Gas Co. V. Clarhe, 11 C. B. N. S. Wolverhampton Waterworks Co., 10

835. (S. 0., 13 Id. 838.) In Birhen- 0. B. N. S. 591.

head Docks Trustees v. Laird, 23 (a) JuAgm., Dobbs\. Gr. Junction

L. J. Ch. 457, Turner, L.J., is re- Waterworks Co., 9 Q. B. D. 158.

ported as saying that one private (S. 0., 9 App. Gas. 49.)

Act cannot repeal another except (6) Per Ld. Bramwell, G, W. B.

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20 RULES OF LEGISLATIVE POLICY.

it (c). It is only effected where the provisions of the later
enactment are so inconsistent with or repugnant to those of
the earlier, that the two cannot stand together ; unless the
two Acts are so plainly repugnant to each other that effect
cannot be given to both at the same time a repeal cannot be
implied ; and special Acts are not repealed by general Acts
unless there be some express reference to the previous
legislation, or a necessary inconsistency in the two Acts
standing together {d), which prevents the maxim rjeneralia
specialihus non dcrogant from being applied (e). For where
there are general words in a later Act capable of reasonable
application without being extended to subjects specially
dealt with by earlier legislation, then, in the absence of
an indication of a particular intention to that effect, the
presumption is that the general words were not intended
to repeal the earlier and special legislation (/), or to take
away a particular privilege of a particular class of
persons (^). "The law will not allow the exposition to
revoke or alter by construction of general words any
particular statute, where the words may have their proper
operation without it " (/i).

An affirmative Act which gives a new right does not
destroy an existing statutory right, unless the intention be
apparent that the two rights should not co-exist (i) ; and

Co. V. Swindon B. Co., 9 App. Gas. Vera Cruz, 10 App. Oas. 68, citing
787, 809 ; 53 L. J. Oh. 1075. Hawkins v. Gathercole, 6 D. M. &

(c) Per Chitty, J., Lyhbe v. Hart, G. 1.

29 Ch. D. 15. (cj) Per Ld. Blackburn, Qarnett v.

(d) Per A. L. Smith, J., Eulncr Bradley, 3 App. Gas. 969; see also
V. Phillips, [1891] 2 Q. B. 272, citing Bockett v. Chippingdale, [1891] 2
Gregory's case, G Rep. 19 b ; Middle- Q. B. 293, 299 ; 60 L. J. Q. B. 782.
ton V. Crofts, 2 Atk. 675 ; Thorpe v. (A) Lyn v. IFi/n, Bridgman's
Adams, L. K. 6 C. P. 125. See also Judgments, 122, 127 ; cited L. R. 3
Thames Conservators v. Hall, L. R. G, P. 421 ; 6 Id. 135 ; 1 Ex. D 78
8 G. P. 415; Beg. v. Champneys, See Be Smith's Estate, 35 Ch D
6 Id. 884. 595.

(c) See per Willes, J., Daw v. (i) O' Flaherty v. M'Doiuell 6

Metr. Bd. of W., 12 C. B. N. S. 178. H. L. Gas. 142, 157.
(/) Per Ld. Selborne, Seward v.

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RULES OF LEGISLATIVE POLICY. 21

where two Acts are merely affirmative, and the substance
such that both may stand together, the later does not
repeal the earlier, but they both have concurrent efficacy (h).
Thus, if by one Act an offence be triable at quarter sessions,
and another Act makes the same offence triable at assizes,
without adding such express negative words as " and not
elsewhere," the jurisdiction of the sessions remains, and
the offence may be tried before either court (l). The general
rule undoubtedly is that where an Act does not create a
duty or offence, but only adds a remedy in respect of an
existing duty or offence, it is to be construed as cumulative ;
but this rule must always be applied with due attention to
the language of the particular Act (m). It is, for example,
a well recognised principle that an Act describing the
quality of an offence, or prescribing a particular punish-
ment for it, is impliedly repealed by a later Act altering the
quality of the offence, or prescribing some other punish-
ment for it (n) ; and this principle seems not to be affected
by the statutory enactment, whereby, when an act con-
stitutes an offence under two Acts, the offender shall, unless
the contrary intention appears, be liable to be prosecuted
under either Act, but shall not be liable to be punished
twice for the same offence (o). For that enactment can
only apply where both Acts are in force (p) .

It was a well-established rule, at common law, that when Effect of

repeal.
an Act was repealed without any savmg clause, " it was to

be considered, except as to transactions passed and closed (q),

(k) Forster's case, 11 Bep. 62; Leach, 0. 0. 271, and Michell v.

Hill V. Ball, 1 Ex. D. 411. Brown, 1 E. & E. 267 ; see also

(?) 1 Blac. Com. 93. See Beg. v. Henderson v. Sherlorne, 2 M. & W.

St. Edmund's, Salisbury, 2 Q. B. 239; A.-G. v. Lochwood, 9 Id. 391 ;

72 ; Reg. v. J J. of Suffolk, Id. 85. BoUnson v. Emerson, 4 H. & C. 355.

(m) Judgm., Bichards v. Dyke, 3 (o) Interpretation Act, 1889 {52 &

Q. B. 268 ; cf. per Willes, J., Wolver- 53 Vict. o. 63), s. 33.

hampton New Waterworks Co. v. (p) See Keep v. St. Mary's,

Hawkesford, 6 C. B. N. S. 356. Newington, [1894] 2 Q. B. 524.

(«) Judgm., Fortescue v. St. (q) See, for instance, Gwynne v.

Matthew, Bethnal Green, [1891] 2 Drewitt, [1894] 2 Ch. 616.
Q. B. 177, citing Davis's case, 1

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22 EULES OF LEGISLATIVE POLICY.

as if it had never existed (r). Accordingly where an indict-
ment was drawn in a form sanctioned by an Act, but
insufficient at common law, and before the trial the Act
was repealed without any reference to depending prosecu-
tions, the Queen's Bench arrested a judgment given against
the defendants on such indictment (s). One consequence
of this rule was that if nothing inconsistent with such an
intention appeared, a repealed Act was revived by the
repeal of the Act which had repealed it (t). In order, how-
ever, to avoid the constant repetition of saving clauses,
Parliament has now provided new rules with regard to
modern repeahng Acts. A repeaUng enactment passed
since 1850 is not to be construed as reviving any enactment
previously repealed, unless words are added reviving that
enactment (u) ; and if it substitutes provisions for the
repealed enactment, the latter remains in force until the
substituted provisions come into operation (x). And in
the case of a repealing enactment passed since 1889, the
repeal, unless the contrary intention appears, not only does
not revive anything not in force or existing at the time
when the repeal takes effect, nor affect anything done or
suffered under the repealed enactment : but further does
not affect any right or liability, acquired, accrued or
incurred thereunder, or any penalty or punishment incurred
for an offence committed against the repealed enactment, or
any legal proceeding or remedy in respect of any such right,
liability, penalty or punishment ; and the legal proceeding

(r) Surtees v. Ellison, 9 B. & C. (t) The Bishop's case, 12 Eep. 7 ;

752, per Ld. Tenterden; cited 18 Tattle v. Qrimwood, 3 Bing. 493,

Q. B. 771 ; L. K. 3 Q. B. 838 ; 8 496 ; Hellawell v. Eastwood, 6 Exch.

Id. 5. See A.-G. v. Lamplough, 8 295.

Ex. D. 214. In the case of tern- (xi) Interpretation Act, 1889 (52 &

porary Acts, the extent of the re- 53 Vict. o. 66), s. 11 (1).

strictions imposed and the duration {x) Id. s. 11 (2). See Levi v.

of the provisions are matters of Sanderson, and Mirfin v. Attwood,

construction; per Parke, B., Stea- L. B. 4 Q. B. 330 ; Mount y. Taylor,

venson v. Oliver, 8 M. & W. 241. L. E. 8 C. P. 645 ; Butcher v.

(s) Reg. V. Denton, 18 Q. B. 761. Henderson, L. R. 3 Q. B. 385.

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RULES OF LEGISLATIVE POLICY. 23

may be enforced, and the penalty or punishment may be
imposed, as if the repealing Act had not been passed {y).

It was a general rule of construction that when a statute
was incorporated by reference into a second statute, the
repeal of the first by a third did not affect the second (2).
This rule, however, is now varied, as regards a repealing
Act passed since 1889, which re-enacts with or without
modification the provisions of the repealed Act ; for
references in other Acts to the repealed provisions are,
unless the contrary intention appears, to be construed as
references to the provisions re-enacted {a).

Before 1793, every Act, unless it contained a direction to when Act
the contrary, was considered to commence from the first opfiate'°
day of the session of Parliament in which it was passed (&) ;
but in 1793 it was enacted (c) that it should be the duty
of the clerk of the Parliaments to indorse on every Act
the day, month and year when the same receives the royal
assent, and the date so indorsed on an Act is the date of
its commencement {d) where no other commencement is
therein provided. When, therefore, two Acts, passed in the
same session, are repugnant or contradictory to each other,
that which last received the royal assent now prevails, and
has the effect of repealing the other wholly, or pro tanto (e).
The same principle, moreover, applies where a proviso in
an Act is directly repugnant to the enacting part ; for in
this case the proviso stands, and is held to be a repeal of
the substantive enactment, as it speaks the last intention of
the makers (/) ,

(y) Interpretation Act, 1889 (52 (a) 52 & 53 Vict. o. 63, s. 38 (1).

& 53 Vict. 0. 66), s. 38 (2). See (6) Patten v. Holmes, i T. R. 660.

Heston U. D. C. v. Gout, [1897] 2 (c) 38 Geo. III. c. 13.

Ch. 306; 66 L. J. Oh. 647 ; Abbott v. (d) See TomUnson v. Bullock, i

Minister for Lands, [1894] A. 0. Q. B. D. 230 48 L. J. M. C. 95.

425 ; Be Brandon's Patent, 9 App. («) JR- v. JJ. of Middlesex, 2

Gas. 589. B. & Ad. 818 ; 36 E. R. 758 ; Paget

(z) See per Brett, L.J., Clarhe v. v. Foley, 2 Bing. N. 0. 691.

Bradlaugh, 8 Q. B. D. 69. (S. C, (/) A.-O. v. Chelsea Waterworks

8 App. Cas. 354.) Co., Fitzgib. 195, cited 2 B. & Ad.

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24

EULES OF LEGISLATIVE POLICY.

Common law
gives place
to statute.

Not merely does an old statute give place to a new one,
but, where the common law and the statute differ, the
common law gives place to the statute so far as they are
repugnant (g). In like manner, an ancient custom may be
abrogated by the express provisions of a statute ; or where
inconsistent with and repugnant to its positive language (h).
But " the law and custom of England cannot be changed
without an Act of Parliament, for the law and custom of
England is the inheritance of the subject, which he cannot
be deprived of without his assent in Parliament " (/).

Statutes, however, " are not presumed to make any
alteration in the common law, further or otherwise than
the Act does expressly declare; therefore in all general
matters the law presumes the Act did not intend to make
any alteration, for if Parliament had had that design they
would have expressed it in the Act " (j).

General
principle of
legislation.

NOTA CONSTITUTIO FUTUEIS FoEMAM IMPONEEE DEBET, NON

PKJ3TEEITIS. (2 Inst. 292.) — A new law ought to he
prospecthe, not retrospective, in its operations.

Eetrospective laws are, as a rule, of questionable policy,
and contrary to the general principle that legislation by
which the conduct of mankind is to be regulated ought to
deal with future acts, and ought not to change the character
of past transactions carried on upon the faith of the then
existing law (k). Nemo potest mntare consilium smim hi

Wheeler, 3 H. & C. 75; Green v.
The Queen, 1 App. Gas. 513.

(i) 12 Rep. 29.

0') Per Trevor, G.J., 11 Mod. 150 ;
see also per Ld. Cairns, River Wear
Commrs. v. Adamson, 2 App. Gas.
751 ; and per Bowen, L.J., Bendall
V. Blair, 45 Ch. D. 155.

(k) Per'Wmes,3.,Phillipsy.Eyre,
L. B. 6 Q. B. 23.

826 ; of. Be Watson, [1893] 1 Q. B.
21 ; 62 L. J. Q. B. 80.

(g) Bao. Abr., 7th ed., " Statute "
(G) ; per Alderson, B., in Mayor of
London v. B., 13 Q. B. 33, note (d) ;
Stevens v. Chown, [1901] 1 Gh. 894,
and authorities there referred to.

(h) Merchant Taylors' Co. v. Trus-
cott, 11 Exch. 855; Salters' Co. v.
Jay, 3 Q. B. 109 ; Huxliam v.

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RULES OF LEGISLATIVE POLICY. 25

alterius injunam (l) was a general maxim of the Koman law,
which the civilians (m) specifically applied as a restriction
upon the law-giver, in conformity with the principle that
leges et constitiitiones futuris certum est dare formam
negotiis, non ad facta prceterita revocari : nisi nominatim
et de prceterito tempore et adhuc pendentibus negotiis cautum
sit (n). Accordingly, it has been said that every statute
which takes away or impairs a vested right acquired under
existing laws, or creates a new obligation, or imposes a new
duty, or attaches a new disability, in respect of transactions
or considerations already past, must be deemed retrospec-
tive in its operation, and opposed to sound principles of
legislation (o).

It is a general principle of our law that no statute shall General
be construed so as to have a retrospective operation, unless our'Sw.^ °
its language is such as plainly to require that construction ;
and this involves the subordinate rule that a statute is not
to be construed so as to have a greater retrospective opera-
tion than its language renders necessary (p). Except in
special cases, a new Act ought to be so construed as to
interfere as little as possible with vested rights (q) ; and
where the words admit of another construction, they should
not be so construed as to impose disabilities not existing at
the passing of the Act (r).

Moon V. Burden (s) is a leading case upon this subject. Mom v.

Burden.

It was an action upon a wager, commenced before the

(Z) D. 50, 17, 75. (p) Per Lindley, L.J.^ Lauri v.

(to) Taylor, Elem. Civ. Law, 168. Benad, [1892] 3 Gh. 421 ; 61 L. J.

(n) Cod. 1, 14, 7 ; cited by Willes, Ch. 580. Of. per Bowen, L.J., Reid

J., loc. cit. supra. v. Beid, 81 Ch. D. 409. See also

(o) Seeder Story, J., 2 GaU. (U.S.) Be Norman, [1893] 2 Q. B. 369;

189 ; and per Lopes, L.J., Be Pul- Allhusen v. Brooking, 26 Oh. D. 559.

borough School Board, [1894] 1 Q. B. (3) Per Bowen, L. J., loc. cit. supra.

737. The rale a,s to nova consUtutio (r) Per'DaYey,'L.J.,BePulborough

was fully considered, and the autho- School Board, supra.

rities thereon reviewed by Kent, C.J., (s) 2 Exch. 22; followed in Pe<-

in Dashy.YanKleek,! Johns. (U.S.) tamherdass v. Thachoorseydass, 7

503 et seq. Moo. P. 0. 239.

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26 BULBS OF LEGISLATIVE POLICY.

passing of the Gaming Act, 1845 {t), which enacts that all
contracts by way of wagering " shall be null and void," and
that " no suit shall be brought or maintained " for recover-
ing money alleged to be won upon a wager. This Act
was passed while the action was pending, and the question
was whether it operated to defeat the plaintiff's claim.
The Court of Exchequer decided that it did not. " The
language of the clause," said Parke, B., " if taken in its
ordinary sense, as in the first instance we ought to take it,
applies to all contracts, both past and future, and to all
actions, both present and future, on any wager, whether
past or future. But it is, as Lord Coke says, ' a rule and
law of Parliament that regularly, nova constituiio futuris
formam imponcrc debit, non prceteritis.' This rule, which is
in effect that enactments in a statute are generally to be
construed to be prospective, and intended to regulate the
future conduct of persons, is deeply founded in good sense
and strict justice, and has been acted upon in many
cases (u). . . . But this rule, which is one of construction
only, will certainly yield to the intention of the legislature ;
and the question in this and in every similar case is,
whether that intention has been sufficiently expressed."
The judgments of Eolfe and Alderson, BB., were to the
Vested rights. Same effect ; and it is safe to say that where a statute is
passed while an action is pending, strong and distinct words
are necessary to alter the vested rights of either litigant
as they stood at the commencement of the action (v).

(«) 8 & 9 Vict. c. 109. passing of the 2 & 3 Vict. o. 29.

(u) He cited Gilmore v. Shuter, {v) See Midland B. Co. v. Pye, 10

T. Jones, 108, where it was held that C. B. N. S. 179 ; Marsh v. Higgins,

the Statute of Frauds did not affect 9 G. B. 551 ; Cliappell v. Purday 12

actions upon verbal promises made M. & W. 303 ; Hitchcock v. Way, 6

before the statute came into force ; A. & E. 943 ; Paddon v. Bartlett

Edmonds v. Lawley, 6 M. & W. 285, 3 Id. 884. See also Turnbull v.'

and Moore v. Phillips, 1 Id. 536, Forman, 15 Q. B. D. 234 ; Bough v!

where it was decided that rights Windus, 12 Id. 224 ; Barton Regis

already vested in u, bankrupt's Union v. Liverpool Overseers 3 Id

assignee were not defeated by the 295; Young y. Hughes, i'R.^T^.'jQ,

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RULES OF LEGISLATIVE POLICY. 27

Moreover, in the absence of clear words to that effect, a
statute will not be construed as taking away a vested right
of action acquired before it was passed (iv).

No suitor, however, has a vested interest in the course of Procedure
procedure, or a right to complain, if during his litigation ^""^ evidence,
the procedure is changed, provided that no injustice be
done (x). Alterations in the form of procedure are always
retrospective, unless there be some good reason to the
contrary (y) ; and so are alterations in the law of evidence
in matters both civil and criminal (y) .

In Colonial Sugar Refining Go. v. Irving (z) the Judicial
Committee advised that an Act of Parliament which took
away the right of appeal to the King in Council was not
retrospective, as the result of holding the contrary would
be to deprive the appellant of a vested right to appeal to a
higher tribunal. But in another case the Court for Crown
Cases Eeserved held that an Act which extended the time
within which a prosecution might be commenced related to
procedure only and was retrospective (a).

The maxim under consideration is only a guide where General
the intention of the legislature is obscure ; it does not of rule.
modify the clear words of a statute (b). For instance, in
Stead v. Carey (c), the plaintiff, having obtained for his
invention letters patent which by their terms were to

{w) Smithies v. National Associa- v. Hale, 6 H. & N. 227 ; A.-G. v.

Hon of Plasterers, [1909] 1 K. B. Sillem, 10 'S.'L.Gaa. 763; Kimbray

310 ; 78 L. J. K. B. 259; Knight v. v. Draper, L. R. 3 Q. B. 160 ; Curtis

Lee, [1893] 1 Q. B. 41; Wright v. v. Stovin, 22 Q. B. D. 513; The

Greenroyd, 1 B. & S. 758 ; Jackson Ydun, [1899] P. 236 ; 74 L. J. K. B.

V. WoolUy, 8 E. & B. 787 ; Williams 450. For an instance of a good

v. Smith, 4 H. & N. 559 ; Waugh v. reason to the contrary, see Pinhorn

Middleton, 8 Exch. 352 ; Larpent v. v. Souster, 8 Exch. 138.

Bibby, 5 H. L. Cas. 481. (^) [1905] A. 0. 369 ; 74 L. 3. P. C.

{x) Per Mellish, L.J., Costa Pica 77.

V. Erlanger, 3 Ch. D. 69. Of. per (a) B.v. Chandra Dharma, [1905]

Bowen, L.J., Turnbull v. Forman, 2 K. B. 335..

15 Q. B. D. 238. (&) P^r Bowen, L.J., Quilter v.

(y) PerLd. Blackburn, Gardners. Mapleson, 9 Q. B. T>. 677.

Lucas, 3 App. Cas. 603. See Wright (c) 1 0. B. 496.

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28 RULES OP LBGISLATIVB POLICY.

become void if the specification were not enrolled within
four months, through inadvertence failed to procure such
enrolment within that time. The specification having been
subsequently enrolled, he obtained an Act of Parliament
which, after reciting these facts, enacted that the letters
patent should be considered to be as valid and effectual to
all intents and purposes as if the specification had been
enrolled within the four months. He then brought the
action for an infringement of his patent against the
defendant who, before the passing of the Act and whilst
the patent had no validity by reason of the non-enrolment,
had obtained letters patent for an improvement of the same
invention. It was held that the plain words of the Act
operated as a complete confirmation of the plaintiff's patent,
although they imposed upon the defendant the hardship of
having his patent destroyed by an ex ])ost facto law.
■R/?- "• Again, in Reg. v. Vine (d), where the question was whether

vine,

the enactment that " every person convicted of felony shall
for ever be disqualified from selling spirits by retail,"
affected a person convicted of felony before the passing of
the Act, the Court held that it did affect him, and rendered
his licence void. " The object of the enactment," said
Cockburn, C.J., " is not to punish offenders, but to protect
the pubUc against public-houses being kept by persons of
doubtful character. ... On looking at the Act, the words
used seem to import the intention to protect the public against
persons convicted in the past as well as the future " (e).

Other cases have occurred in which Acts altering the law
have been construed as retrospective (/) ; but they have

{d) L. R. 10 Q. B. 195. v. Wyatt, i Q. B. 749 ; Brooks v.

(e) Lush, J., dissented, on the Bockett, 9 Id. Sil ; Reg. y. St. Mary,

ground that the intention of the Act Whitechapel, 12 Id. 120; Reg. v.

was not clear. In Be Pulborough Christchurch, 12 Id. 149 ; Mackenzie

School Board, [1894] 1 Q. B. 725, v. SUgo R. Co., 18 Id. 862; A.-G. v.

Lopes, L.J., stated that he preferred Bristol Watenvorks Co., 10 Exch.

the reasoning of that Judge. 884 ; Ansell v. Ansell, 5 P. D. 138;

(/) See, for instance, Bodgkinson Re Williams, [1891] 2 Q. B. 257.

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RULES OF LEGISLATIVE POLICY. 29

generally turned, as it has been said (</), " on the peculiar
wording of these Acts, which appeared to the Courts to
compel them to give the law an ex post facto operation."
Statutes of limitations have been construed as affecting
existing claims where an interval of time was allowed for
their enforcement (h) ; and if the language admits of that
construction, the Courts, looking at the object of an enact-
ment, sometimes construe its remedial provisions retro-
spectively (i). The argument that an Act must not be so
construed as to take away existing rights is inapplicable to
Acts which are in their nature declaratory (7) ; and although,
as a rule, words not requiring a retrospective operation
ought not to be so construed, yet In all cases it is neces-
sary to ascertain (from the language used) what the
legislature meant (h).

It manifestly shocks our sense of justice that an act Criminal
legal at the time when it was done should be made unlawful
by a new enactment (l) ; and the injustice and impolicy of
ex post facto (m) or retrospective legislation is most apparent
in the case of new criminal laws. To these the maxim of
Paulus (n), adopted by Lord Bacon (0), applies: iinnquam
crescit ex post facto prceteriti delicti cestimatio. The law
does not allow a later fact, a circumstance or matter sub-
sequent, to extend or amplify an offence. Unless the
intention of the legislature is clearly expressed to that
effect, criminal offences are not to be created by giving a

((/) PerLd.Denman,6A.&E.951. (]) Per Pollock, B., A.-G. v.

\h) Pardo v. Bingham, L. B. 4 Ct. Theobald, 24 Q. B. D. 559, citing

735 ; Cornill v. Hudsm, 8 E. & B. A.-O. v. Hertford, 3 Exch. 670.

429 ; Beg. v. Leeds B. Co., 15 Q. B. (k) Beynolds v. A.-G. for Nova

3i3,iecognisiQsTowler\.CIiaUerton, Scotia, [1896J A. C. 240, 244; 65

6 Bing. 258, upon which see per L. J. P. C. 16.

Bolfe, B., 2 Exch. 36, and per {I) Per Erie, C.J., 10 0. B. N. S.

Cresswell, J., 9 C. B. 569. 191.

(i) See, for instance, Quilter v. (to) As to this expression, see

Mapleson, 9 Q. B. D. 672 ; Page v. note, 2 Peters (U.S.) 683.

Bennett, 29 L. J. Oh. 398 ; The (to) D. 50, 7, 138, § 1.

Ironsides, 1 Lush. Adm. 4G5. (o) Bac. Max., reg. 8.

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30 RULES OF LEGISLATIVE POLICY.

retroactive operation to statutes (p). There is a great
difference between making an unlawful act lawful and
making an innocent action criminal (q).

Ad ba quje feequentius accidunt juka adaptantuk. (2 Inst.
137.) — Tlic laics are adapted to those cases wliiclt, more
frequently occur.

Laws ought to be, and usually are, framed with a view
to such cases as are of frequent rather than such as are of
rare or accidental occurrence ; or, in the language of the
civil law, JMS constitui oportet in his qiue iit plurimum acci-
dunt, non qux ex inopinato (r) ; for, neque leges ncque senatus-
consulta ita scribi possunt ut omnes casus qui quandoque
inciderint comprehcndantur, sed sufficit ea quse plerumque
accidunt contineri (s) ; laws cannot be so worded as to
include every case which may arise, but it is sufficient if
they apply to those things which most frequently happen.
All legislation proceeds upon the principle of providing for
the ordinary course of things («), and to this principle
frequent reference is to be found, in the reports, in answer
to arguments, often speciously advanced, that the words of
an Act cannot have a particular meaning, because in a
certain contingency that meaning might work a result of
which nobody would approve. In Miller v. Salomons (u) it
was argued that Parliament could not have intended that a

(p) Beg. V. Griffiths, [1891] 2 Q. B. into the Power of dispensing with

145 : 60 L. J. M. 0. 93. Penal Statutes," cited 11 St. Tr.

(2) Per Chase, J., 3 DaUas (U.S.) 1208. " The rule is ad ea guoi

391, cited by Willes, J., L. E. 6 frequentius accidunt leges adap-

Q. B. 26. tanlur ; " per Bramwell, B., 9 H. L.

(r) D. 1, 3, 3. See Ld. Camden's Gas. 52 ; per Willes, J., 10 H. L.

judgment in Entick v. Carrington, Gas. 429.

18 How. St. Tr. 1061. Sir E. Atkyns (s) D. 1, 3, 10.

observes that "laws are fitted ad ea (t) Per Blackburn, J., Maxted v.

qucB frequentius accidunt, and not Paine, L. E. 6 Ex. 132, 172 ; 40

for rare and extraordinary events L. J. Ex. 57.

and accidents." See his " Enquiry (u) 7 Exch. 475 : 8 Id, 778.

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RULES OF LEGISLATIVE POLICY. 31

Jew, before sitting in the House of Commons, must use the
words " on the true faith of a Christian," prescribed in the
oath of abjuration of 6 Geo. 3, c, 53, because any person,
refusing to take the same oath when tendered by two
justices, would, under the 1 Geo. 1, st. 2, c. 13, be deemed
to be a popish recusant, and would be liable to penalties as
such ; and to enforce these provisions against a Jew, it was
said, would be the merest tyranny. But Baron Parke (i)
thus replied to this argument : — " If in the vast majority of
possible cases — in all of ordinary occurrence — the law is in
no degree inconsistent or unreasonable, construed accord-
ing to its plain words, it seems to me to be an untenable
proposition, and unsupported by authority, to say that the
construction may be varied in every case, because there is
one possible but highly improbable one in which the law
would operate with great severity, and against our own
notions of justice. The utmost that can be reasonably
contended is, that it should be varied in that particular
case, so as to obviate that injustice — no further."

Another illustration of the maxim is afforded by St. Mar-
garet's Burial Board v. Thonqjson (x). There the right of
a parish sexton to enter and perform his functions upon
burial ground formed under the Burial Act, 1852 (y)
was contested, and it was urged that the Act could not be
supposed to confer such an absolute right, because by the
common law the rector could dismiss the sexton, or exclude
him from the churchyard, in the event of his misconduct.
The Court, however, considered that the Act should be con-
strued as " framed with a view to the ordinary position of
rector and sexton in respect of the latter's duties."

Where an insurance society obtained a private Act which
enacted that all actions and suits might be commenced in
the name of their secretary, as nominal plaintiff: it was
held that this Act did not enable the secretary to petition,

(«) 1 Bxoli. 549. (y) 15 & 16 Vict. o. 85, s. 32.

(s) L. R. 6 0. P. 445.

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32 BULBS OF LBGISLATIVB POLICY.

on behalf of the society, for a commission of bankruptcy
against their debtor; for the expression "to sue," generally
speaking, means to bring actions, and the legislature was
providing for every-day and not for exceptional occur-
rences (z).

Again, when the construction was under consideration,
of the Distress for Eent Act, 1737 (a) (which gives a remedy
to a landlord, whose tenant has fraudulently removed goods
from the demised premises, unless they have been bond fide
sold to one not privy to the fraud) ; and it was urged that
it ought to be impUed that the landlord was not empowered
by the statute to enter the close of a third person, or to
break his locks, for the purpose of seizing the goods, unless
he was a party to, or at least cognizant of, the fraudulent
removal; and further that the breaking open of his gates
without a previous request to open them was unjustifiable :
the Court held that neither of these conditions need be
observed as necessary to the exercise of the right given by
the statute, " for, generally, goods fraudulently removed are
not secreted in a man's close or house without his privity
or consent. The legislature may be presumed to have had
this (6) in their contemplation : acl ea qiue frequentius
accidtmt jura adaptantar."

The reader will also find the maxim forcibly applied by
Lord Blackburn in Dixon v. Caledonian E. Co. (c) ; and two
other judgments (rf) of the same great authority demonstrate
that it has force, not only as a canon of construction of
statute law, but also as a principle of the common law.
Casus It is then true, that, " when the words of a law extend

not to an inconvenience rarely happening, but do to those

(z) Guthrie v. Fisli, 3 B. & 0. (6) Williams v. Boberts, 1 Exoh.

178. Arg. 4.-G. V. Jackson, Cr. & 618, 628; see Thomas v. Watkins,

J. 108; Wing. Max. 716. Argu- Id. 630.

mentum d communiter accidentibus (c) 5 App. Cas. 838.

in jure freqtims est, Gothofred, ad (d) Clarke v. Wright, 6 H. & N.

D. 44, 2, 6. 862 ; Dalton v. Angus, 6 App. Cas.

(a) 11 Geo. II. 0. 19. 818.

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RULES OF LEGISLATIVE POLICY.

33

which often happen, it is good reason not to strain the
words further than they reach, by saying it is casus
omissus, and that the law intended quce frequentius accidunt."
" But," on the other hand, " it is no reason, when the words
of a law do enough extend to an inconvenience seldom
happening, that they should not extend to it as well as
if it happened more frequently, because it happens but
seldom" (e). A casus omissus ought not to be created by
interpretation save in some case of strong necessity (/) .
"Where, however, a casus omissus does really occur, either
through the inadvertence of the legislature ( g), or on the
principle quod semel aut bis existit prcetereunt legislatores (h),
the rule is, that the particular case thus left unprovided for,
must be disposed of according to the law as it existed before
such statute — Casus omissus ct oblivioni datus dispositioni
communis juris relinquitur {i) ; "a casus omissus," observed
BuUer, J. (k), " can in no case be supplied by a court of
law, for that would be to make laws."

(e) Vaugh. E. 373; Fenton v.
Hampton, 11 Moore, P. G. 865;
with whicli aoc. Doyle v. Falconer,
L. K. 1 P. G. 328.

(/) Per Ld. Fitzgerald, Mersey
Docks Board v. Henderson, 13 App.
Gas. 607.

(g) Beg. v. Denton, 5 B. & S. 821,
828; Cobb v. Mid Wales B. Co.,

L. E. 1 Q. B. 348, 349.

(h) D. 1, 8, 6.

(i) 5 Eep. 38. See Bobinson v.
Cotterell, 11 Exch. 476.

(k) Jones v. Smart, 1 T. E. 52;
per Ld. Abinger, Lane v. Bennett,
1 M. & W. 73; arg. Shepherd v.
Hills, 11 Exoh. 64.

L.M.

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CHAPTER II.

MAXIMS KBLATING TO THE CEOWN.

The principal attributes of the Crown are sovereignty
or pre-eminence, perfection, and perpetuity; and these
attributes are attached to the wearer of the crown by the
constitution, and may be said to form his constitutional
character and royal dignity. On the other hand, the
principal duty of the sovereign is to govern his people
according to law; and this is not only consonant to the
principles of nature, of liberty, of reason, and of society,
but has always been esteemed an express part of the
common law of England, even when prerogative was at
the highest. In this chapter are collected some of the
more important technical rules, embodying the above
general attributes of the Crown (a).

Two-fold
character
of the
sovereign.

Rex non debet esse sub homine, sed sub Deo et sub

LEGE, QUIA LEX FACIT EEGEM. (Bfact. Lib. 1. fo. 5 ;

12 lie}}. 65.) — The king is under no man, yet he is under
God and the laio,for the law makes the king.

The head of the state is regarded by our law in a two-
fold character — as an individual liable like any other to
the accidents of mortality and its frailties ; also as a

(a) On the subject of this chapter, i., ii., xv., xvi. ; Portescue de Laud,

see further Allen on the Boyal Pre- Leg. Ang., by Amos, chap. ix. ;

rogative, Ghitty on the Prerogative Pinch's Law, 81 ; Plowd. Com.,

of the Grown, particularly chaps, chap. xi. ; Bracton, bk. 1, chap. viii.

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MAXIMS RELATING TO THE CROWN. 35

corporation sole {b), endowed with certain peculiar attributes,
the recognition whereof leads to important consequences.
Politically, the sovereign is regarded in this latter character,
and is invested with various functions, which the individual,
as such, could not discharge. "The person of the king,"
it has been said (c), "is by law made up of two bodies: a
natural body, subject to infancy, infirmity, sickness, and
death ; and a political body, perfect, powerful, and per-
petual." These two bodies are inseparably united together,
so that they may be distinguished, but cannot be divided.
More often, however, the sovereign would seem to be
regarded by our law in his political than in his individual
and natural capacity, and the attributes of his former are
blended with those of his latter character. As conservator
of the public peace, the Crown in any criminal proceeding
represents the community at large, prosecutes for offences
committed against the public, and can alone exercise the
prerogative of pardoning. As the fountain of justice, no
Court can have compulsory jurisdiction over the sovereign ;
an action for a personal wrong, therefore, will not lie against
the king ; for which rule, indeed, another more technical
reason has been assigned — that the king cannot by his
writ command himself to appear coram jmlice. As the
dispenser of law and equity, the king is present in all his
Courts; whence it is that he cannot be nonsuit in an
action, nor does he appear by attorney (d).

The Case of Prohibitions (e) shows, however, that the The king is

, . . , , .11 J! 1 i. • beneath the

king IS not above the law, for he cannot m person assume i^w.
to decide any case, civil or criminal, but must do so by his

(6) Mr. Allen, however, observed (c) Bagshaw, Rights of the Crown

(Royal Prerog., p. 6), that " there is of England, 29 ; Plowd. 212 a, 217 a,

something higher, more mysterious, 238 ; Allen, Royal Pre. 26 ; Bac.

and more remote from reality in the Abr. Prerogative (E. 2).

conception which the law of Bng- (d) 1 Blao. Com. 270 ; Pinch's

land forms of the king than enters Law (by Pickering), 82.

into the notion of a corporation (e) Prohibitions del Boy, 12 Rep.

sole." 63 ; Plowd. 241, 553.

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MAXIMS RELATING TO THE CEOWN.

judges ; the law being " the golden m'et-wand and measure
to try the causes of the subjects, and which protected his
majesty in safety and peace,"— the king being thus in
truth, siih Deo et lege. This case shows also that an action
will not lie against the Crown for a personal tort, for it is
there laid down that "the king cannot arrest a man for
suspicion of treason or felony, as others of his lieges
may ; " the reason given being that if a wrong be thus
done to an individual, the party grieved cannot have
remedy against the king. But although in these and
other respects, presently to be noticed, the king is greatly
favoured by the law, being exempted from the operation
of various rules applicable to the subject, he is on the
whole, and essentially, beneath not superior to it, theo-
retically in some respects above, but' practically bound and
directed by its ordinances (/).

Immortality
ascribed
theoretically
to the king.

Eex nunquam moeitur. (Branch, Max., 5th cd. 197.) —
The king never dies.

The law ascribes to the king, in his political capacity,
an absolute immortality ; and immediately upon the
decease of the reigning prince in his natural capacity, the
kingly dignity and the prerogatives and politic capacities
of the supreme magistrate, by act of law, without any
interregnum or interval, vest at once in his successor,
who is, CO instante, king, to all intents and purposes (Vy) ; and
this is in accordance with the maxim of our constitution.
In Anglid non est interregnum [li). " It is true," said Lord
Lyndhurst (i), " that the king never dies ; the demise is

(/) See the Debate in the House
of Lords on Life Peerages, Hansard,
vol. 140, pp. 263 et seq. In Howard
V. Gosset, 10 Q. B. 386, Coleridge, J.,
observed that " the lav7 is supreme
over the House of Commons, as
over the Crown itself." See also

post, p. 39.

(g) 1 Blao. Com. 249.

(h) Jenk. Cent. 205. See Cooper's
Account of Public Eecords, vol. 2,
323, 324 ; Allen, Royal Prerog. 44.

(i) Vise. Canterbury v. A.-G., 1
Phill. 322.

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MAXIMS KBLATING TO THE OEOWV.

immediately followed by the succession ; there is no
interval. The sovereign always exists; the person only
is changed."

So tender, mdeed, is the law of supposing even a
possibility of the death of the sovereign, that his natural
dissolution is generally called his demise — demissio regis
vel coronce — an expression which signifies merely a transfer
of property ; and when we speak of the demise of the
Crown, we mean only that, in consequence of the disunion
of the king's natural body from his body politic (j), the
kingdom is transferred to his successor ; and so the royal
dignity remains perpetual (fc). It has, doubtless, usually
been thought prudent, when the sovereign is of tender
years at the period of the devolution upon him of the royal
dignity, to appoint a protector, guardian, or regent to
discharge the functions of royalty for a limited time ; but
the very necessity of such extraordinary provision is
sufficient to demonstrate the truth of that maxim of the
common law, that in the king is no minority (Z), for he has
no legal guardian ; and the appointment of a regent must,
therefore, be regarded merely as a provision made by the
legislature, to meet a special and temporary emergency (m).

It seems that the Duchy of Cornwall vests in the king's
eldest son and heir apparent at the instant of his birth,
without gift or creation, and as if minority could no more
be predicated of him than of the sovereign himself (n).

The title of the sovereign is regulated by succession as
well as descent, and if lands be given to the king and his
"heirs," this word "heirs" includes the "successors" to
the Crown, although on the demise of the sovereign,
according to the course of descent recognised at the
common law, the land might have gone in some other

U) Ante, p. 35. Com. 177, 234. And see 3 & 4 Vict.

[k) 1 Blao. Com. 249. o. 52.

{I) Bao. Abr. Prerogative (A.). (w) Per Ld. Brougham, 1 Coop.

(m) 1 Blao. Com. 248 ; Plowd. temp, Cottenham, 125.

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38 MAXIMS RELATING TO THE CEOWN.

channel. Hence, if the king die without issue male, but
leaving two daughters, lands held to him and his heirs go
to his eldest daughter as succeeding to the Crown ; whereas,
in the case of a subject, lands whereof he was seised would
pass to his daughters, in default of male issue, as copar-
ceners (o). Similarly, if real estate be given to the king
and his heirs, and afterwards the reigning dynasty be
changed, and another family be placed upon the throne,
the land in question would go to the successor, and then
descend in the new line (p). And a grant of land to the
king for ever creates in him an estate of perpetual inherit-
ance iq), whereas the like words would but give an estate
for life to any of his subjects.

In regard also to personal property, the Crown is
differently circumstanced from an individual or from a
corporation sole ; for, by the ordinary rule, such property
does not, in the case of a corporation sole, go to the
successor — in the king's case, by our common law, it
does ()■). And it is worthy of remark, that the maxim,
"the king never dies," founded manifestly on notions of
expediency, and on the apprehension of danger which
would result from an interregnum, does not hold in regard
to other corporations sole. Thus a parson, though clothed
with the same rights and reputed to be the same person as
his predecessor, is not deemed by our law to be con-
tinuously in possession of his office, nor is it deemed
essential to the preservation of his official privileges that
one incumbent should, without any interval of time, follow
another. Such a corporation sole may, during an interval
of time, cease to be visibly in esse, whereas the king never
dies — his throne and office are never vacant.

Yet it would be an error to say that this fiction of the

(o) Grant on Corporations, 627. {p) Grant, Corp. 627.

See also 25 & 26 Vict. o. 37, and (g) 2 Blac. Com. 216.

36 & 37 Vict. 0. 61, relating to the (?•) Grant, Corp. 626.
sovereign's private estates.

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MAXIMS RELATING TO THE CROWN. 39

constitution as to the continuity of the Koyal Person is
always followed to its logical conclusions. One limitation
is illustrated by A.-G. v. Kdhler(s), where the question
was discussed, whether money which by mistake had been
paid to the Treasury during the reign of one sovereign,
could be recovered under his successor ; and it was held
that the sovereign could not be responsible for money paid
in error to and spent by a predecessor, which that pre-
decessor might lawfully have disposed of for his own use,
supposing it to have come rightfully to his hands.

Eex non potest peccarb. (2 EoUc, B. 304.) — T]ie king
can do no wrong.

It is an ancient and fundamental principle of the Meaning of
English constitution, that the king can do no wrong (t).
But this maxim must not be understood to mean that
the king is above the laws, in the unconfined sense of
those words, and that everything he does is of course just
and lawful. Its true meaning is. First, that the sovereign,
individually and personally, and in his natural capacity,
is independent of and is not amenable to any other earthly
power or jurisdiction ; and that anything amiss in the
condition of public affairs is not to be imputed to the king,
so as to render him personally answerable for it to his
people. Secondly, the 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 an act forbidden
by law ; so that, from this point of view, he is under, and
not above the laws, and is bound by them equally with his
subjects (u). If, then, the sovereign personally command

(s) 9 H. L. Gas. 654. (u) Chitty, Prerog. 5 ; Jenk. Cent.

(t) Bex guod est injustum facere 203. See Fortescue de Laud. Leg.
non potest ; Jenk. Cent, 9, 308, Ang. (by Amos), 28.

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40 MAXIMS RELATING TO THE CBOWN.

an unlawful act to be done, the offence of the instrument
is not thereby indemnified ; for though the king is not
himself under the coercive power of the law, yet in many
cases his commands are under the directive power of the
law, which makes the act itself invaUd if unlawful, and
so renders the instrument of execution thereof obnoxious
to punishment (x). As in affairs of state the ministers
of the Crown are held responsible for advice tendered
to it, or even for measures which might possibly be
known to emanate directly from the sovereign, so may the
agents of the sovereign be civilly or criminally answerable
for lawless acts done— if that may be imagined— by his
command.
Grant from The king, moreover, is incapable not only of doing

voiU wrong, but even of thinking wrong. Whenever, therefore,

it happens that, by misinformation or inadvertence, the
Crown has been induced to invade the private rights of a
subject,— as by granting a franchise to a subject contrary
to reason, or in a way prejudicial to the commonwealth or a
private person, — the law will not suppose that the king
meant either an unwise or an injurious action, for eadem
mens 2^r(esumitur regis qiue est juris et quce esse debet
prcesertim in duhiis (y), but declares that the king was
deceived in his grant; and thereupon such grant becomes
void upon the supposition of deception either by or upon
those agents whom the Crown has thought proper to
employ {z). In like manner, also, the king's grants are
void whenever they tend to prejudice the course of public
justice (a). And, in brief, to use the words of a learned
judge (&), the Crown cannot, in derogation of the right of
the public, unduly fetter the exercise of the prerogative

(x) 1 Hale, P. C. 43, 44, 127. Per N. R. 719 ; JB. v. Kcmpe, 1 Ld.

Coleridge, J., Howard v. Gosset, 10 Eaym. 49, 720; Pinch's Law, 101!

Q. B. 386. Vigers v. Dean of St. Paul's, 14

(y) Hobart, 154. Q. B. 909.

(«) 2 Blao. Com. 246 ; see Oled- (a) CMtty, Prerog. 385.

stanes v. Earl of Sandwich, 5 Soott, (6) See per Piatt, B., 2 E. & B. 884.

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MAXIMS RELATING TO THE CROWN. 41

which is vested in the Crown for the pubHc good. The
Crown cannot dispense with anything in which the subject
has an interest (c), nor make a grant in violation of the
common law (d), or injurious to vested rights (e). In this
manner it is, that, while the sovereign himself is, in a
personal sense, incapable of doing wrong, yet his acts may
in themselves be contrary to law, and, on that account,
be set aside by the law.

It must further be observed, that even where the king's
grant purports to be made de gratia speciali, certa scientia,
et mero motii, the grant will be void, if it appears to the
Court that the king was deceived in the purpose and intent
thereof : and this agrees with a text of the civil law, which
says that the above clause non valet in Ids in quibits
prcssumitur principem esse ignorantem ; therefore, if the king
grant such an estate as by law he could not grant, foras-
much as the king was deceived in the law, his grant is
void (/). Thus the Crown cannot by grant of lands create
in them a new estate of inheritance, or give them a new
descendible quality [g), and the power of the Crown is
similarly restricted as regards the grant of a peerage or
honour (/i).

The above doctrine cannot, however, be extended to Act of
invalidate an act of the legislature, on the ground that it ^^ i*™^° ■
was obtained by a suggestio falsi, or suppressio veri. It
would indeed be something new, as forcibly observed by
Cresswell, J. (i), to impeach a statute by a plea stating that
it was obtained by fraud (k).

In connection with this part of our subject, it is worthy

(c) Thomas v. Waters, Hardw. Peerage, L. R. i H. L. 152.

44:3, US. (h) Wiltes Peerage, L. R. i H. L.

(<J) 2 EoU. Abr. 164. 126 ; and see Buckhurst Peerage, 2

(e) B. V. ButUr, 3 Lev. 220 ; cited App. Gas. 20, 21, per Ld. Cairns.

per Parke, B., 2 E. & B. 894. (i) Stead v. Carey, 1 C. B. 516 ;

(/) Case of Alton Woods, 1 Rep. see also per Tindal, O.J., Id. 522.

53. (&) See M'Cormick v. Orogan,

{g) Per Ld. Chelmsford, Wiltes L. R. 4 H. L. 96, per Ld. Westbury.

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42 MAXIMS KBLATING TO THE CROWN.

of remark, that the power which the Crown possesses of
calling back its grants, when made under mistake, is not
like any right possessed by individuals; for, when it has
been deceived, the grant may be recalled notwithstanding
any derivative title depending upon it, and those who have
deceived it must bear the consequences (l).
Patent. The doctrine just stated applies also in the case of a

patent which has in some way improvidently emanated
from the Crown. Thus, in Morgan v. Seaward (m), Parke,
B., observed as follows : " That a false suggestion of the
grantee avoids an ordinary grant of lands or tenements
from the Crown, is a maxim of the common law, and such
a grant is void, not against the Crown merely, but in a suit
against a third person (n). It is on the same principle that
a patent for two or more inventions, where one is not new,
was held to be altogether void in Hill v. Thompson (o), and
Brunton v. Hairkes (j;) ; for although the statute (q) invali-
dates a patent for want of novelty, and consequently by
force of the statute the patent would be void, so far as
related to that which was old ; yet the principle on which
the patent has been held to be void altogether is, that the
consideration for the grant is the novelty of all, and the
consideration failing, or, in other words, the Crown being
deceived in its grant, the patent is void, and no action
maintainable upon it " (c).

The rule upon the subject now touched upon has been
yet more fully laid down (.s), as follows : — " If the king has

(I) J-aAgm.,Cumimng -v. Forrester, (g) 21 Jac. 1, o. 3. See also 46 & 47

2 Jac. & W. 342. Vict. c. 57 ; 51 & 52 Vict. c. 50.

(?») 2 M. & W. 544, cited arg. (r) " The Crown is deceived, if it

Nickels v. Boss, 8 C. B. 710 ; Beard grants a patent for an invention

V. Egerton, Id. 207 ; CroU v. Edge, wliich is not new ; " per Pollock,

9 C. B. 486. See Reg. v. Belts, 15 C.B., Hills v. London Gaslight Co.,

Q. B. 540, 547. 5 H. & N. 340.

(re) Citing Travell v. Carteret, 3 (s) Reg. v. Eastern Archipelago

Ley. 135 ; Alcock v. Cooke, 5 Bing. Co., 1 E. & B. 310, 337, 338 : 2

340; 30 R. R. 625. E. & B. 856; Willes Peerage, L. R.

(o) 8 Taunt. 375 ; 20 R. R. 488. 4 H. 1,. 126.

ip) 4 B. & Aid. 542 ; 23 R. R. 882.

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MAXIMS RBIiATING TO THE CROWN. 43

been deceived by any false suggestion as to what he grants
or the consideration for his grant ; if he appears to have
been ignorant or misinformed as to his interest in the
subject-matter of his grant ; if the language of his grant be
so general that you cannot in reason apply it to all that
might literally fall under it ; or if it be couched in terms so
uncertain that you cannot tell how to apply it with that
precision which grants from one so especially representing
the public interest ought in reason to have ; or if the grant
reasonably construed would work a wrong, or something
contrary to law ; in these and such like cases the grant will
be either wholly void or restrained according to circum-
stances; and equally so, whether the technical words,
ex certa scientia ct mero motii, be used or not. But this is
held upon the very same principle of construction on which
a grant from a subject is construed, viz., the duty of
effectuating the intention of the grantor." To hold the
grants valid or unrestrained in the cases just put, would be,
as it is said, in deceptionc domini regis, and not secundum
intentioncm. It must, however, at the same time be noted,
that long modern possession will often make good and valid
a title defective on account of vagueness or uncertainty in
the original grant. This is effected by a presumption of a
supplementary and confirmatory grant, so as to preserve
the fiction of royal impeccability (t).

The principle that the king can do no wrong led to the Petition of

Ri'^ht.
institution of the Petition of Eight, which is founded upon °

the theory that the king, of his own free will, graciously

orders right to be done (soit droit fait al partie) (ii). This

proceeding is open to a subject in cases where his lands or

goods or moneys have found their way into the possession

of the Crown, and the purpose of the petition is to obtain

{<) Des Bwrres v. Shey, 29 L. T. its origin under Edward I., and was

592. subatituted for a praeoipe against the

(m) 3 Blao. Com. 254-256. It king; see 16 C. B, N. S. 356.
lias been said that tbe petition took

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44 MAXIMS EBLATING TO THE OEOWN.

restitution, or, if that cannot be given, then compensation
in money (r). It is also open to him for the purpose of
recovering moneys due to him under a contract made on
behalf of the Crown, as for goods supplied to the Crown or for
the public service (x), or unliquidated damages for breaches
of the contract {y), or moneys payable by servants of the
Crown to the suppliant under a grant of the Crown {z). But
it is not open to him in other cases ; and he cannot thereby
obtain compensation for a wrongful act done by a servant
of the Crown in the supposed performance of his duties, or for
a trespass (a), or the alleged infringement of letters-patent (b).
The maxims, qiiifacitper aliumfacit per se and respondeat
superior, have no application where the servants of the
Crown commit a tort ; what the sovereign does personally,
the law presumes will not be wrong; what he does by
command to his servants, cannot be wrong in him, for, if
the command be unlawful, it is in law no command, and
the servant is responsible for the unlawful act, the same as
if there had been no command (c) .
Procedure. The procedure in Petition of Eight is now regulated by the

Petition of Eight Act, 1860 (d), which was passed to simphfy
the procedure, but did not extend the remedy to new eases (e).
The petition is left with the Home Secretary for the con-
sideration of the King, who, if he think fit, may grant
his fiat that right be done (/). Upon the fiat, for which
no fee is payable (/), being obtained, a copy of the petition

(v) Per curiam, Feather v. The See Dixon v. London Small Anns

Queen, 6 B. & S. 257, 294 : 35 L. J. Co., 1 App. Cas. 632.

Q. B. 200, 208. (c) 16 C. B. N. S. 354, 360 ; Vis-

(^) Id. count Canterbury v. The Queen, 1

{y) Thomas v. The Queen, L. E. 10 Phillips, 321.

Q. B. 31 : 44 L. J. Q. B. 9 ; Windsor (d) 23 & 24 Vict. c. 34. For a

S Annapolis B. Co. v. The Queen, succinct account of the earlier pro-

11 App. Cas. 607; 55 L. J. P. C. 41. cedure, see 3 Blao. Com. 256. See

(z) Kildare County Council v. further Chitty, Prerog. 340 et seq.

Begem, [1909] 2 Ir. E. 199. It is well illustrated by Ve Bode's

(a) Tohin v. The Queen, 6 B. & S. case, 8 Q. B. 208.

257 : 38 L. J. C. P. 199. (e) 23 & 24 Vict. c. 34, s. 7, ad fin.

(6) Feather v. The Queen, supra. (/) S. 2.

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MAXIMS BELATING TO THE CROWN.

and fiat, endorsed with the prescribed prayer, is left with
the Treasury sohcitor, and then the Crown has 28 days
within which to answer, plead, or demur to the petition (g) .
The subsequent procedure resembles, in general, that of
ordinary actions (h). But, though the Crown may have
" discovery " from the suppliant (t), he cannot have it from
the Crown {k) ; and if he obtain a judgment the ordinary
methods of execution are not open to him.

Formerly, the judgment, if in his favour, was that of Judgment.
ouster le main, or amoveas manus, or in full, quod manus
domini regis amoveantur ct possessio restituatur jJt'ffflfi, salvo
jure domini regis : the last being always added, because no
laches was ever imputed to the sovereign {I). By such
judgment the Crown is instantly out of possession, so that
there needs not the indecent interposition of his own officers
to transfer the seizin from the king to the party aggrieved (/).
Now, the Court may give judgment that the suppliant is
entitled wholly or in part to the relief sought, or to such
other relief as the Court may think right, and this judgment
has the same effect as that of amoveas manus (m). Costs
follow the rule prevailing in ordinary actions («).

The right of a subject to the royal fiat has been much The royal
discussed. But it seems clear that, under the 23 & 24 Yict.
c. 34, the Courts have no jurisdiction until the fiat has been
obtained, and that its improper refusal would be a matter
with which Parliament alone could deal. The Act evidently
leaves a discretion to the Crown, and cases might be
suggested in which interests of State would forbid the
publication in open court of matters relied upon by the
suppliant. On the other hand, notwithstanding the suppli-
cating language of the petition, it never was the theory of

{(/) Ss. 3— 6. A.-0.y.Newcastle-upon-Tyne,il89'Ti

(h) S. 7. 2 Q. B. 38i : 66 L. J. Q. B. 593.

(i) TomlineY. The Queen, i Ex. D. (J) 3 Blao. Com. 257.

252 : 48 L. J. Ex. 453. (m) 23 & 24 Vict. o. 34, ss. 9, 10.

(k) Thomas v. The Queen, L. B. (to) S. 12. As to satisfaction, see

10 Q. B. 44 ; 44 L. J. Q. B. 9. Of. further ss. 13, 14.

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46 MAXIMS EBLATING TO THE CKOWN.

the Constitution that this remedy was one of pure grace
and favour (o) ; it is substantially, as well as nominally, a
petition of right {p) ; and the prayer is grantable ex clebito
jitstitice, being referred by many to the clause in Magna
Charta, nulli ncgahlmus justitiam id rectum. " I am far
from thinking," said Lord Langdale, " that it is competent
to the king, or rather to his responsible advisers, to refuse
capriciously, to put into a due course of investigation,
any proper question raised on a petition of right. The
form and application being, as it is said, to the grace and
favour of the king appear no foundation for any such
suggestion" ((;). It is now the common practice of the
Home Office to endorse " let right be done " as a matter
of course, without even referring the case to the Attorney-
General (v).

After the royal fiat has been obtained, the Crown may
still raise the question whether the case is one in which
petition of right may be brought, and this is usually raised
by demurrer. The cases in which it may be brought have
already been stated ; but in considering whether it is applic-
able to a particular claim, it must be remembered that the
petition never lies unless there has been the violation of a
right, for which, but for the immunity from process ^Yith
which the law surrounds the person of the sovereign, an
action at law or in equity might be maintained.
Torts by Although a petition of right does not lie for a tort com-

the Crown, mitted by servants of the Crown (s), yet the servants who
commit it, whether spontaneously or by order of a superior

(o) See^ej'Boweii,L.J.,12Q.B.D. Co. v. The Queen, 2 E. & B. 914.

479. See, however, a pamphlet (published

(p) Chitty, Prerog. 345. by V. & R. Stephens, 1863), on the

(2) Byves v. Duke of Wellington, case of Mr. Irwio, in which much

9 Beav. 600 ; see also 3 Inst. 240, 2. iateresting matter as to Petition of

Petition of right is a legal remedy Eight is coUeoted.

which excludes mandamus ; Beg. v. (s) Tobin v. The Queen, 16 0. B.

Comrs. of Inland Bev., 12 Q. B. D. N. S. 310 : 33 L. J. 0. P. 83 ;

461 : 53 L. J. Q. B. 229. Feather v. The Queen, 6 B. & S.

(r) Per Jervis, C J., E. Archipelago 257 : 30 L. J. Q. B. 200.

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power, are answerable therefor in an ordinary action ; for
the civil irresponsibility of the supreme power for tortious
acts could not be maintained with any show of justice if its
agents were not personally responsible (i), and that a servant
of the Crown is liable to the subject for a trespass done even
with the sanction of the highest authority of the State,
" rests on principles which are too well settled to admit of
question, and which are alike essential to uphold the dignity
of the Crown on the one hand, and the rights and liberties
of the subject on the other " (it). In Madrazo v. Willes (x),
a captain of a British man-of-war who destroyed a Spanish
trading ship wrongfully, but, as he believed, in performance
of his duty, was held liable to the owners. Again, in
fValker v. Baird (y), the captain of a British man-of-war,
who destroyed a lobster factory on the coast of Newfound-
land, was held liable to the owners, and it was decided that
he could not justify an interference with private rights, not
authorised by the legislature, under the provisions of a
treaty made between the Crown and the French Govern-
ment. In such actions the wrong-doers must be sued as
individuals, and not in their official capacity (z). A superior
official is not answerable for the act of his subordinates,
unless it was substantially his own act (a).

It may be added that in some of our colonies actions
against the Government in respect of tortious acts have
been authorised by ordinance or colonial legislation (&).

(i) Rogers v. Bajendoo Dutt, 13 Bainbridge v. Post Master General,

Moo. P. C. 236. Nireaha Tamaki [1906] 1 K. B. 178 : 75 L. J. K. B.

V. Baker, [1901] A. C. 561 : 70 L. J. 866. See O'Bijrne v. Sartington,

P. 0. 66. I. E. 11 G. L. 445, 453 ; and cf.

(m) Per curiam, Feather v. The L. K. 1 H. L. 124, 128.
Queen, supra. (6) See A.-G. of Strait Settle-

(x) 3 B. & Aid. 353 ; 24 R. R. 422. ments v. Wemyss, 13 App. Gas. 192 :

\y) [1892] A. G. 491 : 61 L. J. P. C. 57 L. J. P. 0. 62 ; Farnell v. Bow-

92, where the Crown's rights in case man, 12 App. Gas. 643 : 56 L. J.

of a treaty of peace were discussed. P. G. 72 ; Hettihewage Siman Appii's

(z) Baleigh v. Goschen, [1898] 1 case, 9 App. Gas. 571 : 53 L. J.

Oh. 73. P. G. 72.

(a) Baleigh v. Goschen, supra ;

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MAXIMS RELATING TO THE CEOWN.

Contracts.

Funds
received by
the Crown
through
treaty.

In the absence of some statutory provision to the con-
trary, servants of the Crown, civil as well as military, hold
their ofifices only during the pleasure of the Crown, and
though they be engaged for a fixed period, yet it is an
implied term of the contract that they may be dismissed
sooner if the Crown please (c). No petition of right there-
fore Hes for their dismissal. Moreover, as a rule, they have
no remedy against the agent of the Crown who engaged
them ; for, unless he has expressly agreed to be personally
liable, a Crown agent is not answerable for breaches of
contracts made by him in his public capacity, nor does he
impliedly warrant his authority to make them ((?)■ Where
an agent of the Crown has, in his public capacity, made a
contract which he had authority to make, the remedy for its
breach by officials of the Crown is by petition of right (c),
and not by action against the agent, for the Government
revenues cannot be reached by a suit against a pubhc
officer (/).

Questions have arisen with respect to claims to partici-
pate in funds which the Crown has acquired through war
or treaty with foreign states. In Baron de Bode's case (g),
the petition of right suggested that, under conventions with
the French Government, the Crown had received moneys
for the purpose of compensating its subjects whose property
had been confiscated during the wars which followed the
French Ee volution. The petitioner, as one of such subjects,
made a claim in respect of a sum which remained in the
Treasury after the claims of others had been satisfied. It

(c) Dunn v. The Queen, [1896] 1
Q. B. 116 : 65 L. J. Q. B. 279 ; and
the oases there cited ; see Oould v.
Stuart, [1896] A. C. 575 : 65 L. J.
P. 0. 82. Young v. Waller, [1898]
A. C. 661 ; 67 L. J. P. C. 80 : Young
V. Adams, [1898] A. C. 469 : 67 L. J.
P. C. 75.

(d) Dunn v. Macdonald, [1897] 1
Q. B. 401, 555 : 66 L. J. Q. B. 420.

(e) Thomas v. The Queen, L. B.
10 Q. B. 31 ; 44 L. J. Q. B. 9 ; see
Churchward v. The Queen, L. B. 1
Q. B. 173. See, however, Graham
V. Commissioners of Works, [1901]
2 K. B. 781 : 70 L. J. K. B. 860.

(/) Palmer V. Stitchinson,6 A-g-p.
Cas. 619 : 50 L. J. P. 0. 62.

(g) 8 Q. B. 208 : 13 Id. 380 : 3
H. L. Cas. 449.

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was held that as a statute had been passed, which provided
a particular mode for the distribution of the moneys, the
petitioners' rights depended entirely upon the effect of that
statute. But the question was left open, whether, if the
statute had not been passed, the Crown would have been
answerable, as a trustee, for the moneys {h). This question
was afterwards decided in the Crown's favour in Rmtomjee
V. The Queen {i). There a claim was made in respect of a
sum paid to the Crown by the Emperor of China under the
treaty of Nankin on account of debts due from Chinese
to British merchants. The notion that the sovereign, by
receiving moneys under a treaty, could become the agent of,
or trustee for, any of his subjects was described by Cockburn,
C.J., as wild and untenable ; and Lord Coleridge said that,
if the sovereign had failed to administer the moneys accord-
ing to the stipulations of the treaty, the failure was one
which Parliament might correct, but with which courts of
law could not deal {k). A somewhat similar question arose
in Kinloch v. Secretary of State for India {1} where an
attempt was made to compel the defendant to account, as
a trustee, for booty which the Queen by royal warrant had
" granted " to " the Secretary of State for India in Council
for the time being," "in trust " for the members of certain
forces, amongst whom it was to be distributed according to
a prescribed scale, all doubtful claims being determined by
the Secretary unless the Queen should otherwise order. It
was held that the warrant did not transfer the property, or
create a trust enforceable in equity, and that no action lay
against the defendant who was merely the agent of the
Crown for a specific purpose.

Closely analogous to petition of right was the Monstrans Monstrans
de droit (m). This procedure was formerly employed when

{h) See per Parke, B., 13 Q. B. 383. that the Crown could not plead the

(i) 1 Q. B. D. 487 : 2 Id. 69 : 45 Statute of Limitations.
L. J. Q. B. 249 : 46 Id. 238. (I) 7 App. Cas. 619.

(fc) It was decided in this case (m) Chitty, Prerog. 352.

L.M. 4

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MAXIMS RELATING TO THE CEOWN.

Where title
of Crown
is indirectly
questioned.

the facts upon which the suppliant and the Crown relied
had already been established, whether by commission,
inquest of office, or otherwise, and the judgment of the
Court was required as upon a special case. Although now
obsolete, this procedure was once of great importance, and
almost superseded that by petition (n).

Where the Crown is actually in possession of lands
or chattels, we have seen that its title can be directly
questioned only by petition of right. There sometimes
arises a question between subject and subject in which the
rights of the Crown may be indirectly involved, so that a
judgment as between the parties will affect the interests of
the Crown. In such cases, as for example in an action
concerning the property of an outlaw, the Attorney-General
must have notice of the proceedings, and be made a party,
otherwise the Courts will not adjudicate. The necessity of
making the Attorney-General a party also extends to cases
where the sovereign is interested as parens patrice, or
protector of the rights of his subjects, as for instance in
actions concerning testamentary dispositions where the
subject-matter is appropriated for general charitable
purposes (o).

NoN POTEST Kex Geatiam faceee cum Injuria et Dajino

ALiOEUM. (3 Inst. 236.) — The Ling cannot confer a

favour on one subject to the injury and damage of others.

It is an ancient and constant rule of law (p), that the

king's grants are invalid when they destroy or derogate

from rights, privileges, or immunities previously vested in

another subject : the Crown, for example, cannot enable a

subject to erect a market so near to the legally established

(«) 3 Blac. Com. 256.
(o) Id. 427.

Ip) 3 Inst. 236 : Vaugh. R. 338.
The maxim was cited by Talfourd,

J., in Eastern Archipelago Co. v. The
Queen, 2 E. & B. 864. A similar
doctrine prevailed in the civil law ;
see Cod. 7, 38, 2.

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market of another as to be a disturbance thereof (q). Nor
can the king grant the same thing in possession to one,
which he or his progenitors have granted to another (r). If
the king's grant, reciting that A. holds the manor of
Blackacre for life, grants it to B. for life, the law implies
that the second grant is to take effect after the determina-
tion of the first (s). And if the king, being tenant for life
of certain land, grant it to one and his heirs, the grant is
void, for the king has taken upon himself to grant a greater
estate than he lawfully could grant (t).

On the same principle, the Crown cannot at common
law (u) pardon an offence against a penal statute after
information brought, for thereby the informer has acquired
a private property in his part of the penalty. Nor can the
king pardon a private nuisance while it remains unre-
dressed, or so as to prevent an abatement of it, though
afterwards he may remit the fine ; and the reason is that
though the prosecution is vested in the Crown, to avoid
multiplicity of suits, yet (during its continuance) this
offence savours more of the nature of a private injury to each
individual in the neighbourhood, than of a public wrong (x).
So, if the king grant lands, forfeited to him upon a con-
viction for treason, to a third person, he cannot afterwards,
by his grant, devest the property so granted in favour of
the original owner.

(2) Chitty, Prerog. 119, 132, 386 ; (s) Earl of Rutland's case, 8 Eep.

Re Islington Market Bill, 3 CI. & F. 56 b.

513 ; 39 R. B. 32. See O.E.R. Co. (i) Case of AltonWoods, 1 Bep.44a.

V. Goldsrmd, 9 App. Gas. 927 : 54 (u) By 22 Viot. c. 32, the Crown

L. J. Ch. 162. may "remit, in whole or in part,

if) Per Cresswell, J., 1 C. B. 523 ; any sum of money which, under any

arg. R. V. Amery, 2 T. E. 665 ; 1 B. R. Act now in force, or hereafter to be

533 ; Chitty, Prerog. 125. But a passed, may be imposed as a penalty

mere licence from the Crown, or or forfeiture on a convicted ofiender,

a grant during the king's wiU, although such money may be, in

is determined by the demise of whole or in part, payable to some

the Crown ; Id. 400 ; see n. [Vj, party other than the Crown.''

suj^ra, {x) Vaugh. R. 333,

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52 MAXIMS RELATING TO THE CROWN.

Nullum Tbmpus occurrit Eegi. (2 Inst. 273.) — Lapse of
time does not bar the Right of the Crotvn.

In pursuance of the principle already considered, of the
sovereign's incapability of doing wrong, the law also
determines that in the Crown there can be no negligence or
laches ,- and, therefore, it was formerly held, that no delay
in resorting to his remedy would bar the king's right ; for
the time and attention of the sovereign must be supposed
to be occupied by the cares of government, nor is there
any reason that he should suffer by the neghgence of his
officers, or by their fraudulent collusion with the adverse
party (y) ; and although, as we shall hereafter see, the
maxim, vigilantihus et non clormientibus jura siibveniwnt is a
rule for the subject, yet nullum tempus occurrit regi is, in
general, the king's plea {z). From this doctrine it followed,
not only that the civil claims of the Crown sustained no
prejudice by lapse of time, but that criminal prosecutions
for felonies or misdemeanors might be commenced at any
distance of time from the commission of the offence ; and
this is, to some extent, still law, though it has been qualified
by the legislature in modern times ; for instance, by the
Nullum Tempus Act (a), in suits relating to landed property,
the lapse of sixty years and adverse possession for that
period operate as a bar even against the prerogative, in
derogation of the above maxim (b), that is, provided the acts
relied upon as showing adverse possession are acts of
ownership done in the assertion of a right, and not mere

{y) Godb. 295 ; Hobart, 347 ; Bao. Crown the burden of proving its

Abr., 7th ed., "Prerogative " (E. 6). title, and to retain possession until

(z) Hobart, 347. the title of the Crown is proved.

(a) 9 Geo. III. o. 16 : amended See Emmerson v. Maddison, [1906]

by 24 & 25 Viot. u. 62. See also A. C. 569 : 75 L. J. C. P. 109.'
21 Jao. 1, 0.14, which enables the (6) See Doe v. Morris, 2 Scott

defendant in an action of intrusion, 276 ; Ooodtitle v. Baldwin, 11 East'

if the Crown has been out of posses- 488 ; 11 E. E. 249 ; and A.-O. for

sion for twenty years to plead the British Honduras v. Bristowe 6

general issue, i.e. to throw on the App. Cas. 143 : 50 L. J. p. c. 15.

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MAXIMS RELATING TO THE CBOWN. 53

acts of trespass not acquiesced in on the part of the
Crown (c). Again, although the Limitation Act, 1623 (21
Jac. 1, c. 16, s. 3), does not bind the king (d), yet by s.
225 of the Municipal Corporations Act, 1882, the Crown is
barred, in informations in the nature of quo warranto for
usurping corporate offices, by the lapse of twelve months ;
and different statutes have imported into our criminal
jurisprudence various periods of limitation for crimes (e).

An important instance of the application of the doctrine,
nullum teinpus occurrit regi, presents itself where church
preferment lapses to the Crown. Lapse is a species of
forfeiture, whereby the right of presentation to a church
accrues to the ordinary, by neglect of the patron to present,
— to the metropolitan, by neglect of the ordinary, — and to
the Crown, by neglect of the metropolitan : the term in which
the title to present by lapse accrues from one of these parties
to the other is six calendar months, after the expiration of
which period the right becomes forfeited by the person
neglecting to exercise it. But no right of lapse can accrue
when the original presentation is in the Crown ; and in
pursuance of the above maxim, if the right of presentation
lapses to the Crown, prerogative intervenes, and, in this
case, the patron shall never recover his right till the Crown
has presented ; and if, during the delay of the Crown the
patron himself presents, and his clerk is instituted, the
Crown, by presenting another, may turn out the patron's
clerk, or, after induction, may remove him by quare
impedit (/), though if neither of these courses is adopted,
and the patron's clerk dies incumbent, or is canonically
deprived, the right of presentation is lost to the Crown (g).

(c) Doe V. Roberts, 13 M. & W. {d) Judgm., Lambert y. Taylor, i

520. " The Crown certainly may B. & C. 151, 152 ; Bao. Abr., 7th ed.,

dedicate a road to the public, and be " Prerogative " (E. 5).

bound by long aoq^uiescenoe in (e) Arohbold, Cr. PI., 22nd ed.

public user ; " per Ld. Demnan, Reg. 85—88.

V. East Mark, 11 Q. B. 882—883 ; (/) 6 Eep. 50.

see Turner v. Walsh, 6 App. Cas. 636. (g) 2 Blao. Com. 450—452 ; cited

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54 MAXIMS RELATING TO THE CROWN.

Again, if a bill of exchange be seized under an extent
before it has become due, the neglect of the officer of the
Crown to give notice of dishonour, or to make presentment
of the bill, will not discharge the drawer or indorsers ; and
this likewise results from the general principle, that laches
cannot be imputed to the Crown (/;).

To high constitutional questions involving the preroga-
tive, the maxim under our notice must doubtless be applied
with much caution, for it would be dangerous and absurd to
hold a power which has once been exercised by the Crown
— no matter at how remote an epoch — has necessarily
remained inherent in it, and we might vainly attempt to
argue in support of so general a proposition. During the
discussion in the House of Lords on life peerages, it was
said that, although the rights and powers of the Crown do
not suffer from lapse of time, nevertheless one of the main
principles on which our constitution rests is the long-
continued usage of Parliament, and that to go back for
several centuries in order to select a few instances in which
the Crown has performed a particular act by virtue of its
prerogative before the constitution was formed or brought
into a regular shape — to rely on such precedents, and to
make them the foundation of a change in the composition
of either House of Parliament, would be grossly to violate
the principles and spirit of our constitution (?.). But
although the most zealous advocate of the prerogative could
not by precedents, gathered from remote ages, shape
successfully a sound constitutional theory touching the
powers and privileges of the Crown, it would be far from
correct to affirm that its rights can fall into desuetude,
or, by mere non-user, become abrogated. For instance,
assuming that the right of veto upon a bill which has

arg. Stone v. Bp, of Winchester, 9 Finch's Law, 90.

C. B. 90 : 17 0. B. 653 ; Baskerville's {h) West on Extents, 28—30.

case, 7 Kep. Ill ; Bae. Abr.,7thea., (i) Hansard, vol. 140, pp. 268 ct

" Prerogative " (B. 6) ; Hobart, 166 ; seq.

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MAXIMS KELATING TO THE CEOWN. 55

passed through Parliament has not been exercised since
1707, none could deny that such a right is still vested in
the Crown (k).

chattel.

QuANDo Jus Domini Kbgis et Subditi Concurrunt Jus
Regis pr.bferei debet. (9 Ecj). 129.) — Wlicre the title of
the king and the title of a subject concur, the Icing's title
must he preferred (l).

In this case, detur digniori is the rule (/«)• Accordingly, King cannot
if a chattel be bequeathed to the king and a subject jointly, owner of
the king shall have it, there being this peculiar quality
inherent in the prerogative that the king cannot have a
joint property with any person in one entire chattel, or
such properriy as is incapable of division or separation ;
where the titles of the king and of a subject concur, the
king takes the whole. The peculiarity of this doctrine, so
favourable to the prerogative, may justify our giving a few
illustrations of its operation. If the king, by grant or
contract, become joint tenant with another person of a
chattel real, he will ijpso facto become entitled to the whole
in severalty ; if a horse be given to the king and a private
person, the king shall have the sole property therein ; if a
bond be made to the king and a subject, the king shall have
the whole penalty ; if two persons own a horse jointly, or
have a joint debt owing to them on bond, and one of them
assign his part to the king, the king shall have the entire
horse or debt ; for it is not consistent with the dignity of the
Crown to be partner with a subject, and where the king's
title and that of a subject concur or are in conflict, the king's
title is to be preferred (n). By applying this maxim to one
possible state of facts, a curious result was arrived at : if one

(k) Hansard, vol. 140, p. 284. {n) 2 Blac. Com. 409 ; see Lindley

(0 Co. Litt. 30 b. on Partnership, 5th ed. 340, 583,

{m) 2 Ventr. 268. n. (i).

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56 MAXIMS BELATING TO THE CItOWN.

of two joint tenants of a chattel was guilty of felony, the
felony worked a forfeiture of one undivided moiety of the
chattel to the Crown, who being thus in joint possession with
a subject took the whole (o).
Execution Further, the king's debts shall, in suing out execution,

Crown. °^ be preferred to that of every other creditor who had not
obtained judgment before the king commenced his suit {p).
The king's judgment formerly affected all land which his
debtor had at or after the time of contracting the debt (g) ;
but now no debts or liabilities to the Crown, incurred since
1st Nov., 1865, affect land as to a bona fide purchaser for
valuable consideration or a mortgagee, whether with or
without notice, unless before the conveyance or mortgage
and the payment of the money, the writ or process of
execution has been issued and registered (r).

Again, the rule is, that, where the sheriff seizes under a
fi. fa., and, after seizure, but before sale (s) under such writ,
a writ of extent is sued out and delivered to the sheriff, the
Crown is entitled to priority, and the sheriff must sell
under the extent, and satisfy the Crown's debt, before he
sells under the fi. fa. Nor does it matter whether the
extent is in chief or in aid, i.e., whether it is directly
against the king's debtor, or brought to recover a debt due
from some third party to such debtor ; it having been the
practice in ancient times, that, if the king's debtor was
unable to satisfy the king's debt out of his own chattels, the
king would betake himself to any third person who was
indebted to the king's debtor (t), and would recover of such
third person what he owed to the king's debtor, in order to

(o) See Plowd. 253 ; 33 & 34 Vict. (r) Crown Suits, etc., Act, 1865

0. 23 abolished forfeitures for (28 & 29 Viot. c. 104), ss. 48, 49.

felony. As to the previous legislation on

(p) 33 Hen. 8, o. 39, s. 74. See this subject, see WiUiams, Eeal

also 32 & 33 Vict. c. 46 ; Be Ben- Prop., 8th ed. 85—87.

tinch, [1897] 1 Ch. 673 : 66 L. J. Ch. (s) See B. v. Sloper, 6 Price, 114.

359. (() See B. V. I/arfci«(;, 8 Price, 688.

(?) 13 Eliz. c. 4,

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MAXIMS KELATING TO THE CKOWN. 57

get payment of the debt due from the latter to the Crown (u).
The same principle applies where goods in the hands of
the sheriff under a fi. fa., and before sale, are seized by
officers of the customs under a warrant to levy a penalty
incurred by the defendant for an offence against the revenue
laws (a) ; and where the Crown levies a distress upon goods
after a subject has distrained upon them, but before he has
completed his distress by sale (y).

In Beg. v. Edwards (z), decided under the former bank-
ruptcy law, an official assignee having been appointed to a
bankrupt's estate, later on the day of his appointment an
extent issued at the suit of the Crown against the bankrupt
for a Crown debt, and the question ^Yas which should have
priority. The Court decided that where the title of the
Crown and of the subject accrue on the same day, the
king's title shall be preferred. The seizure under the extent,
therefore, was upheld, and the title of the official assignee
was ignored. This decision may, however, be supported on
another principle, viz. : that "whether between the Crown
and a subject, or between subject and subject, judicial
proceedings are to be considered as having taken place at
the earliest period of the day on which they are done " (a).

By section 150 of the Bankruptcy Act, 1883, the provi- Bankruptcy,
sions of that Act relating to the remedies against the
property of a debtor, the priorities of debts and the effect
of a discharge bind the Crown (b) : but in the case of a

(w) GiUs V. Grover, 36 E. R. 27; (y) A.-G. v. Leonard, 38 Oh. D.

9 Bing. 128, 191, recognising B. v. 622 : 57 L. J. Oh. 860.

Cotton, Parker, 112 ; see A.-G. v. (z) 9 Exch. 32, 628.

Trueman, 11 M. & W. 694; A.-G. (a) Wright v. Mills, 4 H. & N.

V. Walmsley, 12 Id. 179 ; Beg. v. 491 ; Judgm., 9 Exch. 631 ; Evans

Austin, 10 Id. 693. As to the rights v. Jones, 3 H. & 0. 423 ; but see

of a surety to the Orown, who has Clarke v. Bradlaugh, 7 Q. B. D. 151 :

paid the debts of his deceased 8 Id. 63 : 50 L. J. Q. B. 678 : 51 Id.

principal, see Be Lord Churchill, 1 ; Be North, [1895] 2 Q. B. 264 : 64

39 Oh. D. 174. L. J. Q. B. 694.

(x) Grove v. Aldridge, 9 Bing. 428 ; (6) 46 & 47 Vict. o. 52, s. 150.
85 R. R. 589.

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MAXIMS KELATING XO THE CKOWN.

Goods of the
Crown privi-
leged from
distress.

Sale in
market overt.

colonial bankruptcy Act which contained no such express
provision it was held that the Crown was entitled to
preferential payment over all other creditors (c), and it seems
clear that the provisions of the Bankruptcy Act, 1883,
except those expressly referred to in s. 150, do not bind the
Crown (d). So, too, Crown debts have priority in administer-
ing the assets of a company in liquidation (e).

The same principle is applied in the law of distress. The
chattels of the Crown on land occupied by a subject are
privileged from distress for rent. The title of the Crown
as owner of the chattels is preferred to the rights which
the landlord has by reason of their being on the land (/).

In connection with the maxim before us we may add that
the king is not bound by a sale in market overt, but may
seize to his own use his chattel although it has been sold
in market overt (g).

statement
of rule.

EoY n'est lie per ascun Statute, si il nb soit expeesse-
MENTNOSME. (Ji'nJu Cciit. 207.)— T]u' king is not bound by
any statute, if he benot expressly named to be so bound (h).

In general the king is not bound by a statute, unless
mentioned expressly, or referred to by necessary implica-
tion (i) ; " for it is mferred,p)-»»«/acw', that the law made by
the Crown, with the assent of the Lords and Commons, is
made for subjects, and not for the Crown " (j) ; and the
general rule is that "the Crown is never bound by a

(c) Commissioners of Taxation for
New South Wales v. Palmer, [1907]
A. 0. 179 ; 76 L. J. P. C. 41.

(d) See Ex parte Postmaster-
General, re Bonham, 10 Oh. D. 595 :
48 L. J. Bk. 84.

(c) In re Henley, 9 Ch. D. 469.

(/) Secretary of State for War
V. Wynne, [1905] 2 K. B. 845 : 75
L. J. K. B. 25.

(g) 2 Inst. 713.

(h) Jenk. Cent. 307; Wing. Max. 1.

(i) In re Henley, 9 Ch. D. 469.

ij) Per Alderson, B., A.-O. v.
Donaldson, 10 M. & W. 124, citing
Willimi V. Berkley, Plowd. 236;
DeBode v. The Queen, 18 Q. B. 373,
5, 8. Per Ld. Oottenham, Ledsam
V. Bussell, 1 H. L. Gas. 697 ; Doe v.
Archbp. of York, 14 Q. B. 81, 95.

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JXAXIMS RELATING TO THE CBOWN.

statutory enactment unless the intention of the legislature
to bind the Crown is clear and unmistakable" (k). Thus,
upon the question what is the occupation of real property-
rateable under 43 Eliz. c. 2, s. 1, it has been observed (l)
that " the only occupier of property exempt from the opera-
tion of the Act is the king, because he is not named in the
statute; and the direct and immediate servants of the
Crown, whose occupation is the occupation of the Crown
itself, also come within the exemption. ... No exemption
is thereby given to charity or to public purposes beyond
that which is strictly involved in the position that the
Crown is not bound by the Act." So the prerogative of
the Crown to remove into the High Court a cause which
touches its revenue has not been affected by the County
Court Acts (m). Nor does the Lands Clauses Consolidation
Act (8 & 9 Vict. c. 18) affect the interests of the Crown (»)•
Neither was the prerogative of the Crown to plead and
demur without leave to a petition of right affected by
the Petition of Eight Act, 1860 (o).

So, too, the Crown is not bound (except where expressly
mentioned) by the provisions of the Bankruptcy Acts {p),
nor by the Locomotives Act, 1865, which regulates the
speed at which locomotives may proceed on highways (q),
nor by the Public Health Act, 1875, or other Acts imposing

{k) Per Lindley, L.J., Wheatonv. Ch. D. 253 : 53 L. J. Oh. 912. See

Maiple & Co., [1893] 3 Ch. 64 : 62 also Beg. v. Beadle, 7 E. & B. 492.
L. J. Ch. 963. (o) 23 & 24 Vict. o. 34. See ToUn

(T) Per Ld. Westbury, Mersey v. Beg., 14 0. B. N. S. 505 : 16 Id.

Docks V. Cameron, 11 H. L. Cas. 501, 310 ; Feather v. Beg., 6 B. & S. 293.
503 ; Beg. v. McCann, L. R. 3 Q. B. (p) In re Henley, 9 Ch. D. 469,

141, 145, 146. ex parte Postmaster-Oeneral, 10 Oh.

(m) Mountjoy v. Wood, 1 H. & N. D. 595 : 48 L. J. Bk. 84. Commis-

58 : Stanley of Alderley (Lord) v. sioners of Taxation for New South

Wild, [1900] 1 Q. B. 256 : 69 L. J. Wales v. Palmer, [1907] A. 0. 179 :

Q. B. 318 : JJlmarm v. Cowes Har- 76 L. J. P. 0. 41 ; re Oriental Bank

hour Commissioners, [1909] 2 K. B- Corporation, ex parte The Crown,

1 : 78 L. J. K. B. 877. 28 Oh. D. 643 : 54 L. J. Ch. 217.

(m) Be Cuckfield Burial Board, 19 (q) Cooper v. Hawkins, [1904] 2

Beav. 153 ; Be Lowestoft Manor, 24 K. B. 164 : 73 L. J. K. B. 113.

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59

60 ' MAXIMS RELATING TO THE CROWN.

pecuniary burdens on property (r) or restricting the use of
property (s).
Rule, how It has been said that the rule above stated only applies

where the property or peculiar privileges of the Crown
are affected ; and this distinction has been laid down, that
though, where the king has any prerogative, estate, right,
title, or interest, he shall not be barred of them by the general
words of an Act, if he be not named therein (t) ; yet, if
a statute be intended to give a remedy against a wrong,
the king, though not named, shall be bound by it (;/) ; and
the king is impliedly bound by statutes passed for the
public good, the preservation of public rights, and the
suppression of public wrongs, the relief and maintenance
of the poor, the general advancement of learning, rehgion,
and justice, or for the prevention of fraud {x) ; and, though
not named, he is .bound by the general words of statutes
which tend to perform the will of a founder or donor {y) ;
and the king may likewise take the benefit of any particular
Act, though he be not especially named therein [z) .

But the later cases above referred to seem to indicate
that the rule may be best expressed by saying that the
Crown is not bound by any statute unless expressly
mentioned, except where the Crown must have been

(r) Be. Hornsey V. D. C, [1902] {y) Yin. Abr., " Statutes" (E. 10),

2 K. B. 73, and cases there cited. pi. 11 ; 5 Rep. 146 ; Willion v.

(s) Qorton Local Board v. Prison Berkley, Plowd. 236.

Gommissmiers, [1904] 2 K. B. (2) B. v. Wright, 1 A. & E. 447.

165 n. In A.-G. v. Badloff, 10 Exch. 94,

(i) Magdalen College case, llBeT^. Pollock, C.B., observed that "the

74 b, cited Bac. Abr., " Prerogative " Crown is not bound with reference

(E. 5) : Com. Dig., "Parliament," to matters affecting its property or

B. 8. See the qualifications of this person, but is bound with respect to

proposition laid down in Dwarr. the practice in the administration of

Stats., 2nd ed. 523 et seq. justice." In Clarke v. Bradlaugh,

(u) Willion V. Berkley, Plowd. 8 App.Cas. 358, Ld.Selborne thought

239, 244. See the authorities cited that express words are not necessary

arg. B V. Wright, 1 A. & E. 436 to make a penalty originally apper-

^* *^2- taining to the Crown recoverable by

{x) Magdalen College case, 11 Rep. popular action.
70 b, 72 ; Ohitty, Prerog. 382.

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MAXIMS RELATING TO THE CKOWN. 61

intended to be bound by necessary implication, because
otherwise the statute would be meaningless (a). So neither
the Statutes of Limitation, nor the Statute of Frauds, nor
the Apportionment Act (5), bind the Crown (c), nor does
a local Act imposing tolls and duties (d).

Nemo PaTKIAM in qua NATUS est EXUEEE NEC LlGEANTIiE

Debitum ejuearb possit. {Co. Litt. 129 a.) — A man
cannot abjure his native country nor the allegiance which
he 02ces to his sovereign.

" The law of England, and of almost all civilised
countries, ascribes to each individual at his birth two
distinct legal states or conditions ; one by virtue of which
he becomes the subject of some particular country,
binding him by the tie of natural allegiance, and which
may be called his political status; another by virtue of
which he has ascribed to him the character of a citizen
of some particular country, and, as such, is possessed of
certain municipal rights and subject to certain obligations :
which latter character is the civil status or condition of
the individual, and may be quite different from his
political status. The political statits may depend on
different laws in different countries, whereas the civil
status is governed universally by one single principle,
namely, that of domicil, which is the criterion established
by law for the purpose of determining civil status ; for it
is on this basis that the personal rights of the party,
that is to say, the law which determines his majority or

(a) See per Day, J., in Gorton (6) Bochester {Bishop) v. Le Fanu,

Local Board v. Prison Commis- [1906] 2 Ch. 513 : 75 L. J. Oh. 743.

sioners, [1904] 2 K. B. 165 n. Aad (c) Chitty, Prerog. 366, 383 ; B. v.

in addition to the oases above Copland, Hughes, 204, 230; Vin.

referred to, see A.-O. for New South Abr., " Statutes " (E. 10).

Walesv.Curatorof Intestate Estates, {d) Mayor of WeymouthY. Nugent,

[1907] A. 0. 519 : 77 L. J. P. 0. 114. 6 B. & S. 22, 35.

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62 MAXIMS RELATING TO THE CEOWN.

minority, his marriage, succession, testacy, or intestacy,
must depend " (a).

Allegiance has been defined to be " a true and faithful
obedience of the subject due to his sovereign " (/). And
in the words of Mr. Justice Story, " allegiance is nothing
more than the tie or duty of obedience of a subject to the
sovereign under whose protection he is ; and allegiance
by birth is that which arises from being born within the
dominions and under the protection of a particular sove-
reign. Two things usually concur to create citizenship :
first, birth locally within the dominions of the sovereign ;
secondly bhth within the protection and obedience, or, in
other words, within the ligiance of the sovereign. That is,
the party must be born within a place where the sovereign
is, at the time, in full possession and exercise of his power,
and the party must also, at his birth, derive protection from,
and consequently owe obedience or allegiance to, the sove-
reign, as such, de facto. There are some exceptions, which
are founded upon pecuhar reasons, and which indeed
illustrate and confirm the general doctrine "(g).

Allegiance is the tie which binds the subject to the
Crown in return for that protection which the Crown
affords to the subject, and is distinguished by our cus-
tomary law into two species, the one natural, the other
local. Natural allegiance is such as is due from all men
born within the dominions of the Crown, immediately
upon their birth ; and to this species of allegiance it is that
the above maxim is applicable (/i). It cannot be forfeited,

{«) Per Ld. Westbury, Udny v. statutes affecting it, are considered.

Udny, L. E. 1 So. App. 457. See And see the stat. 21 & 22 Vict. c. 93

Moorhouse v. Lwd, 10 H. L. Gas. (and as to Ireland the stat. 31 & 32

272; Shaw Y. Oould, L. B. 3 H. L. Vict. c. 20), which enables a person

55. to establish, under the circum-

(/) Calvin's case, 7 Kep. 5 ; S. C, stances specified in and as provided

Broom's Const. L. 4, and Note by the Act, his right to be deemed

thereto, Id. 26 et seq., where the a natural-born subject,

cases which concern allegiance at {g) 8 Peters (U.S.) R. 155.

common law, and the operation of (h) Poster, Or. Law, 184.

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MAXIMS RELATING TO THE CROWN. 63

cancelled, or altered by any change of time, place, or circum-
stance, nor by anything but the united concurrence of the
legislature. The natural-born subject of one prince cannot,
by any act of his own, not even by swearing allegiance to
another, put off or discharge his natural allegiance to the
former (i) : oric/ in e propria nem'mem posse voluntate sua eximi
manifestiun est (k) ; for this natural allegiance was intrinsic
and primitive, and antecedent to the other, and cannot be
devested without the concurrent act of that prince to whom
it was first due (l). Hence, although a British subject may,
in certain cases, forfeit his rights as such by adhering to a
foreign power, he yet remains at common law always liable
to his duties ; and if, in the course of such adherence,
he violates the laws of his native country, he will be
exposed to punishment when he comes within reach of
her tribunals (m).

The tie of natural allegiance may, however, be severed
with the concurrence of the legislature. For instance, upon
the recognition of the United States of America, as free,
sovereign, and independent, natural-born subjects of the
English Crown adhering to the United States ceased to
be subjects of the Crown of England, and became aliens
incapable of inheriting lands in England (n).

While the Crowns of two countries are held by the same
sovereign, the natives of the one country are not aliens in
the other ; but when the union of the Crowns ends, the
union of allegiance ceases, and the natives of the one
country become aliens in the other, and have not the
right to elect to which sovereign they will be subjects.
The decision upon this latter point arose out of the

(i) See per Jervis, 0. J., Barrick v. Marryat, 8 T. R. 45, 1 B. & P. 430.

Buha, 16 0. B. 493 ; citing AlbretcU (m) 2 Steph. Com. 425.

V. Sussmann, 2 Ves. & B. 328 ; 13 (») Doe v. Acklam, 2 B. & C. 779 ;

R. R. 110. 26 R. R. 544 ; Doe v. ArkwrigM, 5

(k) Cod. 10, 38, 4. 0. & P. 575 ; 38 R. R. 851. The

{I) See Foster, Cr. Law, 184 ; 33 Vict. c. 14, removed disabilities

Hale, P. C. 68; Judgm., Wilson v. of foreigners in respect of property.

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64 MAXIMS RELATING TO THE CROWN.

severance in 1837 of the Crown of Hanover from our
Crown (o).

Local allegiance is such as is due from an alien, or
stranger born, whilst he continues within the king's
dominion and protection ; but it is merely of a temporary
nature, and ceases the instant such alien departs from this
kingdom into another (j>). For, as the prince affords his
protection to an alien only during his residence in this
realm, the allegiance of an alien is confined, in point of
time, to the dm-ation of such his residence, and, in point of
locality, to the dominions of the British Empire (q) ; the
rule being that protectio trahit subjectionem et subjectio
protcctionem (r), a maxim which extends not only to those
who are born within the king's dominions, but also to
foreigners who live within them, even though their sovereign
is at war with this country, for they equally enjoy the
protection of the Crown (s).
Naturaliza- The Naturalization Act, 1870 (t), provides means whereby

1870. ° ' persons who were born British subjects may declare them-

selves aliens, and cease to be British subjects. It also
enacts that any one who voluntarily becomes naturalized in
a foreign country shall cease to be a British subject (ii),
while five years' residence in the United Kingdom or service
under the Crown may, under certain conditions, make an
alien a British subject (x).

(o) Be Stepney Election, 17 Q. B. v. Eamsay, Vaughan, 279 ; Co. Litt.

D. 54 ; 55 L. J. Q. B. 331, where 65 a.

the dicta in Calvin's case, 7 Eep. (s) Chitty, Prerog. 12, 13.

276, were not foUowed. (i) 33 Viot. u. 14 ; amended, 33 &

(p) 1 Blac. Com. 370. 34 Yict. o. 102, 35 & 36 Viot. c. 39,

(2) Ohitty, Prerog. 16. See Wolff 58 & 59 Vict. 0. 43.

V. Oxholm, 6 M. & S. 92 ; 18 E. B. («) See Re Trufort, 36 Ch. D. 600 ;

313 ; B. V, Johnson, 6 East, 583 ; 8 57 L. J. Ch.

'^- R- 550. (x) See Be Bourgoise, 41 Ch. D.

(r) Calvin's case, 7 Eep. 5 ; Craw 310.

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65

CHAPTER IJI.

§ I. THE JUDICIAL OFFICE.

The maxims contained in this section exhibit briefly the
more important of those duties which attach to persons
filling judicial offices, and discharging the functions which
appertain thereto. It would have been inconsistent with
the plan and limits of this volume to treat of such duties at
greater length, and would not, it is believed, have materially
added to its utility.

BONI JUDICIS EST AMPLIARE JuEISDICTIONEM. (ClianC. PreC.

329.) It is the duty of a judge to extend his jurisdiction.

This maxim, as above worded and literally rendered, is Maxim how
erroneous. Lord Mansfield suggested that for the word gtood.'^^^''" '
jitrisdictionem, jastitiam should be substituted (a) ; and Sir
E. Atkyns (b) had previously remarked : " it is indeed
commonly said bonijndicis est ampliare jarisdictionem ; but
I take that to be better advice which was given by Lord
Chancellor Bacon to Mr. Justice Hutton upon the swearing
him one of the Judges of the Court of Common Pleas, — that
he should take care to contain the jurisdiction of the Court
within the ancient mere- stones without removing the
mark " (c).

(a) " The true text is, 6omi jwdicis 1430; and see per Gresswell, J.,

est ampliare justiUam, not jurisdic- Dart v. Dart, 32 L. J. P. M. & A.

tionem, as it has heen often cited ; " 125.

per Ld. Mansfield, 1 Burr. 304, (c) Bacon's Works, by Montague,

(6) Arg. i?. V. WilUams, 13 St. Tt. vol. vil., p. 271. As on the one

L.M. 5

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66 THE JUDICIAL OFFICE.

The true maxim of our law is " to amplify its remedies,
and, without usurping jurisdiction, to apply its rules, to the
advancement of substantial justice " (d) ; the principle upon
which our Courts act is, to enforce the performance of
contracts not injurious to society, and to administer justice
to a party who can make his claim to redress appear, by
enlarging the legal remedy, if necessary, in order to do
justice; for the common law is the birthright of the
subject (e) and bonus judex secundum cequum ct boniomjudicat,
et cequitatem stricto juri prcefcrt{f). "I commend the
judge," observed Lord Hobart, "that seems fine and
ingenious, so it tend to right and equity ; and I condemn
them that either out of pleasure to show a subtle wit will
destroy, or out of incuriousness or negligence will not labour
to support, the act of the party by the art or act of the
law " to).
Money had The old form of action for money had and received is

peculiarly illustrative of the principle above set forth ; the
foundation of this action being that the plaintiff is in
conscience entitled to the money sought to be recovered;
and it has been observed that this kind of equitable action
to recover back money which ought not in justice to be kept
is very beneficial, and therefore much encouraged. It hes
only for money which, ex (equo ct bono, the defendant ought
to refund (/(). " The ground," observed Tindal, C.J., in

hand a judge cannot extend his (/) Co, Litt. 24 b.

jurisdiction, so, on the other hand, (g) Hobart, 126. Cf. Id. 277, "I

" the superior Courts at West- do exceedingly commend the judges

minster, and the judges, are not at that are curious and almost subtle

liberty to decline a jurisdiction im- ... to invent reasons and means

posed upon them by Act of Parlia- to make acts according to the just

ment;" Judgm., Furbery. Sturmmj, intent of the parties, and to avoid

3 H. & N. 531. wrong and injury which by rigid

{d) Per Ld. Abinger, Russell v. rules might be wrought out of the

Smyth, 9 M. & W. 818 ; cited arg. act." Cited by Turner, V.-C,

Kelsall V. Marshall, 1 C. B. N. S. Sauire v. Foi'd, 9 Hare, 57.

255 ; see also per Ld. Mansfield, (h) Per Ld. Mansfield, Moses v.

i Burr. 2239. Macfarlaiie, 2 Burr. 1012 ; Litt v.

(c) Per Buller, J., i T. B. 344. Martindale, 18 C. B. 314 ; per

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THE JUDICIAL OFFICE. 67

Edwards v. Bates (i), " upon which an action of this descrip-
tion is maintainable, is that the money received by the
defendants is money which, ex cequo et bono, ought to be
paid over to the plaintiff. Such is the principle upon which
the action has rested from the time of Lord Mansfield.
When money has been received without consideration, or
upon a consideration that has failed, the recipient holds it,
ex cequo et bono, for the plaintiff" (j).

The power of allowing amendments of writs and pleadings. Power to
as to which the judges now have extensive powers (fc),
may likewise be instanced as one which is confided to
them by the legislature, in order that it may be applied
" to the advancement of substantial justice."

The maxim under consideration of course appHes with Jurisdiction
reference to the jurisdiction of a judge at chambers, and chambers!
to the duties there discharged by him. The proceeding
by application to a judge at chambers has been adopted
by the Courts, under the sanction of the legislature, to
prevent the delay, expense, and inconvenience which must
ensue if appHcation to the Court were, under all circum-
stances, indispensably necessary. A judge at chambers
is usually described as acting under the delegated authority
of the Court, and his jurisdiction differs from that of a
judge sitting at nisi prius; in the former case the judge
has a wider field for the exercise of his discretion,
which appellate Courts are most reluctant to review, and
with which they will only interfere where he is shown to
have been clearly wrong (l). In a case, where it was held

PoUock, O.B., Aiken v. Short, 1 H. 137 ; Boberts v. AuUon, 2 H. &

H. & N. 214 ; SoU v. Ely, 1 B. & N. 482 ; Barnes v. Braithwaite, Id.

B. 795; Somes v. British Empire 569; per Smith, L.J"., Phillips v.

Shipping Co., 8 H. L. Cas. 338. London School Board, [1898] 2 Q. B.

(i) 8 Scott, N. B. 414; S. C, 7 447, 453.

M. & Gr. 590. (k) See Order XXVIII. of the

{fj See Martin v. Andrews, 7 E. Eules of the Supreme Court.

& B. 1; Garton v. Bristol & Exeter (0 Inmanv. Jenkins, L. B. 5 0. P.

B. Co., 1 B. & S. 112 ; Baxendale v. 788: 39 L. J. 0. P. 258. Per Ld.

G. W. B. Co., 14 C. B. N. S. 1 : 16 Ellenborough, Alner v. George, 1

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68 XHB JUDICIAL OFFICE.

that a judge at chambers had jurisdiction to fix the amount
of costs to be paid as the condition of making an order,
the maxim to which we have here directed attention, was
expressly applied. "As to the power of the judge to tax
costs," remarked Vaughan, J., " if he is willing to do it,
and can save expense, it is clear that what the officer of
the Court may do, the judge may do, and boni judicis est
ampliarejurisdictionein, i.e.,justitiam" (m).
Qualification Although necessarily many things, especially in the

of maxim. , - . .

domain of procedure, are left to the discretion of our judges,
the maxim is also observed in our jurisprudence, optima est
lex qiue minimum rdinquit arhitrio judicis, optimus judex qui
minimum, sibi (n) — that system of law is the best, which
leaves least to the discretion (o) of the judge — that judge
the best, who relies least on his own opinion. And although,
where discretion is left to a judge, he is to a great extent
unfettered in its exercise. Coke's definition still holds good,
discretio est discerncre per legem quid sit justum (o), and
" discretion, when appUed to a Court of justice, means sound
discretion guided by law. It must be governed by rule,
not by humour ; it must not be arbitrary, vague and fanciful,
but legal and regular " (p).

Therefore, if, in the presumed exercise of discretion, a
judge has decided in a manner absolutely unreasonable
and opposed to justice, his error will be corrected on
appeal. "Whatever the law may have been before the
Judicature Acts," said Jessel, M.R. (g), " the exercise of

Camp. 393. Of. per Ld. Hersohell, Co. Litt. 24 b ; per Tindal, G.J. 6

[1896] A. C. 475. Scott, N. E. 180 : 5 H. L. Gas. 785,

(m) Collins v. Aran, 4 Bing. N. G. 958.

283, 235. See Clement v. Weaver, (o) 4 Inst. 41, cited by Tindal

4 Scott, N. R. 229, and oases cited G.J., 6 Q. B. 700. See Booke's case

Id. 231, n. (44). 5 Rep. 99—100 : 1 W. Bla. 152 : 1

(w) Bac. Aphorisms, 46. See per Burr. 570 : 3 Bulstr. 128.

Wilmot, G.J. Collins v. Blantern, (p) Per Ld. Mansfield, B. v.

2 Wilson, 341 ; per Buller, J., Master Wilkes, 2 Burr. 25, 39.

V. Miller, 4 T. R. 344 ; 2 R. E. 399 : (g) Beg. v. Mayor of Maidenhead,

afBrmed in error, 2 H. Bla. 141 ; 9 Q. B. D. 603 ; 51 L. J. Q. B. 448!

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THE JTOICIAL OFFICE. 69

discretion is now the subject of appeal. It has been very
truly said that a very strong case must be made out before
the exercise of discretion can be overruled. The Court
of Appeal must be satisfied that it has been wrongly
exercised." Although there must be a clear case to justify
the Court of Appeal in interfering with the discretion of
the Court below, the discretion will be reviewed if it be
exercised in consequence of an erroneous view of the law (r),
or an obvious mistake of fact, or where it is impossible to say
that there has been a reasonable exercise of discretion (s).

Further, there is no Court in England which is entrusted
with the power of administering justice without restraint.
That restraint has been imposed from the earhest times.
And, although instances are constantly occurring where
the Courts might profitably be employed in doing simple
justice between the parties, unfettered by -precedent or by
technical rules, the law has wisely considered it incon-
venient to confer such power upon those whose duty it
is to preside in Courts of justice (t). Even the House of
Lords is bound, upon a question of law, by its own previous
decisions ; for interest o-eipuhliea nt ait finis litium (u). The
Judicial Committee of the Privy Council is, however, not
strictly bound to follow an earlier decision of the Committee,
and may dissent therefrom if, after examining the reasons,
they find themselves forced to do so (t). Moreover, Parlia-
ment is not so fettered ; for " certain it is that Curia
Parliamenti suis po'opriis legibus subsistit " (x).

(r) Hunt V. Chambers, 20 Oh. D. (t) Barton v. Muii; L. K. 6 P. C.

369 : 51 L. J. Oh. 683. 134 ; 44 L. J. P. 0. 19 ; Tooth v.

(s) Wigney v. Wigney, 7 P. D. Power, [1891] A. G. 284, 292; 60

182 : 51 L. J. P. 62 ; Wallingford v. L. J. P. 0. 39.

Mutual Society, 5 App. Gas. 685 ; 50 {u) London Street Tramways Co.

L. J. Q. B. 49; Ormerod v. Tod- v. London County Council, [1898]

morden Mill Co., 8 Q. B. D. 664: A. 0. 375.

51 L. J. Q. B. 348 ; Berdan v. (x) 4 Inst. 50. Some remarks as

Greenwood, 20 Oh. D. 767 ; Crowther to the interpretation of statutes

V. Elgood, 34 Id. 691 ; Re Smith, which might, perhaps, have been

[1898] 2 Oh. 1, 15. relevant under this maxim have

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THE JUDICIAL OFFICE.

General rule.
No action
lies against a
judge.

Db Fide et Officio Jxidicis non eecipitur Qvmbiio,

SBD DB SCIENTIA SIVB SIT ErROR JuEIS SIVE FaCTI.

(Bac. Max., reg. 17.) — The honesty and integrity of a
judge cannot be questioned, but his decision may be
impugned for error either oflatv or of fact.

The law, said Lord Bacon, has so much inspect for the
certainty of judgments, and the credit and authority of
judges, that it will not permit any error to be assigned
which impeaches them in their trust and office, and in
wilful abuse of the same (i/). It is, moreover, a general
rule of great antiquity, that no action will lie against a
judge of record for any act done by him in the exercise of
his judicial functions, provided such act, though done
mistakenly, were within the scope of his jurisdiction (z).
" The rule that a judicial officer cannot be sued for an
adjudication according to the best of his judgment upon
a matter within his jurisdiction, and also the rule, that a
matter of fact so adjudicated by him cannot be put in
issue in an action against him, have been uniformly
maintained" (a).

"The doctrine," said Mr. Chancellor Kent (b), "which
holds a judge exempt from a civil suit or indictment for any
act done or omitted to be done by him sitting as judge, has
a deep root in the common law. It is to be found in the
earliest judicial records, and it has been steadily maintained
by an undisturbed current of decision in the English Courts,

been postponed until Chap. VIII.,
which deals generally with that
subject.

(y) Bac. Max., reg. 17; Bushell's
case, Vaugh. 138—139 ; 12 Rep. 25 ;
per Holt, C.J., QroenveltY.Bunoell,
1 Ld. Raym. 468 : 1 Salk. 397.

(z) Smith V. Boucher, Cas. Temp.
Hardw. 69 ; Colder y. Salket, 3 Moo.
P. C. 28, with which of. Oahan v.
Lafitte, 8 Id. 882 ; Scott v. Stansfeld,
L. R. 3 0. P. 220 ; Taaffe v. Downes,

Id. 36, n. (a) ; Boulden v. Smith,
\i Q. B. 841 ; Judgm., Mostyn v.
Pabrigas, Gowp. 161 ; Phillips v.
Eyre, L. R. 4 Q. B. 225, 229; Pease
V. Chaytm;! B. & S.658; Hamilton
V. Anderson, Macq[. Sc. App. Cas. 363.

(a) Judgm., Kemp v. Neville, 10
C. B. N. S. 549; per Erie, C.J.,
Wildes V. Russell, L. R. 1 C. P. 730.

(6) Tales v. Lansing, 5 Johnson
(U.S.), R. 291; S. C. (in error), 9
Id. 396.

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THE JUDICIAL OFFICE. 71

amidst every change of policy and through every revolution
of their government. A short view of the cases will teach
us to admire the wisdom of our forefathers, and to revere
a principle on which rests the independence of the adminis-
tration of justice."

This freedom from action at the suit of an individual, it
has likewise heen observed, is given by our law to the
judges, not so much for their own sake as for the sake
of the public, and for the advancement of justice, that, being
free from actions, they may be free in thought and indepen-
dent in judgment, as all who are to administer justice
ought to be ; and it is not to be supposed beforehand, that
those who are selected for the administration of justice will
make an ill use of the authority vested in them.

There is, however, an important distinction between the
liabiUty of judges of superior Courts and that of judges
of inferior Courts. No action lies against a judge of a
superior Court even though he has exceeded his jurisdiction.
It is for him to determine his jurisdiction, and if he wrongly
determines it his error can be called in question only by
appeal, and not by action in the same or another Court of
co-ordinate jurisdiction. No act of his done in his judicial
capacity can be the foundation of an action against him,
though he has acted oppressively, maliciously, and to the
perversion of justice (c). The jurisdiction of an inferior
Court, however, may always be called in question in a
superior Court, and therefore if a judge of an inferior
Court acts without jurisdiction his having done so may be
determined in an action brought against him in another
Court (d). Accordingly if a judge of an inferior Court in the
execution of his office causes a trespass to be committed to
the person or property of another by reason of his making
an order without jurisdiction, an action lies against him
for such trespass, provided he had knowledge, or means of

(c) Anderson v. Gorrie, [1895] 1 (d) See Taafe v. Dowiws, 3 Moore

Q. B. 668. P. C. 36 n.

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72 THE JUDICIAL OFFICE.

knowledge of which he ought to have availed himself, of
facts which showed his want of jurisdiction (e). So where
it appeared on the face of a summons that a magistrate had
no jurisdiction and he made an order notwithstanding, he
was held hahle in an action for the trespass committed in
executing the order (/). But a judge of an inferior Court
can only he made hable, if at all, for anything done within
his jurisdiction, if he act maliciously and without reasonable
and probable cause. And as it is competent to him to decide
the facts necessary to found his jurisdiction, his honest
determination of those facts cannot be called in question in
an action brought against him (//). In the imperfection of
human nature, it is better that an individual should occasion-
ally suffer a wrong, than that the general course of justice
should be impeded and fettered by constant and perpetual
restraints and apprehensions on the part of those who are
to administer it. Corruption is quite another matter ; so
also are neglect of duty and misconduct. For these there
is, and always will be, some due course of punishment by
public prosecution (/(), though not by action.

An action, then, does not lie against a judge, civil (0
or ecclesiastical (j), acting judicially in a matter within the

(c) Per Parke, B., Calder v. which case one of the judges of the

Halket, 3 Moore, P. C, at p. 77 ; Court of C. P. in Ireland was con-

Houlden v. Smith, 14 Q. B. 841. victed of a libel. The judges are

(/) Folley V. Fordham, 91 L. T. not liable to removal, except upon

525 : S. C, [1904] 2 K. B. 345. addresses of both Houses of Parlia-

(g) Pease v. Chaytor, 3 B. & S. ment ; see 13 Will. 3, c. 2, and 1

620 ; Cave v. Mountain, 1 M. & G. Geo. 3, c. 23.

257; Somerville v. Mirehouse, 1 (i) Dicas v. Ld. Brougham, 6

B. & S. 652 ; Pedley v. Davis, 10 C. & P. 249 ; Kemp v. Neville, 10

C. B. N. S. 492 ; Gelen v. Hall, 2 C. B. N. S. 523, where the action
H. & N. 379. See also, as to justices was brought against the Vioe-Chan-
of the peace, the Justices Protec- cellor of Cambridge University ;
tion Act, 1848 (11 & 12 Vict. c. 44). Tinsley v. Nassau, Mo. & Mai. 52 ;

(h) Oarnett v. Ferrand, 6 B. & C. Johnstone v. Sutton, 1 T. R. 513 ; 1

625, 626; 30 B. R. 467; Th<mias v. R. R. 269; per Holt, C.J., 1 Ld.

Churton, 2 B. & S. 475 : Vaugh. R. Raym. 468 ; Oarnett v. Ferrand, 6

383. See B. v. Johnson, 6 East, B. & C. 611 ; 30 B. R. 467.

583, 7 East, 75; 8 R. R. 550, in (j) AckerUy v. Parkinson, 3 M.

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THE JUDICIAL OFFICE. 73

scope oE his jurisdiction (k). Nor can a suit be maintained
against persons so acting with a more Hmited authority,
as the steward of a Court baron (l), or commissioners of a
Court of request; and, as already intimated, magistrates,
acting in discharge of their duty, and within the bounds of
their jurisdiction, are irresponsible even where the circum-
stances under which they are called upon to act would not
have supported the complaint, provided that such circum-
stances were not disclosed to them at the time of their
adjudication (m).

Having thus briefly stated the broad rule applicable to Distinction
the right of action against persons invested with judicial j^ applying^
functions, we may remark that there is one extensive class '^'^^^■
of cases which may, on a cursory observation, appear to
fall within its operation, but which is, in fact, governed by
a different, although not less important principle. We refer
to cases in which the performance of some public duty is
imposed by law upon an individual who, by neglecting or
refusing to perform it, causes an injury to some other
party ; here, as a general rule, the injury occasioned by the
breach of duty, without proof of mala fides, lays the founda-
tion for an action for damages (n). This principle, more-
over, applies where persons required to perform ministerial
acts are at the same time invested with the judicial
character, and in accordance therewith, in the celebrated

& S. 411, 425 ; 16 R. B. 317 ; Beau- (m) Pike v. Carter, 3 Bing. 78 ;

rain v. Scott, 3 Camp. 388 ; 14 R. R. Lowther v. Earl of Badnor, 8 East,

759. 118; Brown v. Copley, 8 Scott,

(k) lb. See Wingate v. Waits, 6 N. B. 350 ; Pitcher v. King, 9 A.

M. & W. 739, 746; Sarmlton v. & E. 288; 2 Roll. Abr. 552, pi.

Anderson, 8 Maoq. Sc. App. Cas. 10.

363. (n) See Barry v. Arnaud, 10 A. &

(l) Holroyd v. Breare, 2 B. & Aid. E. 646 ; cited Mayor of Lichfield

473 ; 21 R. R. 361 ; Bradley v. Carr, v. Simpson, 8 Q. B. 65. Per Ld.

3 Soott, N. R. 521, 528 ; Carratt v. Brougham, M'Kenna v. Pape, 1

1 Q. B. 18 ; Andrews v. H. L. Cas. 7 ; Steel v. Shomberg, 4

ilfarris, Id. 3; and cases there cited. E. & B. 620; Scott v. Mayor of

Morris v. Parkinson, 1 Cr. M. & R. Manchester, 2 H. & N. 204.
163.

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74 THE JUDICIAL OFFICE.

Auchtemrder case (o), the members of the presbytery were
held liable, collectively and individually, to make compen-
sation for refusing to take the presentee to a church on
trial, as they were bound to do, according to the law of
Scotland. The legislature, observed Lord Brougham, in
that case, can, of course, do no wrong, and its branches are
equally placed beyond all control of the law; and after
explaining the immunity from liability of Courts of justice
when exercising judicial functions or discretionary powers,
he continued : — " But where the law neither confers
judicSal power, nor any discretion at all, but requires
certain things to be done, every body, whatever be its name,
and whatever other functions of a judicial or of a dis-
cretionary nature it may have, is bound to obey ; and with
the exception of the legislature and its branches, every body
is liable for the consequences of disobedience ; that is, its
members are liable, through whose failure or contumacy
the disobedience has arisen, and the consequent injury
to the parties interested in the duty being performed " (p).
Appeal. But although the honesty of a judge acting in his judicial

capacity cannot be questioned, his errors may be corrected
by appellate tribunals in all cases where the law allows of
an appeal. In most civil causes there is a right of appeal,
but not in all. For example, there can be no appeal from a
judge, who has discretion as to costs, upon a question of
costs, except by leave of the judge whose decision it may be
desired to question (q). Again, in the case of County Courts
there can be no appeal on a question of fact ; nor, as a rule,
except by leave of the judge who tried the action, on a
question of law, where the plaintiff's claim does not exceed
£20 (r).

(o) Ferguson v. Earl of Kinnoul, the subject of judicial liability. See

9 CI. & Fin. 251. QathcrcoU v. Miall, 15 M. & W. 319,

( p) Per Ld. Brougham, 9 CI. & 332, 388.
F. 289, 290, whose judgment has (q) Judicature Act, 1873, s. 49.

throughout an especial reference to (?■) 51 & 52 Vict. o. 43 ss. 120 124.

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75

The discretion to grant a new trial is a judicial discretion,
not to be exercised arbitrarily ; and a litigant who has
obtained a judgment is entitled not to be deprived of it
without very solid grounds : interest rcipublicte ut sit finis
litinm (s).

Qui Jussu Judicis aliquod fecerit non yidetue Dolo
Malo fecissb, quia pareee necesse est. (10 Rep. 76.)
— A person ivho does an act by command of a jicdge is
not considered to act from a wrongful motive, because it
is his duty to obey (t).

When a Court has jurisdiction of a cause, and proceeds General rule.
inverso ordine, or erroneously, the officer of the Court who
executes according to its tenor (u) the precept or process of
the Court, is not liable to an action (r). But when the
Court has not jurisdiction of the cause, the whole proceeding
is coram non judice (x), and actions lie against the officer
without any regard to the precept or process ; for in this
case it is not necessary to obey one who is not judge of the
cause, any more than it is to obey a mere stranger, for
the rule is, judicium a non suo judice datum nulliits est
momenti (y).

(s) Brown v. Dean, [1910] A. 0.
373.

(t) This maxim is derived from
the Boman law ; see D. 50, 17, 167,

§1.

(u) See Mitnday v. Stubbs, 10
C. B. 432.

(v) See Prentice v. Harrison, i
Q. B. 852 ; Brown v. Jones, 15
M. & W. 191 ; Judgm., Ex p. Story,
8 Exch. 201. See Cotes v. Michill,
3 Lev. 20 ; Moravia v. Sloper, Willes,
30, 34.

(a;) See Tinniswood v. Pattison, 3
0. B. 243. Factum a judice guod

ad officium ejus non pertinet ratum
non est ; T>. 50, 17, 170.

(y) Marshalsea case, 10 Eep. 70 ;
Taylor v. Clemson, 2 Q. B. 1014,
1015 : 11 01. & F. 610 ; cited Ostler
V. Cooke, 13 Q. B. 143, 162 ; Momll
V. Martin, 4 Soott, N. R. 313, 814
Jones V. Chapman, 14 M. & W. 124
Baylis v. Strickland, 1 Soott, N. R,
540 ; Marshall v. Lamb, 5 Q. B. 115
Watson V. Bodell, 14 M. & W. 57
Thomas v. Hudson, Id. 353 ; Van
Sandau v. Turner, 6 Q. B. 773;
Lloyd V. Harrison, 6 B. & S. 36.
Andrews v. Marris, 1 Q. B. 3, 16,

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THE JUDICIAL OFFICE.

Examples.
Oosset V.
Howard.

Stockdale v.
Hansard.

Accordingly, in Gosset v. Hoivard (z), it was held that
the warrant of the Speaker of the House of Commons,
having issued in a matter over which the House had
jurisdiction, was to be construed on the same principle as
a mandate or writ issuing out of a superior Court acting
according to the course of common law, and that it afforded
a valid defence to an action for assault and false imprison-
ment brought against the Serjeant-at-Arms, who acted in
obedience to such warrant.

In this case it is observable that the matter in respect of
which the warrant issued was admitted to be within the
jurisdiction of the House, and it is peculiarly necessary to
notice this, because, in the previous case of Stockdale v.
Hansard (a), it was held to be no defence at law to an
action for libel, that the defamatory matter was part of a
document, which was, by order of the House of Commons,
laid before the House, and thereupon became part of the
proceedings of the House, and which was afterwards, by
order of the House, published by the defendant. The
decision in this case resulted from the opinion entertained
by the Court that the privilege under which the defendant
sought to justify the alleged wrongful act did not exist, and
in consequence of this decision the Parliamentary Papers
Act, 1840 (b), was passed, which enacts that all proceedings,
whether by action or criminal prosecution, similar to the
above, shall be stayed upon the production of a certificate of

17, recognised in Carratt v. Morley,
Id. 29 ; and distinguished in Dews
V. Riley, 11 C. B. 434, 444 ; Levy v.
Moylan, 10 C. B. 189. As to the
liability of the party at whose suit
execution issued, or of his attorney,
see Carratt v. Morley, supra ;
Goomer v. Latham, 16 M. & W. 713 ;
Ewart V. Jones, 14 Id. 774 ; &reen
V. Elgie, 5 Q. B. 99; Kinning v.
Buchanan, 8 C. B. 271 ; Abley W.
Dale, 11 Id. 878, 389 ; post, p. 103,

n. {y). As regards the liability of
ministerial officers, there is an
important distinction between cases
where there has been an adjudica-
tion and cases where there has been
only an order, see Foster v. Dodd
L. R. 3 Q. B. 67, 76.

(«) 10 Q. B. 411. See Ex p.
Fernandez, 10 C. B. N. S. 3- 6
H. & N. 717.

(a) 9 A. &iE. 1.

(6) 3 & 4 Vict. 0. 9.

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THE JUDICIAL OFFICE. 77

the Chancellor or of the Speaker to the effect that the
publication in question is by order of either House of
Parliament, together with an affidavit verifying such
certijGlcate (c).

The case of a justification at common law by a constable Constable,—
under the warrant of a justice of the peace offers another common°iaw.
illustration of the rule under consideration. If the warrant
issued by the justice, in the shape in which it is given to
the officer, is such that the party may lawfully resist it (d),
or, if taken on it, will be released on habeas corpus, it is a
warrant which, in that shape, the justice has no jurisdiction
to issue, which, therefore, the officer need not obey, and
which, at common law, on the principle above laid down,
does not protect him against an action by the party
injured (e). Where the cause is expressed but imperfectly,
the officer may not be expected to judge as to the suffi-
ciency of the statement ; and, therefore, if the subject-
matter be within the magistrate's jurisdiction, he may be
bound to execute it, and, as a consequence, be entitled to
protection; but where no cause is expressed, there is no
question as to the want of jurisdiction (/).

"A rule," said Lord Denman, in Eeg. v. Stainforth { g) ,
" has been often recognised in respect of proceedings by
magistrates, requiring all the facts to be stated which are
necessary to show that a tribunal has been lawfully con-
stituted and has jurisdiction. There is good reason for the

(c) Entick v. Carrington, 19 under a warrant which is not in
Howell, St. Tr. 1030, is the leading possession of the constable, in felony
case in regard to the power of arrest- and misdemeanor, see Qalliard v.
ing the person, and seizing papers, Laxton, 2 B. & S. 363, and Beg. v.
under a Secretary of State's war- Chapman, 12 Cox, 0. C. 4.

rant. See Leach v. Money, Wilkes (/) Per Coleridge, J., 10 Q. B.

V. Wood, and Entick v. Carrington, 390. See in illustration of the above

Broom's Const. L. 525, 548, 558, remarks, Clark v. Woods, 2 Exoh.

and Note thereto, Id. 618 et sec[. ; 395, and cases there cited.

Foster v. Dodd, L. B. 3 Q. B. 67. (g) 11 Q. B. 76. See also Reg. v.

(d) Beg. v. Tooley, 2 Ld. Eaym. Inhabs. of Totness, Id. 80 ; Agnew v.
1296, 1302. Jobson, U Cox, C. C. 625,

(e) As to the legality of an arrest

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78 THE JUDICIAL OFFICE.

rule where a special authority is exercised which is out of
the ordinary course of common law, and is confined to a
limited locality, as in case either of warrants for arrest,
commitment, or distress, or of convictions, or orders by
local magistrates where the duty of promptly enforcing the
instrument is cast on officers of the law, and the duty of
unhesitating submission on those who are to obey. It is
requisite that the instrument so to be enforced and obeyed
should show on inspection all the essentials from which
such duties arise." A plea of justification by a constable
acting under the warrant of a justice is accordingly bad by
the common law, if it does not show that the justice had
jurisdiction over the subject-matter upon which the warrant
is granted.
Effect of 24 By the Constables' Protection Act, 1750 (h), it is enacted
that no action shall be brought against a constable,
or a person acting by his order or in his aid, for
anything done in obedience (i) to a warrant under the
hand or seal of a justice, until demand shall have been
made for the perusal and copy of such warrant, and the
same refused or neglected for the space of six days after
such demand ; that in case, after such demand and
compliance therewith (j), any action for any such cause be
brought against such constable or person, without making
the justice who signed or sealed the warrant a defendant,
then, on proof of such warrant at the trial, the jury shall give
their verdict for the defendant, notwithstanding any defect
of jurisdiction in such justice ; and if such action be brought
against the justice and constable jointly, then, on proof of
such warrant, the jury shall find for such constable, notwith-
standing such defect of jurisdiction. And this Act applies
as well where the justice has acted without jurisdiction,
as where the warrant which he has granted is improper {k).

(h) 24 Geo. 2, o. 44, s. 6. (j) JoMs v. Vaughan, 5 East, 445 ;

(i) See Bell v. Oakleij, 2 M, & S. 7 B. R. 736.
259 ; 15 R. R. 238. (k) Per Ld. Eldon, Price v.

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THE JUDICIAL OFFICE. 79

It should be observed, however, that the officer must
show that he acted in obedience to the warrant (l), and
can only justify that which he lawfully did under it (m) ;
and where the justice cannot be liable, the officer is not
entitled to the protection of the Act ; for the Act was
intended to make the justice liable instead of the officer :
where, therefore, the officer makes such a mistake as
will not make the justice liable, the officer cannot be
excused.

Besides the last-mentioned Act, there are other enact- statutory
ments, which, on grounds of public poHcy, specially extend Protection,
protection to persons who act bona fide, though mistakenly,
in pursuance of their provisions ; and as throwing light
upon their practical operation, attention may be directed to
Hughes v. Bacldancl{n), which was an action of trespass
against the defendants, being servants of A., for arresting
the plaintiff whilst fishing at night near the mouth of a
river in which A. had a several fishery. At the trial, much
evidence was given to show that A.'s fishery included the
place where the plaintiff was arrested ; the jury, however,
defined the limits of the fishery so as to exclude that
place by a few yards, but they also found that A., and
the defendants, "bona fide and reasonably" believed
that the fishery extended over that spot. It was held
that the defendants were entitled to the protection of the
7 & 8 Geo. 4, c. 29, s. 75 {nn), which was framed for the

er, 2 B. & P. 158 ; 5 E. E. should be laid and tried in the

559 ; Atkins v. Kilhy, 11 A. & E. 777. ooiiuty where the fact was com-

{}) See Hoye v. Bush, 2 Scott, N. mitted. It was held that as iu

E. 86. arresting the plaintiff the defendants

(to) Peppercorn v. Hojjman, 9 acted bond fide in the belief that

M. & W. 618, 628. they were pursuing the Act of

(«) 15 M. & W. 346. Parliament the action must be

(nn) That section provided inter tried in the county where the arrest

alia that " for the protection of was made. The 7 & 8 Geo, i, c. 29,

persons acting in the execution of is now repealed and many of its

this Act " all actions brought provisions are re-enacted in the

" against any person for anything Larceny Act, 1861. The Public

done in pursuance of this Act " Authorities' Protection Act, 1893

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80

THE JUDICIAL OFFICE.

Territorial
limits of
jurisdiction.

protection " of persons acting in the execution " of that
Act, and doing anything in pursuance thereof. " The
object of the clause," observed Pollock, O.B., " was to give
protection to all parties who honestly pursued the statute.
Now, every act consists of time, place, and circumstance.
With regard to circumstance, it is admitted, that, if one
magistrate acts where two are required, or imposes twelve
months' imprisonment where he ought only to impose six,
he is protected if he has a general jurisdiction over the
subject-matter, or has reason to think he has. With
respect to time, Cann v. Clipperton (o) shows that a party
may be protected although he arrests another after the time
when the statute authorises the arrest. Place is another
ingredient ; and I am unable to distinguish the present
case from that of a magistrate who is protected, although
he acts out of his jurisdiction. A party is protected if he
acts bona fide, and in the reasonable belief that he is
pursuing the Act " (p). And the proper question for the
jury in a case such as that referred to is this : — " Did the
defendant honestly believe in the existence of those facts
which, if they had existed, would have afforded a justifi-
cation under the statute?" — the belief of the defendant
resting upon some reasonable grounds {q).

Lastly, we may observe, that, when considered with
reference to foreign communities, the jurisdiction of every
Court, whether in personam, or in rem, must so far as

(56 & 57 Vict. c. 61), contains general
provisions for the protection of
persons doing any act "in pursu-
ance, or ezecution or intended
execution of any Act of Parliament."

(o) 10 A. & E. 188.

(p) "A thing is considered to be
done in pursuance of a statute, when
the person who does it is acting
honestly and honA fide, either under
the powers which the Act confers, or
in discharge of the duties which it

imposes;" per Parke, B., Joiole v.
Taijlor, 1 Exch. 61 ; Downing v.
Capel, L.-R. 2 C. P. 461; Poulsum
V. Thirst, Id. 449; WJiatman v.
Pearson, 3 Id. 422.

(q) Per Williams, J., Roberts v.
Orchard, 2 H. & 0. 774, as explained
in Leete v. Hart, L. B. 3 0. P. 322,
324, 325 ; Heath v. Brewer, 15 C. B.
N. S. 803 ; Chamberlain v. King,
L. R. 6 0. P. 474 ; Leav. Facey, 19
Q. B. D. 352 ; 56 L. J. Q. B. 536.

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THE JUDICIAL OFFICE. 8]

regards the compelling obedience to its decrees (r), neces-
sarily be bounded by the limits of the kingdom in which
it is established, and unless, by virtue of international
treaties (s), such jurisdiction has been extended, it clearly
cannot enforce process beyond those natural limits, accord-
ing to the maxim, extra teiritorium jus decenti impime non
paretwr (i). Moreover, it is to be observed that, although
the laws of a state propria vigore have no force beyond
its territorial limits, they are frequently permitted, by the
courtesy of another, to operate in the latter, when neither
that state nor its citizens will suffer inconvenience from
the application of the foreign law (u). This is the principle
of International Comity.

Municipal law may provide that proceedings may be
instituted, and judgments and decrees lawfully pronounced,
against natural-born subjects when absent abroad, and
even against aliens who are not resident within the state
when the subject-matter is peculiarly within the jurisdic-
tion of the Courts. The conditions under which a writ
will be allowed in this country to issue are regulated by
Order XI. of the Kules of the Supreme Court, 1883.

Even Parliament, though its enactments may extend to
the King's subjects while they are abroad (r), has no power
to legislate for foreigners out of the dominions and beyond
the jurisdiction of the British Crown (w). " It is clear,"
observed Parke, B., in Jefferys v. Boosey {x), " that the

(r) Seeder Ld. Oranworth, Hope As illustrating the maxim, supra,

V. Hope, 4 De G. M. & G. 345—346 ; see Be Mansergh, 1 B. & S. 400.

per Ld. Hersohell, Brit. S. Africa (v) Trial of Earl Bussell, [1901]

Co. V. CompanMa de Mocamhigue, A. C. 446 ; 70 L. J. K. B. 998 ; re De

[1893] A. C. 624. Wiltcm, [1900] 2 Oh. 481 : 69 L. J.

(s) See Be Tivnan, 5 B. & S. 645. Oh. 717.

(t) D. 2, 1, 20 ; Story, Confl. Laws, (w) Lopez v. Burslem, 4 Moore,

§ 539 ; arg. Canadian Prisoners' case P. 0. 300, 305.

(rep. by Pry), p. 48 ; Beg. v. Lewis, (a!) 4 H. L. Gas. 815, 926. See

Dearsl. & B. 182 ; Beg. v. Anderson, MacUod v. A.-Q. for N. S. Wales,

L. R. 1 0. G. 161. [1891] A. 0. 455 : 60 L. J. P. 0. 55 ;

(m) Per Ruggles, O.J., Hoyt v. Beg. v. Jameson, [1896] 2 Q. B. 425 :

Thompson, 1 Selden (U.S.), R. 340. 65 L. J. M. 0. 218 ; Badische Fabrik

L.M. 6

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THE JUDICIAL OFFICE.

legislature has no power over any persons except its own
subjects, that is, persons natural-born subjects, or resident,
or whilst they are within the limits of the kingdom. The
legislature can impose no duties except on them ; and when
legislating for the benefit of persons, must prima facie be
considered to mean the benefit of those who owe obedience
to our laws and whose interests the legislature is under a
correlative obligation to protect."

Ad QUiESTioNBM Pacti non respondent Jtjdicbs : AD

Qu^STIONBM LbGIS NON RESPONDENT JuRATOEES.

(8 Kep. 155.) — It is the office of the judge to instruct
the jury in points of law — of the jury to decide on
matters of fact {y).

The object in view on the trial of a cause is to find
out, by due examination, the truth of the points in issue
between the parties, in order that judgment may there-
upon be given, and therefore the facts of the case must,
in the first instance, be ascertained (usually through the
intervention of a jury), for ex facto jus oritur — the law
arises out of the fact (z). If the fact be perverted or mis-
represented the law which arises thence will unavoid-
ably be unjust or partial; and, in order to prevent this,
it is necessary to set right the fact and establish the truth
contended for, by appealing to some mode of probation
or trial which the law of the country has ordained for a
criterion of truth and falsehood (a).

V. Johnson, [1897] 2 Oh. 322 : 66 Bishop of Meath v. Marquis of Win-

L. J. Oh. 497 ; Be Pearson, [1892] Chester, 3 Bing. N. 0. 217 : 4 01. &

2 Q. B. 263 : 61 L. J. Q. B. 585 ; Pin. 557 ; BushelVs case, Vaugh. E.

Colquhoun v. Heddon, 25 Q. B. D. 149 ; per Ld. Westbury, Fernie v.

129 : 59 L. J. Q. B. 465 ; Colquhoun Young, L. E. 1 H. L. 78.

V. Brooks,19 Q. B. D. 406: 57 L. J. (^) See for instance Catterall v.

Q- B. 70. Bindle, L. E. 2 0. P. 368.

(y) Co. Litt. 295 b ; 9 Eep. 13 ; (a) 2 Inst. 49.

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THJ3 JUDICIAL OFFICE. 88

Before the Common Law Procedure Act, 1854 {h), all
issues of fact in common law actions in the Superior Courts
were decided by juries. But now many common law actions,
as well as Chancery actions, in the High Court (c) and in
County Courts (rf), are tried by judges sitting without juries,
and in such cases the judges have to find the facts as well
as to decide the law. But even in these cases it is necessary
to distinguish between the two functions of the judge ; and
the above maxim must retain considerable importance.

A few instances must suffice to show its application. Examples
Thus, there are two requisites to the validity of a deed : application

1, that it be sufficient in law, on which the Court decides ; °* ™i®-

2, that certain matters of fact, as sealing and delivery, be
duly proved, on which it is the province of the jury to
determine (e) ; and where interlineations or erasures are
apparent on the face of a deed, it is now the practice to leave
it to the jury to decide whether the rasing or interlining
was done before the delivery (/).

Again, it is the duty of the Court to construe all Written
written instruments (g) as soon as the true meaning of
any words of art or commercial phrases used therein, and
the surrounding circumstances, if any, have been ascertained
as facts by the jury (h) ; and it is the duty of the jury to take
the construction from the Court either absolutely, if there
be no words to be construed or explained (i), as words of art

(6) 17 & 18 Vict. o. 125, s. 1. require explanation, as being terms

(c) B. S. C, Order XXXVI. of art or of scientific use, explana-

(d) County Court Kules — Order tory evidence must be given, and
XXII. with its aid the Court proceeds to

(e) Co. Ijitt. 255 a; Altham's case, the office of construction ; " pe7- Ld.
8 Eep. 308 ; Dr. Leyfield's case, 10 Chelmsford, Simpson v. HoUiday,
Bep. 92, cited Jenkin v. Peace, 6 L. E. 1 H. L. 320.
M. & W. 728. (h) Even where a written instru-

(/) Co. liitt. 225 b. See Doe v. ment has been lost, and parol evi-

Coomhs, 3 Q. B. 687; Alsager v. denoe of its contents hag been

Close, 10 M. & W. 576. received, its construction is for the

(g) " The construction of a specifi- Court. Benuiek v. IIorsfaU,4: O.B.

cation, like other written documents, N. S. 450.

is for the Court. If the terms used (i) See Elliott v. South Devon B.

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instruments.

84

THE JUDICIAL OFFICE.

Mercantile
contracts.

or phrases used in commerce, and no surrounding circum-
stances to be ascertained,— or conditionally, when those
words or circumstances are necessarily referred to them (/c).
The convenience of this course is apparent, for a mis-
construction by the Court may be set right upon appeal
or new trial, but a mistake by the jury is not easily
corrected (Z). Accordingly, the construction of a doubtful
document given in evidence to defeat the Statute of
Limitations is for the Court {m), and not for the Jury;
but if it be explained by extrinsic facts, from which the
intention of the parties may be collected, they are for the
consideration of the jury (»).

With respect to mercantile contracts, the law is clearly
explained by Lord Cairns in Bowes v. Shand (o). It is for
the Court, when once it is in possession of the circum-
stances surrounding the contract, and of any peculiarity of
meaning which may be attached by reason of the custom
of the trade, to place the construction upon the contract ;
and it seems that the evidence of custom must be strong to

Co., 2 Ex. 725; Bank of New
Zealand v. Simpson, [1900] A. C.
182.

(k) " Parcel or no parcel," is a
question of fact for the jury, but the
judge should tell the jury what is
the proper construction of any
documents which ought to be con-
sidered in deciding that question ;
Lyle V. Richards, L. E. 1 H. L.
222.

(Z) Judgm., Neilson v. Sarford,
8 M. & W. 823. Per Erstine, J.,
Shore v. Wilson, 5 Scott, N. R. 988 ;
Cheveley v. Fuller, 13 0. B. 122.
Beeper Maule, J., Doe v. Strickland,
8 C. B. 743—744 ; Booth v. Kennard,
2 H. & N. 84 ; Bovill v. Piinm, 11
Exch. 718 ; Lindsay v. Janson, i
H. & N. 699, 704 ; Parker v. Ibbetson,
4 C. B. N. S. 346.

(m) Chasemore v. Turner, L. R. 10

Q. B. 500: 45 L. J. Q. B. 66;
Quincey v. Sharpe, 1 Ex. D. 72 ; 45
L. J. Ex. 347 (Ex. Ch.) ; Sheet v.
Lindsay, 2 Ex. D. 314 : 46 L. J. Ex.
249 ; Myerhoffv. Froelich, 3 G. P. D.
333 : 4 Id. 63 ; Banner v. Berridge,
18 Ch. D. 254 : 50 L. J. Ch. 630.

(n) Morrell v. Frith, 3 M. & W.
402 ; Doe v. Edmonds, 6 M. & W.
295. See Wbrthington v. Qrimsditch,
7 Q. B. 479 ; Eackham v. Marriott,
2 H. & N. 196 ; Sidwell v. Uason,
2 H. & N. 306 ; Oodwin v. Culling,

4 Id. 373; Cornforth v. Smithard,

5 H. & N. 13 ; BuckrtmsterY. Russell,
10 C. B. N. S. 745; Holmes v.
Mackrell, 3 C. B. N. S. 789 ; Gockrill
V. Sparkes, 1 H. & C. 699 ; Francis
V. Hawkesley, 1 E. & E. 1052.

(o) 2 App. Cas. 455; 46 L. J.
Q. B. 561.

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THE JUDICIAL OFFICE. 85

overrule the natural meaning of words of common parlance.
This rule is based upon and limited by the principle
which allows parol evidence to explain, but not to con-
tradict, a written document, upon which basis also depends
the function of a jury to put a meaning upon expres-
sions in mercantile contracts, which, apart from mercan-
tile usage, are obscure or meaningless (/?). It may indeed
be laid down generally, that although it is the province
of the Court to construe a written instrument, yet where
its effect depends not merely on the construction and
meaning of the instrument, but upon collateral facts and
extrinsic circumstances, the inferences to be drawn from
them are to be left to the jury (q). And where a contract
is made out partly by written documents and partly by
oral evidence, the whole must be submitted to the jury
so that they may determine what was the real contract, if
any (r).

In actions for malicious prosecution the plaintiff has to Malicious
prove, first, that he was innocent of the offence for which P'^°^®°'^ '°°'
he was prosecuted, and that the prosecution ended in his
favour (s) ; secondly, that there was a want of reasonable
and probable cause for the prosecution (t) ; and thirdly,
that the defendant instituted the prosecution maliciously,
that is to say, from an improper motive, and not from the
honest belief that the plaintiff was guilty and the desire to
bring an offender to justice (t). The onus of establishing
all these three points lies upon the plaintiff (t) ; but whereas

(p) Ashford v. Bedford, L. B. 9 contract is foi the Judge, who may

0. P. 20 : 43 L. J. C. P. 57. avail himself, aa far as necessary, of

(q) Etting v. U. S. Bank, 11 ex^eit evidence; DiSorar. Phillips,

Wheaton (U. S.), E. 59. 10 H. L. Gas. 633.

As to the office of the jury in (s) Barber v. Lesiter, 7 0. B. N. S.

interpreting an ambiguous con- 175 : 29 L. J. C. P. 161 ; Castriquev.

tract, see Smith v. Thompson,, 8 Behrens, 30 L. J. Q. B. 163 ; Basibi

0. B. a. V. Matthews, L. B. 2 C. P. 684 : 36

(r) Bolckow V. Seymour, 17 0. B. L. J. M. 0. 93. As to ex parte pro-

N. S. 107 ; Rogers v. Badley, 2 ceedings see Steward v. Qrommett,

H. & 0. 227. 7 C. B. N. S. 191 : 29 L. J. 0. P. 170.

The construction of a foreign (t)Abrathv.N.E.B.Co.,\lk^^.

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86 THE JUDICIAL OFFICE.

the first and third points are matters to be left to the jury,
the second has to be decided by the judge (u). If, however,
any facts upon which the question whether there was want
of reasonable and probable cause for the prosecution depends
are in dispute, the jury have to find what the facts are,
and the judge has to decide the question upon the facts as
found by them (u). This arrangement has been sometimes
described as productive of difficulty and confusion (v). In
practice the judge often leaves the jury to find a general
verdict, after explaining to them how bis opinion on the
question of reasonable and probable cause differs according
to whether they take one or another view of the facts in
dispute ; but sometimes he first requires the jury to find
the facts which specifically bear upon that question, and
only submits to them the further question of malice if and
when he has ruled that the want of reasonable and probable
cause has been proved (x). Upon this question of malice,
the fact that the defendant prosecuted without reasonable
and probable cause is evidence from which the jury may
infer that he acted maliciously; but it is not conclusive
evidence, and if the jury think that he honestly believed in
the plaintiff's guilt and acted upon that belief in prosecuting
him, then the defendant, however hastily he may have
proceeded, is nevertheless entitled to their verdict (y).
Libel. The question of the respective functions of judge and

jury in actions and prosecutions for libel was once very
warmly canvassed, and was the subject of the Libel Act,
1792, popularly known as Fox's Act (z). This Act, which was

Cas. 247 : 11 Q. B. D. 440 : 52 L. J. cedure are explained by Bowen, L.J.,

Q. B. 352, 620. 11 Q. B. D. 458.

(?t) Id, ; Lister v. Ferryman, L. B. (y) Broion v. Hawkcs, [1891] 2

4 H. L. 521 : 39 L. 3". Ex. 177 ; Q. B. 718. As to the materiality of

Panton v. Williams, 2 Q. B. 169 : motive in this kind of action, see

10 L. J. Ex. 545. per Lords Watson and Hersohell, in

(y) See the observations made in Alleny. Flood, [1898] A. C. 93, 125.

Lister v. Ferryman, supra. (z) 82 Geo. III. c. 60, s. 1.

(x) The various methods of pro-

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THE JUDICIAL OFFICE. 87

occasioned by the State Trials in the reign of Geo. III.,
enacts (s. 1) that in trials for libel the jury may give a
general verdict of guilty or not guilty upon the whole matter
put in issue, and shall not be directed or required to find the
defendant guilty or not guilty merely on proof of publi-
cation (s. 2). The judge shall, according to his discretion,
give his opinion upon the matters in issue (a) to the jury,
who may (s. 3) find a special verdict. It is customary
under this Act for the judge, whether in civil or criminal
causes, to give a definition of libel to the jury, and then
leave to them the entire question. He may, as a matter of
mere advice, give his own opinion as to the nature of the
publication, but is not bound to do so (b). It is his duty to
say whether or not the writing complained of is capable of
the meaning ascribed ; but if satisfied of that, he must leave
it to the jury to say whether it actually has that meaning (c).
Again, it is for the judge to say whether a communication
is privileged or not ; but if the privilege is not an absolute
one, as that enjoyed by witnesses in a cause, the further
question remains whether it was made bond fide and with-
out maUce, and this is always for the jury (cl). It is to be
remembered that where this qualified privilege is estab-
lished, the plaintiff has to prove malice on the part of the
defendant. If he fail to give evidence beyond that of mere
defamation, it is the duty of the judge to direct a verdict
for the defendant (e).

Although the general principle is as laid down in the Exceptions
maxim under consideration, there are many exceptions to
it (/). Thus, questions of reasonableness — reasonable cause,

(a) Baylis v. Lawrence, 11 Ad. & BusheU's case, Vaugh. E. 147 ;

E. 924. Ewart v. Jones, 14 M. & W. 774.

(6) Parmiter v. Coupland, 6 M. & (d) Stace v. Griffith, L. R. 2 P. 0.

W. 108 ; B. V. Watsm, 2 T. E. 106. 420.

(c) Sturt V. Blagg, 10 Q. B. 908 ; (e) Taylor v. Hawkins, 16 Q. B.

HuntY. Ooodlake, 43 L. J. C. P. 321 ; SpiHv. AfaMZe.L. E. 4Bx. 232.

54. As to Bla,nAei, see HemmingsY. (/) Judgm., Watson v. Quitter,

E. B. & E. 346; and see 11 M. & W. 767.

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88 THE JUDICIAL OFFICE.

reasonable time, and the like— are, strictly speaking, matters
of fact, even where it falls within the province of the judge
or the Court to decide them (g), but are properly left to the
judge, as requiring legal training for their appreciation.
So, where a question arises as to the admissibility of
evidence, the facts upon which its admissibility depends
are to be determined by the judge, and not by the jury.
If the opposite course were adopted, it would be equivalent
to leaving it to the jury to say whether a particular thing
were evidence or not (h). And the question whether a
document comes from the proper custody or whether it is
properly stamped must be decided by the judge, for the
jury are not sworn to try any such issues (i).
No case. If at the close of the plaintiff's case there is no evidence

upon which the jury could reasonably and properly find a
verdict for him, the judge ought to direct a verdict for the
defendant (l). Formerly, if there were a scintilla of evidence
in support of a case, the judge was held bound to leave it to
the jury. But a course of decisions, many of which are
referred to in Ryder v. Womhivell (m), "has established a
more reasonable rule, viz., that in every case, before the
evidence is left to the jury, there is a preliminary question
for the judge, not whether there is literally no evidence, but
whether there is any upon which a jury can properly

{(/) See per Ld. Abinger, Startup (i) Per Pollock, C.B., Heslop v.

V. Macdonald, 7 Scott, N. R. 280; Chapman, 23 L.J. Q.B. 52; Siordet

Co. Litt. 566 ; Btirton v. Griffiths, v. Euczynski, 17 C. B. 251 ; per

11 M. & W. 817 ; Graham v. Van Pollock, O.B., Sharpies v. Bickard,

Diemen's Land Co., 11 Exoh. 101 ; 2 H. & N. 57 ; Tattersall v. Fearnly,

per Crompton, J., G. W. R. Co. v. 17 0. B. 368. See to the judgment

Crouch, 3 H. & N. 189 ; Hogg v. of Ld. Abinger in Watson v. Quitter,

Ward, Id. 417 ; Goodwyny. Cheveley, 11 M. & W. 760, for other instances

4 H. & N. 631 ; Brighty v. Norton, in which under particular statutes

3 B. & S. 305 ; Massey v. Sladen, or at common law (juestions of fact

L. E. 4 Ex. 13 ; Shoreditch Vestry v. were for the Court.

Hughes, 17 0. B. N. S. 137. (I) See Fox v. Star Co., [1900]

{h) Per Alderson, B., Bartlett v. A. 0. 19.

Smith, 11 M. & W. 486 ; Boyle v. (m) L. R. 4 Ex. 32.
Wiseman, 11 Ex. 360.

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THE JUDICIAL OFFICE.

89

proceed to find a verdict for the party producing it, upon
whom the onus of proof is imposed " (n). But where there
is conflicting evidence upon a question of fact, what-
ever may be the opinion of the judge as to the value of that
evidence, he must leave the consideration of it for the
jury (o).

Whenever mixed questions of law and fact arise in a Misdirection.
case tried before judge and jury, it is the judge's duty to
give to the jury such a direction upon the law as will enable
them to understand its bearing upon the facts (j)). If his
direction be wrong in giving them a wrong guide, or imper-
fect in not giving them the right guide which it was his
duty to give (p), and some substantial wrong or miscarriage
be thus occasioned (q), the appellate Court, in a civil case (r),
should order a new trial. But in cases where the verdict is
so far against the weight of the evidence as to be unreason-
able or perverse (s), and where the Court is satisfied that it
has all the material facts before it, the Court of Appeal may
now, on motion for a new trial, give judgment for the party
in whose favour the verdict ought to have been given (t).

In conclusion, it may be observed that, though there is
a tendency to dispense with juries in many purely civil
actions, yet in cases of a criminal and quasi-criminal nature,
most persons will probably still agree with Lord Hardwicke,
that " it is of the greatest consequence to the law of England
and to the subject that these powers of the judge and jury
be kept distinct, that the judge determine the law, and the

(n) Judgm., GibUn v. McMullen, a case of felony; Beg. v. Bertrand,
L. E. 2 P. C. 336. L. B. 1 P. C. 520 ; Beg. v.

(o) Dublin <£ Wicklom By. v. 2 Id. 35.

SUttery, 3 App. Cas. 1155. (s) See Metr. B. Co. v. Wright, 11

(p) Pnidential Assurance Co. v. App. Cas. 152 : 55 L. J. Q. B. 401.

Edmunds, 2 App. Gas. 487, 507, per (t) B. S. C. 1883, 0. LVIII., r. 4 ;

Ld. Blackburn. Allcock v. Hall, [1891] 1 Q. B. 444 :

(g) B. S. 0. 1883, 0. XXXIX., r. 60 L. J. Q. B. 416 ; Toulrrwn v.

6 ; see Bray v. Ford, [1896] A. 0. Milkr, 17 Q. B. D. 603 ; but see

44 : 65 L. J. Q. B. 213. S. C, 12 App. Cas. 746.

(r) A new trial cannot be bad in

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90 THE JUDICIAL OFFICE.

jury the fact ; and if ever they come to be confounded it
will prove the confusion and destruction of the law of
England" (u).

In PEiESBNTIA MAJOBIS CESSAT POTENTIA MINOEIS. {Jcilk.

Cent. 214.) — In presence of the greater the power of the
inferior ceases {x).

This maxim has been usually {y) cited with special
reference to the transcendent nature of the powers vested
formerly in the Court of King's Bench, and now in the
King's Bench Division of the High Court {z).

It is the function of this Court to keep all inferior
jurisdictions within the bounds of their authority and to
correct irregularities in their proceedings. It commands
magistrates and others to do what their duty requires in
every case where there is no other specific remedy. It
protects the liberty of the subject by speedy and summary
interposition. It takes cognizance both of criminal and
civil causes ; the former in what is called the Crown side, or
Crown Office; the latter in the plea side of the Court (a).
To it also appeal lies from some inferior criminal Courts.

To this supremacy of the Court of King's Bench may be
attributed the fact that on its coming into any county the
power and authority of other criminal tribunals therein
situate were pro tempore suspended (6) ; in prcesentid majoris
cessat potestas minoris (c). It has been held (d), however,
that the authority of a Court of Quarter Sessions, whether
for a county or a borough, is not in law either determined

28.

(m) B. v. Poole, Gas. tern. Hardw. (z) Judicature Act, 1873, s. 34.

(a) Beg. v. Oillyard, 12 Q. B. 530.

(x) See the maxim, Omne majus (6) 4 Inst. 73 : see 25 Geo. 3, c.

continet in se minus, post, Chap. IV. 18, s. 1.

(y) See 10 Eep. 73 b ; Ld. San- (c) Per Coleridge, J., 13 Q. B.740.

char's case, 9 Rep. 118 b ; 2 Inst. (d) Smith v. Beg., 13 Q. B. 738

166. 744.

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THE MODE OP ADMINISTEEING JUSTICE. 91

or suspended by the coming of the judges into the county
under thek commission of assize, oyer and terminer, and
general gaol delivery, though " it would be highly incon-
venient and improper, generally speaking, for the magis-
trates of a county to hold their sessions concurrently with
the assizes, even in a different part of the county."

§ II. THE MODE OF ADMINISTERING JUSTICE.

Having in the last section considered some maxims
relating peculiarly to the judicial office, the reader is here
presented with a few which have been selected in order to
show the mode in which justice is administered in our
Courts, and which relate rather to the rules of practice than
to the legal principles observed there.

Audi alteram Partem. No man should be condemned
unheard.

It has long been a received rule (e), that no one is to be statement of
condemned, punished, or deprived of his property in any
judicial proceeding, unless he has had an opportunity of
being heard (/"). In the words of the moralist and poet —

Quicung^ue aliquid statiierit, parte inauditd alterd,
^quitm licet statuerit, haud aguus fuerit (g).

A writ of sequestration, therefore, cannot properly issue Examples.

(e) It is "an indispensable require- 275, and B. v. Benn, 6 Id. 198 ; per

ment of justice that the party who Bayley, B., Capel v. Child, 2 Cr. & J.

has to decide shall hear both sides, 558 (see Daniel v. Morton, 16 Q. B.

giving each an opportunity of hear- 198) ; Bagg's case, 11 Rep. 93 b ;

ing what is urged against him ; " per B. v. Chancellor of University of

Erie, G:J. , 16 C. B. N. S. 416. Cambridge, 1 Str. 557 ; B. v. Gaskin,

(/) Per Parke, B., Be Hammer- 8 T. B. 209; 4 E. B. 633; Beg. v.

smith Bent-charge, 4 Ex. 97 ; per Ld. Saddlers' Co., 10 H. L. Cas. 404.

Gs.nxs\>e\\, Beg.y. Archhp.of Canter- (g) Seneca, Medea, 195; cited 6

lury, 1 E. & E. 559 ■,per Ld. Kenyon, Eep. 52 a : 11 Eep. 99 a : 4 Ex. 97 :

Harper v. Carr, 4 B. B. 440 ; 7 T. B. 14 C. B. 165 : 3 App. Cas. 624.

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92 THE MODE OF ADMINISTERING JUSTICE.

from the Consistory Court of the Diocese to a vicar who has
disobeyed a monition from his bishop, without previous
notice to the vicar to show cause why it should not issue ;
for the sequestration is a proceeding partly in pcenam, and
no proposition is more clearly established than that " a man
cannot incur the loss of liberty or property for an offence by
a judicial proceeding until he has had a fair opportunity
of answering the charge against him, unless, indeed, the
legislature has expressly or impliedly given an authority to
act without that necessary preliminary" Qi).

An award made in violation of the above principle may
be set aside (i) ; and the principle is binding upon the
committee of a members' club when they expel a member
for alleged misconduct (j).

No person should be punished for contempt of Court,
which is a criminal offence, unless the specific offence
charged against him be distinctly stated, and an opportunity
of answering it be given to him (k). " The laws of God
and man," said Fortescue, J., in Dr. Bentley's case (l), "both
give the party an opportunity to make his defence, if
he has any." And immemorial custom cannot avail in
contravention of this principle (m).

In conformity also with the elementary principle under
consideration, when a complaint has been made or an
information exhibited before justice of the peace, the

(h) Bonaker v. Evans, 16 Q. B. (j) Fisher v. Keane, 11 Ch. D.

162, 171, followed, but distinguished 353 ; see Baird v. Wells, 44 Id.

in Bartletty. Kirwood,,2 E. & B. 771. 661.

See Danul v. Morton, 16 Q. B. 198 ; (k) Be Pollard, L. R. 2 P. C. 106,

Exp. Hopwood, 15 Id. 121 ; Ex p. 120.

Story, 8 Ex. 195 : 12 C. B. 767, 775 ; (I) B. v. Chancellor of Cam-

Beynolds v. Fenton, 3 0. B. 187 ; bridge, 1 Str. 557 ; per Maule, J.,

Meeus v. Thellusson, 8 Ex. 638 ; Abley v. Dale, 10 C. B. 71 ; p&r Ld.

Ferguson v. Mahon, 11 A. & E. 179 ; Campbell, Ex p. Bamshay, 18 Q. B.

Beg. V. Cheshire Lines Committee, 190 ; per Byles, J., 14 C. B. N. S.

L. E. 8 Q. B. 344. 194.

(i) Thorburn v. Barnes, L. R. 2 (m) Williams v. Ld. Bagot, 3

0. P. 384, 401 ; Be Brooh, 16 0. B. B. & C. 772.
N. S. 403.

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THE MODE OF ADMINISTBBING JUSTICE. 93

accused person has due notice given him, by summons or
otherwise, of the accusation against him, in order that he
may have an opportunity of answering it (n).

A statute estabUshing a gas-light company enacted that
if any person should neglect, for a period of ten days after
demand, to pay rent due from him to the company for gas
supplied, the rent should be recoverable by a warrant of
justice and execution thereunder. A warrant issued by a
justice under this Act, without previously summoning and
hearing the party to be distrained upon, was held to be
illegal, though a summons and hearing were not in terms
required by the Act ; for the warrant is in the nature of an
execution; without a summons the party charged has no
opportunity of going to the justice, and a man shall not
"suffer in person or in purse without an opportunity of
being heard " (o) .

The Metropolis Local Management Act, 1855, s. 76,
empowered the vestry or district board to alter or demolish
a house where the builder had neglected to give notiee of
his intention to build seven days before proceeding to lay
or dig the foundation. It was held that this enactment did
not empower the board to demolish such building without
first giving the party guilty of the omission an opportunity
of being heard (p), for " a tribunal which is by law invested
with power to affect the property of one of Her Majesty's
subjects, is bound to give such subject an opportunity of
being heard before it proceeds," and " that rule is of uni-
versal application and founded upon the plainest principles
of justice " (q).

(n) Paley, Conv., 4th ed. 67, 93. (p) Cooper v. Wandsworth Board

See Besselly. Wilson, 1 E. & B. 489. of Works, 14 0. B. N. S. 180, cited

(o) Painter v. Liverpool QasUght by Byles, J., Be Brook, 16 Id. 419;

Co., 3 A. & E. 433; Hammond v. Hopkins v. Smethwick L. B., 24

Bendyshe, 18 Q. B. 869 ; Beg. v. Q. B. D. 712 : 59 L. J. Q. B. 250.

Totnes Union, 7 Id. 690; Bessell (g) Per Willes, J., 14 0. B. N. S.

V. Wilson, 1 E. & B. 489; Oibbs 170.
V. Stead, 8 B. & 0. 528.

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94 THE MODE OF ADMINISTERING JUSTICE.

Although cases may be found in the books of decisions
under particular statutes which at first sight seem to
conflict with the maxim, it will be found on consideration
that they are not inconsistent with it, for the rule, which
is one of elementary justice, only requires that a man shall
not be subject to final judgment or to punishment without
an opportunity of being heard (r).

Nemo debet esse Judex in propeia sua Causa. (12 Rep.
114.) — No man can he judge in his own cause.

Rule. It is a fundamental rule in the administration of justice,

that a person cannot be judge in a cause wherein he is
interested (s) ; nemo sibi esse judex vel suisjus dicere debet (t) ■
and, therefore, in the reign of James I., it was solemnly
adjudged that the king cannot take any cause, whether
civil or criminal, out of any of his Courts, and give judgment
upon it himself ; but it must be determined and adjudged
in some Court of justice according to the law and custom of
England ; and " the judges informed the king that no king,
after the Conquest, assumed to himself to give any judgment
in any case whatsoever which concerned the administration
of justice within this realm ; but these were solely deter-
mined in the Courts of justice " (w), and rex non debet esse
sxd) homine sed sitb Deo et lege (x).

It is, then, a rule observed in practice, and of the
application of which instances not unfrequently occur, that,
where a judge is interested in the result of a cause, he

(r) Be Hammersmith Bent-charge, 63 (cited Bridgman v. Holt, 2 Show.

4 Ex. 87, citing Be Gamherwell Bent- P. Ca. 126) ; 4 Inst. 71. In Qor-

charge, i Q. B. 151 ; per Alderson, ham, v. Bp. of Exeter, 15 Q. B. 52 :

B., 4 Ex. 95. 10 C. B. 102 : 5 Ex. 630, an argu-

(s) Per Cur., 2 Stra. 1173 ; Roll. meut based on the above maxim

Abr. Judges, PI. 11 ; 4 H. L. Cas. was vainly urged. See also Ex p.

96, 240. Medtoin, 1 E. & B. 609 ; B. v.

(t) C. 3, 5, 1. Hoseason, 14 East, 606.

(m) Prohibitions del Boy, 12 Rep. (x) Pleta, fo. 2, o. 5 ; ante, p. 83.

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THE MODE OF ADMINISTBRTNG JUSTICE. 95

cannot, either personally or by deputy, sit in judgment upon
it {y). If, for instance, a plea allege a prescriptive right in
the lord of the manor to seize cattle damage feasant, and to
detain the distress until fine paid for the damages at the
lord's will, this prescription will be void, and the plea bad ;
because it is against reason, if wrong be done any man,
that he thereof should be his own judge {z) ; and it is a
maxim of law, that aliquis non debet esse judex in propria
causa, quia non potest esse judex et pars (a) ; nemo potest
esse simul actor et judex (b) ; no man can be at once judge
and suitor.

A leading case in illustration of this maxim is Dimes v. Dimes v.
Grand Junction Canal Co. (c), where the House of Lords, ;jq„ Canal
following the unanimous opinion of the judges, held that ^°-
the decrees of Lord Cottenham, L.C., in favour of the canal
company were voidable and must be reversed, on the ground
that when he made the decrees he was a shareholder of the
company and this fact was unknown to the other parties to
the suit. " It is of the last importance," said Lord Campbell,
" that the maxim that ' no man is to be a judge in his own
cause ' should be held sacred. And that is not to be confined
to a cause in which he is a party, but applies to a cause in
which he has an interest. . . . We have again and again
set aside proceedings in inferior tribunals, because an
individual, who had an interest in a cause, took a part in
the decision. And it will have a most salutary effect on
these tribunals when it is known that this High Court of
last resort, in a case in which the Lord Chancellor of

{y) Brooks v. Earl of Rivers, Beg. v. Band, L. R. 1 Q. B. 230, 233 ;
'Hai&w. 503; Earl of Derby's case. Be Ollerton, 15 C. B. 796; Be

12 Rep. 114 ; per Holt, C.J., Anon., Chandler, 1 C. B. N. S. 323.

1 Salk. 396 ; Worsley v. 8. Devon B. (c) 3 H. L. Cas. 759 ; as to which

Co., 16 Q. B. 539. see L. N. W. B. Co. v. Lindsay, 3

(z) Litt. § 212. Maoq. So. App. Cas. 114 ; Be Dimes,

(a) Co. Lltt. 141 a. 14 Q. B. 554 ; ElUs v. Hopper, 3 H.

(6) See Beg. v. O. W. B. Co., & N. 766 ; WilUamsv.O.W.B. Co.,

13 Q. B. 327; Beg. v. Dean of Id. 869 ; Lam,caster£ Carlisle B. Co.
Bochester, 17 Q. B. 1 ; followed in v. Beaton, 8 E. & B. 952.

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96 THE MODE OP ADMINISTERING JUSTICE.

England had an interest, considered that his decree was on
that account a decree not according to law, and should be
set aside. This will be a lesson to all inferior tribunals
to take care, not only that in their decrees they are not
influenced by their personal interest, but to avoid the
appearance of labouring under such an influence."

The opinion delivered by the judges in this case (d)
shows, however, that the decision of a judge made in a
cause in which he has an interest is, in a case of necessity,
unimpeachable, ex. gr., if an action were brought against
all the judges of a Court in a matter over which that Court
had exclusive jurisdiction (e), or where a judge commits for
contempt of Court (/). Nor does the principle under con-
sideration apply to avoid the award of a referee to whom,
though necessarily interested in the result, parties have
contracted to submit their differences (g), though ordinarily
it is " contrary to reason that an arbitrator or umpire should
be sole and uncontrolled judge in his own cause " (h).

Conformable to the general rule was a decision in the
following case. Upon an appeal to the Quarter Sessions of
the borough of Cambridge, by a water company against
an assessment to the poor rate, the deputy recorder of the
borough presiding, the rate was reduced; at the time of
hearing the appeal the deputy recorder was a shareholder
in the company, and although he had in fact sold his shares
he had not completed the transfer ; he was held incompetent
to try the appeal (^).

In like manner, proceedings had before commissioners
under a statute which forbade persons to act in that capacity
when interested, have been adjudged void (/c).

(d) 3 H. L. Oas. 787 ; citing Year (g) Banger v. G. W. B. Co., 5

Book, 8 Hen. 6, 19 : 2 Roll. Abr. 93. H. L. Gas. 72.

(c) PerLd. Oranworth, C, Earasrer (h) Per Parke, B., Be Coombs,

V. O. W. B. Co., 5 H. L. Gas. 88. 4 Ex. 841.

See Exp. Menhennet, L. R. 5 G. P. (i) Beg.y. Becorder of Cambridge,

16. 8 E. & B. 637.

(/) Per Field, J., Beg. v. Bp. of (h) Beg. v. Aberdare Canal Co.,

St. Albans, 9 Q. B. D. 454, 457. 14 Q. B. 854.

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THE MODE OF ADMINISTERING JUSTICE.

Any direct pecuniary interest, however small, in the
subject-matter of inquiry will disqualify a judge (l), and
any interest, though not pecuniary, will have the same
effect, if it be sufficiently substantial to create a reasonable
suspicion of bias (hi). Thus, a justice of the peace may be
disqualified if he himself be a litigant in a matter before the
Court (n), or a party in a similar matter (o) ; but he is not
precluded from trying offences under the Cruelty to Animals
Prevention Act, merely because he is a subscriber to the
society formed for the purpose of enforcing the Act (p).
Nor is a justice disqualified from acting as a member of
the licensmg committee by reason of his being a member
of a temperance association organized to oppose the
granting of licenses, or a shareholder in a brewery
company which sells beer in the district (g'). Nor is a
justice disqualified from adjudicating upon a summons
against a ratepayer in arrear merely because he is a
member of a town council, whose officer took out the
summons (r).

It may be generally stated that a justice, who is interested
in a matter pending before the Court of Quarter Sessions,

(l) Per Blackburn, J., Reg. v. (g) Rex v. Dublin JJ., [1904] 2

Rand, L. E. 1 Q. B. 232 ; Beg. v. Ir. 75 ; Bex v. Tempest, 86 L. T.

Gaisford, [1892] 1 Q. B. 381: 61 585.

L. J. M. G. 50. See Reg. v. M. S. <& (r) R. v. Handsley, 8 Q. B. D. 383 ;

L. R. Co., L. B. 2 Q. B. 336, 339; 51 L. J. M. 0. 137; where B. v.

Fobbing Commrs. v. The Queen, 11 Gibbon, 6 Id. 168, was disapproved.

App. Gas. iid : 56 L. J. M. G. 1. Sed aUter if the justice is connected

(to) AlUnson v. Gen. Council of with the prosecution ; iJ. v. MiiMeiZgc,

Medical Education, [1894] 1 Q. B. 4 Q. B. D. 832 : 48 L. J. M. 0. 139 ;

750: 66 L. J. Q. B. 534; Reg. v. R. v. Lee, 9 Q. B. D. 394; see B. v.

Burton, [1897] 2 Q. B. 468 : 661.. J. Huntingdon, 4 Q. B. D. 522 ; B. v.

Q. B. 831 ; Reg. v. Suggins, [1895] Warrant, 20 Q. B. D. 58 ; and see

1 Q. B. 563 : 64 L. J. M. 0. 149. Bex v. Sunderland JJ., 70 L. J.

(n) Reg. v. Meyers, 1 Q. B. D. 173. K. B. 946 : [1901] 2 K. B. 357, where

(o) Reg. v. Great Yarmouth JJ., justices, as members of a corpora-

8 Q. B. D. 525 : 51 L. J. M. C. tion interested, were held disquali-

39. fied, because in the circumstances

{p) Reg. V. Mayor of Deal, 45 there was a real likelihood of

L. T. 439 : 30 W. B. 154. bias.

L.M. 7

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97

THE MODE OF ADMINISTERING JUSTICE.

may not take any part in the proceedings, unless indeed all
parties know that he is interested and consent, either tacitly
or expressly, to his presence and interference («). In such
a case it has been held that the presence of one interested
justice renders the Court improperly constituted, and
vitiates the proceedings ; it is immaterial that there was a
majority in favour of the decision, without reckoning the
vote of the interested justice (t) . And, on the same principle,
where a grand jury at assizes threw out a biU preferred
against a parish for non-repair of a road, the Court of
Queen's Bench granted a criminal information against the
parish, on the ground that two of the grand jurors were
large landowners therein, and had taken part in the
proceedings on the bill (u) ; for " it is very important that
no magistrate, who is interested in the case before the
Court, should interfere, while it is being heard, in any way
that may create a suspicion that the decision is influenced
by his presence or interference " (i).

The mere presence on the bench, however, of an interested
justice during part of the hearing of a case, will not be
deemed sufficient ground for setting aside an order of
sessions made on such hearing, if it be shown that he took
no part in the hearing, came into Court for a different
purpose, and in no way influenced the decision (x).

Hobart, CJ., is reported to have said {>/) that " even an

(s) Reg. V. Clieltenham Commrs., Q. B. D. 173 ; Eeg. v. London County

1 Q. B. 467; Wakefield Board of CoMreciZ, [1892] 1 Q. B. 190 : 61 L. J.

Health V. W. Riding R. Co., 6 B. & S. M. C. 75 : R. v. Lancashire JJ., 75

794 ; Reg. v. W. Riding JJ., Id. 802. L. J. K. B. 198.

" Nothing is better settled thaD this, (u) Reg. v. Upton St. Leonard's,

that a party aware of the objection of 10 Q. B. 827. See Esdaile v. Lwnd,

interest cannot take the chance of a 12 M. & W. 734.

decision in his favour, and afterwards (u) Per Wightman, J., Reg. v.

raise the objection." Per Cockburn, Sjf/oJ/r; J"/., 18 Q. B. 416, 421. See

C.J., 6 B. & S. 802. See also R. v. Reg. v. Surrey J J., 21 L. J. M. C. 195.

Great Yarmouth J J. ,8q.B.D. 525: (x) Reg. v. London J J 18 Q B

51 L. J. M. 0. 39. 421 (c).

(<) Reg. V. Hertfordshire JJ., 6 (y) Day v. Savadge, Hob. 85, 87,

Q. B. 753. See R. v. Meyers, 1 cited arg. 5 Exch. 671.

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THE MODE OP ADMINISTERING JUSTICE.

Act of Parliament made against natural equity, as to make
a man a judge in his own case, is void in itself ; for jura
natures sunt immutabilia and they are leges legum." But
although it is contrary to the general rule to make a person
judge in his own cause, " the legislature can, and no doubt
in a proper case would, depart from that general rule," and
an intention to do so being clearly expressed, the Courts
give effect to their enactment (z). And if a particular
relation be created by statute between A. and B., and a
duty be imposed upon A. to investigate and decide upon
charges preferred against B., the maxim nemo sibi esse judex
vel suisjus clicere debet would not apply (a).

Lastly, there is no ground whatever for saying that the
governor of a colony cannot give his official consent to a
legislative measure in which he may be individually
interested. It might as well be asserted that the sovereign
of these realms could not give assent to a bill in Parliament
in which the sovereign was personally concerned " (6).

99

Actus CuKia; Nbminem gkavabit. {Jenk. Gent. 11%.)— An
act of the Court shall prejudice no man.

This maxim " is founded upon justice and good sense ;
and affords a safe and certain guide for the administration
of the law " (c). In virtue of it, where a case stands over
for argument on account of the multiplicity of business
in the Court, or for judgment from the intricacy of the

(z) Per Blackburn, J,, Mersey oeeding upon the ground that he is

Doahs Trustees v. Gibbs, L. E. 1 a ratepayer, or interested in a rating

H. L. 110. See Ex p. Workington question.

Ouerseers, [1894] IQ.B. 416; B«j. V. (a) Wildes v. Bussell, L. E. 1

Bolinghroke, [1893] 2 Q. B. 347 : C P. 722, 747 ; Beg. v. Bp. of St'.

62 L. J. M. C. 180 ; Beg. v. Henley, Albans, 9 Q. B. D. 454.

[1892] 1 Q. B. 504 : 61 L. J. M. 0. 135. (6) PMlUps v. Syre, L. E. 4 Q. B.

The 40 Vict. o. 11, enacts that no 244.

judge of the superior Courts shall be (c) Per Oresswell, J., 12 0. B. 415.
disqualified from acting in any pro-

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100 THE MODE OF ADMINISTERING JUSTICE.

question, the party ought not to be prejudiced by that
delay, but should be allowed to enter up his judgment
retrospectively to meet the justice of the case (d) ; and,
therefore, if one party to an action die during a curia
advisai-i vult, judgment may be entered nunc pro tunc, for
the delay is the act of the Court, for which neither party
should suffer (e).

In a case involving issues both of law and fact, the
issues of fact were tried in August, 1843, a verdict was
found for the plaintiff, and a rule for a new trial was
discharged in Trinity Term, 1844 ; in the same term the
demurrers were set down in the special paper, but did not
come on for argument until May, 1845, when judgment was
given upon them for the plaintiff. The plaintiff, having
died in March, 1845, the Court made absolute a rule to
enter judgment as of Trinity Term, 1844 (/). It may be
here mentioned that the power of the Court to enter judg-
ment nuncpro tunc does not depend upon statute (g). It is
a power at common law, and, in accordance with the ancient
practice of the Court, is adopted in order to prevent
prejudice to a suitor from delay occasioned by the act of
the Court (h).

Where, however, the delay is not attributable to the act
of the Court, the above maxim does not apply (t).

(d) Per Garrow, B., 1 Y. & J. 372. 8 Bing. 29; Miles v. Williams, 9

(e) Cumber v. Wane, 1 Stra. 425 ; Q. B. 47.

Moor V. Roberts, 3 C. B. N. S. 844 ; (g) As to the effect of 17 Car. 2,

per Tindal, O.J., Harrison v. Sea- o. 8, and 15 & 16 Viot. o. 76, s. 139,

tfujrn, 6 Scott, N. E. 797 ; Toulmin see Archbold's Practice, 14th ed.

V. Anderson, 1 Taunt. 384; Jeuk. 1029.

Cent. 180. See Lanman v. Ld. (h) Smws v. Bees, 12 A. &E.167;

Aitdley, 2 M. & W. 535 ; Turner v. Miles v. Bough, supra, and cases

L. & S. W. B. Co., L. R. 17 Bq. there cited; Vaughan v. Wilsoti,

561 ; Ecroyd v. CouUhard, [1897] 2 4 B. N. 0. 116 ; Green v. Cobden,

Oh. 554 ; E. S. 0. 1883, 0. XLI., i.-. 4 Scott, 486.

3 ; 0. XVII., 1. 1. (i) Freeman v. Tranah, 12 0. B.

(f ) MilesY.Bough,5'D. &'L.105; 406; recognised in Heathcote v.
recognising Lawrence v, Hodgson, 1 Wing, 11 Ex. 358 ; Fishmongers' Co.
Yo. & J. 368, and Brydges v. Smith, v. Robertson, 3 0. B. 970.

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THE MODE OF ADMINISTERING JUSTICe\„^/2^ --r,j<^^y/ 101

The preceding examples will probably be sufficient to
illustrate the general doctrine, which is equally founded
on common sense and on authority, that the act of a
Court of law shall prejudice no man; and in conformity
with this doctrine, it has been observed, that, as long as
there remains a necessity, in any stage of the proceedings
in an action, for an appeal to the authority of the Court,
or any occasion to call upon it to exercise its jurisdiction,
the Court has, even if there has been some express
arrangement between the parties, an undoubted right, and
is, moreover, bound to interfere, if it perceives that its own
process or jurisdiction is about to be used for purposes
which are not consistent with justice (k).

Cases, however, have occurred, in which injury was
caused by the act of a legal tribunal, as by the laches or
mistake of its officer ; and where, notwithstanding the
maxim as to actus curia, the injured party was without
redress (i).

Lastly, it is the duty of a judge to try the causes set
down for trial before him, and yet, if he refused to hold
his Court, although there might be a complaint in Parlia-
ment respecting his conduct, no action would lie against
him (m). So, in the case of a petition to the Crown to
estabhsh a peerage, if, in consequence of the absence of
peers, a committee for privileges could not be held, the
claimant, although necessarily put to great expense, and
perhaps exposed to the loss of his peerage by death of
witnesses, would be wholly without redress («). In the

(k) Wadey. Simeon, 13 M. & W. Ooltman, J., remarked that "no

647 ; Thomson v. Harding, 3 0. B. doubt, the Court will correct the

J^.S.^Si; SherbornY.Ld. Hunting- mistake of its own of&cer." See

toiver,13ld.7i2;Burns\. Chapman, Wilkes v. Perks, 5 M. & Gr. 376;

5 Id. 481, 492. Na^er v. Wade, 1 B. & S. 728 ;

(I) See Grace v. Clinch, 4 Q. B. Morgan v. Morris, 3 Macq. Sc. App.

606; Leech v. Lamb, 11 Ex. 437; Gas. 323; R.S. C. 1883,0. XXVIII.

Be LlanbebUg and Llandyfrydog, r. n.
15 L. J. M. 0. 92. In Winn v. („) Ante, pp. 70, et seg.

Nicholsm, 7 0. B. 824, however, (%) Arg. 9 01. & F. 276.

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102 THE MODE OF ADMINISTERING JUSTICE.

above and other similar cases a wrong might be inflicted
by a judicial tribunal, for which the law could supply no
remedy.

Actus Lbgis Nemini est damnosus. (2 Inst. 287.) — An
act in law shall prejudice no man (o).

A distinction has often been drawn, in accordance with
this maxim, between the act of the law and the act of a
party. Thus, where an advowson is owned by two patrons
with the right to present in turn, the one loses his turn if
he submit to a presentation usurped by the other, or by a
stranger; but his turn is merely postponed to the next
vacancy, if the Crown, having emptied the living, refill it
by virtue of the prerogative ; for this, being the act of the
law, nemini facit injuriam (p). Again, in the case of a lease
with a condition for re-entry, the condition being entu-e
was not apportionable, at common law (q), upon the rever-
sion becoming severed by the act of the lessor ; yet it was
apportionable, if the severance arose by act of law (r).
Similarly, an involuntary assignment by operation or
compulsion of law is no breach of a covenant or condition
in a lease against assignment (s).

If a person abuse an authority given by the law, he
becomes a trespasser ab initio, as if he had never had that
authority ; which is not the case where an authority given
by a party is abused (t) ; and this distinction has been

(o) 6 Eep. 68. (s) Doe v. Carter, 4 B. E. 586 ; 8

(p) Keen v. Denny, [1894] 3 Ch. T. R. 57, 301 (execution) ; Doe v.

169 : 64 L. J. Ch. 55 ; Calland v. Smith, 15 E. E. 660 ; 5 Taunt,

Troward, 2 H. Bl. 824 ; 3 E. E. 389 ; 795 (bankruptcy) ; Daily v. De Cres-

Orocers' Co. v. Archbp. of Canter- pigny, L, E. 4 Q. B. 180 (exercise of

bury, 2 W. Bl. 769 ; Co. Litt. 378 a. statutory powers).

(S) See 44 & 45 Vict. o. 41, s. 12 ; (f) Six Carpenters' Case, 8 Eep.

22 & 23 Vict. c. 35, s. 3. 290. For certain statutory modifi-

(?■) Co. Litt. 215 a; Dumpm-'s cations of the rule, see notes to

case, 4 Eep, 120 b. s. C, 1 Sm. L. G.

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103

ascribed to the principle that the law wrongs no man :
actus legis nemiiii facit injunain (m).

ExECTJTio Juris non habet Injueiam. (2 Inst. 482.) — Legal
process, if regular, does not afford a cause of action.

It was a rule of the Eoman law, as it is of our own, that
if an action be brought in a Court which has jurisdiction
upon insufficient grounds or against the wrong party, no
injury is thereby done for which an action can be main-
tained— 7s qui jure publico iititer non vidctur injurim faclenda
causa hocfacere, juris enim executio non habet injuriam (x) ;
and nullus ridctur dolo facere qui suo jure utitur (y), he is not
to be esteemed a wrongdoer who merely avails himself of
his legal rights. This is the primary meaning of the
maxim. On the other hand, if an individual, under colour
of the law, does an illegal act, or if he abuses the process of
the Court to make it an instrument of oppression or extortion.

(u) Bao. Abr. Trespass (B.). For
other examples of the maxim, see
Milbourn v. Ewart, 5 T. B. 381, 385 ;
Nadin v. Battie, 5 East, 146 ; 1
Brest. Abs. of Tit. 346.

(x) T>. 47, 10, 13, a. 1 ; Hobart,
266 : 11 Q. B. D. 690.

(y) D. 50, 17, 55.

In ooimeotion with this rule may
be noticed the following oases : — If
an individual prefer a complaint to
a magistrate and procure a warrant
to be granted upon which the
accused is taken into custody, the
complainant is not liable in trespass
for the imprisonment, even though
the magistrate had no jurisdiction ;
Brown v. Chapman, 6 0. B. 365,
376. One who mistakenly prefers
a charge against another before a
magistrate will not be liable in
trespass for a remand judicially
ordered by him; Lock v. Ashton,

12 Q. B. 871. See also Freegard v.
Barnes, 7 Ex. 827. Nor is an
execution creditor liable to a person
whose goods have been wrongfully
taken in execution for damage sus-
tained by their sale under an inter-
pleader order ; Walker v. Olding,
1 H. & G. 621. The above and
similar oases seem referable to the
rule, nullus videtur dolo faoere giii
jure suo utitur.

On the other hand, a defendant
who was taken iu execution under a
ca. sa. issued on a judgment for less
than £20, without the order of the
judge who tried the cause, could
maintain an action of trespass
against the plaintiff and his
attorney; Brooks v. Hodgkinson, 4
H. & N. 712. See Gilding v. Eyre,
10 0. B. N. S. 592 ; Bujg^er v. Allen,
L. R. 2 Ex. 15.

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104 THE MODE OF ADMINISTBEING JUSTICE.

this is a fraud upon the law, by the commission of which
Hability will be incurred {z). In this, which is obviously a
different sense, the leading maxim has also been applied.

In a leading case (a), illustrative of this latter proposition,
the facts were as follows : — A ca. sa. was sued out against
the Countess of Eutland, but the officers entrusted with the
execution of the sheriff's warrant fearing a rescue, the
plaintiff was advised to enter a feigned action in London,
according to the custom, against the countess, to arrest
her thereupon, and then to take her body in execution on
the ea. sa. In pursuance of this advice, the Countess was
arrested and taken to the Compter, " and at the door
thereof the sheriff came, and carried the countess to his
house, where she remained seven or eight days, till she paid
the debt." It was held, however, that the arrest was not
made by force of the writ of execution, and was, therefore,
illegal ; " and the entering of such feigned action was utterly
condemned by the whole Court, for, by colour of law and
justice, they, by such feigned means, do against law and
justice, and so make law and justice the author and cause
of wrong and injustice."

Again, in Hooper v. Lane (b) it was held in accordance
with the spirit of the maxim under our notice, that if the
sheriff, having in his hands two writs of ca. sa., the one
valid and the other invalid, arrest on the latter alone, he
cannot justify the arrest under the valid writ. Nor can the
sheriff, whilst a person is unlawfully in his custody by
virtue of an arrest on an invalid writ, arrest that person on
a good writ : " to allow the sheriff to make such an arrest
while the party is unlawfully confined by him, would be to

(z) Seeder Pollock, O.B., Smiifcv. Jervis, C.J., Webb v. Adkins, 14

Monteitli,lS M. & W. 439; ot. per C. B. 407. See Allexjne v. Reg.,

Ld. Watson, [1898] A. C. 731, 732. 5 E. & B. 399 ; M'Oregor v. Barrett,

" The Court has a general super- 6 C. B. 262.

intending power to prevent its pro- («) Countess of Rutland's case, 6

cess from being used for the purpose Rep. 53.

of oppression and injustice;" per (b) 6 H. L. Gas. 443.

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THE MODE OF ADMINISTERING JUSTICE.

permit him to profit by his own wrong (c) and therefore
cannot be tolerated " (rf).

We shall hereafter (e) have occasion to consider the
general doctrine respecting the right to recover money paid
under compulsion. We may, however, here observe that,
where compulsion consists in an illegal restraint of liberty,
a contract entered into by reason thereof is voidable. If a
man is under duress of imprisonment, or if, the imprison-
ment being lawful, he is subjected to illegal force and
privation, and in order to obtain his liberty, or to avoid
such illegal hardship, he enters into a contract, he may
allege this duress in avoidance of the contract ; but an
imprisonment is not sufficient duress to avoid a contract
obtained through the medium of its coercion, if the party
was in proper custody under the regular process of a
Court of competent jurisdiction; and this distinction
results from the rule of law, execittio juris non hahet
injuriam (/).

Further, although, as elsewhere stated, an action will
not lie to recover damages for the inconvenience occasioned
to a party who had been sued by another without reasonable
or sufficient cause (^), yet, if the proceedings in the action
were against A., and a writ of execution is issued by
mistake against the goods of B., trespass will clearly lie,
at suit of the latter, against the execution creditor (/i), or
against his attorney, who issued execution {€) ; and where

(c) Post, Chap. V. maxim uhi jus, ibi remedium, post,

(d) Per Ld. Cranworth, 6 H. L. Ohap. V.

Cas. 551. (A) Jarmain v. Hooper, 7 Scott,

{«) See the vnashn, volenti non fit N. E. 663; Walley v. M'Connell,

injuria, post, Chap. V. 13 Q. B. 903 ; see Biseley v. Byle,

(/) 2 Inst. 482 ; Stepney v. Lloyd, 11 M. & W. 16 ; Collett v. Foster,

Cro. Eliz. 646; Anon., 1 Lev. 68; 2H. &N. 356; ChurcMllw. Siggers,

Waterer v. Freeman, Hobart, 266 ; 3 E. and B. 929 ; Boret v. Lewis, 5

B. V. Southerton, 6 East, 140 ; 8 D. & L. 371 ; Dimmach v. Bowley,

R. R. 428; Awm., Aleyn, R. 92 ; 2 0. B. N. S. 542.

2 Roll. R. 301. (i) Davies v. Jenkins, 11 M. & W.

;. (g) Per Rolfe, B., 11 M. & W. 745; Bowles y. Senior, 8 Q. B. 677,

756 ; and cases cited under the and cases there cited.

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106 THE MODE OF ADMINISTERING JUSTICE.

an attorney deliberately directs the execution of a warrant,
he, by so doing, takes upon himself the chance of all
consequences, and will be liable in trespass if it prove
bad (k). In cases similar to the above, however, the maxim
as to executio juris is applicable, if at all, only in the
secondary sense above noticed; because the proceedings
actually taken are not sanctioned by the law, and therefore
the party taking them, although acting under the colour of
legal process, is not protected.

In Fictione Juris semper j35quitas existit. (11 Rep.
51.) — Equitij is the life of a legal fiction (l).

The meaning of fiction in English law is not easily
defined. Fictio, in the Eoman system, was a technical form
of pleading, a false averment by one party which the other
was not allowed to traverse ; ex. gr., that a peregrinus was
a Eoman citizen {m). It is, therefore, defined by commen-
tators as nihil aliud quam legis adversus vcritatem in re
possihili ex justd causa dispositio (n). The strict meaning
of fiction in English jurisprudence is closely allied to
jircesiimptio juris et de jure, or irrebuttable presumption of
law. There is, however, this difference, that a presumption
of law (le jure assumes a fact which may or may not be
true, but which is probably true ; while in fiction the
falsehood of the assumption is understood and avowed (o).
Super falso et ccrto fingitur, super incerto et vera jure sumitiir.
Thus the presumption that a child under seven is doli
incapax is probably true, but the fiction was almost
certainly false that the plaintiff in former times suing

(k) Green v. Elgie, 5 Q. B. 99. 3, s. 3 ; Slieffield v. Badcliffe, 2 Rol.

(Z) 3 Bl. Com. 43; Co. Litt. 150 a; B. 502; Palm. 854; Finch, C. L.

10 Bep. 40 a ; 11 Bep. 50 a. Bk. 1, o. 5.

(m) Mayne, Ancient Law, Ch. 2. (o) Best on Presumptions of Law,

(to) Gothofred ad Dig. lib. 22, tit. p. 24.

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THE MODE OF ADMINISTEEING JUSTICE. 107

in the Court of Exchequer was an accountant to the
Crown (p), and avowedly so that a contract made on the
high seas had been made at the Eoyal Exchange in
London (q). The object of fiction will be apparent if it be
considered that every decision of a Court of justice involves
a syllogism, of which the major premiss is a general
proposition of law, the minor is supported by the facts of
the particular case, and the conclusion is the decision of
the Court. In the infancy of jurisprudence propositions of
law were rigid, unbending rules, which lawyers were loth to
qualify or weaken by exceptions. In order to arrive at
that conclusion to the syllogism which justice obviously
demanded, the major premiss was not touched, but by a
fiction of law something was assumed in the minor which
was avowedly not true. An examination of the older cases
seems to show that fiction originally operated by an aver-
ment in the record, which, although known to be false, was
for the purpose of doing substantial justice assumed to
be true. It must, however, be remarked that fiction is
frequently employed in a less accurate sense to include the
extension by Courts of equity of rules of law (r). The
modification of pleading in modern times has tended to
diminish the operation of fiction strictly so called, although
the effect of its former prevalence is probably ineradicable.
The tendency to set out with truth and detail the actual
facts of a case is incompatible with the use of fictitious
averments, which are no longer necessary, when the rules
of law are themselves modified and developed so as to meet

(p) 3 Bl. Com. 46. ment creating the power, so that

(g) 3 Bl. Com. 107 ; 4 Inst. 134. the appointee takes vmder him who

(r) The doctrine that "money to created the power, and not under him

be laid out in land is to be treated as who executes it, has been called a

land," long established in Courts of fiction ; and so it was considered in

equity, " is in truth a mere fiction ; " Bartlett v. Ramsden, 1 Keb. 570.

see per Kelly, O.B., Be De Lancey, See also yer Ld. Hardwiolse, Duke of

L. B. 4 Ex. 358; S. C, 5 Id. 102. MarlboroughY.Ld.Godolphm,2YeB.

So the doctrine that a deed exeout- Sen. 78, who explains the above

ing a power refers back to the instru- proposition ; Clere's case, 6 Rep. 17.

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108 THE MODE OP ADMINISTERING JUSTICE.

the ends of justice. The analogy between fiction and
presumption juris ct clejnir has been already noticed. It may
here be added, that while the latter may never be rebutted,
and are absolute propositions of the law ; of fiction, it has
been said, " although it shall never be contradicted so as to
defeat the ends for which it was invented, for every other
purpose it may be contradicted " (s). It is not to be used
at all, except "ad conciliandavi cequitatem cum ratione et
suhtilitate juris " (t). Since equity is the life of legal fiction,
where substantial justice does not require its interference,
still more where it would suffer from its operation, fiction
has no place («)• Fictions, therefore, are only to be made
for necessity, and to avoid mischief (x), and must never be
allowed to work prejudice or injury to an innocent party (y) .
Fictio legis nemincm ladif, nemini operatur damnum vcl
injuriam {z).
Examples. The following examples must suffice to illustrate the rule

which we have been discussing. If a man disseise me,
and during the disseisin cut down the trees growing upon
the land, and afterwards I re-enter, I shall have an action
of trespass against him, for after my regress the law, as
against the disseisor and his servants, supposes the free-
hold always to have continued in me ; but if my disseisor
makes a feoffment in fee, gift in tail, or lease for life or
years, and afterwards I re-enter, I shall not have trespass
against those who came in by title ; for this fiction of the
law, that the freehold always continued in me, is moulded
to meet the ends of justice, and shall not, therefore, have
relation to make him who comes in by title a wrongdoer,
but in this case I shall recover all the mesne profits against

(s) Mostijn V. Fabrigas, per Ld. (a:) S'Re^.BOs,, Butler and Baker's

Mansfield, Oowp. 177 ; per Bramwell, case.

B., A.-G. V. Kent, 1 H. & 0. 28. (y) Ibid. 29 b ; 11 Eep. 51 a ; 13

(t) Soot, ad Pand. 22, 3,Voot. n. 19. Eep. 21 a.

(u) Johnsons. Smith,!2Bun:. 962, (a) 2 Bol. R. 502; Palmer, 354;

per Ld. Mansfield ; and see 10 Rep, also 8 Rep. 36 a.
40, 89.

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THE MODE OF ADMINISTERING JUSTICE. 109

my disseisor (a). It has also been held {b), that, though the
customary heir of a copyhold cannot maintain trespass
without entry, there is after entry a relation back to the
time of accruing of the legal right to enter, so as to support
an action for trespasses committed before such entry ; this
relation being " created by law for the purpose of preventing
wrong from being dispunishable, upon the same principle
on which the law has given it in other cases."

Again, although for some purposes the whole assizes are
to be considered as one legal day, " the Court is bound, if
required for the purpose of doing substantial justice, to
take notice that such legal day consists of several natural
days, or even of a fraction of a day." Evidence was there-
fore admitted to show that an assignment of his goods by
a felon bond fide made for a good consideration after the
commission day of the assizes, was in truth made before
the day on which he was tried and convicted, and, on
proof of such fact, the property was held to pass by the
assignment (c).

Where it appeared that the writ was issued on the
2nd of July, and on the same day, but before the issuing
of the writ, the cause of action arose, it was argued, on
demurrer, that the issuing of the writ of summons being a
judicial act, must be considered as having taken place, at
the earliest moment of the day, and therefore before the
cause of action accrued. It was held, however, that the
Court could take cognizance of the fact, that the writ did
not issue until after the act had been committed for which
the penalty was sought to be recovered id).

(a) Liford's case, 11 Rep. 51 ; and the maxim de minimis non

Hobart, 98, cited by Coleridge, J., curat lex, post. There was formerly

Garland v. Carlisle, 4 01. & F. 710. an analogous fiction relating to judg-

(6) Barnett v. Earl of Guildford, ments, Lyttleton v. Cross, 3 B. & 0.

11 Ex. 19, 33. 317, 325 ; 27 B. B. 370 ; but now

(c) Whitaker v. Wisbey, 12 0. B. see B. S. 0. 1883, 0. XLI., r. 3.
44,58,59. See Reg.y. Edwards, and {d) Clarke y. Bradlaugh, 8 Q. B.

Wright v. Mills, cited ante, p. 57, D. 63.

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Still less will a legal fiction be raised so as to operate
to the detriment of any person, as in destruction of a lawful
vested estate, for fictio legis inique operatur alicui darmiwn
vel injuriam (e). The law does not love that rights should
be destroyed, but, on the contrary, for the supporting of
them invents notions and fictions (/). And the maxim in
fictione juris subsistit cequitas is often applied by our Courts
for the attainment of substantial justice, and to prevent
the failure of right (g). " Fictions of law," as observed by
Lord Mansfield, " hold only in respect of the ends and
purposes for which they were invented. When they are
urged to an intent and purpose not within the reason
and policy of the fiction, the other party may show
the truth " (h).

CuESUS CuEiTE EST Lex GvRiJE. (3 Bulst. 53.) — The
practice of the Court is the law of the Court (i).

" Every Court is the guardian of its own records and
master of its own practice " {k) ; and where a practice has

(e) 3 Eep. 36 ; per Cur., Wai-mg v.
Dewbury, Gilb. Eq. B. 228.

(/) Per Gould, J., Cage v. Acton,
1 Ld. Baym. 516, 517.

(g) Loio V. Little, 17 Johnson, B.
(U.S.), 348.

{h) Morris v. Pit^h, 3 Burr. 1243.

(i) " It was a common expression
of the late Chief Justice Tindal, that
the course of the Court is the
practice of the Court ;" jj)«>" Cress-
well, J., Freeman v. Tranah, 12
C. B. 414.

" The power of each Court over its
own process is unlimited ; it is a
power incident to all Courts, inferior
as well as superior ; were it not so,
the Court would be obliged to sit still

and see its own process abused for
the purpose of injustice.'' Fer
Alderson, B., Cocker v. Tempest,
7 M. & W. 502, cited, per WiUes, J.,
Stammers v. Hughes, 18 C. B. 585.

(k) Per Tindal, C.J., Scales y.
Cheese, 12 M. & W. 687 ; Gregory v.
Duke of Brunswick, 2 H. L. Cas. 415;
Mellish V. Richardson, 36 B. E. Ill ;
1 CI. & F. 221, cited NewtonY. BoodU,
9 C. B. 529 ; per Alderson, B., Ex
p. Story, 8 Ex. 199; Jackson v.
Galloway, 1 C. B. 280; Beg. v.
DenbighsM/re JJ., 15 L. J. Q. B. 385 ;
per Ld. Wynford, Ferrier v. Howden,
4 CI. & P. 32. But sea Fleming v.
Dunlop, 7 CI. & P. 43.

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THE MODE OF ADMINISTERING JUSTICE. Ill

existed it is convenient, except in cases of extreme urgency
and necessity (l), to adhere to it, because it is the practice,
even though no reason can be assigned for it (hi) ; for
an inveterate practice in the law generally stands upon
principles that are founded in justice and convenience {n).
Hence, if any necessary proceeding in an action be informal,
or be not done within the time limited for it, or in the
manner prescribed by the practice of the Court, it may
sometimes be set aside for irregularity, for via trita via
iuta (o) ; and the Courts of law will not sanction a
speculative novelty without the warrant of any principle,
precedent, or authority (j>).

It has been remarked, moreover, that there is a material
distinction between things required to be done by the
common or statute law of the land, and things required
to be done by the rules and practice of the Court. Any-
thing required to be done by the law of the land must be
noticed by a Court of appellate jurisdiction, but such a
Court does not of necessity regard the practice of an inferior
one (q). In matters of procedure and practice, as in matters
of discretion, the practice of the House of Lords has been
not to interfere with the decisions of Courts below, unless
perfectly satisfied that they are based upon erroneous
principles (r).

Lastly, even where the course of practice in criminal law
has been unfavourable to the accused, and contrary to
principles of justice and humanity, it has been held that

(l) See, for instance, Finney v. (o) Wood v. Hurd, 3 B. N. 0. 45 :

Beesley, 17 Q. B. 86. 10 Eep. 142.

(m) Per Ld. EUenborough, Bovill (p) See Judgm., Exp. ToUerion

V. Wood, 2 M. & S. 25 : 15 Bast, Overseers, 3 Q. B. T99.

226; per hi. CampheU, Edwards Y. (g) Per Holroyd, J., Sandon v.

Martyn, 21 L. J. Q. B. 88; S.O., 17 Proctor, 7 B. & C. 806; cited arg.,

Q. B. 693. 11 M. & W. 455.

(n) Per Ld. Eldon, Buck, 279. (r) Per Ld. Selborne, Cowan v.

See per Ld. Abinger, Jacobs v. Lay- Duke of Buccleugh, 2 App. Gas. 844,

born, 11 M. & W. 690. 347.

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THE MODE OP ADMINISTERING JUSTICE.

such practice constitutes the law, and cannot be altered
without the authority of Parliament (s).

Doctrine of
waiver.

Pleading.

Consensus tollii Eeeorbm. (2 Inst. 123.) — The acquies-
cence of a party iclio might take advantage of an error
obviates its effect.

In accordance with this rule, if the venue in an action
was laid in the wrong place, and this was done per assensiom
partium, with the consent of both parties, and so entered of
record, it stood (i) ; and where, by consent of both plaintiff
and defendant, the venue was laid in London, it was held,
that no objection could afterwards be taken to the venue,
notwithstanding it ought, under a particular Act, to have
been laid in Surrey, for consensus tollit errorem (ii). Consent
cannot, however (unless by the express words of a statute),
give jurisdiction (x), for mere nullity cannot be waived.

On the maxim under consideration depends also the
important doctrine of waiver, that is, the passing by of a
thing (y) ; a doctrine which is of wide application both in
the science of pleading and in those practical proceedings
which are to be observed in the progress of a cause from
the first issuing of the writ to the ultimate signing of
judgment and execution.

With reference to pleading, however, the rule, that an

(s) Per Maule, J., 8 Scott, N.E.,
599, 600.

(t) Fineiix v. Hovenden, Cro. Eliz.
664 ; Co. Litt. 126 a, and Mr. Har-
grave's note (1) ; 5 Bep. 37 ; Dyer,
36Y. See Grow v. Edwards, Hob. 5.
Local venues are now abolished for
nearly all actions in tbe High
Court ; see E. S. 0. Order XXXVI.
r. 1 : Buckley v. Hull Docks Co.,
[1893] 2 Q. B. 93 ; 62 L. J.iQ. B. 449 :
and s. 2 of the Public Authorities
Protection Act (56 & 57 Vict. c. 61).

(m) Furnival v. Stringer, 1 B. N.
C. 68.

(x) See Andrewes v. Elliott, 6 E. &
B. 388 (recognised in Tyerman v.
Smith, lb. 719, 724) ; Lawrence v,
Wilcock, 11 A. & E. 941 ; Vansittart
V. Taylor, 4 B. & B. 910, 912 ; British
Wagon Co. v. Gray, [1896] 1 Q. B. 35.

{y) Toml. Law. Diet. tit. Waiver.
See Earl of Darnley v. L. C. & D.
R. Co., L. E. 2 H. L. 43 ; Bamsden
V. Dyson, L. E. 1 H. L. 129, cited
Xiost.

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THE MODE OF ADMINISTERING JUSTICE. 113

error will be cured by the waiver of the opposite party,
must be taken with considerable limitation ; a mere mistake
in form is now of little moment, but in the time of Lord
Holt such an error might have defeated a substantial case,
and was condoned if the other party pleaded over to it (z).
The effect of a demurrer was to admit the truth of all
matters which were sufficiently stated in the pleading
demurred to, a result which might be obviated by obtaining
leave to plead and demur to the same matter. The
equivalent of which can now be attained without leave by
raising the point of law upon the pleadings (a). By plead-
ing over, however, a party was not formerly considered
to waive his right subsequently to take any substantial
objection in law to the pleading of the other side. It is
conceived that, under the system introduced by the Eules
of 1883 (b), this must still be the case. For the judgment
of the Court must ultimately be based upon and consistent
with the record, and cannot give to a party that to which,
upon his own showing, he is not in law entitled. It must
not, however, be forgotten that the Courts now use the
widest discretion in directing such amendments as may be
necessary in order to determine the real question in
controversy (c).

When applied to the proceedings in an action, waiver Practice.
may be defined to be the doing something after an
irregularity committed, and with a knowledge of such
irregularity, where the irregularity might have been cor-
rected before the act was done; and it is essential to
distinguish a proceeding which is merely irregular from
one which is completely defective and void. In the latter
case the proceeding is a nullity, which cannot be waived by
any laches or subsequent proceedings of the opposite party.

(z) Anon., 2 Valk. 519. now, as formerly, be pleaded; 0.

(a) Eules, 1883, 0. XXV., r. 2. XIX., r. 15.

(6) Except In caaes where the (c) Jud. Act, 1873, s. 24, sub-s. 7 ;

defendant relies upon the Statute of Bnles, 1883, 0. XXVIII., r. 2.
Frauds or Limitations, which must

L.M. 8

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114 THE MODE OF ADMINISTERING JUSTICE.

Where, however, an irregularity has been committed,
and where the opposite party knows of the irregularity,
it is a fixed rule observed by all the Courts in this country,
that he should come in the first instance to avail himself
of it, and not allow the other party to proceed to incur
expense. "It is not reasonable afterwards to allow the
party to complain of that irregularity, of which, if he had
availed himself in the first instance, all that expense would
have been rendered unnecessary " {cl) ; and, therefore, if a
party, after any such irregularity has taken place, consents
to a proceeding which, by insisting on the irregularity, he
might have prevented, he waives all exceptions to the
irregularity (c). This is a doctrine long established and
well known, and extends so far, that a person may be
materially affected in a subsequent criminal prosecution by
proceedings to the irregularity of which he has, by his
silence, waived objection (/).
Implied It may appear in some measure superfluous to add, that

the consent which cures error in legal proceedings, may be
implied as well as expressed : for instance — where, at the
trial of a cause, a proposal was made by the judge in the
presence of the counsel on both sides, who made no objec-
tion, that the jury should assess the damages contingently,
with leave to the plaintiff to move to enter a verdict for the
amount found by the jury, it was held that both parties
were bound by the proposal, and that the plaintiff's counsel
was not therefore at liberty to move for a new trial on
the ground of misdirection {g), for qui tacitc consentirr

(d) Per Ld. Lyndhurst, St. Victor 802 ; Ex p. Morgan, 2 Ch. D. 772 :
V. Devereux, 14 L. J. Ch. 246. 45 L. J. Bk. 36, per Brett, J.

(e) Ex p. Alcock, 1 C. P. D. 68 ; (/) Beg. v. Widdop, L. R. 2 0. C.
45 L. J. C. P. 86 ; Exp. Teatman, B. 3 : 42 L. J. M. C. 9.

16 Ch. D. 283; 44 L. T. 260; (g) Morrish v. Murrey, 13 U. &Vf.

Beresford v. Geddes, L. R. 2 C. P. 52. Booth v. Clive, 10 0. B. 827 ;

285: 36 L. J. G. P. 115; Moseley Ruglies v. G. W. B. Co., 14 C. B.

V. Simpson, L. R. 16 Eq. 226 ; 42 637. See also Harrison v. Wright,

L. J. Ch. 739 ; Exp. Moore, 2 Oh. D. 13 M. & W. 816.

assent.

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THE MODE OF ADMINISTERING JUSTICE. 115

ridetur (h), the silence of counsel implied their assent to
the course adopted by the judge, and " a man who does
not speak when he ought shall not be heard when he
desires uO speak" (i).

So too a new trial will not be granted on the ground that
the judge did not direct the jury, or that he did not leave a
question to the jury, if the party's counsel had an oppor-
tunity of asking him to do it and abstained from asking for
it (j). So too irregularity in the form of a writ, as by mis-
joinder of causes of action which can only be joined with
leave, is waived by the defendant's taking a fresh step in
the action with knowledge of the irregularity (k) .

example.

Communis Eeror facit Jus. (4 Inst. 240.) — Common error
sometimes passes current as law.

The law so favours the public good, that it will in some Rule and
cases permit a common error to pass for right (l) ; as an
instance of which may be mentioned the case of common
recoveries, which were fictitious proceedings introduced by
a kind of pia fraus to elude the statute de Bonis, and which
were at length allowed by the Courts to be a bar to an estate

Qi) Jenk. Cent. 32. See Judgm., Q. B. 737 ; and see R. S. 0. Order

Gosling v. Veley, 7 Q. B. 455 ; LXX., r. 2, and oases thereon.

HmiZdswori/iv. -Emws, L. B. 3H. L. {I) Noy, Max., .9th ed., p. 37 ; 4

263, Inst. 240 ; jp&r Blackburn, J., Beg. v.

(i) 2 Comstock (U.S.), R. 281. Sussex 33., 2 B. & S. 680, and 3ones

See Martina. G. N. B. Co., 16 0. B. v. Tabling, 12 C. B. N. S. 846, 847 ;

179 196—197; Perry v. Davis, 3 S. C, IIH. L. Gas. 290; Walthamy.

0. B. N. S. 769 ; Beaudry v. Mayor Sjgarhes, 1 Ld. Raym. 42. See also

of Mmtreal, 11 Moo. P. C. 399. the remarks of Ld. Brougham in

ij) P«r Halsbury, L.C., in J^CTiH Phipps v. Ackers, 9 CI. & F. 598

V. Fine Art and General Insurance (referring to Cadell v. Palmer, 10

Co., [1897] A. C. at p. 76 : 64 L. J. Bing. 140), and in Earl of Water-

0 B. 681. ford's Peerage claim, 6 CI. & F. 172 ;

(k) Lloyd-v. Great Western Dairies also in Devaynes v. Noble, 2 Buss. &

Company, [1907] 2 K. B. 727 ; 76 My. 506 ; 15 R. R. 151 ; 3anvrin v,

L. J. K. B. 924. Cf. Smuthivaite v. De la Mare, 14 Moo. P, 0. 0. 334.
Hannay, [1894] A. 0. 494 : 62 L. J.

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116 THE MODE OF ADMINISTEKING JUSTICE.

tail, SO that these recoveries, however clandestinely intro-
duced, became by long use and acquiescence a legal mode of
conveyance whereby tenant in tail might dispose of his
lands {m).
Rule must HowBver, the above maxim, although well known, must

be qualified. . .

be applied with very great caution. " It has been some-
times said," observed Lord Ellenborough, " communis error
facitjus ; but I say communis opinio is evidence of what the
law is — not where it is an opinion merely speculative and
theoretical, floating in the minds of persons ; but where
it has been made the groundwork and substratum of
practice " (n). So it was remarked by another distinguished
judge (o), that he hoped never to hear this rule insisted
upon, because it would be to set up a misconception of the
law in destruction of the law ; and, in another case, it was
observed that " even communis error, and a long course of
local irregularity, have been found to afford no protection
to one qui spondet peritiam artis" (p). Some useful remarks
on the application of the above maxim were made also by
Lord Denman, delivering judgment in the House of Lords,
in a well-known case, involving important legal and con-
stitutional doctrines ; and in the course of this judgment
his lordship observed that a large part of the legal opinion
which has passed current for law falls within the description
of " law taken for granted ; " and that, " when in the
pursuit of truth, we are obliged to investigate the grounds
of the law, it is plain, and has often been proved by
experience, that the mere statement and re-statement of a
doctrine — the mere repetition of the cantilena of lawyers —
cannot make it law, unless it can be traced to some

(ot) Noy, Max., 9th ed., pp. 37, 38 ; land, v. Carlisle, 2 Cr. & M. 95 ; Co.

Plowd. 33 b. Litt. 186 a.

(n) Isherwood v. Oldknow, 3 M. & (o) Mr. Justice Poster ; cited by

S. 396, 397 ; 16 R. B. 305, cited in Ld. Kenyon, B. v. Eriswell, 3 T. R.

Treharne v. Layton, L. R. 10 Q. B. 725.

459, 463 ; U L. J. Q. B. 202 ; Oar- (p) 6 01. & F. 199,

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THE MODE OP ADMINISTERING JUSTICE. 117

competent authority, and if it be irreconcilable to some
clear legal principle " (q).

The foregoing remarks may be thus exemplified : A general
understanding had prevailed, founded on the practice of
many years, that if patented inventions were used in a
department of the public service, the patentees would be
remunerated by the officers of the Crown administering such
department, as though the use had been by private indi-
viduals. In numerous instances, patentees had been paid
for the use of their inventions in the public service, and
even the legal advisers of the Crown appeared to consider
the right as settled. There was, further, little doubt that
on the faith of the practice inventors had, at great expense
of time and money, perfected inventions, in the expectation
of deriving part of their reward from the use of their inven-
tions in the public service. It was, nevertheless, held that
the language of the patent should be interpreted according
to its legal effect, irrespective of the practice (r).

But where a decision of the Courts, originally wrong,
or an erroneous conception of the law, especially of real
property, has been made, for a length of time, the basis
upon which rights have been regulated and arrangements
as to property made, the maxim, communis error facit jus,
may be applied (s). Indeed, this is strictly in accordance
with the view of Lord EUenborough, above cited, and it
will be found that, where the Courts of justice have dechned
to correct misconceptions of long standing, the reluctance

(2) Ld. Demnan's judgment in Cas. 788, per Ld. Blackburn ; and

O'Cmnell v. Beg., edited by Mr. see bis Temarte in Dalton-T. Angus,

Leahy, p. 28. See also the allusions 6 App. Cas. 812 : 50 L. J. Q. B. 689.

to Rutton V. Bahne, and Beg. v. As to errors of conveyancers, see per

Millis, Id., pp. 23, 24. And see per Ld. Blackburn, Brownlie v. Camp-

PoUock, C. B., 2 H. & N. 139. bell, 5 App. Gas. 948 ; and Campbell

(r) Feather v. Beg., 6 B. & S. 289, v. Campbell, Id. 815 ; and as to mer-

292. See 46 & 47 Vict. c. 57, s. 27, cantile contracts in daily use, see

whereby the law has been altered in per Ld. Bsher, London Founders'

favour of the practice. Association v. Clarke, 20 Q. B. D.

(s) Davidson v. Sinclair, 3 App. 581.

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118

THE MODE OF ADMINISTERING JUSTICE.

has been due to a wholesome fear of interference with rights
based upon them (i).

New trial
when the
damages are
small.

.Db MINIMIS NON CURAT Lex. {Cro. EUz. 353.) — The latv
does not concern itself about trifles.

Courts of justice generally do not take trifling and
immaterial matters into account {u), except under peculiar
circumstances, such as the trial of a right, or where personal
character is involved (r) ; they will not, for instance, take
notice of the fraction of a day, except in cases where there
are conflicting rights, for the determination of which it is
necessary that they should do so (a) ; as, for instance, in a
claim for demurrage of a ship, in which case it has been
expressly held that a fraction of a day counts for a day (?/).

A familiar instance of the application of this maxim
occurred likewise in the rule observed by the Courts at
Westminster, not to grant new trials at the instance of
either party, on the ground of the verdict being against
evidence, where the damages were less than £20 {z). As
remarked by Lord Kenyon («), " where the damages are

686 ; CUrke v. Bradlaugh, 8 Q. B. D.
63 ; Campbell v. Strangeways, 3
0. P. D. 105; 37 L. J. M. 0. 6.
In case of copyright, see Boosey v.
Purday, i Bxch. 145 ; Chatterton v.
Cave, L. R. 10 C. P. 573.

(y) Commercial S. S. Co. v. Boul-
ton, L. E. 10 Q. B. 346.

(z) Bransons. Didshury,12A.&'K-
631 ; Manton v. Bales, 1 C. B. 444 ;
Macrow v. Hull, 1 Burr. 11 ; Burton
V. Thompson, 2 Burr. 664 ; Apps v.
Day, 14 C. B. 112; Hawkins v.
Alder, 18 C. B. 640; see Allum v.
Boultbee, 9 Exoh. 738, 743; per
Maule, J., 11 0. B. 653.

{a) Wilson v. Bastall, 4 T. R. 753 ;
2 R. R. 515. See Vaughan v. Wyatt,
6 M. & W. 496, 497 ; per Parke, B.,

(t) See^osi, omnis innovatio, &a.,
and BainY. Fothergill, L. R. 7 H. L.
158, 208, per Ld. Hatherley ; and
see the dissenting judgment of
Fletcher Moulton, L.J., in Beam v.
Brown, [1909] 2 K. B. 573, 78 L. J.
K. B. 840.

{u) Bell, Diet, and Dig. of Scotch
Law, 284 ; per Sir W. Scott, 2 Dods.
Adm. B. 163; Graham v. Berry, 3
Moo. P. C. 0. N. S. 223.

(v) Joyce V. Metr. Bd. of Works,
4 L. T. 81.

{x) Judgm., 14 M. & W. 582 ; per
Holt, C.J., 2 Ld. Raym. 1095; Beg.
V. St. Mary, Warvnck, 1 E. & B.
816 ; Wright v. Mills, 4 H. & N. 488,
493, 494 ; Evans v. Jones, 3 H. & C.
428 ; Page v. Moore, 15 Q. B. 684—

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THE MODE OF ADMINISXEKINa JUSTICE. 119

small, and the questiou too inconsiderable to be retried, the
Court have frequently refused to send the case back to
another jury. But -wherever a mistake of the judge has
crept in and swayed the opinion of the jury, I do not
recoUect a single case in which the Court have ever refused
to grant a new trial."

Again, a bequest of such parts of the testator's plate as
the legatee shall select entitles the legatee to take the whole ;
he might select the whole except one article of no value,
and the maxim de minimis applies (b).

In further illustration of the maxim, dc minimis non curat Ti^iflipg

lex, we may observe that there are some injuries of so little ^^^^^^^^'

consideration in the law that no action will lie for them (c) ;

for instance, in respect to tithe, the principle which may

be extracted from the cases appears to be, that for small

quantities of corn, involuntarily left in the process of

raking, tithe would not be payable, in the absence of any

particular fraud or intention to deprive the parson of his

full right. Where however a farmer pursued such a mode

of harvesting barley, that a considerable quantity of rakings

was left scattered after the barley was bound into sheaves,

the Court held that tithe was payable in respect of these

rakings, although no actual fraud was imputed to the

farmer, and although he was careful to leave as little rakings

as possible in that mode of harvesting the crop (d).

It may be observed, however, that for an injury to real Trespass to
'' realty.

Ttoigg v. Potts, 1 Cr. M. & R. 93 ; Lee Hall, 5 B. & C. 269, 277 ; 2 Bla.

V. Evans, 12 C. B. N. S. 368 ; Mostyn Com., 21st ed. 262, where the rule

V. Coles, 7 H. & N. 872, 876. In respecting land gained by alluvion is

Maine v. Davey, 4 A. & E. 892, a new referred to the maxim treated of in

trial was granted for misdirection, the text. The maxim applies " only

though the amount in question was with respect to gradual accretions

less than £1. See Poole Y. Whitcomb, not appreciable except after the lapse

12 C. B. N. S. 770. of time ; " per Pollock, C.B., 2 H. &

(6) Arthur v. Mackinnon, 11 Ch. N. 138 ; and in Ford v. Lacey, 7 Id.

D. 385. 155.

(c) See per Powys, J., Ashby v. (d) Qlanville v. Stacey, 6 B. & C.

White, 2 Ld. Raym. 944, answered 543.
by Holt, O.J., Id. 953; WhitcJier v.

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120 THE MODE OF ADMINISTBKING JUSTICE.

property incorporeal, an action may be supported, however
small the damage ; a commoner may maintain an action for
an injury to the common, though his proportion of the
damage amount only to a farthing (e).

Where trifling irregularities or even infractions of the
strict letter of the law are brought under the notice of the
Court, the maxim de miniviis non curat lex is of frequent
practical application (/) . It has, for instance, been apphed
to support a rate, in the assessment of which there were some
comparatively trifling omissions of established forms (//).
So, with reference to proceedings for an infringement
of the revenue laws (/(), Sir W. Scott observed that " the
Court is not bound to a strictness at once harsh and
pedantic in the application of statutes. The law permits
the qualification implied in the ancient maxim, de minimis
non curat lex. Where there are irregularities of very slight
consequence, it does not intend that the infliction of penalties
should be inflexibly severe. If the deviation were a mere
trifle, which, if continued in practice, would weigh little
or nothing on the public interest, it might properly be
overlooked."
fm^miSr' Lastly, in an indictment against several for a misde-

meanor, meanor all are principals, because the law does not

descend to distinguish different shades of guilt in this
class of offences (i).

(e) Pindar v. Wadsworth, 2 East, assessable value of premises involves

154 ; 6 E. E. 412. See 22 Vin. Abr. the fraction of a fartbing, a demand

"Waste" (N.); Harrop y. Hirst, by the overseer of the whole fartbing

L. E. 4 Ex. 43, and other cases cited is excessive and illegal ; Morton v.

post, Chap. V. Brammer, 8 G. B. N. S. 791, 798,

(/) See in connection with crimi- citing Baxter v. Faulam, 1 Wils.

nal liability for a nuisance, Beg. v. 129.

Charksworth, 16 Q. B. 1012; Beg. (h) The Bernard, 2 Dods. Adm. R.

V. Betts, Id. 1022 ; Beg. v. Bussell, 269, 270.
3 E. & B. 942. (i) For a statutory application

(g) White V. Beard, 2 Curt. 498. of the maxim to trifling offences

But where the amount of a poor-rate punishable on summary conviction,

at so much in the pound on the see 42 & 43 A'ict. c. 49, s. 16.

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the mode of administering justice. 121

Omnis Innoyatio plus Novitate pertukbat quam Utilitate
PRODEST. (2 Buhtr. 338.) — Errri/ innovation occasions
more harm by its nordti/, than benefit by its utility.

It has been an ancient observation in the laws of
England, that, whenever a standing rule of law, of which
the reason, perhaps, could not be remembered or discerned,
has been wantonly broken in upon by statutes or new
resolutions, the wisdom of the rule has in the end appeared
from the inconveniences that have followed the innova-
tion (A) ; and the sages of the law have therefore always
suppressed new and subtle inventions in derogation of the
common law (0.

It is, then, an established rule to abide by former pre-
cedents, stare decisis, where the same points come again
in Htigation, as well to keep the scale of justice steady, and
not liable to waver with every new judge's opinion, as also
because, the law in that case being solemnly declared, what
before was uncertain and perhaps indifferent, is now become
a permanent rule, which it is not in the breast of any
subsequent judge to alter according to his private senti-
ments ; he being sworn to determine, not according to his
own private judgment {m), but according to the known laws
of the land— not delegated to pronounce a new law, but to
maintain the old {n)—jus dieere et nonjus dare (o).

[k) 1 Black. Com. 60. See Barn's (n) Per Ld. Kenyon, 5 T. B. 682,

Science of Legal Judgment, 112 6 Id. 605 : and 8 Id. 239 ; ger Grose,

g^ jg J., 13 East, 321 ; 9 Johnson (U.S.),

Lord Bacon tells us in his Essay B. 428 ; :eer Ld. Hardwicke, C,

on Innovations, that, " as the births Ellis v. Smith, 2 Yes. Jun. 16.
of Uving creatures at first are ill- (o) 7 T. B. 696 ; 1 B. and B. 563 ;

shapen, so are aU innovations which Barn's Science of Legal Judgment,

are the'births of time." 2 ; arg. 10 Johnson (U.S.), B. 566 ;

(V) Co. Litt. 282 b, 379 b; per "My duty," says Alderson, B., in

Grose, J., 1 M. & S. 394. MilUr v. Salomons, 7 Ex. 543, " is

(m) See per Ld. Camden, 19 plain. It is to expound and not to

Howell, St. T. 1071 ; per Williams, make the law— to decide on it as I

J., i CI. & F. 729 ; per Best, C.J., find it, not as I may wish it to be ; "

Newton v. Coiuie, 4 Bing. 241 ; 29 and see per Coltman, J., 4 C. B. 560

B. B. 541 ; per Alderson, B., 4 Ex. 806. —561.

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122 THE MODE OF ADMINISTERING JUSTICE.

" The province of the legislature is not to construe but
to enact, and their opinion, not expressed in the form of
law as a declaratory provision would be, is not binding
on Courts whose duty is to expound the statutes they
have enacted " (2;) ; for the maxim of the Eoman law, ejus
est interi^retari eujus est condcre {q), does not under our
constitution hold.

Our common-law system, as remarked by a learned
judge, consists in the applying to new combinations of
circumstances those rules of law which we derive from
legal principles and judicial precedents (/•) ; and for the
sake of attaining uniformity, consistency, and certainty,
we must apply those rules, where they are not plainly
unreasonable and inconvenient, to all cases which arise,
and we are not at liberty to reject them, and to abandon
all analogy to them, in those to which they have not yet
been judicially applied, because we think that the rules
are not as convenient and reasonable as we ourselves could
have devised. " It appears to me to be of great import-
ance to keep this principle of decision steadily in view,
not merely for the determination of the particular case,
but for the interests of law as a science " (s).
Settled law Accordingly where a rule has become settled law, it is

must not be

disturbed. to be followed, although some possible inconvenience may
grow from a strict observance of it, or although a satis-
factory reason for it is wanted, or although the principle
and the policy of the rule may be questioned (<). If, as

(p) Judgm., 14 M. & W. 589. pense." See jper Cur., Austin v.

(q) See Tayl. Civ. L., 4tli ed. 96. Holmes, 3 Denio (U.S.), R. 224.

(r) As to the value of precedents, (s) Per Parke, J., Mirehouse v.

Palgr. Orig. Auth. King's Council, Bennell, 1 CI. & P. 546. "When

9,10. " An unnecessary departure the law has become settled, no specu-

from precedents, whether it spring lative reasoning upon its origin,

from the love of change, or be the policy, or expediency, should prevail

result of negligence or ignorance on against it ; " 3 Denio (U.S.), B. 50.

the part of the pleader, ought not to (t) Per Tindal, C.J., Mirehouse v.

be encouraged. It can only lead to Bennell, 8 Bing. 557 ; 36 R. R. 139

useless litigation, delay, and ex- 179. See the authorities cited,

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THE MODE OF ADMINISTERING JUSTICE. 123

has been observed, there is a general hardship affecting
a general class of cases, it is a consideration for the legis-
lature, not for a Court of justice. If there is a particular
hardship from the particular circumstances of the case,
nothing can be more dangerous or mischievous than upon
those particular circumstances to deviate from a general
rule of law (u) ; " hard cases," it has repeatedly been said, are
apt to " make bad law " (x), and miscra est servitus ubijus
est i-aiiu)ii aut incoium (y) — obedience to law becomes a
hardship when that law is unsettled or doubtful; which
maxim apphes with peculiar force to questions respecting
real property ; as, for instance, to family settlements, by
which provision is made for unborn generations ; " and if,
by the means of new lights occurring to new judges, all
that which was supposed to be law by the wisdom of our
ancestors, is to be swept away at a time when the particular
limitations are to take effect, mischievous indeed will be
the consequence to the public " (,j).

It is for considerations such as those just noticed that
the Courts are reluctant to upset former decisions which,
although anomalous, have been accepted by the public as
the basis of their transactions for a length of time, a rule
embodied in the maxim, communis error facit jvs (a). It

Eam's Science of Legal Judgment, without regard to the hardship which

33 — 35, and Smith v. Doe, 7 Price, in particular oases may result from

509 ; S. C, 2 B. & B. 599 ; 22 B. E. their application ; " Judgm., 4 Exch.

19 ; Ealston v. Hamilton, 4 Macg. 718. See also Judgm., 3 Exch. 278.

So. App. Cas. 405,^erLd. Westbury. (y) 4 Inst. 246; Shepherd v. Shep-

(u) Per Ld. Loughborough, 2 Ves. herd, 5 T. E. 51, n. (a) ; 2 Dwarr.

Jun. 426, 427 ; per Tindal, C. J., Doe Stats. 786 ; Bao. Aphorisms, vol. 7,

V. iiid/am, 7 Bing. 180; ^fi?- Pollock, p. 148; arg. 9 Johnson (U.S.), E.

O.B., Eeg. v. Woodrow, 15 M. & W- 427, and 11 Peters (U.S.), E. 286.

412 ; per Wilde, C.J., Kepp v. {«) Per Ld. Kenyon, Doe v. Allen,

Wiggett, 16 L. J. 0. P. 237 ; S. 0., 8 T. E. 504. See per Ashhurst, J.,

6 C. B. 280. 7 T. B. 420, and see per Brett, L.J.,

(x) See 4 CI. & P. 378 ; per Ahearn v. Bellman, 4 Ex. D. 210 ;

Coleridge, J., 4 H. L. Cas. 611. 48 L. J. Ex. 681.

"It is necessary that Courts of (a) See ante, p. 115, and cases

justice should act on general rules, there referred to.

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124 THE MODE OF ADMINISTERING JUSTICE.

is pointed out by Lord Hatherley in Bain v. Fothergill (b)
that the House of Lords has frequently acted upon the
mistaken practice of conveyancers, and will regard the
necessity for following previous decisions as more imperative
where the common dealings of mankind are in question (c) .
With respect to matters which do not affect existing
rights to any great degree, but tend principally to influence
futiire transactions, it is for similar reasons generally con-
sidered more important that the rule of law should be
settled, than that it should be theoretically correct (d).
When rule The judicial rule — stare decisis (e) — does, however, admit

hold. of exceptions, where the former determination is most

evidently contrary to reason. But, even in such cases,
subsequent judges do not pretend to make a new law, but to
vindicate the old one from misrepresentation. For, if it be
found that the former decision is manifestly absurd or unjust,
it is declared, not that such a sentence was bad law, but that
it was not law ; that is, that it is not the established custom
of the realm, as has been erroneously determined {/).

We may appropriately conclude these remarks by
observing that, whilst on the one hand innovation on
settled law is to be avoided, yet "the mere lateness of
time at which a principle has become established is not
a strong argument against its soundness, if nothing has
been previously decided inconsistent with it, and it be in
itself consistent with legal analogies " (g). Nay, it is even
true that " a froward retention of custom is as turbulent
a thing as an innovation ; and they that reverence too
much old times are but a scorn to the new " (h).

(b) L. R. 7 H. L. p. 158 at p. 209. example of a long course of deci-

(c) Upon a question of law the H. sions being overruled as contrary to
of L. is bound by its own decisions; reason, see Mills v. Armstrong, 13
see [1898] A. C. 375. A. C. 1 ; 57 L. J. P. 65.

(d) See ^«r Ld. Cottenham, Lo«oM {g) Judgm., Oosling v. Veley, 7
V. Pryse, 4 My. & Cr. 617, 618. Q. B. Ul ; per Ld. Denman, 10

(c) As to which, see Gifford v. Liv- Q. B. 950.
ingstm, 2 Denio (U.S.), E. 392—393. {h) Bacon's Essays, " Of Innova-

(/) 1 Black. Com. 60. For an tions."

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125

CHAPTER IV.

BULBS OP LOGIC.

The maxims immediately following are placed together,
and intitled " Kules of Logic," because they result from
simple processes of reasoning. Some of them, indeed, may
be considered as axioms, the truth of which is self-evident,
and consequently admit of illustration only. A few
examples have in each case been given, showing how the
particular rule has been held to apply, and other instances
of a like nature will readily occur to the reader (a).

Ubi eadbm Eatio ibi idem Jus. (Co. Litt. 10 a.) — Like
reason cloth make like laic (h).
The law consists, " not in particular instances and pre-
cedents, but in the reason of the law, and ubi eadem ratio
idem jus " (c) ; for " reason is the life of the law ; nay, the
common law itself is nothing else but reason ; which is to
be understood of an artificial perfection of reason, gotten
by long study, observation, and experience, and not of
every man's natural reason" (d). The following instance
serves to show how the maxim may be practically applied.
At a time when almost all written engagements were by illustration
deed, it was estabUshed, as a general rule, that it is a good °

(a) Thetitleof this division of the .;^ (c) Ashbyv. White, 2 Ld. Raym.

subject has been adopted from Noy's 957, per Holt, 0 J. t'-,.

Maxims, 9th ed., p. 5. {d) Co. Litt. 97 h.

(6) Co. Litt. 10 a.

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126 BULBS OF LOGIC.

defence to an action to enforce a deed, that after its execu-
tion it was altered without the defendant's privity in a
material point (e). The reason of this rule is that "no
man shall be permitted to take the chance of committing
a fraud, without running any risk of losing by the event
when it is detected " (/), and, therefore, in Master v.
Miller (g) it was decided that the rule was not to be con-
fined to deeds, but must be extended to cases where other
instruments have been materially altered, for instance,
bills of exchange (h) ; for iibi eadem ratio ibi idem jus. And
accordingly the rule has since been applied also to the
material alteration of Bank of England notes (i), as well as
of written contracts not under seal, such as guarantees (k) ,
charter-parties (I), bought and sold notes (m), and building
contracts («) ; and in a case where the validity of an order
to detain a person of unsound mind was in question, it was
laid down that any tampering with a document of that
kind, by materially altering it, would impair its validity
and deprive any person professing to act under it of any
protection from it (o) . It may be added that, as there is a
presumption against fraud or wrong, interlineations and
erasures in a deed are, until the contrary be proved, pre-
sumed to have been made before its execution; whereas,
since a testator may alter his will after its execution

(e) Pigot's case, 11 Eep. 26 b; {k) Davidson Y. Cooper, 11 M. &

not followed, as regards immaterial W. 778 : 13 Id. 343 ; Ellesmere

alterations ; Aldous v. Connoell, Bretvery Go. v. Cooper, [1896] 1

L. R. 3 Q. B. 573. The cases upon Q. B. 75 : 65 L. J. Q. B. 173.

the alteration of instruments are (I) Crookeivit v. Fletcher, 1 H. &

collected in the notes to Master v_ N. 893.

Miller, 1 Sm. L. C. (m) Poioell v. Divett, 15 East, 29 ;

(/) Per Ld. Kenyon, i T. E. 329. 13 B. E. 358 ; Mollett v. Wackcr-

{g) 2 E. E. 399 ; 4 T. E. 820 ; 2 barth, 5 G. B. 181.

H. Bl. 140. (m) Pattinson v. LiccMey, L. R.

(h) As to these, and promissory 10 Ex. 330.

notes, and cheques, see now 45 & 46 (o) Lowe v. Fox, 12 App. Gas. 206.

Vict. c. 61, ss. 61, 73, 89. 214 : 56 L. J. Q. B. 480. For the

(i) Suffell V. Bank of England, 9 case of the alteration of the record

Q. B. D. 555 ; Leeds Bank v. Walker, in an action, see Suker v. Neale 1

11 Id. 84, Exch. 468.

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without fraud or wrong, it is necessary to prove affirmatively
that alterations in a will were made before its execution (p).

There are, however, some things, for which, as Lord Caution
Coke observed, no reason can be given (q) : and with refer- reasratng/'^
ence to which the words of the civil law hold true — non
omnium quce a majorihus constituta sunt ratio reddi potest (r) ,-
and, therefore, we are compelled to admit that, in the
legal science, qui rationem in omnibus qumrunt rationevi
subvcrtunt{s). It is, indeed, sometimes dangerous to
stretch the invention to find out legal reasons for what is
undoubted law (t) ; and this observation applies peculiarly
to the mode of construing an Act, in order to ascertain and
carry out the intention of the legistature : in so doing, the
judges wUl bend and conform their legal reason to the
words of the Act, and will rather construe them literally,
than strain their meaning beyond the obvious intention of
Parliament {u). The spirit of the maxim prefixed to these
remarks, here, however, manifestly prevails ; for, as we
read in the Digest (x), non possunt omnes artictili singillatim
aut legibus aut senatus-considtis comprehcndi: sed cum in
aliqud causa sententia eorum manifesta est, is, qui jurisdictioni
prmest, ad simiUa procedere atque ita jus dicere debet. Nam.,
ut ait Pedius, guotiens lege aliquid unum vel alterum intro-
ductum est, bona oecasio est, ccetera, quce tendunt ad eamdem
utilitatem, vd interpretatione, vel certc jurisdictione supjoleri.

Further although it is laid down that the law is the Qualification

' . 1 • T i_ n °^ general

perfection of reason, and that it always mtends to conform proposition.
thereto, and that what is not reason is not law, yet this

(p) Doe V. Catomore, 16 Q. B. 745 ; ()) D. 1, 3, 20.

Doe V. Palmer, Id. 747 ; Be Adamson, (s) 2 Rep. 75 a.

L R 3 P & D. 253. As to inter- (t) Per Alderson, B., Ellis v.

lineations in wills, see Be Cadge, Griffith, 16 M. & W. 110.

L R IP &!). 543. As to erasures, (u) T. Baym. 355, 356; per Ld.

&c., in affidavits, see R. S. C. 1883, Brougham, Leith v. Irvine, 1 My. &

0 XXXVIII r. 12. K. 289. As to the mode of oonstru-

'{q) Hix y'' Gardiner, 2 Bulstr. ing Acts of Parliament, see further,

196 ; cited, arg. , Leuckhart v. Cooper, post. Chap. VIII.

3 Bing. N. 0. 104. {<^) D. 1, 3, 12, and 13.

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128 RULES OF LOGIC.

must not be understood to mean, that the particular reason
of every rule in the law can at the present day be always
precisely assigned : it is sufficient if there ba nothing in it
flatly contradictory to reason, and then the law will pre-
sume that the rule in question is well founded; viulta
in jure communi, as Lord Coke observed, contra rationem
disputandi, pro communi utilitate introducta sunt (y) — many
things have been introduced into the common law, with a
view to the public good, which are inconsistent with sound
reason. Quod vero contra rationem juris receptum est, non
est producendum ad consequentias (z).
Reasonable- The maxim cited from Lord Coke is peculiarly applic-
custom. able when the reasonableness of an alleged custom has

to be considered : in such a case, it does not follow, from
there being now no apparent reason for such custom, that
there never was (a). If, however, it be in tendency con-
trary to the public good, or prejudicial to the many and
beneficial only to a particular person, such custom is and
must be repugnant to the law of reason, for it cannot have
had a reasonable origin (b).

Again, a clerk who has held preferment in one bishopric
is not, on being presented to a living in another bishopric,
bound, as a condition precedent to his examination on the
question of fitness, to produce letters testimonial and com-
mendatory from his former bishop ; if such a rule existed
a door would thus be opened to arbitrary and capricious
proceedings, rendering the title of the clerk and the right
of the patron dependent on the will of the prior bishop ; such
a conclusion would be at variance with reason, and therefore
repugnant to what is called " the policy of the law "(c).

{y) Co. Litt. 70 b. Mtilta autem 406, 416.

jure civili contra rationem dis- [b) Judgm., 9 A. & B. 421 422.

ptitandi pro utilitate communi re- See further as to the reasonableness

cepta esse innumerabilibtis rebus and validity of a custom, post

p-obari potest ; D. 9, 2, 51, § 2. Chap. X.

(0) D. 1, 3, 14. (c) Bp. of Exeter v. Marshall,

{a) Arg. TysouY. Smith, 9 A. & E. L. B. 3 H. L. 17, 54,

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RULES OF LOGIC. 129

We may conclude these remarks by calling to mind the
well-known saying : lex plus laiidatur quando ratione •pro-
hatiir (ci)— then is the law most worthy of approval, when
it is consonant to reason ; and with Lord Coke we may hold
it to be generally true, " that the law is unknown to him
that knoweth not the reason thereof, and that the known
certainty of the law is the safety of all "(e).

Cessante Eatione Lbgis cessat ipsa Lex. {Co. Litt.
70 6.) — Reason is the soul of the law, and when the
reason of any particular laio ceases, so does the law
itself if).

For instance, a Member of Parliament is privileged from Examples :
arrest during the session (/), in order that he may discharge ft-o^afrest.
his public duties, and the trust reposed in him ; but the
reason of this privilege ceases at a certain time after the
termination of the parliamentary session, because the public
has then no longer an immediate interest in the personal
freedom of the individuals composing the representative
body, and cessante causa cessat effectus (g).

Again, where trees are excepted out of a demise, the soil Trees ex-
itself is not excepted, but sufficient nutriment out of the demise.
land is reserved to sustain the vegetative life of the trees,
for, without that, the trees which are excepted cannot
subsist ; but if, in such a case, the lessor fells the trees, or
by the lessee's license grubs them up, then, according to the
above rule, the lessee shall have the soil (h).

{d) 1 Inst. Epil., cited by Ld. Davis v. Powell, Willes, 46, cited

Kenyon, Porter v. Bradley, 3 T. R. arg. 8 0. B. 786.

146; 1 B. B. 675; and Dalmer v. (ff) Be Armstrong, [1892] 1 Q. B.

Barnard, 7 T. B. 252 ; arg. Doe v. 327.

Ewart, 7 A. & E. 657. (g) See arg. Oas. temp. Hardw. 82 ;

(e) 1 Inst. Epil. " Certainty is the Qowdy v. Duncombe, 1 Exch. 430.

mother of repose, and therefore the (h) Liford's case, 11 Eep. 49, cited

common law aims at certainty ;" ^er Hewitt v. Isham, 7 Exch. 79, and

Ld. Hardwicke, 1 Dick. 245. post, Chap. VI., s. 3.

(/) 7 Eep. 69 ; per Willes, C.J.,

L.M. 9

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RULES OF LOGIC.

Gommon

pur cause de
vicinage.

Law as to
validity of
marriage.

The same principle applies where a right exists of common
pw cause de vicinage: a right depending upon a general
custom and usage, which appears to have originated, not in
any actual contract, but in a tacit acquiescence of all parties
for their mutual benefit. This right does not, indeed,
enable its possessor to put his cattle at once on the neigh-
bouring waste, but only on the waste which is in the manor
where his own lands are situated ; and it seems that the
right of common of vicinage should be considered merely
as an excuse for the trespass caused by the straying of
the cattle, which excuse the law allows by reason of the
ancient usage, and in order to avoid the multiplicity of suits
which might arise where there is no separation or inclosure
of adjacent commons (i). But the parties possessing the
respective rights of common, may, if they please, inclose
against each other, and, when they have done so, the right
of common pur cause de vicinage is no longer an excuse to an
action of trespass if the cattle stray ; for cessante ratione
legis cessat lex (k).

As regards the consent of parents to the marriage of their
minor children, it has been observed (l) that " any analogy
which existed between marriages by banns and marriages
by notice to the registrar has been effaced — the attempt
at securing that consent in marriages to the latter class
by pubHcity relinquished — and the procurement of actual
consent substituted in the same manner as had always been
used in marriages by licence. There is no reason, therefore,
why those decisions which have hitherto only been applied
to marriages by banns, and which have their foundation in
the necessity for securing that publicity through which it is
the object of banns to reach the parents' consent, should be

(i) Jmes V. Eobin, 10 Q. B. 581,
620. See also Clarke v. Tinker, Id.
604 ; Prichard v. Powell, Id. 589.

(&) 4 Rep. 38; Co. Litt. 122 a;
Finch, Law, 8 ; per Powell, J.,

Broomfield v. Eirber, 11 Mod. 72 ;

Gullett V. Lopes, 13 East, 348 ;
Judgm. Wells v. Pearcy, 1 Bing.
N. C. 556, 566; Heath v. Elliott,
4 Bing. N. C. 388.

(I) Holmes v. Simmons, L. R. 1
P. & D. 528.

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RULES OF liOGIO. 131

applied to marriages in which that consent is otherwise
attained and secured. Cessante ratione cessat et lex."

Another illustration is afforded by the rule, which,
through neglect of the principle under discussion, has often
been misunderstood, viz., that a person may not make
felony the foundation of a civil action. This can be true
only where the felon himself is defendant or a necessary
party, and the claim is founded on the felony. " The rule
is founded on a principle of public policy, and where the
public policy ceases to operate, the rule shall cease also and
the familiar phrase, ' The action is merged in the felony '
is not at all times literally true " (m).

Db non apparbntibus bt non bxistentibus badem est Ratio.
(4 Rep. 4:7 a: 5 Id. 5 b.) — That which does not appear
will iwt be presumed to exist (n).

This " well-established maxim in legal proceedings," Maxim, how
which " is founded on principles of justice as well as of applied,
law " (o), applies where a party seeks to rely upon any
deeds or writings which are not produced in Court, and the
loss of which is not accounted for or supplied in the manner
which the law prescribes ; for in this case they should be
treated, as against such party, as if non-existent {p ).

On the consideration of a special verdict, the Court will Special
neither assume a fact not stated therein nor draw inferences "^^rdict.
of facts necessary for the determination of the case from
other statements contained therein (g).

In reading an affidavit also, the Court will look solely at
the facts deposed to, and will not presume the existence of

(m) Per Ld. Tenterden, Stone v. Walcot Overseers, 2 B. & S. 560.

Marsh, 6 B. & 0. 551, 564 ; 30 B. B. (o) See 12 Howard (U.S.), E. 253.

420. See the subject further dis- (p) Bell's Diet, of Scotch Law,

cussed, post, p. 171. 287.

(n) See per Bullet, J., B. v. Bp. (q) Tancred v. Christy, 12 M. &

of Chester, 1 T. E. 404 ; 1 E. E. W. 316 ; Cmdrey's case, 5 Eep. 5.
237 ; pe»" Cookburn, C.J., Beg. v.

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RULES OF LOGIC.

Bond.

Notice of
dishonour.

Increase jjej-
alluvionem.

additional facts in order to support the allegations made in
it. To the above, therefore, and similar cases, occurring
not only in civil, but also in criminal proceedings, the
maxim quod non apparet non est (r) is emphatically applic-
able : that which does not appear must be taken in law as
if it were not (s).

In an action by two commissioners of taxes (t) on a bond
against the surety of a tax-collector, appointed under 43
Geo. 3, c. 99, it appeared that the Act contained a proviso
that no such bond should be put in suit against the surety
for any deficiency, other than what should remain unsatis-
fied after sale of the collector's lands under the powers
given to the commissioners by the Act ; it further appeared
that, at the time when the bond was put in suit, the obligor
had lands within the jurisdiction of the plaintiffs, but of
which they had no notice or knowledge : it was held that
seizure and sale of lands of the collector, of the existence of
which the commissioners had no notice or knowledge, was
not a condition precedent to their right to proceed against
the surety ; this conclusion resulting, as was observed, from
the sound principle contained in the above maxim (u).

So, where a notice of dishonour of a bill of exchange
described the bill generally as "Your draft on A. B.," the
Court held, on motion for a nonsuit, that if there were
other bills or drafts to which the notice could refer, it was
for the defendant to show such to be the fact ; and that as
he had not done so the above maxim applied ; for, inasmuch
as it did not appear that there were other bills or notes, the
Court could not presume that there were any (x).

Again, the increase per alluvionem is described to be when
the sea, by casting up sand and earth by degrees, increases

(r) 2 Inst. 479 ; Jenk. Cent. 207.

(s) Vaugh. B. 169.

(t) Owynne v. Burnett, 6 Bing. N.
C. 453 ; S. C, 1 Scott, N. E. 711 :
7 01. & F. 572.

(u) Per Vaughan, J., 6 Bing. N.

C. 539; S. C, 1 Scott, N. B. 798.

{x) Shelton v. Braithwaite, 7 M. &
W. 436; Bromage v. Vaughan, 9
Q. B. 608; MelUrsh v. Bippen, 7
Exch. 578.

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RULES OF LOGIC. 133

the land, and shuts itself within its previous limits (y). In
general, the land thus gained belongs to the Crown, as
having been a part of the very fundus maris ; but if such
alluvion be formed so imperceptibly and insensibly, that it
cannot by any means be ascertained that the sea ever was
there — idem est non esse et non apparere, and the land thus
formed belongs as a perquisite to the owner of the land
adjacent (z).

Lastly, it has been suggested (a) that " there is a dis- Process of
tinction between process of superior and inferior Courts ;
in the former, omnia prcesumuntur rite esse acta (b), in the
latter the rule de non apparentibus et non existentibus eadem
est ratio applies."

Court.

NoN POTEST ADDUCI EXCEPTIO EJUSDEM RbI CUJUS PETITUR

DissoLUTio. {Bac. Max., reg. 2.) — A matter, the validity

of which is at issue in legal proceedings, cannot be set up

as a bar thereto.

Where the legality of some proceeding is the matter in

dispute between two parties, he who maintains its legality,

and seeks to take advantage of it, cannot rely upon the

proceeding itself, as a bar to the adverse party. It is

obvious that to do so would involve the logical fallacy of

petitio piincipii, and would in many cases preclude all

redress to an aggrieved party. "It were impertinent and

contrary in itself," said Lord Bacon, " for the law to allow

of a plea in bar of such matter as is to be defeated by the

same suit, for it is included; and otherwise a man could

never arrive at the end and effect of his suit " (c).

(y) See Gifford v. Lord Yar- {a) Arg. Kinning v. Buchanan, 8

borough, 5 Bing. 163 ; 27 K K. 305. 0. B. 286.

(z) Hale, De Jure Maris, pt. 1, (6) A presumption which appears

c. i, p. 14 ; B. V. Ld. Tarborough, to be soimd, per Ld. Chelmsford,
8 b'. & 0. 96, 106 ; 27 R. E. 292 ; L. R. 5 H. L. 234, 248 ; see post,
S. C, 1 Dow & CI. 178. This right Chap. X.

has also been referred to the (c) Bac. Max., reg. 2 ; Pzisey v.

principle, de minimis non curat lex ; Desbourvie, 3 P. Wms. 317.
arg., 3 B. and C. 99.

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RULES OF LOGIC.

Instances :
Attainder.

Appeal.

A few instances will suffice to show the apphcation of this
rule. If a man was attainted and executed, and the heir
brought error upon the attainder, it would have been bad
to plead corruption of blood by the same attainder ; other-
wise the heir would have been without remedy ever to
reverse the attainder (d). So, although a person attainted
could not be permitted to sue for any civil right in a Court
of law, yet he might take proceedings, and would be heard,
for the purpose of reversing his attainder (e).

On the same principle, although a party in contempt is
not generally entitled to take any proceeding in the cause,
he will nevertheless be heard if his object be to get rid of
the order or other proceeding which placed him in con-
tempt, and he is also entitled to be heard for the purpose
of resisting or setting aside for irregularity any proceedings
subsequent to his contempt (_/). And where a man does
not appear on a vicious proceeding, he is not to be held to
have waived that very objection which is a legitimate cause
of his non-appearance (g).

Where the judge of an inferior Court had illegally com-
pelled a plaintiff who appeared to be nonsuited, and upon
a bill of exceptions being brought, the nonsuit was entered
on the record, the defendant was not allowed to contend
that the entry on record precluded the plaintiff from showing
that he had refused to consent to the nonsuit, for that would
have been to set up as a defence the very thing which was
the subject of complaint, — a course prohibited by the above
maxim (h). So, the judgment or opinion of the Court

(d) Bao. M,, reg. 2; Loukes v.
Holbeach, i Bing. 420, 424, com-
mented on, Byrne v. Manning, 2
Dowl. N. S. 403. Attainder was
abolished by the Forfeiture Act,
1870, s. 1.

(e) See 1 Taunt. 84, 93.

The same principle applies in the
case of proceedings to reverse out-
lawry ; Jenk. Cent. 106 ; Finch,

Law, 46; Matthews v. Gibson, 8
East, 527 ; Craig v. Levy, 1 Exch.
570.

(/) Per Ld. Cottenham, Chuck
V. Cremer, 1 Coop. 205 ; King v.
Bryant, 3 My. & Cr. 191. See 1
Daniell, Oh. Pr., 3rd ed. 354 et seg.

((/) Per Knight Bruce, V.-C, 15
L. J. Bankr. 7.

{h) Strother v. Hutchinson, 4

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RULES OF LOGIC. 135

below cannot, with propriety, be cited as an authority on
the argument, because such judgment and opinion are then
under review (i).

The maxim seems also to apply, when the matter of the Extension of
plea is not to be avoided in the same but in a different suit :
and, therefore, if a writ of error was brought to reverse an
outlawry in any action, outlawry in another action did not
bar the plaintiff in error ; for otherwise, if the outlawry was
erroneous, it could never be reversed {k) ; the general
rule, however, was that an outlaw could not enforce any
proceeding for his own benefit (Z).

AliLEGANS CONTEAEIA NON EST AUDIENDUS. (Jcilk. Cent. 16.) —

He is not to be heard iclio alleges things contradictory to

each other.
This elementary rule of logic, which is frequently applied
in our Courts of justice, will receive occasional illustration
in the course of this work. We may for the present observe
that it expresses, in other language, the trite saying of
Lord Kenyon, that a man shall not be permitted to " blow
hot and cold " with reference to the same transaction,
or insist, at different times, on the truth of each of two
conflicting allegations, according to the promptings of his
private interest (?»).

Bing. N. C. 83, 90 ; distinguished N. S. 578. Outlawry is now prao-

in Corsar v. Beed, 17 Q. B. 540. tically obsolete ; see Arohbold's

(i) See per Alexander, G.B., B. v. Practice, lath ed., vol. ii. p. 1081.

Westwood, 7 Bing. 83 ; 33 B. B. 24 ; (m) See Woodv. Dwarris, 11 Exch.

per North, C.J., Barnardiston v. 493 ; Andrews v. Elliott, 5 E. & B.

Soame, 6 St. Tr. 1094. See also, in 502 ; Tyerman v. Smith, 6 E. & B.

further illustration of the maxim, 719 ; Morgan v. Couchman, 14 C. B.

Masters v. Lewis, 1 Ld. Raym. 57. 100 ; Humblestone v. Welham, 5 0. B.

(k) Jenk. Cent. 37 ; GUb. For. 195 ; Williams v. Thomas, 4 Exch.

Bom. 54. See Bac. Max., reg. 2. 479; Taylor v. Best, 14 0. B. 487;

(Z) Per Parke, B., Beg. v. Lowe, 8 Beg. v. Evans, 3 E. & B. 863 ;

Exch. 698. See Be Pyne, 5 G. B. Williams v. Lewis, 7 E. & B. 929;

407 ; Dwvis V. Trevamion, 2 D. & L. Gen. Steam Nav. Co. v. SUpper, 11

743 ; Walker v, Thelluson, 1 Dowl. 0. B. N. S. 493 ; Elkin v. Baker, Id.

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136 EULES OF LOGIC.

In Cave v. Mills (n), the maxim under notice was applied.
The plaintiff was surveyor to trustees of turnpike roads ;
as such surveyor it was his duty to make all contracts, and
to pay the sums due for the repair of the roads, he being
authorised to draw on the treasurer to a certain amount.
His expenditure, however, was not strictly limited to that
amount, and in the yearly accounts presented by him to
the trustees a balance was generally claimed as due to him,
and was carried to the next year's account. Accounts were
thus rendered by him for three consecutive years showing
certain balances due to himself. Theso accounts were
allowed by the trustees at their annual meeting, and a
statement based on them of the revenue and expenditure
of the trust was published as required by 3 Geo. 4, c. 126,
s. 78. The trustees, moreover, believing the accounts to be
correct, paid off with monies in hand a portion of their
mortgage debt. The plaintiff afterwards claimed a larger
sum in respect of payments which had in fact been made
by him, and which he ought to have brought into the
accounts of the above years, but had knowingly omitted.
It was held that he was estopped from recovering the sums
thus omitted, for " a man shall not be allowed to blow hot
and cold — to affirm at one time and deny at another —
making a claim on those whom he has deluded to their
disadvantage, and founding that claim on the very matters
of the delusion. Such a principle has its basis in common
sense and common justice, and whether it is called
' estoppel,' or by any other name, it is one which Courts of
law have in modern times most usefully adopted."

526, 543 ; Oreen v. Sichel, 7 0. B. and allow proceedings to go on

N. S. 747 ; Pearsons. Dawson, E. B. against him to judgment, and then

6 E. 448 ; Haines v. East India Co., to ask the Court to interfere on
11 Moo. P. C. 39; Smiths. Bodson, his behalf on the ground that his
iT. 'R.211,2n; Brewery. Sparrow, name was misspelt; Churchill v.

7 B. & C. 310 ; Lythgoe v. Veinon, Churchill, L. R. 1 P. & D. 486.

5 H. & N. 180 ; see Bice v. Eeed, (») 7 H. & N. 913. See Van Has-

[1900] 1 Q. B. 54. selt v. Sack, 13 Moo. P. C. 0. 185.

A man is not entitled to stand by

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RULES OF LOGIC. 137

The doctrine of estoppel, at any rate by deed and in pais, Estoppel.
is in great measure a development of the principle expressed
in this maxim. Indeed, the learned author of Smith's
Leading Cases, who was the first to reduce to any system
the many applications of the theory of estoppel, seems to
connect estoppel by record also with the present maxim.
He defines estoppel generally (o) as a conclusive admission,
or something which the law treats as equivalent to an
admission.

It is impossible within the limits of this work to give a
satisfactory account of estoppel. The reader is referred to
Smith's Leading Cases (p), and the maxim nuUtis commodum
capere potest de injuria sua propria (q), where some account
win be found of estoppel in pais. There are, however, cases
in which estoppel operates to preclude a person from contra-
dicting that which has been accepted and acted upon as
truth and fact by others, under circumstances which do not
constitute wilful and culpable deception. Such cases are
referable to the present maxim rather than to that just
cited. An illustration of this is afforded by Prentice v.
London Building Society (r). In that case to an action by a
transferree of shares against the trustees of the society, the
trustees pleaded that the matter was a dispute between the
society and a person claiming on account of a member, and
one that ought to be settled by arbitration; It appeared at
the trial that the shares in question had been forfeited by
the defendants to make good a debt due from an absconding
secretary who had transferred them to the plaintiff. It was
accordingly held that as the trustees denied the right of the
plaintiff to be a member of the society, they were estopped
from saying that the dispute was one with a member.

So where a seller has recognised the right of his buyer to
dispose of goods remaining in the actual possession of the

(o) 2 Sm. L. C, nth ed. 7U. (r) L. E. 10 C. P. 679 ; see also

(p) Duchess of Kingston's case. Smith v. Baker, L. B. 8 0. P. 35 ;

(2) Post,^. 240, 42 L. J. 0. P. 155.

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1,38 RULES OF LOGIC.

seller, he cannot defeat the right of a person claiming under
the buyer on the ground that no property passed to the
latter by reason of the want of a specific appropriation of
the goods (s). Nor can an individual who has procured an
act to be done sue as one of several co-plaintiffs for the
doing of that very act (t). Where a party accepts costs
under a judge's order, which, but for such order, would not
at that time be payable, he cannot afterwards object that
the order was made without jurisdiction (u). And if A.
agrees with B. to pay him so much per ton for manufac-
turing and selling a substance invented and patented by B.,
it is not competent to A., having used the invention by B.'s
permission, to plead in answer to an action for monies due
in respect of such use that the patent was void and the
licence given superfluous (x). And a licensee of a patent
cannot in any way question its validity during the con-
tinuance of the licence (y). A person cannot act under
an agreement and at the same time repudiate it (z).

Again, " where a person is charged as a member of a
partnership, not because he is a member, but because he
has represented himself as such, the law proceeds on the
principle, that if a person so conducts himself as to lead
another to imagine that he fills a particular situation, it
would be unjust to enable him to turn round and say that
he did not fill that situation. If, therefore, he appeared to
the party who is seeking to charge him to be a partner, and
represented himself as such, he is not allowed afterwards to
say that that representation was incorrect, and that he was

(s) Woodley y. Coventry, 2 B..&,0. 930. See Harrup v. Bayhy, 6

164. " E. & B. 218.

(t) Brandon v. Scott, 7 E. & B. (y) Clark v. Adie, 2 App. Cas.

234. 423; 46 L. J. Ch. 585.

(m) TinkUr y. Hilder, 4 Exch. (a) Crossley v. Dixon, 10 H. L.

187. See Wilcox v. Odden, 15 C. B. Oaa. 293, 810. See also Morrison v.

N. S. 887 ; Freemany. Bead, 9 0. B. Universal Marine Ins. Co., L. B. 8

^- ^- ^°^- Ex. 40, 197 : 42 L. J. Ex. 115.

(x) Lawes v. Purser, 6 E. & B.

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EULES OF LOGIC.

not a partner " (a). So a person cannot in the same transac-
tion buy in the character of principal and charge the seller
for commission as his agent (b). And a person acting
professedly as agent for another, may be estopped from
saying that he was not such agent (c). Also it seems a true
proposition that " where parties have agreed to act upon an
assumed state of facts, their rights between themselves
depend on the conventional state of 'facts, and not on the
truth " (d), and it is not competent to either party after-
wards to deny the truth of such statement (e).

So, where rent, accruing due after the expiration of a
notice to quit, is paid by the tenant and accepted by the
landlord, that is an act of the parties which evidences an
intention that a tenancy should be considered as sub-
sisting (/). So, if there be a distress, the distrainor affirms
by a solemn act that a tenancy subsists ; and it is not
competent to him afterwards to deny it (g).

In like manner, the maxim under consideration applies,
in many cases, to prevent the assertion of titles inconsistent
with each other, and which cannot contemporaneously take
effect (h). And it is laid down that " a person who has a
power of appointment, if he chooses to create an estate or a
charge upon his estate by a voluntary act, cannot afterwards
use the power for the purpose of defeating that voluntary
act ; " and if a bond be given to the Crown under 33 Hen. 8,
c. 89, binding all lands over which the obligor has at the

(a) Per Eolfe, B., Ness v. Angas, 7 App. Cas. 333, 335 : 50 L. J. Q. B.
3 Exch. 813. See 53 & 54 Viot. 284.

0. 39, s. 14. (e) M'Ctmce v. L.SN. W. B. Co.,

(b) Salomms\. Pender, 3 B..&C. 3 H. & C. 343.

639. (/) See Tayleur v. Wildin, L. B.

(c) Bogers v. Hadky, 2 H. & C. 3 Ex. 303.

227. (g) Per Maule, J., Blyth v.

(d) Blaokb. Contr. Sale, 163. As Dermett, 13 0. B. 181 ; per Oromp-
e.g. a valued policy in Marine In- ton, J., Ward v. Day, 4 B. & S.
surance ; which, however, does not 353 : 5 Id. 359 ; and see jper Ld.
effect estoppel for purposes col- Biough&m, Clayton\.A.-0., IGoop.
lateral to the contract, per Ld. (Rep. temp. Cottenham), 124.
Selborne, Burnand v. BodoconacM, (h) 1 Swanst. 427, note.

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140

BtJLES OF LOGIC.

No one shall
derogate
from his
own grant.

Election.

time of executing the bond a disposing power, the giving
such bond is to be deemed a voluntary act on the part of
the obhgor, so that he cannot, by afterwards exercising the
power, defeat the right of the Crown (i).

Closely allied with the principle of the decisions just
noticed, is the rule of law that " a man shall not derogate
from his own grant," as an illustration of which may be
cited the case of Saint v. Pilley (j), where it was held that
the surrender of a term by a trustee in bankruptcy could
not defeat the right of one who had previously bought the
fixtures, but had, without laches, allowed them to remain
upon the premises. And where a man parts with land,
knowing that it is intended to erect substantial buildings
upon it, he will not be allowed afterwards to use his
adjoining land so as to injure those buildings {k). Further,
if a stranger begins to build on land, supposing it to be his
own, and the real owner, perceiving his mistake, abstains
from setting him right, and leaves him to persevere in his
error, a Court of equity will not afterwards assist the real
owner asserting his title to the land (i).

The principle, moreover, underlies the doctrine known in
England as that of election, and in Scotland as approbate
and reprobate (m), which is thus explained by Lord
Cairns : " Where a deed or will professes to make a general
disposition of property for the benefit of a person named in
it, such person cannot accept a benefit under the instrument,
without at the same time conforming to all its provisions,
and renouncing every right inconsistent with them (n).

(i) Beg. v. Ellis, i Exoh. 652, 661 :
6 Id. 921.

(i) L. E. 10 Ex. 137: ii L. J.
Ex. 33.

(k) Siddons v. Short, 2 C. P. D.
572 : 46 L. J. 0. P. 795.

(I) Bamsden v. Dyson, L. E. 1 H.
L. 129, 141, 168; see 9 App. Cas.
710 ; 35 Oh. D. 696.

(to) Codrington v. Codrington, L.

E. 7 H. L. 854, 861: 45 L. J. Ch.
660 ; see 31 Ch. D. 474.

(w) As instances of which doctrine
see Talbot v. Ea/rl of Badnor, 3 My.
& K. 252; Messenger v. Andrews,
4Euss. 478; 28 E. E. 156; Cooper
V. Cooper, L. E. 7 H. L. 53; for
"Approbate and Eeprobate" sec
Kerr v. Wauchope, 1 Bligh, 121 ; 20
E. E. 1,

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RULES OF LOGIC. 141

Lastly, where a witness in a Court of justice makes
contradictory statements relative to the same transaction,
the rule applicable in determining the degree of credibility
to which he may be entitled obviously is, allegans contraria
non est audicndus.

Omne majus continet in se minus. (5 Rep. 115.) —
The greater contains the less (o).
On this principle, if a debtor tender more than he owes. Tender of
it is good, and the creditor ought to accept so much of the ih?n du"™
sum tendered as is due (p). But if he tender a bank-note
or coin of a larger amount than the sum due, requiring
change, that is not a good tender, for the creditor may be
unable to take what is due and return the balance (q) ;
though if the creditor knows the amount due, and is offered
a larger sum, and, without any objection on the ground of
change, merely makes a collateral objection, the tender is
good (?•). Where, however, a party has separate demands
for unequal sums against several persons, an offer of one
sum for the debts of all, not distinguishing the claims
against each, is not a valid tender, and will not support a
plea by one of the debtors, that his debt was tendered (s).

(o) Pinch, Law, 21 ; D. 50, 17, v. Ooldring, 2 M. & S. 86 ; 14 R. E.

113, 110, pr. 594.

{p] Wade's case, 5 Rep. 115 ; Dean (r) Per Ld. Abinger, Bevcms v.

V. James, 4 B. & Ad. 546. Bees, 5 M. & W. 308 ; Black v.

A demand of a larger sum than is Smith, Peake, 121 ; 3 R. R. 661 ;

due may be good as a demand of Saunders v. Graham, Gow, R. 121 ;

the lesser sum ; Carr v. Martinson, Douglas v. Patrick, 3 T. R. 683 ;

1 E. & E. 456. 1 R. R. 793. See Bardingham v.

See, as another instance of the Allen, 5 C. B. 793 ; Ex p. Danks,

maxim, Eylands v. Kreitman, 19 2 De G. M. & G. 936.
C. B. N. S. 351. (s) St/rong v. Harvey, 3 Bing. 304,

(g) Betterhee v. Davis, 3 Camp. 313. See also Douglas v. Patrick,

70 ; 13 R. R. 755 ; Eobinsmv. Cook, supra. Tender of part of an entire

6 Taunt. 336 ; 16 R. R. 624 ; BUm debt is bad ; Dixon v. Clark, 5 C. B.

V. Bussell, 1 C. & P. 365. See Read 365 ; Sea/rles v. Sadgrave, 5 E. & B.

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142 BULBS OF LOGIC.

The maxim admits of familiar illustration in the power
which a tenant in fee-simple possesses over the estate held
in fee; for he may either grant to another the whole of
such estate, or charge it in any manner he think fit, or he
may create out of it any less estate or interest ; and to the
estate or interest thus granted he may annex such con-
ditions, not repugnant to the rules of law as he pleases (t).
In like manner, a man having a power may do less than
such power enables him to do ; he may, for instance, lease
for fourteen years under a power to lease for twenty-one (u) ;
or, if he have a licence or authority to do any number of
acts for his own benefit, he may do some of them and need
not do all (x). In these cases, the rule of the civil law
applies : won debet cui plus licet quod minus est non licere {y) :
or, as it is usually expressed in our books, cui licet quod
Tnajus non debet quod minus est non licere (z) — he who has
authority to do the more important act shall not be
debarred from doing that of less importance ; a doctrine
founded on common sense, and of general application, not
only with reference to the law of real property, but likewise
to that of principal and agent, as we shall hereafter see.
On this principle, moreover, if there be a custom within
any manor that copyhold lands may be granted in fee-
simple, by the same custom they are grantable to one and
the heirs of his body for life, for years, or in tail (a). So,
if there be a custom that copy-hold lands may be granted
for Hfe, by the same custom they may be granted durante

639. So Is a tender clogged with a (x) Per Ld. EUenborough, Isher-

oondition ; Fmch v. Miller, 5 C. B. woody. Oldknoiu, 3 M. & S. 392 ■ 16

428 ; Bowen v. Owen, 11 Q. B. 130 ; B. E. 305.

see Greenwood v. Sutcliffe, [1892] (y) D. 50, 17, 21.

1 Ch. 1 ; 61 L. J. Ch. 59. . (a) i Rep. 23 ; also majus digmim

(t) 1 Prest. Abstr. Tit. 316, 377. traUt ad se minus dignum ; Co.

(u) Isherwood v. Oldknow, 3 M. Litt. 355 b; 2 Inst. 307; Noy, Max

& S. 382; 16 R..R. 305. See an 9th ed., p. 26; Finch, Law, 22. '
instance of syllogistic reasoning (a) 4 Rep. 23; Wing. Max.

founded on the maxim, Johnstone v. p. 206.
Sutton, 1 T. R. 519 ; 1 R. R. 269.

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RULES OF LOGIC. 143

tnduitate, but not c converso, because an estate during
widowhood is less than an estate for Hfe (6).

The doctrine of merger may also be specified in illus- Merger.
tration of the maxim now before us, for " when a less
estate and a greater estate, limited subsequent to it, coin-
cide and meet in one and the same person without any
intermediate estate, the less is immediately annihilated ;
or in the law phraseology is said to be merged, that is
sunk or drowned in the greater ; or to express the same
thing in other words, the greater estate is accelerated so
as to become at once an estate in possession " (c)

Further, it is laid down as generally true, that, where Extension of
more is done than ought to be done, that portion for which pi^^oipi^-
there was authority shall stand, and the act shall be void
quoad the excess only (d) ; quando plus Jit quani fieri debet,
I'idetur etiam illud fieri quod faciendum est (e) : as in the
instance of a power above referred to, if a man do more
than he is authorised to do under the power, it shall be
good to the extent of his power. Thus, if he have power
to lease for ten 'years, and he lease for twenty, the lease for
the twenty years shall in equity be good for ten years of
the twenty (/).

So, if the grantor of land is entitled to certain shares
only of the land granted ; and if the grant import to pass
more shares than the grantor has, it will nevertheless
pass those shares of which he is the owner (gf). Where
also there is a custom that a man shall not devise any
greater estate than for life, a devise in fee will be a good
devise for life, if the devisee will claim it as such (7i).

Lastly, in criminal law the principle above exemplified criminal law.
sometimes applies. Whenever a person is indicted for an

(6) Co. Copyholder, s. 33 ; Noy, (/) See BwrtUtt v. Bendle, 3 M.

Max, 9th ed., p. 25. See another & S. 99; 15 R. E. 426; Doe v.

example, 9 Rep. 48. MattUws, 5 B. & Ad. 298 ; 39 R. R.

(c) 2 Black. Com. 326—327. 485.

id) Noy, Max., 9th ed., p. 25. (g) 3 Brest. Abstr. Tit. 35.

(e) 5 Rep. 115. (^) «'• & R'^^. of Law, p. 242.

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RULES OF LOGIC.

offence which includes in it an offence of minor extent
and gravity of the same class, he may be convicted of such
minor offence. Thus on an indictment for murder he may
be convicted of manslaughter (i) and on an indictment for
" unlawfully and maliciously wounding " he may be found
guilty of a common assault (j). But it is only by virtue of
the Criminal Procedure Act, 1851 (k), that where a person
has befen indicted for a crime, a jury may find him guilty
of an attempt to commit the same crime.

Importance
of rule in
practice and
pleading.

General
application.

Lease.

QuOD AB INITIO NON VALET IN TrACTU TeMPORIS NON CON-

VALBSCiT. {Noy, Max., 9th ed., i^. 16 : Dig. 50, 17, 29,
210.) — That which was originally void, does not by lapse
of time become valid.

This rule is one of general importance in practice, in
pleading, and in the application of legal principles to the
occurrences of life (I). Instances in which it applies will
be found to occur in various parts of this work, particular^
in that which treats of the law of contracts. The following
cases have here been selected, in order to give a general
view of its application in different and distinct branches of
the law.

If a bishop makes a lease of lands for four lives, which
is contrary to the 13 Eliz. c. 10, s. 3, and one of the lives
falls in, and then the bishop dies, yet this lease will not
bind his successor, for those things which have a bad
beginning cannot be brought to a good end (m). So, if a

(i) Archboia, Grim. Ev., 23rd ed.,
p. 215.

if) Beg. V. Taylor, L. E. 1 C. C.
194, 196. See Beg. v. BodgUss, Id.
212.

(k) 14 & 15 Vict. 0. 100, s. 9.

(I) See instances of the application
of this rule in the case of marriage
with a deceased wife's sister, Fenton
V. Livingstone, 3 Macq. So. App.

Gas. 497, 555 ; of the surrender of a,
copyhold. Doe v. TofieU, 11 East,
246 ; 10 B. R. 496 ; of a parish cer-
tificate, R. V. Upton Qray, 10 B. &
G. 807; B. v. Whitchurch, TB. & C.
573 ; of an order of removal, B. v.
Chilverscoton, 8 T. B. 178.

(ro) Noy, Max., 9th ed., p. 16.
See Doe v. Collinge, 7 G. B. 939 ;
Doe V. Taniere, 12 Q. B. 998.

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RULES OF LOGIC. 145

man seised of lands in fee make a lease for twenty-one
years, rendering rent to begin presently, and the same day
he make a lease to another for the like term, the second
lease is void ; and even if the first lessee surrender his
term to the lessor, or commit any act of forfeiture of his
lease, the second lessee shall not have his term, because
the lessor at the making of the second lease had nothing in
him but the reversion (w).

Again, in the case of a lease for years, there is a dis-
tinction between a clause by which, on a breach of covenant,
the lease is made absolutely void, and a clause which
merely gives the lessor power to re-enter (o). Under the
former clause, if the lessor make a legal demand of the
rent, and the lessee refuse to pay, or if the lessee be guilty
of any breach of the condition of re-entry, the lease is void
and absolutely determined, and cannot be set up again by
acceptance of rent due after the breach, or by any other
act ; but under the latter clause the lease is only voidable,
and may be affirmed by acceptance of rent accrued after-
wards, or other act, provided the lessor had notice of the
breach of condition at the time ; and it is undoubted law
that, though an acceptance of rent or other act of waiver
may make a voidable lease good, it cannot make valid a
deed (p) or a lease which was void ab initio (q).

Where a remainder is limited to A., the son of B., he Eemainder,
having no such 'son, and afterwards a son is born to him,
whose name is A., during the continuance of the particular
estate, he will not take by this remainder (r) .

So, where uses are raised by a deed which is itself void,

(n) Smith v. Stapletmi, Plowd. (p) See De Montmorency v. De-

432 ; Noy, Max., 9th ed., p. 16. vereux, 1 Gl. & P. 188.

(o) The distinction has ceased to (g) Doe v. Banks, 4 B. & Aid. 401 ;

be of importance owing to the con- 23 B. B. 318 ; Co. Litt. 215 a ;

struction now placed, where possible, Jones v. Carter, 15 M. & W. 719.
upon forfeiture clauses ; see Daven- (r) Noy, Max., 9th ed,, p. 17 ; 2

]port V. The Queen, 3 App. Gas. 115, Black. Gom, 320—321.
128; and jpos<, p. 234.

L.ll. 10

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EULBS OF LOGIC.

QualifioatioD
of rule.

Aider by
verdict.

as in the instance of the conveyance of a freehold in futuro,
the uses mentioned in the deed cannot arise (s). When
the estate to which a warranty is annexed is defeated, the
warranty is also defeated («) ; and when a spiritual corpo-
ration to which a church is appropriate is dissolved, the
church is disappropriated (u).

So, where a living becomes vacant by resignation or
canonical deprivation, or if a clerk presented be refused
for insufficiency, these being matters of which the bishop
alone is presumed to be cognizant, the law requires him
to give notice thereof to the patron (r) ; otherwise he can
take no advantage by way of lapse; neither in this case
shall any lapse accrue to the metropolitan or to the Crown,
for the first step fails — quod noii liabet priiicipium non habet
finem {x), it being universally true that neither the arch-
bishop nor the Crown shall present by lapse, but where
the immediate ordinary might have collated by lapse within
the six months, and has exceeded his time {y).

An important qualification of the rule expressed by the
maxim we have been discussing is effected by the doctrine
of aider by verdict. When an averment which is necessary
for the support of a pleading is improperly stated, and the
verdict on an issue involving that averment is found, if it
appears to the Court after verdict, that the issue could
not have been determined without proof of the averment,
the defective averment, which might have been fatal on
demurrer, is cured by the verdict {z). This principle is
applicable in criminal proceedings, but is now of no

(s) Arg., Ooodtitle v. Gibbs, 5 B.
& 0. 714 ; 29 B. B. 366.

{t) Litt. s. 741, and Butler's note,
(1) ; Co. Litt. 389 a ; but this may
with more propriety be referred to
the maxim, sublato principali tol-
litur adjunctuni ; Ibid.

(u) Noy, Max., 9th ed., p. 20.

(v) See Bp. of Exeter v. Marshall,
L. B. 3 H. L. 17 : 37 L. J. C. P. 331.

(x) Wing. Max., p. 79; Co. Litt.
345 a.

()/) 2 Blacli. Com. 452 ; Co. Litt.
345 a.

(z) Heyman v. Eegina, L. B. 8
Q. B. 105, per Blacliburn, J. ; and
see Jackson v. Pesked, 1 M. & S.
234 ; 14 E. E. 417 ; 1 Wms. Saund.
228, 1.

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EULES OF LOGIC. 147

practical importance in civil proceedings (a). Aider by
.verdict does not, however, extend to a case where a neces-
sary averment is totally omitted (6). In such cases the
more general rule applies, debile fimdamentum fallit opus (c).
A still more marked qualification of the leading maxim is Further
afforded by cases where an act done contrary to the express «^<=eptions.
direction or established practice of the law will not be found
to invalidate the subsequent proceedings, and where, conse-
quently, quod fieri non debet factum valet (d).

Banweii Iron Co. v. Barnett (e) seems to fall within the
class of cases to which the maxim just cited applies.
There a certificate of complete registration had been
granted under the 7 & 8 Yict. c. 110, s. 7, although the
deed of settlement omitted some of the requisite provisions :
and it was held that a shareholder could not, in answer to
an action against him for calls, object that the certificate
had been granted upon the production of an insufficient
deed.

The case of Reg. v. Lord Neioborough (J) also illustrates
this exception to the maxim. The question was as to the
payment of special constables by a county treasurer, neither
the appointment of these constables, nor the order for their
payment, having been made in accordance with the require-
ments of 1 & 2 Will. 4, c. 41. It was urged quod fieri non
debet factum valet, and this view was adopted by Lush, J.,
who decided that, as the order for payment had been acted
upon, the account allowed, and the money paid, the
proceedings should not be re-opened.

{a) Beg. v. Aspinall, 2 Q. B. D. 25; 5 Kep. 38. As will be seen

48 ; 45 L. J. M. 0. 229. hereafter, this and the leading

(6) Per Brett, J., Ibid., p. 58. maxim have frequent application

(c) Pinch, Law, 14, 36; Wing. in the case of contracts. See

Max. 113, 114. See, also, the judg- McOallan v. Mortimer, 6 M. & W.

ment, Davies v. Lowndes, 8 Scott, 58 : 7 M. & W. 20 : 9 M. & W. 640.

N. B. 567, where the above maxim («) 8 G. B. 406, 433.

is appUed. (/) L- K. 4 Q. B. 585; see also

{d) Gloss, in 1, 5, Cod. 1, 14. Pro per Blackburn, J., Winsor y. Beg.,

infectis : D. 1, 14, 3 ; Wood, Inst. 6 B. & S. 183.

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148 BULBS OF LOGIC.

Conformably to the principle on which that case was
decided, the maxim, quod fieri non debet factum valet, will in
general be found to apply wherever a form has been omitted
which ought to have been observed, but of which the
omission is ex post facto immaterial {g). It frequently
happens that a particular act is directed to be done by one
clause of a statute, and that the omission of such act is, by
a separate clause, declared immaterial to the validity of
subsequent proceedings. In all such cases it is true, that
what ought not to have been done is valid when done.
Thus, residence in the parish before proclamation was
directed by 26 Geo. 2, c. 33, " for the better preventing of
clandestine marriages," as a requisite preliminary to a
marriage by banns ; but if this direction, although material
for carrying out the object of that Act, was not complied
with, the marriage was nevertheless valid, for the legislature
expressly declared that non-observance of this direction
should, after the marriage had been solemnised, be imma-
terial (/i). The applicability of this maxim, in regard to
the validity of a marriage irregularly solemnised, was also
discussed in Beamish v. Beamish, which will hereafter more
conveniently be noticed (i).

Lastly, it is said, that " void things " may nevertheless
be "good to some purpose " (fc) ; as if A., by indenture,
let B. an acre of land in which A. has nothing, and A.
purchase it afterwards, this will be a good lease {I) ; and
the reason is, that what, in the first instance, was a lease
by estoppel only (mi), becomes subsequently a lease in

to) Per Ld. Brougham, 6 01. & F. (h) See per Ld. Brougham, 6 01

708 ; arg. 9 Wheaton (U.S.), R. 478. & F. 708 et se^.
" There is a known distinction (i) 5 Irish 0. L. Rep. 136 : 6 Id.

between oiroumstanoes which are of 142 ; 9 H. L. Oas. 274.
the essence of a thing required to be (k) Finch, Law, 62.

done by an Act of Parliament, and {I) Noy, Max., 9th ed., p. 17, and

clauses merely directory." Per Ld. authorities cited, Id. n. (a)
Mansfield, B. v. Loxdale, 1 Burr. 447, (m) See Cuthbertson v. Irving, 4

adopted by Tindal, O.J., Southamp. H. & N. 742, 754: 6 Id. 135; Ihihe

ton Dock Co. v. BicJmrds, 1 Scott, 289. v. Ashby, 7 Id. 600.

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RULES OP LOGIC. 149

interest, and the relation of landlord and tenant will then
exist as perfectly as if the lessor had been actually seised of
the land at the time when the lease was made (n).

Argumentum ab inconvenienti plueimum valet in Lege.
{Co. Litt. 66 a.) — An argument drawn from inconvenience
is forcible in law (o).

It has been stated, under a preceding maxim {p), that
where the law is clearly defined, its strict letter will not
be departed from because inconvenience or hardship may
result from its strict observance. Yet, in cases where the
law is not clear, or where the circumstances give rise to
doubt, the Courts frequently allow their decision to be
determined by such considerations (g).

Thus, arguments of inconvenience are sometimes of
great value upon the question of intention. If there
be in any instrument equivocal expressions, and great
inconvenience must necessarily follow from one construc-
tion, it is strong to show that such construction is not
according to the true intention of the grantor ; but where
there is no equivocal expression in the instrument, and
the words used admit only of one meaning, arguments of
inconvenience prove only want of foresight in the grantor.
This reasoning was applied in Glyn v. East and West India
Dock Co., where the meaning of the expression in bills of
lading, " the one being accomplished, the other to stand

(n) Blake v. Foster, 8 T. E. 487 ; per Sir W. Scott, 1 Doda. 402 ; :per

5 R. K. 419 ; Stohes v. Bussell, 3 Ld. Brougliam, 6 CI. & Pin. 671 ;

T. E. 678 ; 1 E. E. 732 ; per 1 Mer. 420 ; Sheppard v. Phillimore,

Alderson, B.', 6 M. & V\r. 662 ; Wehh L. E. 2 P. C, 450, 460.

V. Austin, 8 Soott, N. E. 419 ; Par- {p) Omnis innovaiio, &o.

geter v. Harris, 7 Q. B. 708 ; Co. (g) Per Heath, J., 1 H. Bla. 61 :

Litt. 47 b ; 1 Piatt on Leases, 53, per Dallas, C.J., 7 Taunt. 527 : 8

54 ; Bao. Abr. Leases (o). Id. 762 ; per Holroyd, J.; 3 B. & C.

(o) Co. Litt. 97, 152 b. As to 131 ; Judgm., Doe v. Ackldm, 2 B.

the argument ab inconvenienti, see & C. 798; 26 E. E. 544.

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RULES OF LOGIC.

Public in-
convenience.

Argument,
how applied
in interpret-
ing statutes.

void," was discussed (v). Bat because a man has been
wanting in foresight, the Courts cannot make a new instru-
ment for him : they must act upon the instrument as it is
made (s). And generally, if there be any doubts what is
the law, judges solve such doubts by considering what will
be the good or bad effects of their decision ; but if the law
is clear, inconveniences afford no argument of weight : the
legislature alone can remedy them (t). And, hence, the
doctrine, that nihil quod est inconvcniens est licitum (u),
which is frequently advanced by Sir E. Coke, must certainly
be received with some qualification, and must be under-
stood to mean, that against the introduction or establishing
of a particular rule or precedent inconvenience is a forcible
argument {x).

This argument ah inconi-cnienti, moreover, is, under many
circumstances, valid to this extent, that the law will sooner
suffer a private mischief than a public inconvenience, — a
principle which we have already considered. It is better
to suffer a mischief which is peculiar to one, than an
inconvenience which may prejudice many {y).

Lastly, in construing an Act, the same rule applies. If
the words used by the legislature, in framing any particular
clause, have a necessary meaning, it is the duty of the
Court to construe the clause accordingly, whatever may be
the inconvenience of such a course {z). Where a statute

(r) 7 App. Cas. 591 • and see per
Jessel, M.E., BottomUt 's case, 16
Ch. D. 686.

(s) Per Sir J. Leach, A.-O. v.
Duke of Marlborough, 3 Madd. 540 ;
18 R. E. 273; per Burrough, J.,
Deane v. Clayton, 7 Taunt. 496 ; 18
E. R. 553 ; per Best, C.J., Fletcher
V. Lord Sondes, 3 Bing. 590 ; 30
E. R. 32.

(<) Per Ld. Northington, Pike v.
Soare, 2 Eden, 184; per Abbott,
O.J., 3 B. & C. 471. See Vaughan,

E. 87, 38.

(u) Oo. Litt. 66 a ; cited per Pol-
lock, C.B., 4 H. L. Cas. 145, and
per Ld. Truro, Id. 195.

(x) Ram, Science of Legal Judg-
ment, 57.

(y) Co. Litt. 97 b, 152 b ; Hobart,
224; salus popuU, &o. ; ante.

(«) Per Erie, J., Wansey v. Per-
kins, 8 Sc. N. R. 969 ; per Parke, J.,
Mirehouse v. Bennell, 1 CI. & P.
546 ; 36 R. R. 179 ; Wilberforoe on
Stat. Law, Chap 3.

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RULES OF LOGIC. 151

is imperative no reasoning ah inconvenienti should prevail.
But, unless it is very clear that violence would be done to
the language of the Act by adopting any other construction,
any great inconvenience which might result from that
suggested, may certainly afford fair ground for supposing
that it could not be what was contemplated by the legisla-
ture, and will warrant the Court in looking for some other
interpretation (a).

Although, according to Lord Bacon (b), judges ought
above all things to remember the conclusion of the Koman
Twelve Tables, salus poptili siiprema lex, and that laws,
unless they be in order to that end, are but things captious
and not well inspired, he reminds them elsewhere that their
function is to interpret, and not to make the law.

(a) Judgm., Doe v. Norton, 11 (b) Essay " Of Judicature ; " see

M. & W. 928 ; Judgm., Turner v. per Pollock, G.B., 4 H. L. Gas. 152.
Sheffield B. Co., 10 Id. 434.

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CHAPTEE V.

FUNDAMENTAL LEGAL PRINCIPLES.

Many of the principles set forth in this chapter are of
such general application that they may be considered as
exhibiting the very foundations on which the legal science
rests. To these established maxims the remark of Sir
W. Blackstone (Com., 21st ed., vol. i., p. 68) is peculiarly
applicable : — Their authority " rests entirely upon general
reception and usage, and the only, method of proving that
this or that maxim is a rule of the common law, is by
showing that it hath been always the custom to observe it."
It would, indeed, be highly interesting to trace from a
remote period, and through successive ages, the gradual
development of these principles, to observe their primitive
and more obvious meaning, and to show how they have
been applied by the "living oracles" of the law to meet
the increasing exigencies of society, and those complicated
facts which are the result of commerce, civilization, and
refinement. Such an inquiry would, however, be too exten-
sive to be compatible with the plan of this' work ; our object,
therefore, in the following pages, is limited to exhibiting a
series of the elementary rules of law, accompanied by occa-
sional references to the civil law, and a sufficient number
of cases to exemplify the meaning and qualifications of the
maxims cited.

These will be found to comprise the following important
principles : that where there is a right there is a remedy ;
that the law looks not at the remote, but at the immediate

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FUNDAMENTAL LEGAL PRINCIPLES. 153

cause of damage : that the act of God shall not, by the
instrumentality of the law, work an injury : that the law
does not compel the performance of that which is impossible
to be done : that ignorance of the law does not afford an
excuse, although ignorance of facts does : that a party shall
not convert that which was done by himself, or with his
assent, into a wrong : that a man shall not take advantage
of his own tortious act: that the abuse of an authority
given by law shall, in some cases, have a retrospective
operation in regard to the liability of the party abusing it :
that the intention, not the act, is regarded by the law:
and that a man shall not be' twice vexed in respect of the
same cause of action.

Ubi Jus ibi Rbmbdium. — There is no wrong tvithout a
remedy (a).

Jus signifies here " the legal authority to do or to demand Jus and
something " (b) ; and remedmm may be defined to be the defined'"*
right of action, or the means given by law, for the recovery
or assertion of a right. According to this elementary maxim,
whenever the common law gives a right or prohibits an
injury, it also gives a remedy (c) : lex semper dabit reme-
diiim (d). If a man has a right, he must, it has been
observed, " have a means to vindicate and maintain it, and
a remedy if he is injured in the exercise and enjoyment of
it ; and, indeed, it is a vain thing to imagine a right without

(a) Lex rum debet deficere con- Remedy. " Upon principle, wher-

querentibus in justitia exMbenda : ever the common law imposes a

the law wills that, in every case duty, and no other remedy can be

where a man is wronged and en- shown to exist, or only one which

damaged, he shall have remedy ; has become obsolete or inoperative,

Co. Litt. 197 b. the Court of Queen's Bench will

(6) Maokeld. Civ. Law, 6. interfere by mandamus ; " Judgm.,

(c) 3 Blac. Comm. 123. 12 A. & E. 266. See B. v. Leicester

{d) Jacob, Law Diet., title, Oua/rdicms, [1899] 2 Q. B. 632.

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FUNDAMENTAL LEGAL PEINCIPLES.

Action on
the case.

Novelty of
complaint.

a remedy, for want of right and want of remedy are
reciprocal" (e).

It appears, then, that remedmm, although sometimes used
as synonymous with actio, has, in the above maxim, a more
extended signification than the word " action " in its modern
sense. An " action " is, in fact, one peculiar mode pointed
out by the law for enforcing a remedy, or for prosecuting a
claim or demand, in a Court of justice — action n'est auter
chose que loyall demande de son droit (/) ; an action is merely
the legitimate mode of enforcing a right, whereas remedium
must here be understood to signify rather the right of
action, or j«s i^crsequendi in judicio quod sibi debetiir (g),
which is in terms the definition of the word actio in the
Eoman law (h).

The maxim uhijus ihi remedium has been considered so
valuable, that it led to the invention of the form of action
called an action on the case ; for the statute of West-
minster 2 (i), which was only in affirmance of the common
law on this subject, and was passed to quicken the diligence
of the clerks in the Chancery, who were too much attached
to precedents, enacted that, " whensoever, from thenceforth
a writ shall be found in the Chancery, and in a like case,
falling under the same right and requiring like remedy, no
precedent of a writ can be produced, the clerks in Chancery
shall agree in forming a new one ; and if they cannot agree,
it shall be adjourned till the next Parliament, where a writ
shall be framed by consent of the learned in the law, lest it
happen for the future that the Court of our Lord the King
be deficient in doing justice to the suitors."

The principle adopted by Courts of law accordingly is, that
the novelty of the particular complaint alleged in an action

(e) Per'H.o\i,C.Z.,Ashbyy. White,
2 Ld. Eaym. 953 ; iper Willes, C.J.,
Wvnsmore v. Oreenbank, Willes,
577 : Vaugh. E. 47, 253.

(/) Co. Litt. 285 a; Mirror, Bk.

2, c. 1.

{g) I. 4, 6, pr.

(h) See Phillimore, Introd.
Eom. L., 61.

(i) 13 Edw. I. 0. 24.

to

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FUNDAMENTAL LEGAL PRINCIPLES.

Oil the case is no objection, provided that an injury cognisable
by law be shown to have been inflicted on the plaintiff (7c) ;
in which case, although there be no precedent, the common
law will judge according to the law of nature and the public
good (l). It is, however, important, to observe this distinc-
tion, that, where cases are new in principle, 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 sole question is upon the application
of a principle recognised in the law to such new case, it will
be just as competent to Courts of justice to apply the
principle to any case that may arise two centuries hence as
it was two centuries ago (m).

In accordance with the spirit of the maxim, tibi jus ibi Ashby v.
remedium, it was held, in a case usually cited to illustrate * ^'
it, that a man who has a right to vote at an election for
members of Parliament, may maintain an action against
the returning officer for maliciously refusing to admit his
vote, though his right was never determined in Parliament,
and though the persons for whom he offered to vote were
elected («) ; and in answer to the argument, that there was
no precedent for such an action, and that to establish such
a precedent would lead to multiplicity of actions, Lord Holt
observed that " if men will multiply injuries, actions must
be multiplied too, for every man that is injured ought to
have his recompense."

It is true, therefore, that, in trespass and for torts General

principle.

(fc) Per Pratt, C.J., Chapman v. v. Ld. Sondes, 3 Bing. 550; 30

Pickersgill, 2 Wils. 146 ; Novella v. E. R. 32.

Sudlow, 12 C. B. 177, 190 ; and see (n) Ashby v. White, 2 Ld. Kaym.

per Coleridge, J., Gosling v. Veley, 938 ; 1 Sm. L. C, 11th ed. 240.

4 H. L. Cas. 768; Catchpole v. Proof of malice was necessary to

Ambergate B. Co., 1 E. & B. support the action, because the

J2J officer had, from his position, a

(/) Jenk. Cent. 117. qualified privilege ; see post, pp.

(m) Per Ashhurst, J., Pasley v. 158, 173 ; and see CulUn v. Morris,

Freeman, 3 T. E. 63 ; 1 R. E. 634 ; 2 Stark. 577, 587 ; 20 E. E. 742 ;

per Park, J., 7 Taunt. 515 ; Fletcher Tozer v. Child, 7 E. & B. 377.

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FUNDAMENTAL LEGAL PEINCIPLBS.

Damnum

absque

injurid.

Malice,

generally, new actions may be brought as often as new
injuries and wrongs are repeated (o).

There is, however, a large class of cases in which a
damage is sustained, but a damage not occasioned by
anything which the law esteems an injury. Such damage
is termed damnum absque injurid, and for that no action
can be maintained : the maxim, ubi jus ibi remedium,
does not apply; for there is no jus, no legal right to
demand that the act which causes the damage shall not
be done, and therefore there is no remedium (p). It
may seem a hardship upon the person suffering the
damage that he is without remedy ; but by that con-
sideration the Courts ought not to be influenced. Hard
cases, it has frequently been observed, are apt to introduce
bad law (q).

Before mentioning instances of damnum absque injurid, we
must refer to the very important principle of our law, that
an act lawful in itself is not actionable because it is done
from ill-will or other bad motive : damnum absque injurid
remains damnum absque injuria, although the damnum is
inflicted intentionally (r). Our law does not take into
account motive as constituting an element of civil wrong.
Any invasion of the civil rights of another person is in
itself a legal wrong, carrying with it liability to repair its
necessary or natural consequences, in so far as these are
injurious to the person whose rights are infringed, whether
the motive which prompted it be good, bad or indifferent.
But the existence of a bad motive, in the case of an act
which is not in itself illegal, will not convert that act into a

(o) Eamlleton v. Veere, 2 Wms.
Savrnd. 171 b (1); cited by Ld.
Denman, Hodsoll v. Stallebrass, 11
A. & E. 306.

(p) See Pryce v. Belcher, 4 C. B.
866 ; 3 Id. 58, where the maxim,
ubi jus ibi remedium, was much
considered.

(g) Per Eolfe, B., 11 M. & W. 116.

(r) AlUn V. Flood, [1898] A. C. 1 ;
67 L. J. Q. B. 119 ; Bradford Cor-
poration V. Pickles, [1895] A. C.
587 : 64 L. J. Ch. 759. Per Ld.
Macnaghten in Quinn v. Leathern,
[1901] A. C. 495, 5C9 : 70 L. J. P. C.
76.

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FUNDAMENTAL LEGAL PRINCIPLES. 157

civil wrong for which reparation is due. Malice, in common
acceptation, means ill-will against a person, but, in its legal
sense, it means a wrongful act done intentionally without
just cause or excuse. The root of the principle is that,
m any legal question, malice depends, not upon any evil
motive which influenced the mind of the actor, but upon
the illegal character of the act which he contemplated and
committed (s).

Probably the only exception to this principle is the
action for malicious prosecution, in which an evil motive is
an essential ingredient ; but, as Lord Herschell points out,
this is an exceptional case justified " because it was thought
men might otherwise be too much deterred from enforcing
the law and that this would be disadvantageous to the
public "(t). Actions for libel and slander appear at first
sight to be another exception. But that is not really so.
The law never regards such acts as legal : it merely excuses
them in certain circumstances for reasons of public policy.
It is always wrongful falsely to defame, but the law excuses
the act, and renders it privileged from action, if it is done
in the honest endeavour to discharge a duty which the law
recognises (u). Proof of malice, in the sense of improper
motive, is required, not to show that the act was wrong-
ful, but to show that the act was not privileged. Such
proof is not essential to the maintenance of the action,
unless the wrongful act was done under circumstances from
which the law would, in the absence of evidence to the
contrary, infer that it was privileged (v).

As instances of persons who cause damnum absque injuria,

(s) See per Ld. Watson, [1898] 63 L. J. Q. B. 587.

A. C, pp. 92, 94. (") See :per Ld. Watson, [1898]

\t) Per Ld. Herschell in Allen v. A. 0. 93 ; per Ld. Herschell, Id.

Flood, [1898] A. G. 125 : 67 L. J. 125, 126. As to the onus probandi

O B 119. ^^ actions for libel, see Jenoure v.

(m) There must be an actual, not Delmege, [1891] A. C. 73 : 60 L. J.

merely an imagined duty ; Hebditch P. G. 11.
V. McLcIlwaine, [1834] 2 Q. B. 54:

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FUNDAMENTAL LEGAL PEINCIPLBS.

Instances of
damnum
absque
injurid.

we may mention the man who estabhshes a rival school,
which draws away the scholars from a school previously
estabhshed (w) ; or builds a bridge over a river, which
causes loss of traffic to a ferry-owner (x) : the traders who
by concerted action, but without the use of illegal means,
acquire the business formerly enjoyed by other traders (y) :
the person who by lawful means induces a servant to deter-
mine lawfully his contract of service or not to enter a con-
tract of service (z). But to molest a person in the carrying
on of his business, or to interfere with his mode of doing it,
by unlawful means such as threats, violence, intimidation, or
conspiracy, is actionable if it results in damage (a), except in
so far as protection is given to these acts by the Trade
Disputes Act, 1906 (6).

Other instances of damnum absque injurid arise where
a person by his want of care causes damage to another to
whom he owes no duty to take care (c), or without negligence
or intention accidentally inflicts personal injuries on
another (d). Such also are the cases of the farmer who
omits to cut the thistles naturally growing upon his land,
in consequence of which they spread into his neighbour's
land (e) : the landowner who erects upon his land buildings
obstructing his neighbour's prospect (/), or cutting off from

(w) Y. B. 11 Hen. i, f. 47, pi.
21.

(x) Hopkins V. G. N. B. Co., 2
Q. B. D. 224 : 46 L. J. Q. B. 265 :
mhden v. Skirrow, [1908] 1 Ch. 41 :
77 L. J. Ch. 107.

(y) Mogul SS. Co. v. McGregor,
[1892] A. 0. 25; 61 L. J. Q. B. 295.

(z) Allen V. Flood, [1898] A. C. 1 ;
67 L. J. Q. B. 110.

(a) Qamrav. I/eoWzeTO, [1901] A. C.
495 : 70 L. J. P. C. 76, and see the
earlier cases fully discussed in
AlUn V. Flood, [1898] A. 0. 1,
especially the opinion of Haw-
kins, J.

(6) 6 Edw. VII. c. 47.

(c) Le Lievre v. Gould, [1893]
1 Q. B. 491 : 62 L. J. Q. B. 353 ;
Lane v. Cox, [1897] 1 Q. B. 415 : 66
L. J. Q. B. 193. Earl v. Lubbock,
[1905] 1 K. B. 253, 74 L. J. K. B.
121, following Winterbottom v.
Wright, 10 M. & W. 109.

(d) Stanley v. Powell, [1891] 1
Q. B. 86 : 66 L. J. Q. B. 52.

(e) Giles v. Walker, 24 Q. B. D.
656 : 59 L. J. Q. B. 416.

(/) Aldred's case, 9 Hep. 58 ; see
per Ld. Blackburn, 6 App. Cas.
824.

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his neighbour's house light (g), or air (h), to which the
neighbour had no legal right : the landowner who appro-
priates water percolating in undefined channels within his
land, and thus prevents its flow into his neighbour's land (i) ;
or who erects upon the border of his land barriers against
floods, causing them to flow on to his neighbour's land (k).
But from these last examples we must distinguish that of
the landowner who appropriates water which flows through
his land in a defined surface channel, and to the flow of which
his neighbour is entitled (l) : or who, by cutting trenches
in his land, causes floods, which have already settled therein,
to flow away on to his neighbour's land (m) . For these acts
produce an injury for which an action lies.

It has been laid down as a fundamental principle that Procuring
" it is a violation of legal right to interfere with contractual contract.
relations recognized by law, if there be no sufficient justi-
fication for such interference" (re), and if such interference
is committed knowingly and results in damage, an action
lies (o). So, it is actionable (if damage results) knowingly
to induce a servant to break a contract of service (p) ; and

(3) Tapling v. Jows, 11 H. L. Cas.
290: 3i L. J. C. P. 342; Bussell
V. Watts, 10 App. Cas. 590 : 55 L. J.
Oh. 158; Brocmfield v. Williams,
[1897] 1 Oh.i602; 66 L. J. Oh. 305.

(h) Webb V. Bird, 13 C. B. N. S.
841 : 31 L. J. 0. P. 335 ; Bryant v.
Lefever, 4 C. P. D. 172 : 48 L. J.
C. P. 380; Chastey v. Ackland,
[1897] A. C. 155 : [1895] 2 Ch. 389:
66 L. J. Q. B. 522 : 64 Id. 523.

(i) Bradford Corporation v.
Pickles, [1895] A. 0. 587 : 64 L. J.
Ch. 759.

(k) B. V. Pagham Commrs., 8 B.
& 0. 355 ; 32 R. B. 406 ; Nield v. L.
& N. W. B. Co., L. B. 10 Ex. 4.

(I) Or. Junction Carnal Co. v.
Shugar, L. E. 6 Ch. 483.

(to) Whalley v. L. S Y. B. Co.,
13 Q. B. D. 131 : 53 L. J. Q. B. 285.

(n) Per Ld. Maonaghten in
Quinn v. LeatJiem, [1901] A. C. 510 :
70 L. J. P. C. 76.

(0) Quinn v. Leathern, uhisupra ;
Lumley v. Gye, 2 E. & B. 216 : 22
L. J. Q. B. 463 ; Bowen v. Hull,
6 Q. B. T>. 333: 50 L. J. Q. B.
305: Temperton v. Bussell, [1893]
1 Q. B. 715 : 62 L. J. Q. B. 412 ;
Glamorgan Coal Co. v. South
Wales Miners Federation, [1905]
A. C. 239 : 74 L. J. K. B. 525 ; Bead
V. Friendly Society of Stonemasons,
[1902] 2 K. B. 732 : 71 L. J. K. B.
994; OiUan v. Labourers' Union,
[1903] 2 K. B. 600 ; 72 L. J. K. B.
907 ; Smithies v. National Associa-
tion of Plasterers, [1909] 1 K. B.
310 ; 78 L. J. K. B. 259.

{p) Lumley v. Oye, 2 E. & B.
216 : 22 L. J. Q. B. 463.

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160 FUNDAMENTAL LEGAL PRINCIPLES.

the rule is not confined to contracts of personal service,
but applies to all contractual rights, such, for instance,
as a contract for the supply of goods {q). The Trade
Disputes Act, 1906, has, however, largely restricted the
scope of this principle, in cases where the acts are done
in contemplation or furtherance of a trade dispute (r).
Eemovaiof In certain cases the same act may cause sometimes
podfto land, damnum absque injuria, sometimes injuria. Thus, if a man,
by digging in his own land, cause his neighbour's house to
fall down, it depends upon the circumstances whether he
is answerable for the damage. His neighbour is entitled
to lateral support for his house, if he has enjoyed the
support openly, peaceably and continuously for twenty
years (s) ; but in the absence of an express or implied
grant, he is not entitled to it for a newly-erected house (t) ;
and therefore the question whether there is any liability
may turn merely upon the age of the house. It must be
noticed, however, that, unless he has granted away the
right, the neighbour is entitled to have his land in its
natural unencumbered state left unaffected by the removal
of the lateral support, and not the less so because he has
recently built a house upon the land. Hence, an actionable
injury is done to him if the removal of the support causes a
subsidence to the land, not attributable to the weight of the
house, and in such case the damage done to the house,
though newly erected, is recoverable as being consequential
upon the injury (u) . It may be added that it is the subsidence

(?) Bowen v. Hall, 6 Q. B. D. 7iO : 50 L. J. Q. 689.
333 : 50 L. J. Q. B. 305 ; Temperton (t) " The right to support of build-

V. Bussell, [1893] 1 Q. B. 715 : 62 ings " must be founded upon pre-

L. J. Q. B. 412. soription or grant, express or

(r) 6 Edw. VII. c. 47, ss. 1 & 3. implied ; " per Willes, J., Bonomi v.

See also s. i as to the general im- Backhouse, 1 E. B. & E. 655 (S. C,

munity of Trades Unions from 9 H. L. Cas. 503 : 84 L. J. Q. B.

liability in tort ; and Conxoay v. 181) ; cited by Ld. Selborne, 6 App

Wade, [1909] A. C. 506 : 78 L. J. Gas. 795.
K. B. 1025. (m) Browne v. i?oW?is, 4 H. & N.

(s) Angii,s v. Balton, 6 App. Cas. 186 : 28 L. J. Ex. 250 ; Hamer v.

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FUNDAMENTAL LEGAL PIUNCIPLBS. 161

which grounds the cause of action, not the removal of
the support, and therefore a fresh cause of action arises
upon a second subsidence, due to the same excavation as
was the first (c). It is the subsidence, not the pecuniary
loss, which gives the cause of action {w) .

An act which would be an injury at common law is Acta

. . . ^ . , authorised

sometunes merely daynnum absque injana owmg to the by statute.

provisions of a statute. If a statute directs or authorises

acts, it is not wrongful to do them: if damage results, it

is just that there should be compensation, and that is often

provided for by the statute, but no action lies for what is

damnum absque injuria : the only remedy is to seek such

compensation as the statute provides : and this is the case

whether the acts ba authorised for a public purpose or for

a private profit (x). The legislature, however, when it

authorises persons to do acts which would be wrongful at

common law, usually does not exempt them from the duty

to take reasonable care that in doing the acts they do no

unnecessary damage (x) ; and therefore, though they are

not liable to an action for such damage as necessarily

arises notwithstanding that they observe that duty (y), yet,

for damage done in breach of that duty they have no

statutory protection (z). They must strictly pursue their

statutory powers, and for acts which are injuries at common

law and which are not legalised by their statute, they are

liable to a common law action (a). Statutes which legaUse

K7iowles, 6 H. & N. 454: 30 L. J. (y) Vaiighan v. Taff Vale B. Co.,

jj^ ^02. 5 H. & N. 679 : 29 L. J. Ex. 247;

i'v\ DarUv Main Colliery Co. v. HmimersmithB.Co.Y.Brand,-L.l<.

KiUuApp.Cas.127: 55 L. J. 4 H.-K m- 38 L .. Q. B. 265 ;

Q. B. 529; West Leigh Colliery Co.

L. B. & S. C. B. Co. V. Truman,

V Tunnicliffe and Hampson, [1908] 11 App. Gas. 45 : 55 L. J. Oh

A C. 27 : 77 L. 3. Gh. 102. 354.
\v,) See per Collins, 3., A.-G. v. (.) Oeddis v. Bcmn Beservotr Co.,

^°;)P.;'S-BlLbu.n, Mersey « Q" f " ^^^- f ,^ ,\^- ^^- SJ !

nil Trustees v. Oi^l.s, L. B. 1 f-' ;^_5«'^/^ l^p^s^.

H. L. 93, 112.

L.M.

11

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162 FUNDAMENTAL LEGAL PKINCIPLBS.

acts and provide for compensation for damage done thereby
are generally construed as providing compensation only for
acts which are lawful by reason of the statutes and which
would have been actionable injuries if the statutes had not
been passed (&). In so far as they do not provide com-
pensation, there is no remedy for damage caused by the
acts which they have legalised (c).
lujiiryto Although damnum, absque injuria is a matter of frequent

damag™r°^ ^ Occurrence, yet injuria absque damno may be said to be
unknown to our law ; for "a damage is not merely
pecuniary, but an injury imports a damage when a man
is thereby hindered of his right " {d). Thus if a debtor,
being in execution on final process (e), escaped for ever so
short a time, the creditor, who had a right to the debtor's
body every hour until the debt was paid, could maintain
an action against the sheriff without proof of pecuniary
damage (/). Similarly, on the ground that an injury has
been done, proof of pecuniary damage is unnecessary for
the maintenance of an action by a customer against his
banker who, having received funds for the purpose, wrong-
fully dishonours the customer's cheque ((/), or by a client
against his solicitor who compromises a suit contrary to
instructions (/)), or by a tenant against his landlord who

District v. Hill, 6 App. Gas. 193: (d) Per Holt, C.J., Ashhy v.

50 L. J. Q. B. 353 ; Shelfer v. City White, 2 Ld. Raym. 955.

of London E. L. Co., [1895] 1 Gh. (e) See 32 & 33 Vict. c. 62.

287 : 64 L. J. Ch. 216. (/) Williams v. Mostyn, 4 M. &

(6) Broadhenty. Imperial Oas Co., W. 145, 153 ; Clifton v. Hooper, 468.

7 D. M. & G. 436 : 7 H. L. Gas. 600 : See L. K. 1 Q. B. 502 ; L. R. 1 0. F.

26 L. J. Oh. 276 : 29 Id. 377 ; 403 ; 7 C. B. N. S. 487.

Caledonian B. Co. v. Walker's {g) Marzetti v. Williams, 35 R. R.

Trustees, 7 App. Gas. 259, 293 ; see 329 ; 1 B. & Ad. 415, where nominal

Cowper Essex v. Acton L. B., 14 damages were recovered ; Rolin v.

App. Oas. 153 : 58 L. J. Q. B. Steward, 14 G. B. 595, where the

^^*- jury gave substantial damages ; see

(c) Hammersmith B. Co. v. Brand, Larios v. Gurety, L. R. 5 P. 0. 346

and L. B. S S. G. B. Co. v. Trtiman, 357.

siipra ; A.-G. v. Metr. B. Co., (h) Godefroy v. Jay, 7 Bing 413 •

[1894] 1 Q. B. 384. 33 R. R, 528 ; Fray v. Voules, 1 e'.

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FUNDAMENTAL LEGAL PEINCIPLBS. 163

levies an excessive distress for arrears of rent (i). It must but damage

be noticed, however, that, whilst in some cases, of which necessary to

these last-mentioned are examples, a man has an absolute "n^ry*"'*^

right to demand that some act shall be done, or not done,

there are other, cases in which he has not that right, but

only the qualified right to demand that no damage shall

be done to him by the act, or its omission. In these cases

there is no injury, if there be no damage, and damage is

said to be the gist of the action. Thus the recklessness

of a driver upon the highway gives no cause of action to

a person who does not suffer actual damage therefrom :

though an innkeeper be bound to guard his guest's goods

at the inn (j), his want of care is not actionable, unless it

leads to loss : fraud without damage will not support an

action of deceit (k) : no action lies against a landlord who,

though he distrains for more rent than is due, only seizes

goods which do not exceed in value the rent actually

due (0 : a Judgment creditor who sues the sheriff for

neglecting to levy under (m), or for making a false return

to (ii), a writ of Ji. fa. must prove actual damage : a father

cannot maintain an action for the seduction of his daughter

whilst in his service (o), unless some actual loss of service

accrues (p).

There are three kinds of damage known to the law, Malicious

proseoutioD.

damage to a man's fame, damage to his person, and
damage to his property (q). An ordinary civil action

& E. 839, 848 ; see Butler v. Knight, (m) Hobson v. Thelluson, L. K. 2

L. B. 2 Ex. 109. Q- B. 642.

(i) Chandler v. Doulton, 3 H. & (n) Stimson v. Farnham, L. R. 7

C. 553. Q- B. 175.

ij) See Calye's case, 8 Co. Kep. (o) See Terry v. Hutchinson, L.

32 : 1 Sm. L. 0., llth ed. 119. B. 3 Q. B. 599.

(k) 3 Bulstr. 95; 3 T. E. 56; 9 (p) Eager v. Grimwood, 1 Exoh.

App. Gas. 195 ; 14 Id. 363. 61 ; Hedges v. Tagg, L. E. 7 Ex.

(1) Tancred v. Leylmd, 16 Q. B. 283. But if any such loss be proved,

669; Glynn v. Thomas, 11 Exch. exemplary damages may be given.

870; French y. Phillips, 111.&1:J. {g) Per Holt, O.J., Savill v.

564. Roberts, 1 Ld. Baym. 378.

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164 FUNDAMENTAL LEGAL PRINCIPLES.

nowadays involves a successful defendant in none of these,
for any extra costs incurred by him beyond those awarded
are not to be ascribed to the litigation, and therefore the
bringing of an ordinary action, however maliciously, and
however great the want of reasonable and probable cause,
does not support a subsequent action for malicious prosecu-
tion (?■). A person's fame, however, is damaged not only
when strictly criminal proceedings are commenced against
him for an alleged offence (s), but also when bankruptcy
proceedings are instituted against him ; and so is the credit
of a trading company when a petition is presented to wind
it up, and therefore an action lies if such proceedings be
taken maliciously and without reasonable and probable
cause (f). It must be noticed, however, that the action
cannot be maintained, unless the proceedings upon which
it is founded have been annulled ((()•
Damages Having stated that, when a right has been invaded, an

nominal. action for damages generally lies (a:), although no damage
has been actually sustained, we may observe that the
principle on which many such cases proceed is that it is
material to the preservation of the right itself, that its
invasion should not pass with impunity; and in these
cases, therefore, nominal damages only are sometimes
awarded, because their recovery sufficiently vindicates the
plaintiff's right : as, for instance, in trespass quare claiisum
/regit, which is maintainable for a wrongful entry on the

(r) See the judgments iu QiMrU See Tlie Walter D. Wallet, [1893]

mil Co. V. Eyre, 11 Q. B. D. 674 : P. 202 : 62 L. J. P. 88.

52 L. J. Q. B. 488. Legal damage (u) Metropolitan Bank v. Pooley,

must be shown in order to sustain 10 App. Gas. 210 : 54 L. J. Q. B. 449.

suoh action ; Cotterell v. Jones, 11 (x) This proposition is more fully

C. B. 718 : 21 L. J. C. P. 2 ; see stated and illustrated in Blofeld v.

Wyatt V. Palmer, [1899] 2 Q. B. Payne, 4 B. & Ad. 410 ; 38 B. B.

106; 68 L. J. Q. B. 709. 270; Bogers v. Nowill, 5 C. B. 109 ;

(s) See Bayson v. S. London Wells v. Watling, 2 W. Bl. 1288;

Tramways Co., [1893] 2 Q. B. 304: Pmdar \. Wadsworth, 2 East, 154;

62 L. J. Q. B. 593. 6 E. E. 412.

(t) Quarts Hill Co. v. Eyre, supra.

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FUNDAMENTAL LEGAL PRINCIPLES. 165

land of another, though there be no real damage, because
repeated acts of going over the land might be used as
evidence of a title to do so, and thereby the right of the
plaintiff might be injured ; or in an action by a commoner
for an injury done to his common, in which action evidence
need not be given of the exercise of the right of common
by the plaintiff (^). "Where a riparian owner had built an
obstruction out from his bank into the stream, the Court
ordered its removal although no immediate damage could
be described nor any actual loss predicated to the owner of
the opposite bank (z).

It is not, indeed, by any means true, as a general pro-
position, that the actual damage offers in an action ex
delicto, the proper measure of damages to be given ; for
instance, my neighbour may take from under my house
coal, which I had no means of getting at, and yet I may
recover the value, notwithstanding I have sustained no real
damage (a) ; and other cases might readily be instanced
showing that such an action may be maintainable with-
out evidence being adduced of pecuniary loss or damnum
to the plaintiff {h) ; as in cases of libel and slander, where
the words are actionable per se, the jury are at liberty to

(!/) Per Taunton, J., 1 B. & Ad. Soott, N. R. 309; CoUingridge v.

426; Wells v. WatUng, 2 W. Bl. Boyal Exchange Ass., 3 Q. B. D.

1233 ; 1 Wms. Saunds. 346 a, note : 173 : 47 L. J. Q. B. 32.

cited by Martin, B., and Kelly, O.B., (6) EmbreyY. Owen, 6 Exch. 653 ;

Harrop v. Hirst, B. E. 4 Ex. 43, Dickinson v. Orand Junction Canal

45 47_ Co., 7 Exoh. 282 ; Northam v. Hur-

[z) BirfeeHv.MtwTis, L.R.I H.L. ley, 1 E. & B. 665, recognised in

Sell. 47. See Siddons v. Short, Wliitehead v. Parks, 2 H. & N. 870 ;

2 C. P. D. 572 : 46 L. J. C. P. 795, Bolin v. Steward, 14 C. B. 595 ;

as to injunctions being granted Matthews v. Discount Corp., L. R.

where actual injury lias not been 4 C. P. 228. In reference to the

sustained but is apprehended. question whether substantial dam-

(a) See per Maule, J., Clow v. age must be proved, the wording of

Brogden, 2 Scott, N. R. 315, 316; a statute may he material; ex. gr.,

per'Ldi.'Denma,n,Taylor\.Henmher, see Rogers v. Parker, 18 C. B. 112;

12 A. & E. 488, 492 ; which case is Medway Navigation Go. v. Earl of

overruled by Tancredv. Leyland, 16 Romney, 9 G. B. N. S. 575.
Q. B. 669 ; Pontifex v. Bignold, 3

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166

FUNDAMENTAL LEGAL PRINCIPLES.

Limitations
to maxim,
ubi jus ibi
remedium.

Injuries to
community.

Highways.

give substantial damages, although no actual damage be
proved (c).

The maxim, ubi jus ihi remedium, has its limitations ; and
there are various cases in which either the maxim does not
apply, or at least the remedy for the wrong is not a civil
action for damages.

Where an act is a grievance to the entire community, the
mode of punishing the wrong-doer is usually by indictment
or by information at the suit of the Attorney General, suing
on behalf of the public (d). But an individual who has
suffered a particular damage beyond that suffered by the
public may sometimes maintain an action in respect
thereof.

Thus, if A. dig a trench across the highway, that is the
subject of an indictment ; and for the obstruction of his
passage along the highway B. cannot maintain an action {e).
But if the trench obstruct B.'s access to the highway from
his own lands (/), or if B., while using the highway with
ordinary care (g), has sustained harm by falling into the
trench, that is particular damage for which an action
lies (/(). It would, however, be untrue to say that, where a
wrong is done to the community, an individual who suffers
particular damage always has a remedy by action. For if
particular damage be suffered by a highway being out of
repair, no action lies against the highway authority who
ought to have repaired it; since highway authorities,
entrusted with the performance of the duties which origin-
ally fell upon the inhabitants of parishes, are not civilly
liable for mere nonfeasance (i) . And it is doubtful whether

(c) Tripp V. Thomas, 3 B. & C.
427.

(d) Co. Litt. 56 a; per Holt, C.J.,
2 Ld. Raym. 955 ; per Ld. Westbury,
L. E. 2 H. L. 203 ; per OhanneU, B.,
Harrop v. Hirst, L. E. 4 Ex. 47.

(e) Winterbottom v. Lord Derby,
L. R. 2 Ex. 316 : 36 L. J. Ex. 194.

(/) Fritz V. Bobson, 14 Oh. D.

542: 49 L. J. Oh. 321; foUowing
Rose V. Groves, 5 M. & G. 613 ; Lyon
V. Fishmongers' Co., 1 App. Cas.
662 : 46 L. J. Ch. 68.

(g) Butterfleld v. Forrester, 11
East, 59 ; 10 R. R. 433.

(h) See alsoi Benjamin v. Storr,
L. R. 9 0. P. 400 : 43 L. J. 0. P. 162.

(i) Cowley V. Newmarket L. B.,

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FUNDAMENTAL LEGAL PRINCIPLES. 167

persons bound to repair a highway rationc ienura (k) are
civilly liable for particular damage sustained by their
default {I). Water companies and public authorities, how-
ever, which, under their statutory powers, place apparatus
in the highway, are Hable, if, by reason of the want of
repair of such apparatus itself, damage happens to a person
using the highway ; though they are not liable for damage
caused by the apparatus becoming a danger owing to the
want of repair of the highway in which it is placed (m).

It is, indeed, an important rule that the law gives no Public
private remedy for anything but a private wrong ; and that,
therefore, no action lies for a public: or common nuisance ;
and the reason is that, the damage being common to all
the svibjects of the Crown, no one individual can ascertain
his particular proportion of it, or if he could, it would be
extremely hard if every subject in the kingdom were allowed
to harass the offender with separate actions (n). This rule
apphes where a statute prohibits the doing of a particular
act affecting the public. Unless the statute provides to the
contrary, no cause of action can arise, upon the prohibited
act being done, in favour of a private person who suffers
therefrom no peculiar damage beyond that which all the
Queen's subjects suffer by the infringement of the law (o).
Moreover, if the act be prohibited under a penalty, prima
facie the Crown alone has the right to sue for the penalty,
and if a private person sue for it, the onus lies upon him to

[1892] A. C. 345 : 62 L. J. Q. B. 65 ; overruled HariwaZZ v. Byde Commrs.,

Thompson v. Mayor of Brighton, 4 B. & S. 361.

[1894] 1 Q. B. 332 : 63 L. J. Q. B. (m) Chapman v. Fylde Water-

181. works Co., [1894] 2 Q. B. 599 : 64

(k) As to this liability, see Beg. L. J. Q. B. 15 ; Thompson v. Mayor

V. Barker, 25 Q. B, D. 213 : 59 of Brighton, supra, and cases there

L. J. M. 0. 105. cited in the judgment of A. L.

(I) See Bundle v. Hea/rle, [1898] Smith, L.J.

2 Q. B. 83, where the dicta in favour (n) Co. Litt. 56 a ; 1 Chitty, Gen.

of their liability are cited. As to Pr. Law, 10.

Borough of Bathm-st v. Macpherson, (o) See per Pollock, C.B., Clmm-

there cited, see Sydney v. Bourke, berlaine v. Chester & Birkenhead B.

[1895] A. C. 433. The latter case Co., 1 Exoh. 876—877.

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168

FUNDAMENTAL LEGAL PRINCIPLES.

Damage too
remote.

Damages in
action on
contract.

Damages in
action of
tort.

show that the statute has conferred upon him the right to
do so (p).

It frequently happens that when a wrongful act has been
done to a person, he suffers a damage, but, although he may
have a cause of action for the wrongful act, yet he cannot
found any claim for compensation upon that particular
damage, because the connection between such damage
and the wrongful act is insufficient : the damage is too
remote. Injure non remota causa sedproxinm spectatur (q).

In actions on contract the damages recoverable are such
as may fairly and reasonably be considered as arising
naturally, i.e., according to the usual course of things, from
such breach of contract itself, or such as may be reasonably
supposed 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 (r) .

Similar principles are applicable in actions of tort.
Generally speaking, a wrong-doer is responsible only for
the natural and ordinary consequences of his wrongful act
or such as he should have known were likely to arise (.s).
Thus, it is a breach of duty in a railway company to allow
their carriages to be overcrowded ; but theft, though
facilitated by overcrowding, is not its natural and ordinary
consequence ; and the company is not liable to one passen-
ger, if his purse be stolen by another in an overcrowded
carriage; the damage is too remote (t). But it must not
be supposed that one wrong-doer is never answerable for

{p) Bradlaugh v. Clarke, 8 App.
Gas. 354, 358.

(2) Bac. Max., reg. 1; see per
Blackburn, J., L. B. 9 Q. B. 267.

(r) Judgm., Hadley v. Baxendale,
9 Exch. 341, 354 : 23 L. J. Ex. 179 ;
see Some v. Midland R. Co., L. B.
8 G. P. 131: 42 L. J. C. P. 59;
Hydraulic Engineering Co, v.
McHaffie, 4 Q. B. D. 670 ; Gribert-
Borgnis v. Nugent, 15 Id. 85 ; 54

L. J. Q. B. 511 ; Hammond v.
Bussey, 20 Q. B. D. 79 : 57 L. J.
Q. B. 58. See iJOsi, p. 187.

(s) Sharp v. Pou-cll, L. E. 7 G. P.
253 : 41 L. J. G. P. 95 ; Victorian
Bail. Commrs. v. Goultas, 13 App.
Gas. 222, 57 L. J. P. C. 69; see
Wilkinson v. Doionton., [1897] 2
Q. B. 57 : 66 L, J. Q. B. 493.

(0 Cohb V. G. W. B. Co., [1893]
1 Q. B. 459 : 62 L. J. Q. B. 335.

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FUNDAMENTAL LEGAL PRINCIPLES. 169

consequences resulting in some measure from the inter-
vention of another. If a eolUsion between two omnibuses
occur through the negligence of both the drivers, the pro-
prietor of each vehicle is responsible for the damage which
results to a passenger of either (u). If A. wrongfully place a
spiked barrier upon a carriage way, and then B. remove it
improperly on to the adjacent footpath, A. is liable for the
damage done by the spikes to C. whilst lawfully using the
path at night (v) . If the driver of a horse and cart negligently
leaves them unattended in the street, his master is liable
for the natural results of the horse and cart being wrong-
fully set in motion by a person who might have been
expected to do that act (iv). The question here is whether
the wrongful act of the defendant or his servant was the
effective cause of the damage done ; and this must generally
be treated as a question of fact (m).

In an action for slander, if the words are not actionable ■*■<=' °^ ^^^^^

person

2}er se (a;), special damage must be proved (ij). It has been causing the
thought that if, by reason of the slander, a third person
does some act, which, even if the slander had been true,
would have been illegal, that can never be treated as
special damage {z). But this doctrine has been frequently
criticised (a), and the better opinion seems to be that of
Lord Wensleydale, that to make a slander actionable by
reason of special damage, the consequence must be such
as, taking human nature as it is, with its infirmities, and

(u) See The Bermna, 13 App. Cas. et seq. By 54 & 55 Vict. e. 51, they

1 : 12 P. T>. 58 : 57 L. J. P. 65. are such, if they impute unohastity

{v) Clark v. Chambers, 3 Q. B. D. or adultery to a woman or girl.

827: 47 L. J. Q. B. 427. (y) Such damage, therefore, is the

(w) Engelhart v. Warrant, [1897] cause of action ; see pej- Bramwell,

1 Q. B. 240 : 68 L. J. Q. B, 122. L.J., 7 Q. B, D. 437.

(a;) They are such, at common (z) Vicars v. Wilcocks, 8 East 1 ;

law, if they falsely impute a orimi- 9 E. R. 361 ; 2 Sm, L. C, 10th ed.

nal ofEence or contagious disease, or 507.

disparage the plaintifi in the way of (a) See the oases collected in the

his office, profession or trade : see notes to Vicars v. Wilcocks, 2 Sm.

Odgers on Lihel, 3rd ed., pp. 59 L. C, lOth ed. 512 cis«2.

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170 FUNDAMENTAL LEGAL PEINCIPLES.

having regard to the relation between the parties concerned,
it might fairly and reasonably have been anticipated and
feared would follow from the slander (b). When a. wrong-
ful act is committed, damages may in some cases be
recovered in tort even though the immediate cause is the
voluntary act of a third person, as where the defendant kept
a dog which he knew to be savage and the dog was let loose
by a third person and bit the plaintiff (t). And in case
of breach of contract damages immediately caused by the
intervening criminal act of a third person are recoverable
if they can be shown to be a natural consequence of the
breach of contract (d).
Public policy. There are some cases in which, although a wrongful act
has been done, yet, on grounds of public policy, an action
will not lie. We have already adverted to the qualified
privilege which may excuse a slander, libel, or prosecution
instituted without reasonable and probable cause (e) ; and
some wrongful acts are absolutely privileged. The immuni-
ties from action, which are enjoyed by the Crown (/), and
by judges of Courts of record (g), have been mentioned
elsewhere. No action lies against a member of Parliament
for slanders uttered in Parliament (h) ; or against an advo-
cate for slanders uttered in the course of a judicial inquiry (i) ;

(6) Lynch v. Knight, 9 H. L. Gas. 7 Q. B. 387 : 41 L. J. Q. B. 178.

577, 600 ; cited by Brett, L.J., 11 {g) Ante, p. 70.

Q. B. D. 414 ; see also 6 Q. B. D. (h) B. v. Abingdon, 1 Esp. 228 ;

338. Tbe cases in whicli special Dillon v. Balfour, 20 L. E. Ir. 600 ;

damage may be provided upon the Bradlaugh v. Gossett, 12 Q. B. D.

repetition of the slander by third 271 : 53 L. J. Q. B. 209. As to the

persons are summed up in Speight v. qualified privilege of county counoil-

Gosnay, 60 L. J. Q. B. 281. lors, see Boyal Aquarium v. Parkin-

(c) Baker v. Snell, [1908] 2 K. B. son, [1892] 1 Q. B. 481 : 61 L. J.
825 : 77 L. J. K. B. 1090. Q. B. 409.

(d) De La Bere v. Pearson, Ld., (i) Munster v. Lamb, 11 Q. B. D.
[1908] 1 K. B. 280 : 77 L. J. K. B. 588 : 52 L. J. Q. B. 726 ; Ma^:kay v.
380. Ford, 5 H. & N. 792 : 29 L. J. Ex.

(e) Ante, p. 157. 404. See also Pedley v. Moris, 61
(/) Ante, p. 89. See also Beg. v. L. J. Q. B. 21 ; Lilley v. Boney, Id.

Commissioners of Treasury, L. E. 727.

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FUNDAMENTAL LEGAL PBINOIPLES. 171

or against a witness in legal proceedings for defamation or
perjury (j). A subordinate military officer has no remedy
by action against his superior officer who defames him in
an official report upon his conduct (k) ; or who injures him
by an act done in the course of discipline and under powers
legally incident to the position of the superior officer (l).
In these cases malice does not take away the privilege;
for the law will rather suffer a private mischief than a
public inconvenience (m) .

By the Trade Disputes Act, 1906 ()(), certain immunities Trade Dis-
are given (i) in respect of acts done in contemplation or Trades^"^
furtherance of a trade dispute (o) ; and (ii) in favour of Unions.
Trades Unions and their officers. By section 1, an act
done in pursuance of a conspiracy is, if done in contempla-
tion or furtherance of a trade dispute, not actionable, unless
such act would be actionable if done without conspiracy ;
section 3 prevents actions being brought, on the ground
of inducing a breach of contract or interference with
business, for any act done in contemplation or furtherance
of a trade dispute; and section 4 confers on trades
unions absolute immunity from actions "in respect of
any. tortious act alleged to have been committed by or on
behalf of the trade union."

It has been thought that, in order to prevent the com- where the
pounding of felonies, there is some rule of law against the felonious.
maintenance of an action for a wrong, amounting to a felony,
before the criminal prosecution of the felon ; and upon this
ground, in Welloch v. Constantine (p), Willes, J., nonsuited a
servant, who sued her master for a rape, for which he had not

Ij) Seaman v. NethercUft, 2 0. L. B. 5 Q. B. 116.

P D 53 ■ 46 L. J. C. P. 128 ; and (n) 6 Edw, VII. o. 47.

the cases there cited. (o) As to the meaning of these

Ik) DawUns v. Ld. PauUt, L. B. words see Conway v. Wade, [1908]

5 Q. B. 94 : 39 L. J. Q. B. 53. 2 K. B. 844 : 78 L. 3. K. B. 14 ; and

II) Johnslcme v. Suttcm, 1 T. B. S. 0. in H. L., [1909] A. C 506

510 IB. B. 269. (^)2H.&C.146:32L.J.C.P.

(to) 1 T. B. 513 ; per Mellor, J,

285.

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J72 FUNDAMENTAL LEGAL PRINCIPLES.

been indicted, and the nonsuit was upheld by a majority in the
Court of Exchequer {q). Subsequently, however, in Wells v.
Abraham (r), the Court of Queen's Bench refused to disturb
a verdict for the plaintiff in an action of trover for a
brooch, although the defendant, who had stolen the brooch,
had not been prosecuted for the theft ; and in that case,
and afterwards in Ex parte Ball (s), and Midland Insurance
Co. v. Smith {t), the questions whether the supposed rule
existed, and, if so, how it could be applied, was much dis-
cussed. The result of this discussion seems to be that it is
doubtful whether there is any rule on the subject («), but
that, if there is, it is only to the effect that, where a prose-
cution can be, and ought to be instituted, the Court itself
may, in its discretion, summarily stay the action (r) : the
defendant cannot take advantage of the rule either by
demurrer (.r) or by plea (]/), or, indeed, insist upon it in any
other manner; for if the maxim, nemo allegans suam
turintudinem est audiendus {z), applies at all, it must, it
seems, always affect the defendant.

Although the law on this point can hardly be said to be
completely settled, yet it is well established that the rule,
if any, only obtains in actions against the felon by his imme-
diate victim; and does not extend to actions consequent

(q) Pollock, O.B., and Bramwell, are ooUeoted in these three cases ;

B. (Martin, B., diss.). The judg- but see also ^cj- Perryn.B., 1 H. Bl.

ment is unsatisfactory ; see per 588 ; per Romilly, M.R., Chmvne r.

Blackburn, J., L. R. 7 Q. B. 562 ; Baylis, 31 L. J. Ch. 787 : per Sir W.

and per Bramwell, L.J., 10 Ch. D. Scott, The Hercules, 2 Dods. 375—

G71. 376 ; and oases cited in 1 Sm. L. C,

(r) L. R. 7 Q. B. 554 : 41 L. J. 10th ed. 279.

Q. B. 306, where the judges were (m) See particularly per Blaok-

all of opinion that there ought not burn, J., L. R. 7 Q. B. 559 et seg.

to have been a nonsuit. (v) See per Cookburn, O.J., and

(s) 10 Ch. D. 667 : 48 L. J. Bank. Blackburn, J., in Wells v. Abraham ;

57, where Bramwell, L.J., enume- per Cave, J., Boope v. D'Avigdor, 10

rated the ways in which the rule, if Q. B. D. 412.

any, might be stated, and pointed (x) Boope v. D'Avigdor, supra.

out the difficulties against each. (y) Liitterell v. Reynell, 1 Mod.

(0 6 Q. B. D. 561 : 50 L. J. Q. B. 282.

329. Most of the earlier authorities (2) 10 Ch. D. 672 : 6 Q. B. D. 571.

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FUNDAMENTAL LEGAL PEINCIPLBS. 173

upon the felony, but brought against (a) or by (h) any
other person. It does not form any impediment to an
action for assault, battery, or libel, which might be made
the subject of a prosecution for misdemeanor ; and Lord
Campbell's Act (c) expressly provides that an action may be
maintained under that Act, although death has been caused
under such circumstances as amount in law to felony (rf).
Moreover, it is clear that the liabihty to an action cannot of
itself furnish any answer to an indictment for fraud (e).

Hitherto, we have been considering the maxim, iihi jus ibi Breaches of
rcmedium, mainly in relation to common law rights. We
must now advert briefly to its application to rights con-
ferred by statute. There are, it has been said (/), three
classes of cases in which a statutory liability may be
established. One is, where a liability existing at common
law is affirmed by a statute which gives a special remedy
different from that which exists at common law : there,
unless the words of the statute expressly or by necessary
imphcation (g) take away the common law remedy, either
that or the statutory remedy may be pursued at election.
The second is, where the statute gives the right to sue
merely, but provides no particular form of remedy : there
a person can only proceed by action at common law. The
third is, where a liabihty not existing at common law is
created by a statute which at the same time gives a par-
ticular remedy for enforcing it : there the remedy provided
by the statute must be followed ; for it is a rule of law that

(a) White v. Spettigue, 13 M. & (c) 9 & 10 Vict, c 93, amended

W. 603 : 14 L. J. Ex. 99 ; Lee v. 27 & 28 Vict. c. 95.

Bayes, 18 0. B. 599 : 25 L. J. 0. P. {d) S. 1.

249; Stones. Marsh, 6 B.& 0.551; (e) Judgm., Beg. v. Eenrick, 5

30 E. B. 420 ; Marsh v. Keating, 1 Q. B. 64, 65.

Bing. N. 0. 198 ; 37 B. E. 75. (/) Per WiUes, J., Wolverhampton

(6) Ex p. Ball, 10 Ch. D. 667 : 48 Waterworks Co. v. Hawkesford, 6

L. J. Bank. 57 ; Appleby v. Franklin, 0. B. N. S. 356.

17 Q. B. D. 93 : 55 L. 3. Q. B. 129 ; (g) Great Northern Pishing Co. v.

see also Osharn v. Gillett, L. B. 8 EdgeUll, 11 Q. B. D. 225.
Ex. 88 : 42 L. J. Ex. 52.

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174 FUNDAMENTAL LEGAL PRINCIPLES.

an action will not lie for the infringement of a right created
by a statute, where another specific remedy for its infringe-
ment is provided by that statute (h). There may, however,
be a further remedy by injunction (i).

With regard to cases which do not fall within either the
first or the third of these classes, no general rule can be
laid down upon the question whether a person who suffers
damage from the breach of a statutory duty can maintain
an action in respect of such damage : the question must
be decided in each case upon the language and object of
the particular statute (k). It has been held, however, that
where a statute creates a duty with the object of pre-
venting a particular mischief, a person who suffers a totally
different mischief from a breach of that duty cannot main-
tain an action therefor Q) ; and it has been laid down,
with regard to statutory duties, that for mere nonfeasance
no action lies except in the case of a duty owed to the
plaintiff and negligently omitted {m).

The principles of the common law are often applied to
determine whether an action lies against persons who have
statutory duties to perform. Thus, it has been held that,
if their duties are discretionary, they have a qualified
privilege, which does not exist in the case of purely
ministerial duties (n), and that they are not liable for errors
in the exercise of their discretion when committed without
malice (o). Moreover, a statutory duty may be of such a

{h) Stevens v. Jeacocke, 11 Q. B. Q. B. 101 ; Oroves v. Ld. Wimborne,

731, 741: 17 L. J. Q. B. 163; [1898] 2 Q. B, 402 ; 67 L. J. Q. B. 862!

Peebles v. Oswaldtwistle U. D. C, (I) Oorris v. Scott, L. R. 9 Ex.

[1897] 1 Q. B. 625 : 66 L. J. Q. B. 125 ; of. Ward v. Hobbs, i App."

392 ; Barraclough v. Brown, [1897] Cas. 13.

A. C. 615 : 66 L. J. Q. B. 672. (to) Seeder Lopes, L.J., Robinson

(i) Cooper Y. Whittingham, 15 Ch. v. WarUngton, [1897] 1 Q. B. 619

D. 501 : 49 L. J. Ch. 752. 623.

(k) Atkinson v. Newcastle Water- (n) Pickering v. James, L. R.

works Co., 2 Ex. D. 441 : 46 L. J. 8 0. P. 489 : 42 L. J. 0. P. 217.

Ex. 775 ; Saunders v. Holborn D. B. (0) Partridge v. Oen. Council of

of W., [1895] 1 Q. B. 64, 68 : 64 L. J. Medical Education, 25 Q. B. D. 90 :

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FUNDAMENTAL LEGAL PEINOIPLES. 175

character that, if such construction be permissible, the
statute will be construed as imposing no liability where
failure to perform it has not arisen from the want of
reasonable care (p).

By way of conclusion to this subject, we may refer the Public
reader to the Public Authorities Protection Act, 1893 {q), ''^*''°"''^^-
for certain privileges enjoyed by persons when sued for
any act done in the intended execution of a statute, or of
any public duty or authority, or for any neglect or default
in the execution of the same.

Quod Ebmbdio destituitue ipsa Eb valet si Culpa absit.
{Bac. Max., rag. ^.)~That which is without remedy
avails of itself , if there he no fault in the party seeking to
enforce it.

There are certain extra-judicial remedies as well for real Rule
as personal injuries, which are furnished by the law, where ^^P^^"^^''-
the parties are so peculiarly circumstanced as to make it
impossible to apply for redress in the usual and ordinary
methods. " The benignity of the law is such," observed
Lord Bacon, " that, when, to preserve the principles and
grounds of law, it deprives a man of his remedy without
his own fault, it will rather put him in a better degree and
condition than in a worse ; for if it disable him to pursue
his action, or to make his claim, sometimes it will give him
the thing itself by operation of law without any act of
his own; sometimes it will give him a more beneficial
remedy " (r).

On this principle depended the doctrine of remitter, Doctrine of
which, before the abolition of real actions, applied where ^^^

69 L. J. Q. B. 475 ; Toner v. 0. P. 157 ; Bateman v. Poplar D. B.

Child, 7 E. & B. 377 : 25 L. J. Q. B. of W., 37 Ch. D. 272 : 67 L. J.

837. Oh. 579.

{p) Hammond v. St. Paiicras (q) 56 & 57 Vict. c. 61.

Vcstnj, L. R. 9 C. P. 316 : 43 L. J. (r) Bac. Max., reg. 9 ; 6 Rep. 68.

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176 FUNDAMENTAL LEGAL PRINCIPLES.

one who had the true property, or jus proprietatis, in lands,
but was out of possession, and had no right to enter without
recovering possession by real action, had afterwards the
freehold cast upon him by some subsequent and, of course,
defective title. In such case he was remitted by operation
of law to his ancient and more certain title, and the right
of entry which he had gained by a bad title was held to be,
ijiso facto, annexed to his own inherent good one, so that
his defeasible estate was utterly defeated and annulled Ijy
the instantaneous act of law, without his participation or
consent (*■). The reason of this was, because he who
possessed the right would otherwise have been deprived of
all remedy; for, as he himself was in possession of the
freehold, there was no person against whom he could
bring an action to establish his prior right; and hence
the law adjudged him to be in by remitter, that is, in the
like condition as if he had lawfully recovered the land by
suit(f). There could, however, according to the above
doctrine, be no remitter where issue in tail was barred by
the fine of his ancestor, and the freehold was afterwards
cast upon him ; for he could not have recovered such
estate by action, and, therefore, could not be remitted to
it ((f). Neither will the law supply a title grounded upon
matter of record; as if a man be entitled to a writ of
error, and the land descend to him, he shall not be in by
remitter (.r). And if land is expressly given to any person
by Act of Parliament, neither he nor his heirs shall be
remitted, for he shall have no other title than is given by
the Act (y).
Doe V. In Dot' V. Woodroffe, which went by writ of error before

Woodroffe. ^-^^ Exchequer Chamber and House of Lords (^), the law

(s) See Vin. Ab., " Remitter ; " (u) 3 Bl. Com. 20. See also Bao.

Shep. Touch., by Preston, 156, n. Max., vol. i, p. 40'.

(82), 286. (e) Bac. Max., reg. 9 adfinem.

(<) Finch, Law, 19 ; 3 Bl. Com. (y) 1 Rep. i8.

20 ; Litt., s. 661. (s) 2 H. L. Cas. 811 ; 15 M. & W.

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FUNDAMENTAL LEGAL PRINCIPLES. 177

of remitter was much considered, and several important
points were decided, which are here stated shortly. H. W.,
being tenant in tail in possession of certain lands, with
the reversion to the heirs of her late husband, executed a
deed-poll in 1735, which operated as a covenant to stand
seised to the use of her only son, G. W., in fee. G. W.
afterward, and during his mother's lifetime, suffered a
recovery of the lands to the use of himself in fee. He
died m 1779, without issue, having by his will devised the
lands in fee to trustees in trust to pay an annuity to his
nephew, and subject thereto to his great-nephew, W. B.,
for Ufe, with certain remainders over. The trustees entered
into and held possession until the death of the annuitant
in 1790, when they gave possession to W. B., who con-
tinued in possession of the entirety until his own death
in 1824 ; and did various acts showing that he claimed
under the will. Upon these facts it was decided, 1st, that
the base fee created by the deed-poll, did not, upon H. W.'s
death, become merged in the reversion in fee in G. W., as
the estate tail still subsisted as an intermediate estate :
2ndly, that G. W. was not remitted to his title under the
estate tail, the recovery suffered by him having estopped
him: 3rdly, that W. B., although taking by the Statute
of Uses, was capable of being remitted, as the estate t^il
had not been discontinued : 4thly, that the acts done by
W. B. did not amount to a disclaimer by him of the estate
tail, as a party cannot waive an estate to which he would
be remitted, where the remitter would enure to the benefit
of others as well as himself : Sthly, that the right of entry
first accrued on the death of G. W., in 1779, when there
was first an available right of entry; and, consequently,
that the entry by W. B. in 1790 was not too late; and,
ethly, that the entry and remitter of W. B. in 1790, did
not operate to remit A. W. (his co-parcener) to the other

769 ; cited by Eolfe,B., Spotswoodv. v. Milbourn, L. B. 2 Ex. 235 ; and
Barrow 5 Exch. 113 ; and in Cowcm arg. Tarleton v. Liddell, IT Q. B, 406.

12

L.M.

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178 FUNDAMENTAL LEGAL PRINCIPLES.

moiety of the estate ; the Court observing, with reference
to this last point, that possession of land by one parcener
cannot, since the 3 & 4 Will. 4, c. 27, be considered as the
possession of a co-parcener, and, consequently, that the
entry of one cannot have the effect of vesting the possession
in the other (a).
Eetainer. ji^e principle embodied in the above maxim likewise

applies in the case of retainer (b), that is, where a creditor
is made executor or administrator to his debtor. If a
person indebted to another makes his creditor his executor,
or if such creditor obtains letters of administration to his
debtor, in these cases the law gives him a remedy for his
debt, by allowing him to retain so much as will pay him-
self before any other creditor whose debts are of equal
degree. This, be it observed, is a remedy by the mere act
of law, and grounded upon this reason, that the executor
cannot, without an evident absurdity, commence a suit
against himself (c) as representative of the deceased to
recover that which is due to him in his own private
capacity ; but having the whole personal estate in his
hands, so much as is sufficient to answer his own demand
is, by operation of law, applied to that particular purpose (d) :
and, in this case, the law, according to the observation of
Lord Bacon above given, rather puts him in a better degree
and condition than in a worse, because it enables him to
obtain payment before any other creditor of equal degree
has had time to commence an action. An executor de son

{a) Judgm., 15 M, & W. 769. See in illustration of this rule,

(6) Bac. Max., reg. 9 ; arg. Thorn- Simpson v. Thompson, 3 App. Cas.

Sony. Qramt, 1 Euss. 540 (a). But 279; per Best, C.J., i Bing. 151-

the principle of retainer is by some Faulkner v. Lowe, 2 Exoh. 595 (the

writers referred to the maxim,potiof authority of which case is questioned

est conditio possidentis. See2Wms. by Williams, J., Aulton v. Atkins

Exors., 5th ed. 937 (n) ; 2 Ponblan. 18 0. B. 253) ; Base v. Poulton, 2

Eq., 5th ed. 406 (m). B. & Aid. 822 ; 36 R. E. 761.

(c) A man cannot be at once actor {d) 3 Bl. Com. 18 ; see Be

and reus in a legal proceeding : wemo Rhoades, [1899] 2 Q. B. 347; 68

agit in seipsum ; Jenk. Gent. 40. L. J. Q. B. 804.

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FUNDAMENTAL LEGAL PRINCIPLES.

tort is not, however, allowed to retain, for that would be
contrary to another rule of law, which will be hereafter
considered — that a man shall not take advantage of his
own wrong (e).

179

In Juee non remota Causa sbd pboxima spectatue. (Bac.
Max., reg. 1.) — In law the immediate, not the remote,
cause of any event is regarded.

"It were infinite for the law to consider the causes of How para-
causes, and their impulsions one of another ; therefore it LorTBaoon
contenteth itself with the immediate cause, and judgeth
of acts by that, without looking to any further degree " (/).
The above maxim, thus paraphrased by Lord Bacon,
although of general application {g), is, in practice, often
cited with reference to that particular branch of the law
which concerns marine Qi) insurance ; and we shall, there-
fore, in the first place, illustrate it by briefly adverting to
some cases connected with that subject.

It is a well-known rule, that in order to entitle the Marine
assured to recover upon his policy, the loss must be a pgriisof
direct and not too remote a consequence of the peril sea, &c.

(e) 3 Bl. Com. 19 ; see Thomson v.
Harding, 2 E. & B. 630.

(/) Bao. Max., reg. 1; cited in
Sneesby \. L. £ Y. B. Co., L. E.
9 Q. B. 267: 1 Q. B. D. 42: 45
L. J. Q. B. 1 ; Babcock v. Montgomery
County Mutual Ins. Co., 4 Gomst.
(U.S.), B. 326.

Ig) As to remote damage and the
liability of one wlio is the causa
causans, see ante, p. 164. See per
Ld. Mansfield, Wadham v. Marloiv,
1 H. Bla. 439, n. ; 9 B. B. 456.

(h) In Marsden v. City & County
Ass. Co., L. B. 1 0. P. 232, the
same principle was applied to an
insurance on plate glass in a shop
front ; in Everett v. London Ass., 19

C. B. N. S. 126, it was applied to an
insurance against fire, the damage
having been directly caused by an
explosion of gunpowder ; in Fitton v.
Aco. Death Ins. Co., 17 Id. 122, to
an insurance against death by acci-
dent. For a striking illustration
of the principle, see Winspear v.
Accidental Ins. Co., 6 Q. B. D. 42 :
50 L. J. Q. B. 292. Other cases
which illustrate the principle are
Stanley v. Western Insurance Co.,
L. E. 3 Ex. 71 ; In re Murdof,
[1903] 1 K. B. 584 : 72 L. J. K. B.
362; and In re Etherington v.
Lancashire (& Yorkshire Accident
Insurance Co., [1909] 1 K. B. 591 ;
78 L. J. K. B. 684.

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180 FUNDAMENTAL LEGAL PRINCIPLES.

insured against ; and that if the proximate cause of the
loss sustained be not reducible to some one of the perils
mentioned in the policy, the underwriter is not liable (i).
If, for instance, a merchant vessel is taken in tow by a
ship of war, and thus exposed to a tempestuous sea, the loss
thence arising is- probably attributable to the perils of the
sea (k). And where a ship meets with sea damage, which
checks her rate of sailing, so that she is taken by an enemy,
from whom she would otherwise have escaped, the loss is
to be attributed to the capture, not to the sea damage (/).
So, the underwriters are liable for a loss arising immediately
from a peril of the sea, or from fire, but remotely from the
negligence of the master and mariners (m) ; and, where a
ship, insured against perils of the sea was injured by the
negligent loading of her cargo by natives on the coast of
Africa, and, being pronounced unseaworthy, was run ashore
in order to prevent her from sinking and to save the cargo,
the Court held, that the rule causa proxima non remota
spectatur must be applied, and that the immediate cause of
loss, viz., the stranding, was a peril of the sea (n).

The maxim under consideration was discussed in Dudgeon

(t) Taylor v. Dunbar, L. R. 4 P. C. (m) Walker v. Maitland, 5 B. &

206. The common law rule is Aid. 171 ; 2d R. R. 320 ; Busk v.

thus expressed in the Marine In- B. E. A. Co., 2 B. & Aid. 73; 20

surance Act, 1906 (6 Edw. 7, u. 41), R. R. 350 ; per Bayley, J., Bishops.

s. 55:— "The insurer is liable for Pentland, 7 B. & C. 223; 31 R. R.

any loss proximately caused by a 177; Phillips v. Naime, iCB. ZiB,

peril insured against, but ... he 350 — 361. See Hodgson v. Malcolm,

is not liable for any loss which is 2 N. R. 886; Judgm., Waters v

not proximately caused by a peril Louisville Ins. Co., 11 Peters (U.S.),

insured against." R. 220, 222, 223 ; Columbine Ins.

{k) Sagedorn v. Whitmore, 1 Co. v. Lawrence, 10 Id. ; Patapsco

Stark. N. P. 0. 157. See Grill v. Ins. Co. v. Coulter, 3 Id. 222 ; 6en.

Gen. Iron Screw Collier Co., L. R. 3 Mutual Ins. Co. v. Sherwood, 14

C. P. 476. Howard (U.S.), R. 851.

(I) Judgm., Livie v. Janson, 12 (n) Redman v. Wilson, 14 M. &

Bast, 653; 11 R. R. 513; citing W. 476; Laurie y. Douglas, 15 Id.

Green v. ElmsUe, Peake, N. P. 0. 746 ; Corcoran v. Qurney, 1 E. & B.

212 ; 3 R. R. 693 ; Hahn v. Corbett, 456.
2 Bing. 205 ; 27 R. R. 590.

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FUNDAMENTAL LEGAL PKINCIPLES.

•

V. Pembroke (o) . There a ship insured under a time policy
(which does not create an imphed warranty of the seaworthi-
ness of the ship at the inception of the risk) was lost
under circumstances which showed that the vessel was
unseaworthy at the time of the loss, and would not have
been lost but for her unseaworthiness, but the immediate
cause of her destruction was the violent action of the winds
and waves operating from without on the hull. It was
contended by the underwriters that this did not amount to
a loss by perils of the sea within the meaning of the policy ;
but the House of Lords held that it did, on the ground that
a long course of decisions had established that causa proxima
ct lion rcmota spectatur is the maxim by which these
contracts of insurance are to be construed, and that any loss
caused immediately by perils of the sea is within the policy,
though it would not have occurred but for the concurrent
action of some other cause which is not within it.

Where a ship, being delayed by perils of the sea from
pursuing her voyage, was obhged to put into port to repair,
and, in order to defray the expenses of such repairs, the
master having no other means of raising money, sold part
of the goods, and applied the proceeds in payment of these
expenses, the Court held that the underwriter was not
answerable for this loss, for the damage was to be considered,
according to the above rule, as not arising immediately from,
although in a remote sense it might be said to have been
brought about by, a peril of the sea (p).

A poUcy of insurance on bags of coffee on a voyage from
Eio to New Orleans and thence to New York, contained the
following exception : " Warranted free from capture, seizure,
and detention, and all the consequences thereof, or of any

(o) 2 App. Gas. 284 : 46 L. J. Sargii,y v. Hobson, 4. Bing. 131 ;

Ex. 409. See Beischer v. Borwick, 26 B. B. 251 ; Gregson v. Gilbert,

[1894] 2 Q. B. 548 : 63 L. J. Q. B. cited Park, Mar.-Insur., 8th ed. 138.

753_ See also BradUe v. Maryland Ins.

(p) Powell V. Gudgemi, 5 M. & S. Co., 12 Peters (U.S.), E. 404, 405.
431, 436 ; 17 B. E. 385 ; recognised

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181

182 FUNDAMENTAL LEGAL PRINCIPLES.

attempt thereat, und five front all consequmccs of hostilities."
The ship, whilst on her voyage, ran ashore and was
eventually lost south of Cape Hatteras. It appeared that
at Cape Hatteras, until the secession of the Southern States
of America, a light had always been maintained, and that
the light had for hostile purposes been extinguished by the
Confederates whilst in possession of the adjacent country.
If the light had been maintained the ship might have been
saved. Whilst she was ashore, part of the coffee was saved
by certain officers acting on behalf of the Federal Govern-
ment, and a further part might in like manner have been
got ashore but for the interference of the Confederate
troops, in consequence of which the residue of the cargo was
wholly lost. The question arose — had the goods, or any
part of them, been lost by perils of the sea, or by perils
from which they were by the policy warranted free ? The
Court held that the insurers were liable as for a partial
loss in respect of the coffee which remained on board
incapable of being saved, the proximate cause of the loss
being a peril of the sea — but that as to so much of the coffee
as was got ashore, and as to so much as would have been
saved but for the interference of the troops, this was a loss
by a consequence of hostihties, in respect of which the
insurers were not liable {q).

The preceding cases, conjointly with those below cited,
in which the maxim before us has, under different states
of facts, been applied (/■), sufficiently establish the general
proposition, that, in order to recover for a loss on a maritime
policy, the loss must have been directly occasioned by some

(2) lonides v. Universal Marine subject supra.
Ins. Co., U C. B. N. S. 259; cited (r) Naylory.Falmer,8Bxch.7S9;

per Willes, J., Marsden v. City <& S. C. (affirmed in error), 10 Exch.

County Ass. Co., L. R. 1 C. P. 240 ; 382, where the loss resulted from the

Lloyd. V. Gen. Iron Screw Collier Co. , piratical act of emigrant passengers ;

3H.& 0.284; Sully y. Duranty,Id.. M'Siui^iey v. Boyal Exchange Ass

270 ; Cory v. Burr, 8 App. Oas. 393. Co., 14 Q. B. 634, 646, which is

Dent V. Smith, L. E. 4 Q. B. 414, observed upon per Cur., Chope v.

is important in reference to the Beynolds, 5 C. B. N. S. 651, 652.

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FUNDAMENTAL LEGAL PRINCIPLES. 183

peril insured against (s). It is not enough that the loss has
happened indirectly through a peril insured against; the
loss must be occasioned by a peril insured against acting
immediately on the thing insured. A policy in the ordinary
form insured a cargo against capture and restraint of
princes ; the captain, the ship being under convoy, was told
that if he entered the port of his destination the vessel would
be lost by confiscation, and was ordered by the commander
of the convoy to proceed to another port ; which he did, and
there sold the cargo for a nominal sum. The underwriters
on the above principle were held not liable (t).

Again, it may, in general, be said, that everything which
happens to a ship in the course of her voyage, by the imme-
diate act of God, without the intervention of human agency,
is a peril of the sea (m) ; for instance, if the ship insured
is driven against another by stress of weather, the injury
which she thus sustains is admitted to be direct, and the
insurers are liable for it; but if the collision causes the
ship injured to do some damage to the other vessel, both
vessels being in fault, a positive rule of the Court of
Admiralty (i-) requires that the damage done to both ships
be added together, and that the combined amount be equally
divided between the owners of the two ; and, in such a case,
if the ship insured has done more damage than she has
received, and is consequently obhged to pay the balance,
this loss can neither be considered a necessary nor a proxi-
mate effect of the perils of the sea. It grows out of a
provision of the law of nations, and cannot be charged
upon the underwriters (w).

(s) See a,]30,per Story, J., Smith Young, 6 E. & B. 312.

V. Urmersal Ins. Co., 6 Wheaton (u) Park, Mar. Insur., Stlied. 136.

(U.S.), B. 185; per Ld. Alvanley, (tj) Now observed in all the Courts.

Hadkinson v. Bobi/nson, 3 B. & P. (w) De Vaux v. Salvador, 4 A. &

388 ; 7 B. B. 786 ; PhilUps v. E. 420, 431 ; the decision in which

Nairne, 4 C. B. 348. case is controverted, 14 Peters

(0 Hadkinson v. Bobmson, 3 B. & (U.S.), E. Ill ; but agreed to by Mr.

P. 388 ; 7 B. E. 786 ; Halhead v. Phillips in his Work on Insurance,

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184

FUNDAMENTAL LEGAL PRINCIPLES.

Maxim —
how quali-
fied in in-
surance
oases.

Assured
cannot take
advantage
of his own
wrongful
act.

The maxim before us, however, is not to be applied in
the class of cases above noticed, if it would contravene the
manifest intention of the parties and the fundamental rule
of insurance law that the assurers are not liable for a loss
occasioned by the wrongful act of the assured (x). " It is a
maxim," says Lord Campbell (y), " of our insurance law and
of the insurance law of all commercial nations that the
assured cannot seek an indemnity for a loss produced by
his own wrongful act. The plaintiffs said truly that the
perils of the seas must still be considered the proximate
cause of the loss, but so it would have been if the ship had
been scuttled or sunk by being wilfully run on a rock."
The misconduct of the assured need not, in order to exempt
the insurers from liability, be the direct and proximate
cause, the causa ccnisans, of the loss; if his misconduct is
the efficient cause of the loss, the assured will be disentitled
to recover. And this rule is now expressed in the Marine
Insurance Act, 1906 (^), which declares that " the insurer is
not Hable for any loss attributable to the wilful misconduct
of the assured."

But this rule does not apply to the merely neghgent act
of the assured or his servants (a). If ballast is thrown over-
board by the negligent and improper, though not barratrous,
act of the master and crew, whereby the ship becomes
unseaworthy and is lost by perils of the sea, which other-
wise she would have overcome, the underwriters will be
liable (h). And where a loss arises through the negligence
of the captain in not having a pilot on board at any

Vol. 2, § 1416. See per Ld. Camp-
bell, Dowell V. Gen. Steam Nav. Co.,
5 E. & B. 195 ; per Sir W. Scott,
2 Dods. 85; per Ld. Selborne,
7 App. Gas. 800.

(x) Judgm., 6 E. & B. 948—949;
and Marine Insurance Act, 1906,
s. 55 (2).

(y) Thompson-v. Hopper, 6'E. iiB.
9,S7.

{z) S. 55 (2).

(a) Trinder, Anderson £ Co. v.
Thames, dx., Ins. Co., [1898] 2 Q. B.
114; 67 L. J. Q. B. 666; Marine
Insurance Act, 1906, s. 55 (2).

(6) Sadler v. Dixon, 8 M. & ^^^
895 ; cited Wilton v. E. Atlantic
Mail Steam Co., 10 0. B. N. S.
465.

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FUNDAMENTAL LEGAL PRINCIPLES. 185

intermediate stage of the voyage or on entering the port of
destination (except where required by the positive provisions
of an Act of Parliament), the underwriters will not be dis-
charged from their Uabihty, if such loss be proximately
caused by the perils insured against, and the master and
crew were originally competent (c).

The question whether a loss is caused by one of the Exceptions
excepted perils in a bill of lading is governed by the same jading! °^
principle with this modification, that if the goods are not
carried with reasonable care, and are lost by an excepted
peril, such as a peril of the sea, the shipowner is
responsible, although the excepted peril is the proximate
cause of the loss, if the loss would not have occurred but
for his negligence. This rule, however, does not result
fi'om any departure from the general principle laid down
in the maxim causa proxima non rcmota spectatitr, but is
rested on the ground that, upon the true construction of a
bill of lading in the ordinary form, the shipowner is excused
from liability for such loss only as is caused by an excepted
peril without negligence on his part — or, to put it in
another way, that he cannot take advantage of the excep-
tions unless he has taken all reasonable care to avoid their
consequences (d) .

The maxim under consideration is also applied to actions Maxim ap-
founded on neghgence. The plaintiff must generally prove aotion^for
that the defendant's negligence was the proximate and not i^gligenoe.
merely a remote cause of the damage (e). It is not, how-
ever, applied quite so strictly as in actions on policies of
insurance, and it is perhaps more correct to say that the
plaintiff must make out that the damage is the natural and
probable result of the defendant's negligence (/). The

(c) Arnold's Marine Ins., Stli ed. 24 ; and Siordet v. Hall, 4 Bing.
646. 607 : 29 R. K. 651.

(d) See The Xantho, 12 App. Cas. («) Hadwell v. Bighton, [1907]
503 ; Hamilton, Fraser & Co. v. Pan- 2 K. B. 348 : 76 L. J. K. B. 891.
(for/, 12 App. Cas. 518: 57 L.J. Q.B. (/) Sharp v. Powell, L. B. 7

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186

FUNDAMENTAL LEGAL PBINOIPLBS.

Blaxim
applies in
determiumg
the measure
of damages.

distinction is most noticeable in cases where the act of a
stranger has intervened between the neghgence of the de-
fendant and the event causing the damage. In such cases,
even though the act of the stranger is the proximate cause,
the plaintiff recovers if he makes out that the defendant's
negligence was " an effective cause" of the damage (g).

When the contributory negligence of the plaintiff is
relied on as a defence, it is not enough for the defendant to
show that the plaintiff's negligence only remotely caused
the damage (/(). As Lord Selborne said: "Great injustice
might be done if in applying the doctrine of contributory
negligence to a case of this sort, the maxim causa jjwxima ,
lion reinota, spectatur were lost sight of " (i).

The maxim as to remoteness has an important applica-
tion in connection with the measure of damages (j) : the
question which in practice most frequently presents itself
being whether a particular item of damage is properly refer-
able to the cause of action alleged and proved. The general

C. p. 253 : 41 L. J. C. P. 91 ; Harris
V. Mobbs, 3 Ex. D. 268 ; Bailiffs of
Bomney Ma/ish v. Trinity: House,
L. E. 5 Ex. 204 : L. R. 7 Ex. 247 :
39 L. J. Ex. 163.

{g) Clark v. Chambers, 3 Q. B. D.
327 : 47 L. J. Q. B. 427; Halestrap
V. Gregory, [1895] 1 Q. B. 561 ; 64
L. J. Q. B. 415; Englehart v.
Farrant, [1897] 1 Q. B. 240 : 66
L. J. Q. B. 122 ; and compare
McDowell V. G. W. By. Co., [1908]
2 K. B. 331 : 72 L.i J. K. B. 652 ;
Burrows v. March Gas Co., L. E.
7 Ex. 96 : 41 L. J. Ex. 46 ; De La
Bere-v. Pearsons, Ltd., [1908] 1 K. B.
280.

(h) BadUy v. L. & N. W. By. Co.,
1 App. Gas. 754 : 46 L. J. Ex. 573,
and oases there discussed.

(i) Spaight v. Tedcastle, 6 App.
Gas. 217, 219.

(j) With respect to damages in

general, it has heen said that they
are of three kinds : 1st, nominal
damages, which occur in cases
where the judge is bound to tell the
jury only to give such; as, for
instance, where the seller brings an
action for the non-acceptance of
goods, the price of which has risen
since the contract was made ; 2ndly,
general damages, which are such as
the jury may give when the judge
cannot point out any measure by
which they are to be assessed except
the opinion and judgment of a
reasonable man ; 3rdly, special
damages, which are given in respect
of any consequences reasonably or
probably arising from the breach
complained of; per Martin, B.,
Prehn v. Boyal Bank of Liverpool,
L. R. 5 Ex. 99, 100. See The
Mediana, [1900] A. C. 116—118.

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FUNDAMENTAL LEGAL PRINCIPLES. 187

rule for our guidance upon this subject where the action is
founded on contract or in tort has already been adverted
to (A-). Upon the question of remoteness of damage there
is no difference in principle between actions on contract and
those in tort (Z).

The principle upon which special damage is sometimes
recoverable for the breach of a contract is that enunciated
in the second branch of the well-known rule, with regard
to the measure of damages, laid down in Hadley v. Baxcn-
dalc {m). That rule is as follows: — "Where two parties
have made a contract which one of them has broken, the
damages which the other party ought to receive in respect
of such breach should be such as may fairly and reasonably
be considered either (1) arising naturally, i.e., according to
the usual course of things, from such breach of contract itself,
or (2) such as may reasonably be supposed 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.
If the special circumstances under which the contract was
actually made were communicated by the plaintiffs to the
defendants, and thus known to both parties, the damages
resulting from the breach, which they would reasonably
contemplate, would be the amount of injury which would
ordinarily follow from a breach of contract under these
special circumstances so known and communicated. Ou
the other hand, if these special circumstances were wholly
unknown to the party breaking the contract, he, at the most,
could only be supposed to have had in his contemplation
the amount of injury which would arise generally, and in
the great multitude of cases not affected by any special
circumstances, from such a breach of contract. For, had
the special circumstances been known, the parties might
have specially provided for the breach of contract by
special terms as to the damages in that case; and of

{k) Sv^a, p. 168. 105, 114.

(l) The Nottmg Hill, 9 P. D. (m) 9 Exch, 341, 355.

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188 FUNDAMENTAL LEGAL PBINCIPLBS.

this advantage it would be very unjust to deprive
them."

With regard to the second branch of the above rule,
Fry, LJ., observed in Hammond v. Bm»ey (n) that there
were four questions to be answered in order to see whether
the special damages claimed were recoverable under it:
(1) What are the damages which actually resulted from the
breach of contract ? (2) Was the breach of contract made
under any special circumstances, and, if so, what were
they '? (3) What at the time of making the contract was
the common knowledge of both parties ? and (4) What may
the Court reasonably suppose to have been in the contem-
plation of the parties as the probable result of a breach of
the contract, assuming the parties to have applied their
minds to the contingency of there being such a breach '?
Rule does The maxim, in jure non remota causa seel loroxima spectattor,

transaoti^on° <loes not apply to any transaction originally founded in fraud
fraud ^^™ or coviu ; for the law will look to the corrupt beginning,
and consider it as one entire act, according to the prin-
ciple, dolus circuitu non purgatur (o) — fraud is not purged
by circuity {p) ; but this principle must be taken with a
qualification in cases where the term dolus is used to signify
deceit. In actions of deceit, in order to make the defen-
dant liable, some connection must be shown between the
party deceiving and the party deceived, as that the decep-
tion was practised by the defendant upon the plaintiff, or
upon a third person with the knowledge or intent that it
would or should be acted upon by the plaintiff (g).

(«) 20 Q. B. D. 79, 100. See B. & E. 1047; see also^crBramwell,

Agius V. a. ^7. Colliery Co., [1899] B., Id. 1045 ; per Williams, J"., Id.

1 Q- B. 413. 1054 ; [1898] 2 Q. B. 127 ; FUzjolin

(o) " Dolus here means any mviig- v. Uackinder, 9 C. B.N. S. 505, 514.
ful act tending to the damage of (jj) Bao. Max.,reg. 1 ; Noy, Max.,

another ; " Judgm., 6 E. & B. 948. 9th ed., p. 12 ; Tomlin's Law Diet.,

" There can be no dolus without a tit. " Fraud."
breach of the law ; " per WiUes, J., (g) See Peek v. Gurney, L. R. 6

Jeffries ,v. Alexander, 8 H. L. Gas. H. L. 377: 43 L. J. Oh. 19 ; Barry

637, and in Thompson v. Hopper, E. v. Croshey, 2 J. & H. 117—118, 123 ;

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FUNDAMENTAL LEGAL PRINCIPLES.

189

Neither does the above maxim, according to Lord Bacon, Nor in
ordinarily hold in criminal cases, because in them the inten- gases!^^
tion is matter of substance, and, therefore, the first motive,
as showing the intention, must be principally regarded (r).
As, if A., of malice prepense, discharge a pistol at B., and
miss him, whereupon he throws down his pistol and flies,
and B. pursues A. to kill him, on which he turns and kills

B. with a dagger ; in this case, if the law considered the
immediate cause of death, A. would be justified as having
acted in his own defence ; but looking back, as the law
does, to the remote cause, the offence will amount to
murder, because committed in pursuance and execution of
the first murderous intent (s).

Nevertheless, an indictment will sometimes fail to be
sustainable on the ground of remoteness (0- For instance,
if trustees of a road neglect to repair it in pursuance of
their statutory powers, and one passing along the road is
accidentally killed by reason of the omission to repair, the
trustees are not indictable for manslaughter, for " not only
must the neglect, to make the party guilty of it liable to
the charge of felony, be personal, but the death must be the
immediate result of that personal neglect (m). It seems, how-
ever, that it is no defence to an indictment for manslaughter
that the deceased was guilty of negligence and so contributed
to his own death, if the death of the deceased is shown to
have been caused in part by the negligence of the prisoner (r).

Andrews v. Mockford, [1896] 1 Q. B. remotely ooimeoted with the death

372 ; 65 L. J. Q. B. 302. to support an indictment for man-

(r) Bao. Max., vol. iv., p. 17. slaughter.

{s) Bac. Max., reg. 1. (m) Beg. v. Pocock, 17 Q. B. 34,

(t) See Beg. v. Bennett, Bell, C. 39 ; Beg. v. Hughes, Dearsl. & B. 248.

C. 1, where fireworks kept by the See also Beg. v. Gardner, Dearsl. &
prisoner in contravention of 9 & 10 B 40, with which of. Beg. v. Martin,
Will. 3, 0. 7, s. 1, either accidentally L. E. 1 0. C. 56 ; Beg. v Clerk of
or through negligence of his servants Assize of Oxford Circuit, [1897] 1
exploded, and, setting fire to a Q. B. 370.

neighbouring house, caused a per- (v) B. v. Swindall, 2 0. & K.

son's death. Held, that the illegal 230 ; B. v. Jones, 11 Cox, 544 ; B. v.
act in keeping the fireworks was too Bew, 12 Cox, 355.

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190

FUNDAMENTAL LEGAL PRINCIPLES.

General
rule.

Meaning of
act of God.

Repair of
sea-walls.

Actus Dei Nbmini Facit Injuriam. (2 Bla. Com. 122.)—
The law holds no man responsible for the act of God.

Duties are either imposed by law or undertaken by con-
tract, and the ordinary rule of law is that when the law
creates a duty, and the party is disabled from performing
it without any default of his own by the act of God, the
law excuses him, but when a party by his own contract
creates a duty upon himself he is bound to make it good,
notwithstanding any accident by inevitable necessity {x).

The act of God, which ia the antithesis of the act of
man, generally means an inevitable accident due directly
and exclusively to natural causes without human interven-
tion, and an accident so due is considered to be inevitable
if it be such that it Avould be unreasonable, under all the
circumstances of the case, to expect a person to foresee and
prevent it, or to resist or avert its consequences (y). The
phrase is often used of the distinctive forces of nature, such
as storms and floods, and is applicable to these, though
they be not unique, if they be extraordinary and such as
could not reasonably be anticipated {z). It is also used of
such an event as a person's death or his incapacity to act
through illness.

Where the owner of land fronting the sea is under a
prescriptive liability (a) to maintain a wall against its
incursion, the doctrine that the act of God excuses usually
apphes to, and limits, the liability : so that if he has kept
the wall in repair sufficient to resist ordinary storms, but

(x) Paradine v. Jane, Aleyn, 26 ;
Nichols V. Marsland, 2 Ex. D. 1, 4 ;
46 L. J. Ex. 174.

(y) Nugent v. Smith, 1 0. P. D.
423 : 45 L. J. C. P. 697 ; Forward v.
Pittard, 1 T. E. 27, 33 ; IE. R. 142.
See also 14 Q. B. D. 574.

(a) Nitro-phosphate Co. v. L. & St.

Katharine Dochs Co., 9 Oh. D. 603,
516; see Brabant v. King, [1895]
A. C. 632 : 64 L. J. P. C. 161.

(a) There is no liability at common
law to maintain a sea-wall for the
benefit of neighbours ; Hudson v.
Tabor, 2 Q. B. D. 298: 46 L. J.
Q. B. 463.

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FUNDAMENTAL LEGAL PKINCIPLES.

the wall be overthrown without his default by an extra-
ordinary tempest, the burden of repair falls, not exclusively
upon him, but upon all the landowners of the level (b). As
the liability is prescriptive, its extent depends upon the
usage proved, and the evidence may establish that a land-
owner is liable to repair damage done by an extraordinary
tempest (c) ; but in the absence of proof of this more
extensive liability, the liability is limited to the mainten-
ance of the wall in a state to resist ordinary seas (d) . The
burden of repairing damage done to the wall by extra-
ordinary seas, nevertheless, falls upon the landowner if
the wall was not in proper repair and the want of repair
occasioned the damage (e).

The benefit of the excuse that damage was due to the act immaterial
of God is, it seems, not lost by reason of a default which
does not contribute to the damage. The owners of a dock
connected by an artificial channel with a tidal river neg-
lected to build their river wall to the requisite height, and
an extraordinary tide flooded the dock, and the floods
escaped and damaged neighbouring premises. It was
suggested by the dock-owners that even if they had ful-
filled their duty, part of the damage would, nevertheless,
have been done, and must have been treated as due entirely
to the act of God. It was held that the dock-owners were
not answerable for that part of the damage, if capable of
being severed from the part to which their breach of duty
contributed (/).

The extent of a liability imposed by statute is always statiitory
a question of construction. Where a statute imposed upon
the owner of any vessel damaging a pier liability for the

(6) Eeighley's case, 10 Co. Bep. (d) Beg. v. Fobbing Gommrs.,

139 ; B. V. Somerset Commrs,, 8 supra.

T. B. 312; 4 B. B. 659; Beg. v. (e) B. v. Essex Commrs., 1 B. &

Fobbing Commrs., 11 App. Gas. 449 : C. 477 ; 25 B. B. 467.

56 L. J. M. 0. 1. (/) Nitro-phosphate Co. v. L. d-

(c) Beg. V. Leigh, 10 A. & E. St. Katharine Docks Co., 9 Ch. D.

398. 503.

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192 FUNDAMENTAL LEGAL PRINCIPLES.

damage, and it appeared that the aim of the statute was
not to create a new liabiHty, but to fix the owner with the
common law hability notwithstanding that his vessel might
be in charge of persons for whose conduct he would not be
answerable at common law, it was held that an owner was
not liable for damage occasioned by the act of God. A
violent storm compelled the crew to abandon the vessel and
drove the abandoned vessel against the pier (g).

Artificial The maxim under consideration is illustrated by the

case of a person who for his private purposes constructs an
artificial lake upon his land. By so doing he incurs the
duty to prevent an escape of the waters to his neighbour's
damage. This duty, however, does not extend to an escape
due, without default, to the act of God, for instance, to an
extraordinary rainfall, which could not reasonably have
been anticipated, and which bursts the banks of the lake,
though made and maintained with all reasonable care (li).

Fire. Similarly, if a man make a fire in his house ^3r field, he must

see it does no harm or answer the damage if it does, but he
is excused if the fire be spread by the act of God, as by a
sudden irresistible storm (i). At the common law there was
a presumption of negligence against a man upon whose
premises a fire originated (j). By the 14 Geo. 3, c. 78,
s. 86 (/<;), no action lies, except upon a contract between
landlord and tenant, against a person upon whose premises
a fire accidentally begins for any damage done thereby.
This provision does not extend to fires kindled intentionally
or by negligence (l) ; but it probably rebuts the common
law presumption.

(g) Bimer Wear Gmnmrs. v. Adam- 958 ; see 1 Boll. Abr. 1.

soyi, 2 App. Gas. 7i3. (k) It has been held that the

{h) Nichols V. Marsland, 2 Ex. D. section is of general application ;

1 : 46 L. J. Ex. 174. FilUter v. Phippard, 11 Q. B. 347 ';

(i) TubervilY. Stamp, 1 Salk. 13 : but see Westjninstsr Fire Office y.

1 Ld. Eaym. 264; see Black y. Glasgow Soc, 13 App. Gas. 699, as

Christchtirch Co., [1894] A. C. 48; to s. 83.

63 L. J. P. 0. 32. {I) FilUter y, Phippard, supra.

(j) Per Ld. Tenterden, 2 B. & Ad.

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FUNDAMENTAL LEGAL PEINCIPLES. 193

The burning of a house by negligence is waste (m) ; but Waste,
it is not waste, or the waste is excusable, if the house be
burnt by lightning or prostrated by tempest without the
tenant's default («). Notwithstanding the decision in
Davies v. Davies (o), it may perhaps be doubted whether
a tenant for years of a house who has not contracted to do
any repairs is under obligation to rebuild the house if over-
thrown without his default by an extraordinary tempest.

The liability of a tenant for years, however, is generally Landlord
fixed by an express contract. A general covenant by the
tenant to keep the premises in repair obliges him to repair
damage done by accidental fire or by lightning, tempest or
other unavoidable contingency (p), and therefore special
provisions regarding such contingencies are often intro-
duced into leases for the tenant's protection (q). In the
absence of a special contract, the rule is that the landlord
is not bound to repair (?•) ; nor is he bound, in the event of
a fire against which he is insured, to expend money he may
have received from the insurance office in reinstating the
premises (s).

The destruction of demised buildings by fire or by the Kent,
act of God does not absolve the lessee from liability to pay
rent, notwithstanding that neither he nor the lessor be
bound to restore them (i), and the rent continues to be

(to) Co. Litt. 53 b. As to burning Blackburn, 3 Ves. 84 ; Clark v.

by accident, see 14 Geo. 3, u. 78, Glasgow Co., 1 Maoq. 668 ; see

s, 86, supra ; Nugent v. Cuthbert, Yates v. Dunster, 11 Exch. 15.

Sugd. Law of Pr., 475, 479 ; White (g) See Saner v. Bilton, 7 Ch. D.

V. M'Cann, 1 Ir. B. 0. L. 205. 815 : 47 L. J. Ch. 267 ; Manchester

(n) 2 Boll. Abr. 820 ; Bac. Abr., Warehouse Co. v. Garr, 5 0. P. D.

" Waste " (B.) ; see Paradine v. 507 : 49 L. J. C. P. 809.

Jane, Aleyn, 27 ; Book v. Worth, 1 (r) Gott v. Gandy, 2 E. & B. 845 :

Ves. sen. 462 ; Simmons v. Norton, 28 L. J. Q. B. 1 ; Bayne v. Walker,

7 Biug. 647, 648 ; 83 R. B. 588. 3 Dow, 233 ; 15 B. B. 53.

(o) 38 Ch. D. 499: 57 L. J. Ch. (s) Leeds v. Cheetham, 1 Sim.

1093 ; see Be Cartwright, 41 Ch. D. 146 ; 27 B. E. 181 ; Lofft v. Dennis,

532. 1 E. & E. 474.

(p) Chesterfield v. Bolton, 2 (t) Paradine v. Jane, Aleyn, 26 ;

Oomyns, 627 ; Bullock v. Dommitt, Monk v. Cooper, 2 Stra. 763 ; Belfour

6 T. B. 650 ; 3 B. B. 300 ; Pym v. v. Weston, 1 T. B. 810 ; 1 B. B. 210 ;

L.M. 13

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194

FUNDAMENTAL LEGAL PEINCIPLES.

Eviction by
act of God.

Absolute
contracta.

payable, unless there was an express stipulation to the
contrary (m). In Izon v. Gorton (x), where the upper floors
of a warehouse were let to a tenant from year to year, it was
held that the tenancy and the liabiUty to rent continued,
although the premises were destroyed by accidental fire and
were wholly untenantable until rebuilt, and that the entry
of the landlord for the purpose of rebuilding them was not an
eviction. To determine his liability in such a case a tenant
from year to year should give a proper notice to quit.

It has been said, indeed, that a tenant for years may
have the rent apportioned if, without his default, he be
evicted from part of the demised land by the act of God, as
by an irruption of the sea whereby the land becomes a
permanent part of the open sea. But an invasion of waters
over which the tenant will have exclusive rights is not an
eviction; nor is the destruction by fixe of all that stands
upon the lands, for the subsequent use of the lands is not
thereby entirely lost (y).

With regard to contracts, the general rule is that a person
who contracts absolutely to do a thing not naturally impos-
sible is not excused for non-performance because of being
prevented by the act of God (z). Thus, where a contractor
built a bridge across a river under an agreement which
bound him to keep it in repair during a fixed term, and
during that term the bridge was destroyed by an extra-
ordinary flood, it was held that he was liable to rebuild
it (a). It is sometimes said that the act of God excuses the
breach of contract, but this is inaccurate, and what is really

Hare v. Groves, 3 Anst. 687 ; 4 E. R.
835 ; Baker v. HoUmffel, 4 Taunt.
45: 13 E. E. 556: 18 Ves. 115;
Marshall v. Schofield, 52 L. J. Q. B.
58.

(m) See Bennett v. Ireland, E. B.
& B. 326.

(x) 5 Bing. N. C. 501 ; see Surplice
V. Farnsworth, 8 Scott. N. E. 307 ;

Packer y. Gibbins, 1 Q. B. 421;
Upton V. Towneiid, 17 C. B. 30.

{y) 1 EoU. Abr. 236; Bao. Abr.
" Eent " (M. 2).

(s) Judgm., Lloyd v. Ouibert,
L. E. 1 Q. B. 115, 121; citing
Paradine v. Jane, Aleyn, 26.

(a) Brecknock Co. v. Pritchard,
6 T. E. 750 ; 3 E. E. 335.

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FUNDAMENTAL LEGAL PRINCIPLES. 195

meant is that it is not within the contract that non-perform-
ance if due to the act of God should be treated as a breach (6).
For instance, when it is said that " if a lessee covenants to
leave a wood in as good a plight as the wood was at the
time of the lease, and afterwards the trees are blown down
by tempest, he is discharged of his covenant "(c), what is
meant is that the covenant was intended to relate only to
the lessee's own acts, and not to an event beyond his control
and producing effects not in his power to remedy (b).

Contracts, then, are not always to be construed as Implied
absolute ; and, as a general rule, where the parties must
have contemplated the continuing existence of a specific
thing as the foundation of their contract, and there is no
warranty that the thing will continue to exist, a condition
ought to be implied that impossibility arising from the
accidental destruction of the thing shall excuse perform-
ance (d). Thus, where a contractor agreed to fit up a
building with machinery, and during the progress of the
work the building was accidentally destroyed by fire, it was
held that he was excused from proceeding with the
contract (e). The Sale of Goods Act, 1893, recognises this
rule by providing that where there is an agreement to sell
specific goods, and subsequently the goods, without any
fault of the seller or buyer, perish before the risk passes to
the buyer, the agreement is thereby avoided (/).

Upon the same principle, where it ought to be inferred
that the happening of some future event was contemplated
as the sole foundation of a contract, the contract is dissolved

(6) Baily v. De Orespigny, L. B. 651 : 36 L. J. 0. P. 331 ; see Turner

i Q. B. 180, 185. V. Goldsmith, [1891] 1 Q. B. 544:

(c) 1 Co. Kep. 98 a. 60 L. J. Q. B. 247.

(d) Judgm., Taylor v. Caldwell, (/) 56 &'57 Viot. o. 71, s. 7; see
3 B. & S. 826 : 82 L. J. Q. B. 164, Sowell v. Coupland, 1 Q. B. D. 258 :
and see Nicholl and Knight v. 46 L. J. Q. B. 147; Bl:phicli v.
Ashton, [1901] 2 K. B. 126 : 70 L. J. Barnes, 5 C. P. D. 321 : 49 L. J.
K. B. 600. 0. P. 698 ; Chapman v. Withers,

(e) Appleby Y. Myers, L, B. 2 C. P. 20 Q. E. D. 824 : 57 L. J. Q. B. 457.

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FUNDAMENTAL LEGAL PKINCIPLBS.

Contracts for

personal

servioee.

if, without the fault of either party, that event does not
happen. This principle was apphed in several cases
arising out of the postponement of King Edward's corona-
tion. Thus, where a flat was taken in Pall Mall for certain
days with the sole object of viewing the coronation pro-
cession, it was held that the contract was dissolved when
it was announced that the procession would not take
place (g).

A contract for personal services is not, as a rule, an
absolute contract, but is generally subject to an implied
condition that the servant's inability to serve, if due to
illness, shall not be a breach (h). The servant's illness
therefore does not usually entitle the master to determine
the contract ; but the master may have an implied right to
determine it in the event of an illness which renders the
servant permanently incapable of serving (i), or of an illness
which frustrates the object of the contract (j), or goes to the
root of the contract {k). While the contract remains in
force, the servant's right to his wages generally remains
intact (/). It is, as a rule, an implied term of a contract
for personal services that the death of either party shall
put an end to it, and the rule applies to an engagement
expressed to be for a fixed term (m) or to continue until
determined by notice (n).

(g) Chandler v. Webster, [1904]

1 K. B. 493 : 73 L. J. K. B. 401 ;
and see Krell v. Henry, [1903] 2 K.
B. 740 : 72 L. J. K. B. 794 ; Seme
Bay Steamboat Co. v. Button, [1904]

2 K. B. 688 : 72 L. J. K. B. 879 ;
Civil Service Co-operative Society
V. General Steam Navigation Co.,
[1903] 2 K. B. 756 : 72 L. J. K. B.
933.

(fe) Boast V. Firth, L. B. 4 C. P. 1 :
38 L. J. C. P. 1 ; Robinson v.
Davidson, L. E. 6 Ex. 269 : 40 L. J.
Ex. 172.

(i) See Cuckson v. Stones, 1 E. &

E. 248 : 28 L. J. Q. B. 25.

(j) Per Bramwell, B., Jackson v.
Union Marine Ins. Co., L. K. 10
C. P. 141.

{k) Poussard v. Spiers, 1 Q. B. D.
410 : 45 L. J. Q. B. 621 ; see Bettini
V. Gye, 1 Q. B. D. 183 : 45 L. J.
Q. B. 209.

(Z) Cuckson V. Stones, supra ; K.
V. Baschen, 36 L. T. 88.

(m) Whincup v. HugJies, L. B. 6
0. P. 78 : 40 L. J. 0. P. 104.

(n) Farrow v. Wilson, L. B. 4
0. P. 744 : 88 L. J. 0. P. 326.

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FUNDAMENTAL LEGAL PRINCIPLES. 197

Where a contract to do work or render services has been Efieot of non-
partially performed, but further performance is excused by of Smot.
the act of God, the contract is not thereby rescinded
ab initio (o). As a rule, each party retains rights which by
the terms of the contract he had ah-eady acquired (o), but
neither is subject to HabiUties which, having regard to those
terms, had not already arisen (p). For instance, sums
which had accrued due for the work actually done remain
payable (o), or, if already paid, are not recoverable (q) ;
but no claim can be maintained in respect of sums which
were to be paid only upon the completion of the work, and
in the case of a special contract to do the entire work for
one entire sum payable upon its completion, the contractor
cannot recover any compensation for the work actually
done ip).

Conditions, as well as contracts, ought sometimes to be Conditions
construed as not absolute. Thus it is laid down that where
the condition of a bond is possible at the time of making
it, and before it can be performed the condition becomes
impossible by the act of God, the obligation is saved (r) ;
and the reason seems to be that as the condition is for the
obligor's benefit he is not to be deprived of that benefit by
the act of God. For the same reason it has also been said
that if the condition be in the disjunctive, with liberty to
the obligor to do either of two things at his election, and
both are possible at the time of making the bond, and after-
wards one of them becomes impossible by the act of God,

(o) Stubbs V. Holywell B. Co., Hughes, L. R. 6 C. P. 78 : 40 L. J.

L. R. 2 Ex. 311 : 36 L. J. Ex. 166 ; C. P. 104 ; Civil Service Co-operative

Chandler v. Webster, [1904] 1 K. B. Society y. General Steam Navigation

493 : 73 L. J. K. B. 401. Co., [1903] 2 K. B. 756 : 72 L. J.

ip) Appleby v. Myers, L. R. 2 K. B. 933.
0. P. 651: 36 L. J. 0. P. 331; (r) Co. Litt. 206 a; Roll. Abr.

Krell V. Henry, [1903] 2 K. B. 740: 449, 451 ; Com. Dig. " Condition,"

72 L. J. K. B. 794. D. 1, L. 12 ; 2 Bl. Com. 340 ; per

(g) Anglo-Egyptian Co. v. Benmie, WiUiams, J., Broion v. Mayor of

L. E. 10 0. P. 271, 571 : 44 L. J. London, 9 C. B. N. S. 747 ; see S. C,

0. P. 130 ; see also Whincup v. 13 Id. 828.

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FUNDAMENTAL LEGAL PRINCIPLES.

Condition in
a devise or
conveyance.

the obligor shall not be bound to perform the other (s). But
it has been denied that this is true as a universal proposi-
tion, and in Barhworth v. Young (t), Kindersley, V.-C,
after reviewing the authorities, expressed the opinion that
in each case the intention of the parties to the bond must
be considered, and that *' if the Court is satisfied that the
clear intention of the parties was that one of them should
do a certain thing, but he is allowed at his option to do it
in one of two moods, and one of these modes becomes impos-
sible by the act of God, he is bound to perform it in the
other mode."

In a devise or conveyance of lands, on a condition
annexed to the estate conveyed, which is possible at the
time of making it, but afterwards becomes impossible by
the act of God, there, if the condition is precedent, no
estate vests, because the condition cannot be performed ;
but, if subsequent, the estate becomes absolute in the
grantee, for the condition is not broken (m). Thus, where
a man enfeoffed another, on the condition subsequent of
re-entry, if the feoffor should within a year go to Paris
about the feoffee's affairs, but feoffor died before the year
had elapsed, the estate was held to be absolute in the
feoffee {x). So, where a man devised his estate to his
daughter, on a condition subsequent that she should marry
his nephew on or before her attaining twenty-one years ;
but the nephew died young, and the daughter was never
required, and never refused to marry him, but, after his
death, and before attaining twenty-one, married ; it was
held that the condition was unbroken, having become
impossible by the act of God {y).

(s) Com. Dig. " Condition" D. 1 ;
Laughter's case, 5 Rep. 22 ; see per
Grompton, J., 4 E. & B. 974.

(t) 4 Drewry, 1 : 26 L. J. Ch. 153.

(u) Com. Dig. " Condition" D. 1 ;
Co. Litt. 206 a; and Mr. Butler's
note (1) ; Id. 218 a, 219 a.

(x) Co. Litt. 206 a.

(y) Thomas v. Howell, 1 Salk.
170 : 4 Mod. 67 ; AislaUe v. Bice,
8 Taunt. 459 ; 18 E. K. 230 ; see per
Parke, B., 4 H. L. C. 120. As to
Dawson v. Oliver Massey, 2 Ch. D.
758, see Re Brown, 18 Oh. D. 61.

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FUNDAMENTAL LEGAL PRINCIPLES. 199

By the custom of the realm, common carriers are bound Liability of

oommon
carrier.

to receive and carry goods for a reasonable reward, to take ''°'^'^°°

due care of them in their passage, to deliver them safely
and within a reasonable time (z), or in default thereof to
recompense the owner for loss, damage, or delay happening
while the goods are in their custody. Where, however,
such loss, damage, or delay arises from the act of God,
as storms, tempests, and the like, the maxim under con-
sideration applies, and the loss falls upon the owner, and
not upon the carrier (a). And so, if the thing is lost partly
by reason of its own inherent vice and partly in con-
sequence of the act of God, the carrier is not liable (b) ; in
this ease res perit suo domino (c).

For damage occasioned by accidental fire resulting
neither from the act of God nor of the king's enemies, a
common carrier is responsible (rf). But where an injury is
sustained by a passenger, from an inevitable accident (e),
the coach-owner is not liable, provided there were no negli-
gence in the driver (/). And the breach of a contract
to convey a passenger, if caused by vis major, seems
to be excusable (g), the principle being that a carrier of

(z) Taylor v. O. N. B. Co., L. E. (d) Story on Bailments, 5th ed.,

1 C. P. 385. s. 528 ; Collins v. Bristol & Exeter

(a) Armes v. Stevens, Stra. 128; B. Co., 1 H. & N. 517 ; Liver Alkali

Trent Navigation v. Wood, 3 Esp. Works v. Johnson, L. R. 9 Ex. 888.
127; jjer Powell, J., Coggs v. Ber- (e) As to the meaning of this word,

nard, 2 Ld. Eaym. 910, 911 ; per see Fenwich v. Schmalz, L. R. 3 C.

Tindal, G.J., Boss v. Hill, 2 C. B. P. 818; Beadhead v. Midland B. Co.,

890 ; Walker v. British Guarantee L. R. 4 Q. B. 879 ; Bichardson v.

, 18 Q. B. 277, 287. (?. E. B. Co., L. R. 10 0. P. 486,

(6) Nugent v. Smith, 1 G. P. D. 498 : 1 C. P. D. 342.
423 : 45 L. J. 0. P. 697. {/) Aston v. Heaven, 2 Esp. 538 ;

(c) As to this maxim, see Bell, per Parke, J., Crofts v. Waterhoiise,

Diet, and Dig. of Scotch Law, 857 ; 3 Bing. 321 ; 28 B. R. 631. See

Appleby v. Myers, L. E. 2 G. P. 651, Sharp v. Orey, 9 Bing. 457 ; 35

659, 660 ; Bayne v. Walker, 3 Dow, B. E. 601 ; Perren v. Monmouth-

233 ; 15 R. R. 53 ; Pamie v. Meller, shire B. Co., 11 0. P. 855.
6 Ves. 349; Brj/miiv.jBMsfc, 4Russ. (g) Per Id. Campbell, G.J.,

l;i'i'R.'S,.l;Loganv.LeMesurier, Denton v. O. N. B. Co., 25 L. J.

6 Moo. P. 0. G. 116 Q. B. 129 ; S. G., 5 B. & B. 860 ;

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200 FUNDAMENTAL LEGAL PRINCIPLES.

passengers, unlike a carrier of goods, does not warrant or
insure their safety, but contracts merely to take all reason-
able care, including in that term the use of skUl and
foresight (/;)•
Death. The following case may also be noticed as applicable

to the present subject, and as showing that death, which
is the act of God, shall not be allowed to prejudice an
innocent party if such a result can be avoided. Lessor
and lessee, in the presence of lessor's attorney, signed an
agreement that a lease should be prepared by lessor's
attorney, and paid for by lessee. The lease was prepared
accordingly, but was never executed, owing to the death of
the lessor, who had only a life estate in the land to be
demised. It was held that the lessor's attorney was
entitled to recover from lessee the charge for drawing the
lease, for it was known to all the parties that the proposed
lessor had only a life estate ; and the non-execution of the
lease was owing to no fault of the attorney, who ought not,
therefore, to remain unpaid (i).

The case of Reg. v. Justices of Leicestershire (k), where
a mandamus was issued to Quarter Sessions to hear an
appeal against a bastardy order, offers another apt illustra-
tion of the maxim before us. It appeared that the appellant,
having entered into the proper recognizances, posted, in
pursuance of 8 & 9 Vict. c. 10, s. 3, a written notice of
his having done so, addressed to the mother of the child ;

Briddon v. G. N. R. Co., 28 L. J. Q. B. 257, as to the obligation of

Ex. 51 ; Qreat Western B. Co. of a vendor of a chattel bought for a

Canada v. Braid, 1 Moo. P. C. C. specific purpose.
101, and cases there cited. See (i) Webb v. Rhodes, 3 Biug. N. C.

Kearon v. Pearson, 7 H. & N. 386. 732.

(h) Readhead v. Midland R. Co., For another illustration of the

L. E. 4 Q. B. 879, 381, with which above maxim, see Morris v. Mat-

compare Liver Alkali Works v. thews, 2 Q. B. 293. See also per

Johnson, L. K. 9 Ex. 338 ; 43 L. J. Best, O.J., Tooth v. Bagwell, 3

Ex. 216, as to the liability of a Blug. 375.
carrier of goods, and Randall v. (k) 15 Q. B. 88.

Newson, 2 Q. B. D. 102; 46 L. J.

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FUNDAMENTAL LEGAL PRINCIPLES. 20]

three days, however, before this notice was posted, the
woman had died, and upon that ground the Sessions refused
to hear the appeal, considering that the appellant had not
complied with the requirements of the Statute. But the
Queen's Bench held that as the duty of the appellant to
give the notice was cast upon him by the law, not by his
own contract, he was excused from performing that duty,
since it had become impossible by the act of God (I).

The above general rule must, however, be applied with Biiie— where
due caution (m). Thus, where, after the indictment —
arraignment — the jury charged — and evidence given on
a trial for a capital offence, one of the jurymen became
incapable, through illness, of proceeding to verdict, the
court of oyer and terminer discharged the jury, charged a
fresh jury with the prisoner, and convicted him, although
it was argued that actus Dei nemini nocet, and that the
sudden illness was a Godsend, of which the prisoner ought
to have the benefit («).

Lastly, illness of a material witness is a sufficient ground
to excuse a plaintiff in not proceeding to try, and so would
be the death of one of two co-defendants, no suggestion of
it having been made on the record, the trial being thus
suspended by the act of God (o).

Lex non cogit ad Impossibilia. (Co. Litt. 231 b.) — The
law does not compel a man to do that u'hich he cannot
possibly perform.
This maxim, or, as it is also expressed, impotentia excusat Meaning of
legem (p), is intimately connected with that last considered, examples
and must be understood in this qualified sense, that °pp*ioation.

(Z) See also, in further illustration (o) Pell v. Linnell, L. R. 3 C. P.

of the maxim as to actus Dei, 441. As to the modern practice

Newton v. Boodle, 3 C. B. 795. upon the death of a defendant see

(m) Ld. Baym. 433. B. S. 0., 0. XVII.

(n) R. V. Edwards, 4 Taunt. 309, (p) Co. Litt. 29 a.
312 ; 13 B. B. 601.

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202 FDNDAMENTAL LEGAL PRINCIPLES.

impotentia excuses when there is a necessary or invincible
disability to perform the mandatory part of the law, or to
forbear the prohibitory (g-). It is akin to the maxim of the
Eoman law, nemo tenetur ad impossibUia, which, derived
from common sense and natural equity, has been adopted
and applied by the law of England under various and
dissimilar circumstances.

The law itself and the administration of it, said Sir
W. Scott, with reference to an alleged infraction of the
revenue laws, must yield to that to which everything must
bend, to necessity; the law, in its most positive and
peremptory injunctions, is understood to disclaim, as it
does in its general aphorisms, all intention of compelling to
impossibilities, and the administration of laws must adopt
that general exception in the consideration of all particular
cases. " In the performance of that duty, it has three
points to which its attention must be directed. In the first
place, it must see that the nature of the necessity pleaded
be such as the law itself would respect, for there may be
a necessity which it would not. A necessity created by a
man's own act, with a fair previous knowledge of the
consequences that would follow, and under circumstances
which he had then a power of controlling, is of that nature.
Secondly, that the party who was so placed, used all
practicable endeavours to surmount the difficulties which
already formed that necessity, and which, on fair trial, he
found insurmountable. I do not mean all the endeavours
which the wit of man, as it exists in the acutest under-
standing, might suggest, but such as may reasonably be
expected from a fair degree of discretion and an ordinary
knowledge of business. Thirdly, that all this shall appear
by distinct and unsuspected testimony, for the positive
injunctions of the law, if proved to be violated, can give
way to nothing but the clearest proof of the necessity that
compelled the violation " (r).

(q) Hobart, 96. (r) The Generous, 2 Dods. 323, 324.

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FUNDAMENTAL LEGAL PRINCIPLES. 208

It is, then, a general rule which admits of ample prac-
tical illustration, that impotcntia excusat legem"; where the
law creates a duty or charge, and the party is disabled to
perform it, without any default in him, and has no remedy
over, there the law will in general excuse him (s) : and
though impossibility of performance is in general no excuse
for not performing an obligation which a party has expressly
undertaken by contract, yet when the obligation is one
implied by law, impossibility of performance is a good excuse.
Thus in a case in which consignees of a cargo were prevented
from unloading a ship promptly by reason of a dock strike,
the Court, after holding that in the absence of an express
agreement to unload in a specified time there was implied
obligation to unload within a reasonable time, held that the
maxim " lex non cogit ad impossibilia applied, and Lindley
L.J., said, " We have to do with implied obligations, and I
am not aware of any case in which an obligation to pay
damages is ever cast by implication upon a person for not
doing that which is rendered impossible by causes beyond
his control " (i).

The maxim under notice may be exemplified by reference Mandamus.
to the law of mandamus. A writ of mandamus issuing
to a railway company, enjoining them to prosecute works
in pursuance of statutory requirements, supposes the
required act to be possible, and to be obligatory when
the writ issues ; and, in general, the writ suggests facts
showing the obligation, and the possibility of fulfilling
it(M); though, where an obligation is shown to be
incumbent on the company, the onus of proving that it

(s) Paradim v. Jane, Aleyn, 27 ; S. Co., 1 B. & B. 372, 381. See

cited per Lawrence, J., 8 T. R. 267. Beg. v. York d N. Midland B. Co.,

See Evams v. Button, 5 Soott, N. R. 1 E. & B. 178, 858 ; Beg. v. G. W. B.

670, and cases cited, Id. 681. Co., Id. 258, 874 ; Beg. v. S. E. B.

(«) Hick V. BodocamacU, [1891] 2 Co., i H. L. Cas. 371 ; Beg. v. L. <&

Q. B. 626, 638 : 61 L. J. Q. B. 42. Y. B. Co., 1 B. & B. 228, 873 (a) ;

{u) Beg. V. L. d N. W. B. Co., 16 Tapping on Mandamus, 359.
Q. B. 864, 884 ; Beg. v. Ambergate

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FUNDAMENTAL LEGAL PRINCIPLES.

Contracts
impossible
of perform-
ance.

is impossible lies upon those who contest the demand of
fulfilment {x) ; if they succeed in doing so, the doctrine
applies that "on mandamus, nemo tenetur ad impossi-
bilia " (y). Upon the same principle, where an order had
been made by the Board of Trade upon a railway company
requiring the company to carry a turnpike road across
the railway, the Court refused a mandamus to compel
the company to carry out the order upon proof that the
company had no funds, was practically defunct, and was
not in a position to obey the writ if granted (z).

If, however, as already stated, a person, by his own con-
tract, absolutely engages to do an act, it is deemed to be
his own fault and folly that he did not thereby expressly
provide against contingencies, and exempt himself from
responsibility in certain events : in such case, therefore,
that is, in the instance of an absolute contract, the per-
formance is not excused by an inevitable accident or other
contingency, although not foreseen by nor within the control
of the party (a). Thus, where a builder admitted that he
had contracted to complete within a fixed time, not only
specified works, but also extra works if ordered, it was held
that his failure to fulfil his contract within the fixed time
was not excusable on the ground that it was impossible for
him to carry out within that time an order to do the extra
works (b). And, if the condition of a bond be impossible

(x) Beg. V. York, N. S B. R. Co.,
16 Q. B. 886, 904 ; Beg. v. G. W. B.
Co., 1 E. & B. 774.

(y) Per Ld. Campbell, Beg. v.
Ambergate B. Co., 1 E. & B. 380;
See Beg. v. Coaks, 3 Id. 249.

(z) Be Bristol & N. Somerset B.
Co., 3 Q. B. D. 10 : 47 L. J. Q. B. 48.

(a) Per Lawrence, J., Hadley v.
Clarke, 8 T. R. 267 ; per Ld. EUen-
borough, Atkinson v. Bitchie, 10
East, 533, 534; 10 R. R, 372;
Marquis of Bute v. Thompson, 13
M. & W. 487 ; Hills v. Sughrue, 15

Id. 253, 262 ; Jervis v. Tomkinson,
1 H. & N. 195, 208; Spence v.
Chadwick, 10 Q. B. 517, 528;
SchilizH V. Berry, 4 E. & B. 873 ;
Hale V. Bawson, 4 0. B. N. S. 85 ;
Adams v. Boyal M. S. Packet Co.',
5 Id. 492; Turner v. Goldsmith,
[1891] 1 Q. B. 544 : 60 L. J. Q. B.
247.

(6) Jones v. St. John's College,
L. R., 6 Q. B. 115. See Dodd v.
Churton, [1897] 1 Q. B. 562 : 66
L. J. Q. B. 477.

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FUNDAMENTAL LEGAL PBINCIPLBS. 206

at the time of making it, the condition alone is void and
the bond stands single and unconditional (c).

When performance of the condition of a bond becomes impossible
impossible by the act of the obligor, such impossibility
forms no answer to an action on the bond (d) : for " in
case of a private contract, a man cannot use as a defence
an impossibility brought upon himself " (e). But the per-
formance of a condition is excused by the default of the
obligee, as by his absence when his presence is necessary
for the performance (/), or by his doing any act which
renders it impossible for the obligor to perform his engage-
ment (g). And, indeed, it may be laid down generally, as
clear law, that, if there is an obligation defeasible on per-
formance of a certain condition, and the performance of the
condition becomes impossible by the act of the obligee, the
obligor is excused from the performance of it (/().

It seems, however, that the performance of a condition
precedent, on which a duty attaches, is not excused, where
the prevention arises from the act or conduct of a mere
stranger. If a man covenant that his son shall marry
the covenantee's daughter, her refusal to marry does not
discharge the covenantor from making pecuniary satis-
faction (i). If A. covenant with C. to enfeoff B., A. is
not released from his covenant by B.'s refusal to accept
livery of seisin (k) .

(c) Co. Litt. 206 a : Sanders v. 3 M. & W. 389 ; ThornUll v. Beats,
Coward, 15 M. & W. 48 ; Judgm., 8 0. B. N. S. 831, 846 ; Bussell v.
Duvergier v. Fellows, 5 Bing. 265 ; Da Bandeira, 13 Id. 149, 203, 205.
34 B. B. 578. See also Dodd, Eng. See Boberts v. Bury Commrs., L. E.
Lawy. 100. 4 C. P. 759.

(d) Judgm., Beswicky. Swindells, (h) Judgm., Hayward v. Bennett,
3 A. & B. 883. 3 C. B. 417, 418 (citing Co. Litt.

(e) Per Ld. Campbell, Beg. v. 206 a) ; S. C, 5 C. B. 593.
Caledonian B. Co., 16 Q. B. 28. (i) Perkins, s. 756.

(/) Com. Dig. " Condition " L. 4, (k) Co. Litt. 209 a ; per Ld. Ken-

5 ; cited, per Tindal, C.J., Bryant yon, Cook v. Jennings, 7 T. B. 384 ;

V. Beattie, i Bing. N. 0. 263. 4 E. E. 468, and Blight v. Page, 3

{g) Com. Dig. " Condition," L. B. & P. 296, n. ; 6 E. E. 795, n.

6 ; per Parke, B., Holme v. Guppy, See Lloyd v. Crispe, 5 Taunt. 249 ;

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206 FUNDAMENTAL LEGAL PRINCIPLES.

Impossible Further, where the consideration for a promise is such

oonsidera- ^^^^ .^^ performance is utterly and naturally impossible,
such consideration is insufficient, for no benefit can, by
any implication, be conferred on the promissor (l), and the
law will not notice an act the completion of which is
obviously ridiculous and impracticable. In this case, there-
fore the maxim of the Roman law applies : wipossibilium nulla
obligatio est (m). Moreover, a promise is not binding, if
the consideration for it be of such a nature, that it was not
in fact or law in the power of the promisee, from whom it
moved, to complete such consideration, and to confer on
the promissor the full benefit meant to be derived there-
from (n). Thus, if a man contract to pay money in con-
sideration that another has contracted to do certain things,
and it turn out before anything is done under the contract,
that the latter was incapable of doing what he engaged
to do, the contract is at an end : the party contracting to
pay his money is under no obligation to pay for a less
consideration than that for which he has stipulated (o).
But if a party by his contract lay a charge upon himself,
he is bound to perform the stipulated act, or to pay damages
for the non-completion (}>), unless the subject-matter of the
contract were at the time manifestly and essentially imprac-
ticable ; for the improbahilitij of the performance does not
render the promise void, because the contracting party is
presumed to know whether the completion of the duty he
undertakes be within his power ; and, therefore, an engage-
ment upon a sufficient consideration for the performance

14 E. R. 744; Bac. Abr., "Condi- (n) Harvey v. Gibbons, 2 Lev.

tions," Q. 4 ; cited Thornton v. 161 ; Nerot v. Wallace, 3 T. R. 17.

Jenyns, 1 Soott, N. R. 66. (o) Per Ld. Abinger, 4 M. & W.

[l) Chanter v. Leese, 4 M. & W. 311.

295; per Holt, CJ., Courtenay v. (p) See Tlwrnborow v. Whitacre,

Strong, 2 Ld. Raym. 1219. 2 Ld. Raym. 1164 ; Pope v. Bavidge,

(to) D. 50, 17, 185 ; 1 Pothier, 10 Exoh. 73 ; Hale v. Bawson, i

Oblig., pt. 1, c 1, s. 4, § 3 ; 2 Story, 0. B. N. S. 85, 95 ; Joms v. St.

Eq. Jurisp., 6th ed. 763. John's College, supra.

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FUNDAMENTAL LEGAL PRINCIPLES. 207

of an act, even by a third person, is binding, although the
performance of such act depends entirely on the will of
the latter (q). Neither is the promissor excused, if the
performance of his promise be rendered impossible by the
act of a third party (r) ; though, if an exercise of public
authority render impossible the further performance of a
contract which has been in part performed, the contract is,
ipso facto, dissolved (s) ; but an insurance company who had
undertaken, having the option to do so, to reinstate insured
premises which had been damaged by fire, were held not
to be excused from their contract by reason of the public
authorities subsequently taking down the premises as
dangerous, on account of defects not caused by the fire (t).
It is a principle of law that if by any act of one of the
parties the performance of a contract is rendered impossible,
the other party may, if he choose, rescind the contract ;
and it is sufficient that the contract cannot be performed
in the manner stipulated, though it could be performed in
some other manner not very different (u). And if a party,
by his own act, disables himself from fulfilling his contract,
he thereby makes himself at once liable for a breach of it,
and dispenses with the necessity of any request to perform
it by the party with whom the contract has been made (x) ;
and this is in accordance with the important rule of law,
which we shall presently consider, that " a man shall not
take advantage of his own wrong " (y).

(2) 1 Pothier, Oblig., pt. 1, c. 1, s. B. 10 Ch. 532 : 45 L. J. Gh. 121.

4, § 2 ; M'Neill v. Beid, 9 Bing. 68. (x) Hochster v. De la Tour, 2 E.

(r) Thwnell v. BalUrme, 2 M, & & B. 678 ; Danube B. Co. v. Xenos,

W. 786 ; Brogden v. Marriott, 2 13 0. B. N. S. 825 ; Lewis v. Clifton,

Bing. N. 0. 473. 14 C. B. 245 ; arg. Beid v. Hoskins,

(s) Melville v. De Wolf, 4 E. & B. 6 E. & B. 960—961 : 5 Id. 737 : 4 Id.

844, 850 ; Esposito v. Bowden, Id, 982 ; Avery v. Bowden, 5 E. & B.

963, 976, 722 : 6 Id. 953. See Jonassohn v.

(«) Brown v. Boyal Ins. Co., 1 Young, 4 B. & S. 300; Synge v.

E. & E, 853, Synge, [1894] 1 Q. B. 466 : 63 L. J.

(u) Panama Telegraph Co. v. Q. B. 202.

India Bubber Telegraph Works, L. {y) Post, p. 233.

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FUNDAMENTAL LEGAL PBINCIPLBS.

Impossibility
by change of
the law.

Covenant
may be
repealed by
statute.

Additional
examples.

Impossibility may, however, be created by a change of the
law. That which a party has contracted to do may become
illegal or impossible without violating the provisions of
some Act of Parliament passed since the making of the
contract. In such cases performance of the contract is
excused (a).

Again, we find it laid down that "where H. covenants
not to do an act or thing which was lawful to do, and an
Act of Parliament comes after and compels him to do it,
the statute repeals the covenant. So, if H. covenants to
do a thing which is lawful, and an Act of Parliament
comes in and hinders him from doing it, the covenant is
repealed. But, if a man covenants not to do a thing
which then was unlawful, and an Act comes and makes
it lawful to do it, such Act of Parliament does not repeal
the covenant." If, before the expiration of the running
days allowed by a charter-party for loading, the performance
by the shipper of his contract becomes, by virtue of an
Order in Council, illegal, he is discharged (b).

So too when a Prussian subject was bound by charter-party
to discharge a cargo at a French port and by reason of the
outbreak of war between those countries and the nature of
the cargo (which was contraband of war) it became illegal
for him to perform his contract, he was held discharged (c).
The following are additional illustrations of the maxim
before us. An appellant who had apphed to justices to
state a case under 20 & 21 Vict. c. 43, received the case

(a) Bailey v. De Crespigny, L. R.
4 Q. B. 626 ; Brown v. Mayor of
London, 9 0. B. N. S. 726 : 13 C. B.
N. S. 828 ; and see Manchester,
Sheffield and Lincolnshire By. v.
Anderson, [1898] 2 Ch. 394.

(6) Beidy. Hoshins, 6 B. & B. 953.
Amry v. Bowden, Id. 958, 962. See
Esposito v. Bowden, 4 E. & B. 968 ;
7 Id. 763 ; 1 B. & S. 194 ; Pole v.

Cetcovitch, 9 G. B. N. S. 430. Parties
may by apt words bind themselves
by contract as to any future state of
the law ; per Maule, J., Mayor of
Berwick v. Oswald, 2 E. & B. 665 ;
S. 0., 5 H. L. Gas. 856 ; Mayor of
Dartmouth v. Silly, 7 E. & B. 97.

(c) The Teutonia, L. B. 4 P. G.
171 : 41 L. J. Adm. 57.

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FUNDAMENTAL LEGAL PRINOIPLBg. 209

from them on Good Friday, and transmitted it to the
proper Court on the following Wednesday. It was held
that he had complied sufficiently with the requirement of
the Act, directing him to transmit the case within three
days after receiving it ; for, the offices of the Court having
been closed from Friday till Wednesday, it was impossible
to transmit the case sooner (d). Again, where an appeal
against an order of an assessment committee had to be
made to the next Sessions, it was held that the next
Sessions meant the next practicable Sessions, and not
necessarily the next Sessions immediately after the date
of the order, as the latter construction would not have
afforded the aggrieved party time to consider whether he
would appeal or not (e).

To several maxims in some measure connected with that
above considered, it may, in conclusion, be proper briefly
to advert. First, it is a rule, that lex special naturm Lex spedat
ordinem (/), the law regards the order and course of nature, ^j"^^j
and will not force a man to demand that which he cannot
recover (g). Thus, where the thing sued for by tenants
in common is in its nature entire, as in a quare impedit,
or in detinue for a chattel, they must of necessity join
in the action, contrary to the rule which in other cases
obtains, and according to which they must sue separately (h).
Secondly, it is a maxim of our legal authors, as well as a Lex nil
dictate of common sense, that the law will not itself attempt A'**''"'' M*'-
to do an act which would be vain, lex nil frustra facit, nor

(d) Mayer v. Hardmg, L. K. 2 Q. (g) Litt. s. 129 ; Co. Litt. 194 b.
B. 410, where Mellor, J., says that (h) Litt. s. 314 ; cited Marson v.
where a statute requires a thing to Short, 2 Bing. N. 0. 120.

be done within any particular time, " One tenant in common cannot

such time may be qjrcumsoribed by be treated as a, wrong-doer by

the fact of its being impossible to another, except for some act which

comply with the statute on the last amounts to an ouster of his oo-

day of the period so fixed. tenant, or to a destruction of the

(e) Beg. v. Surrey JJ., 6 Q. B. D. common property." Per Smith, J.,
100 : 50 L. J. M. C. 10. Jacobs v. Seward, L. B. 4 0. P.

(/) Co. Litt. 197 b. 329, 380.

L.M. 14

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FUNDAMENTAL LEGAL PRINCIPLES.

to enforce one which would be frivolous — lex neminem cor/it
ad vana sen inutilia, — the law will not force any one to
do a thing vain and fruitless (i).

Rule derived
from Roman
law.

Presumption
of legal
knowledge.

Ignoeantia Facti bxcusat, — Ignorantia Juris non excusat.
(Gr. and Rud. of Law, 140, 141.) — Ignorance of fact
excuses — ignorance of the law does not excuse (k).

Ignorance may be either of law or of fact. If the heir
is ignorant of the death of his ancestor, he is ignorant of
a fact ; but if, being aware of the death, and of his own
relationship, he is nevertheless ignorant that certain rights
have thereby become vested in himself, he is ignorant of
the law (Z). Such is the example given to illustrate the
distinction between ignorantia juris and ignorantia facti in
the civil law, where the general rule is thus laid down :
regula est, juris quidem ignorantiam cuique nocere, facti vero
ignorantiam non nocere {in) — ignorance of a material fact
may excuse a party from the legal consequences of his
conduct; but ignorance of the law, which every man is
presumed to know, does not afford excuse — ignorantia juris,
quod quisque scire tenetur, neminem excusat (n).
With respect to this "presumption of legal knowledge,"

(i) Per Kent, O.J., 3 Johnson
(U.S.), R. 598 ; 5 Rep. 21 : Co. Litt.
127 b, cited 2 Bing. N. G. 121 ;
Wing. Max., p. 600: B. v. Bp. of
London, 13 East, 420 (a) ; 12 R. R.
399 ; per Willes, 3"., Bell v. Midland
B. Co., 10 G. B. N. S. 306.

(&) " It is said ignorantia juris
hand excusat, but in that maxim the
word jus is used in the sense of
denoting general law, the ordinary
law of the country." " When the
word jus is used in the sense of
denoting a private right, that maxim
has no application." Per Ld. West-
bury, Cooper V. PUbhs, L. R. 2 H. L.

170. See also Allcard v. Walker,
[1896] 2 Ch. 369, 381 : 65 L. J. Oh.'
660.

(I) D. 22, 6, 1. The doctrines of
the Roman law upon the subject are
shortly stated in 1 Spenoe's Chan.
Juris. 632—633.

(m) D. 22, 6, 9 pr. ; Cod. 1, 18,
10. The same rule is laid down in
the Basilica, 2, 4, 9. See Irviug's
Civil Law, 4th ed. 74.

(«) 2 Rep. 3 b ; 1 Plowd. 348 ;

per Ld. Campbell, 9 CI. & F. 324 ;

jOCT- Erie, C.J., Pooley v. Brown, 11

C. B. N. S. 575 ; KitcUn v. Hawkins

L. R. 2 0. P. 22.

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FUNDAMENTAL LEGAL PEINCIPLBS. 211

we may observe that, although ignorance of the law does
not excuse persons, so as to exempt them from the conse-
quences of their acts, as, for example, from punishment
for a criminal offence (o), or from damages for breach of
contract, yet the law takes notice that there may be a
doubtful point of law of the true soli^ijftu of which a person
may be ignorant; and it is quite evident that ignorance
of the law often in reality exists (p). It would, for instance,
be absurd to assert that every person is acquainted with
the practice of the Courts ; although, in such a case, there
is a presumption of knowledge to this extent, that ignorantia
juris 71011 excusat, the rules of practice must be observed, and
a deviation from them may entail consequences detrimental
to the suitor {q). It is, therefore, in the above qualified
sense alone that the saying, that " all men are presumed
cognisant of the law " (r), must be understood.

The following case illustrates the above general rule, and
likewise shows that our Courts recognise the existence of
doubtful points of law, since the adjustment of claims
involving them is allowed to be a good consideration for
a promise (s), and to sustain an agreement between litigating
parties. The widow, brother, and sister, of an American

(o) Post, p. 221. much to impute knowledge of this

(p) "The maxim is ignorantia rule of equity." Spread y. Morgan,

legis neminem excusat, but there is 11 H. L. Cas. 602. See also Noble

no maxim which says that for all v. Noble, L. B. 1 P. & D. 691, 693.
intents and purposes a person must (g) Beeper Maule, J., Martindale

be taken to know the legal conse- v. Falkner, 2 C. B. 719, 720 ; cited

quenoes of his acts ; " per Lush, J., by Blackburn, J., Beg. v. Mayor of

L. B. 3 Q. B. 639; see also per TeioJeesbury,lj.B,. 3 Q.B. 635; per

Ld. Alverstone, C.J., and Channell, Willes, J., Poole v. Whitcomb, 12

J., in Har'seY. Pearl Life Co., [1903] C. B. N. S. 775 ; per Ld. Mansfield,

2 K. B. 92 (reversed on appeal, [1904] Jones v. Randall, 1 Cowp. 40 ; per

1 K. B. 558). Coltman, J., Sargent v. Gannon, 7

In reference to the equitable doc- C. B. 752 ; Edwards v. Ward, 4 Id.

trine of election, Ld. Westbury 315. Seealso Newtonv. Belcher, 12Q.

observed that, although " it is true B. 921 ; Newtonr. Liddiard, Id. 925.
as a general proposition that know- (r) Gr. & B. of the Law, 141.

ledge of the law must be imputed to (s) Per Maule, J., 2 0. B. 720.

every person,'' '>it would be too See Wade Y. Simeon, 1 0. B. 610.

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212 FUNDAMENTAL LEGAL PRINCIPLES.

who died in Italy, leaving considerable personal estate in
the hands of trustees in Scotland, agreed, by advice of their
law agent, to compromise their respective claims to the
succession, by taking equal shares. The widow, after
receiving her share, brought an action in Scotland to
rescind the agreement, on the ground that she had thereby
sustained injury, through ignorance of her legal rights and
the erroneous advice of the law agent : there was, however,
no allegation of fraud against him or against the parties
to the agreement. It was held that, although the fair
inference from the evidence was that she was ignorant
of her legal rights, and would not have entered into the
agreement had she known them, yet, as the extent of her
ignorance and of the injury sustained was doubtful, and
there was no proof of improper conduct on the part of the
agent, she was bound by his acts, and affected by the know-
ledge which he was presumed to have of her rights, and
was therefore not entitled to disturb the agreement (i).
"If," remarked Lord Cottenham, in this case, "it were
necessary to show knowledge in the principal, and a dis-
tinct understanding of all the rights and interests affected by
the complicated arrangements which are constantly taking
place in families, very few, if any, could be supported."

It is, then, a true rule, if understood in the sense above
assigned to it, that every man must be taken to be cogni-
sant of the law; for otherwisa, as Lord Ellenborough
observed, there is no saying to what extent the excuse of
ignorance might be carried : it would be urged in almost
every case («) ; and, from this rule, coupled with that as
to ignorance of fact, are derived the two important proposi-
tions : — 1st, that money paid with full knowledge of the
facts, but through ignorance of the law, is generally not

{t) Stewart v. Stewart, 6 01. & P. {u) Bilbie v. Lumley, 2 East,

911 ; Clifton v. Gockburn, 3 My. & 469 ; 6 R. R. 479 ; Preface to Co.

K. 99 ; see Cod. 1, 18, 2 ; Teede v. Litt. ; Oomery v. Bond, 3 M. & S.

Johnson, 11 Exch. 840. 378.

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FUNDAMENTAL LEGAL PRINCIPLES.

213

recoverable, if there be nothing unconscientious in the
retaining of it ; and, 2ndly, that money paid in ignorance
of the facts is recoverable, provided there was no laches in
the party paying it, and there was no ground to claim it in
conscience (x).

In a leading case on the first of these rules, the facts Money paid
were these. The captain of a king's ship brought home ledga of
in her public treasure upon the public service, and treasure **°'^^-

i.-T.ni,,. TT -Ti-'i. Brisbane v.

01 individuals for his own emolument. He received freight Dacres.
for both, and paid one-third of it, according to the usage
in the navy, to his admiral ; but, upon discovering that the
law did not compel captains to pay to admirals one-third
of the freight, he brought an action to recover the money
from the admiral's executrix. It was held that he could
not recover the private freight, because the whole of that
transaction was illegal ; nor the public freight, because he
had paid it with full knowledge of the facts, although in
ignorance of the law, and because it was not against
conscience for the executrix to retain it (y).

The following case may also here be noticed. A., tenant
to B., received notice from C, a mortgagee of B.'s term,
that the interest was in arrear, and requiring payment to
C. of the rent then due. A., notwithstanding this notice,
paid the rent to B. and was afterwards compelled, by

(x) See notes to Marriott -v. Ham,p- tony. Robins, 4 Bing. 11; 29 B. R.

ton, 2 Smith, L. C, 11th ed. 421 ; 493 ; Stevens v. Lynch, 12 East,

Wilkinson v. Johnston, 3 B. & C. 38 ; per Ld. Eldon, Bromley v.

429 ; 27 B. B. 393 ; per Ld. Mans- Holland, 7 Ves. 23 ; 6 B. E. 58 ;

field, Bise v. Dichason, 1 T. B. 286, Lowry v. Bourdieu, Dougl. 468 ;

287 ; Piatt v. Brormge, 24 L. J. Ex. Gomery v. Bond, 3 M. & S. 378 ;

63. See Lee v. Merrett, 8 Q. B. Lothian v. Henderson, 3 B. & P.

820, observed upon in Qingell v. 420 ; 7 B. E. 829 ; Dew v. Parsons,

Purkms, 4 Exoh. 723, recognising 2 B. & Aid. 562 ; 21 B. E. 404. See

Standish v. Ross, 3 Exoh. 527. arg. Gibson v. Bruce, 6 Soott, N. B.

(y) Brisbane v. Dacres, 5 Taunt. 309 ; Smith v. Bromley, cited 2

143 ; 14 B. B. 718 ; per Ld. EUen- Dougl. 696, and 6 Soott, N. E. 818 ;

borough, Bilbie v. Lumley, 2 East, Atkinson v. Denby, 6 H. & N. 778 :

470 ; 6 B. B. 479 ; Gumming v. Bed- 7 Id. 934.
borough, 15 M. & W. 488 ; Brams-

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FUNDAMENTAL LEGAL PBINCIPLBS.

Mistake of
fact.

Means of
knowledge
of facts.

distress, to pay it again to C. It was held, that the money,
having been paid to B. with full knowledge of the facts,
could not be recovered back (z).

The second rule, regarding the recovery of money paid in
genuine ignorance or forgetfulness of facts (a), was thus
lucidly stated by Parke, B. (b) : " Where money is paid to
another under the influence of a mistake, that is, upon the
supposition that a specific fact is true which would entitle
the other to the money, but which fact is not true, and the
money would not have been paid if it had been known to
the payer that the fact was untrue, an action will lie to
recover it back, and it is against conscience to retain it ;
though a demand may be necessary in those cases in which
the party receiving the money may have been ignorant of
the mistake."

The case in which the general rule was thus stated was
the first of a series which decided that a person can recover
money paid by him under a genuine mistake of fact, although
at the time of the payment he had means of knowing the
real facts, of- which he carelessly omitted to avail himself (c).
An inference that facts were actually known to a person may
in some cases fairly be drawn from evidence which shows
that he possessed the means of knowing them ; but "there
is no conclusive rule of law that because a party has the
means of knowledge he has the knowledge itself " (d) ; for
" if the possibility or even probability of actual knowledge
should be considered as legal proof of knowledge, as a pre-
sumptio juris et cle jure, the presumption might in some
cases, be contrary to the fact, and such a rule might work
injustice "(e).

(s) Higgs v. Scott, 7 C. B. 63.
See Wilton v. Dunn, 17 Q. B. 294.

(a) D. 12, 6, 1.

(6) Kelly v. Solari, 9 M. & W. 54,
where many earlier cases on the
subject are cited.

(c) Townsend v. Crowdy, 8 C. B.

N. S. 477, 493, and cases there
collected.

(d) Per Tindal, C.J., Bell v. Gar-
diner, 4 M. & Gr. 11 ; cited by Ld.
Blackburn, Brownlie v. Campbell, 5
App. Cas. 952.

(e) Per Ld. Tenterden, Earratt v.

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FUNDAMENTAL LEGAL PEINCIPLES. 215

The general rule, which we have stated in the words of Waiver of
Parke, B., Hmits the right to recover money paid under a faots!"^^ ^^
mistake of fact to cases in which the money would not have
been paid if the real facts had been known to the payee.
For " if, indeed, the money is intentionally paid, without
reference to the truth or falsehood of a fact, the plaintiff
meaning to waive all inquiry into it, and that the person
receiving shall have the money at all events, whether the
fact be true or false, the latter is certainly entitled to
retain it " (/).

If A. pay money to B., supposing him to be the agent of Examples of
C, to whom he owes the money, and B. be not the agent,
the money may be recovered back (g). If A. and B. are
settling an account, and, in summing up the items, make a
mistake which leads A. to pay B. £100 too much, A. may
recover the money. Such cases illustrate the principle, that
no man should by law be deprived of his money which he
parted with under a mistake of fact, and which it is against
justice that the receiver should retain (li).

It is not, however, every mistake of fact made by a person Mistake must
when he pays money that supports an action to recover it : payc
the mistake must relate to the payee's title to receive the
money, and it must be shown that upon the supposed facts
he had a right to the money, upon the real facts no right (i).
A banker, in honouring a cheque, pays the money in dis-
charge of the holder's right against the drawer ; that right
is not affected by the state of the drawer's account at the
bank : consequently, the banker's mistake as to the state of
that account does not render the holder liable to return the
money (fc). Again, a third person pays a debt in ignorance

Wise, 9 B. & C. 712, 717 ; 33 B. B. (h) See per Kelly, O.B., L. B.

300. 4 Ex. 197.

(/) Per Parke, B., 9 M. & W. 59 ; (i) See per Parke, B., 9 M. & W.

see jper Willes, 3"., 8 0. B. N. S. 490 ; 58 ; per Bramwell, B., 1 H. & N.

per Williams, J., Id. 494. 215 ; per Williams, J., 32 L. J.

(g) Of. Walter v. James, L. B. 0. P. 38.

6 Ex. 124. (k) Chambers v. Miller, 13 C. B.

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yea.

216

FUNDAMENTAL LEGAL PRINCIPLES.

Effect of
alteration
in payee's
position.

Payment of
forged bills.

of facts not affecting the creditor's right against the debtor :
it is immaterial that the payer, had he known the facts,
would have perceived that payment of the debt did not
benefit himself {I). On the other hand, if an agent, having
received his principal's money with directions to pay it to
A., inadvertently pays it to B., the error affects B.'s title to
the money, and the agent can generally recover it {m).

Again, as a rule, no liability to repay money paid under
a mistake of fact arises until the payee has notice of the
mistake, and the notice must reach him before an alteration
in his position has rendered it unjust that he should be
called upon to return the money (w). The fact that the
payee has spent the money before notice is not of itself
a good answer to the payer's demand (o) ; but under
special circumstances the demand may be defeated by
showing that before notice the payee paid away the
money without reasonable prospect of recall; for if, by
reason of the relation between the parties, the mistake
was a breach of duty owed by payer to payee, and the
mistake was the proximate cause of the payee parting
with the money, the payer must bear the loss occasioned
by his breach of duty (p). Moreover, it is a rule
respecting bills of exchange which have been paid upon
a signature afterwards discovered to be a forgery, that
the money, when once paid to an innocent holder, is not
recoverable from him if he receive no notice of the
forgery on the day of payment: a later notice finds him
with his remedy against other parties to the bill either
lost or impaired {q).

N. S. 125 ; see also Pollard v. Bank
of England, L. E. 6 Q. B. 623.

(l) Aiken v. Short, 1 H. & N. 210.

(to) Colonial Bank v. Exchange
Bank, 11 App. Cas. 84: 55 L. J.
P. 0. U.

(n) Freeman v. Jeffries, L. K. 4
Ex. 189 ; see Colonial Batik v. Ex-
change Bank, supra.

(o) Standish v. Boss, 3 Exch. 527,
534 ; see also Newall v. Tomlinson,
L. R. 6 G. P. 405.

(p) Skyring v. Qreenwood, 4 B. &
C. 281; 28 K. R. 264; Deutsche
Bank v. Beriro, 73 L. T. 669 ; see
Durrani v. Ecclesiastical Commrs.,
6 Q. B. D. 234.

(2) Cocks V. Masterman, 9 B & C.

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FUNDAMENTAL LEGAL PRINCIPLES. 217

It has been stated (r) to be a general rule, that " in Mistakes in
matters connected with the administration of justice, ^
where a mistake is discovered before any further step
is taken, the Court interferes to cure the mistake, taking
care that the opposite party shall not be put to any
expense in consequence of the apphcation to amend the
error." In some cases, also, where at the time of
applying to the Court, the applicant is ignorant of circum-
stances material to the subject-matter of his motion, he
may be permitted to open the proceedings afresh; for
instance, under very peculiar circumstances the Court
re-opened a rule for a criminal information, it appearing
that the affidavits on which the rule had been discharged
were false (s). And in furtherance of justice the Court
has been known to set aside a judgment by default, at
the instance of a plaintiff, on the ground of a mistake
in the amount claimed, although that amount and the
costs of the action had been paid since the judgment (t).

Moreover, if money has been paid to an officer of a
Court by a mistake, whether of fact or of law, the Court
will generally entertain an application for an order for
its repayment, if feasible (u).

In Courts of equity, as well as of law, the two-fold Eule is true
maxim under consideration is admitted to hold true; for,
on the one hand, it is a general rule, in accordance with
the maxim of the civil law, non videntur qui errant
consentire (x), that equity will relieve where an act has
been done, or contract made, under a mistake, or igno-
rance of a material fact (y) ; and, on the other hand, it

902 ; 33 R. E. 365 ; London d B. P. (t) Canncm v. Reynolds, 5 E. & B.

Bank v. Bcmk of Liverpool, [1896] 1 301. See Harmnond v. Scofield,

Q. B. 7 : 65 L. J. Q. B. 80. [1891] 1 Q. B. 453.

(r) Per Pollock, C.B., Emery v. (u) Exp. Simmonds, 16 Q. B. D.

Webster, 9 Bxoh. 242, 246, which 308; Be Opera Ld., [1891] 2 Ch.

well illustrates the proposition in 154.

the text. (x) D. 50, 17, 116, § 2.

(s) B. V. Eve, 5 A. & E. 780; {y) 1 Story, Eq. Jurisp., 12th ed.

Bodfield V. Padmore, Id. 785, n. 138. See Scott v. Littledale, 8 E. &

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also in equity.

218 FUNDAMENTAL LEGAL PEINCIPLBS.

is laid down as a general proposition, that in Courts of
equity ignorance of the law shall not affect agreements,
nor excuse from the legal consequences of particular
acts(z); and this proposition seems to be fully borne out
by the authorities (a), if by ignorance of the law is meant
ignorance of some well-established rule of law, and not
ignorance of such a matter as the true construction of a
doubtful grant (b). But, while a Court of equity will not,
in general, relieve against a mistake in a contract which
was a mistake in law and not in fact (c), there are cases
in which the Court does not hold itself strictly bound
by this rule, and considers it has power to relieve
against mistakes in law if there be any equitable ground
which makes it, under the particular facts of the case,
inequitable that the party benefited by the mistake should
retain the benefit (d) ; and the line between mistakes in
law and mistakes in fact is not so sharply drawn in Courts
of equity as in Courts of common law (e).

The following are instances where Courts of equity
have refused to relieve against a mistake in law. A
deed of appointment under a settlement was executed
absolutely, without reserving a power of revocation which
he settlement authorised ; this omission was made through
a mistake in law, on the supposition that the deed of ap-
pointment, being a voluntary deed, was therefore revocable;

B. 815 ; Simmons v. Heseltine, 5 C. Johnson, 6 H. L. Cas. 798, illustrates

B. N. S. 554, 565. the text.

If parties contract under a mutual (6) Beauchamp v. Winn, L. B. 6

mistake and misapprehension as to H. L. 234 : 23 W. R. 193.

their relative and respective rights, (c) Midland G. W. B. Co. v.

the agreement thus made is liahle Johnson, 6 H. L. Cas. 798

to be set aside in equity as having {d) Stone v. Godfrey, 5 D. M. &

proceeded upon a common mistake ; G. 90 ; Ex p. James, L. E. 9 Ch.

Cooper V. Phibbs, L. B. 2 H. L. 149. 609 ; 43 L. J. Bank. 107 ; Rogers v.

170. Ingham, 3 Oh. D. 351, 357 : 46 L.

(z) 1 Ponbl. Eq., 5th ed. 119, note. J. Ch. 322.

(a) 1 Story, Eq. Jurisp., 12th ed. (e) Daniel y. Sinclair, 6 App. Cas.

188. Midland G. W. B. Co. v. 181 : 50 L. J. P. C. 50.

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FUNDAMENTAL LEGAL PRINCIPLES. 219

relief was refused by the Court (/). So, where two are
jointly bound by a bond, and the obligee releases one, sup-
posing, erroneously, that the other will remain bound, the
obligee will not be relieved in equity upon the mere ground of
his mistake of the law, for ignorantia juris non excusat (g).

It is, however, well settled that a Court of equity will
relieve against a mistake or ignorance of fact; and in
several cases, which are sometimes cited as exceptions to
the general rule as to ignorantia juris, it will be found
that there was a mistake or a misrepresentation of fact
sufficient to justify a Court of equity in interfering to
give relief (/i). In a leading case (i), illustrative of this
remark, a freeman of the city of London bequeathed
£10,000 to his daughter upon condition that she should
release her orphanage part together with all her claim
to his personal estate by virtue of the custom of
the city {j ) or otherwise. Upon her father's death, the
daughter accepted the legacy, and executed the release,
her brother having first informed her that she had it in
her election either to have an account of her father's
personal estate, or to claim her orphanage part. Upon
a bill afterwards filed on the daughter's behalf against
the brother, who was executor under the will, Lord
Talbot expressed an opinion (k) that the release should
be set aside, and the daughter be restored to her
orphanage share, which amounted to £40,000. This
opinion seems to have rested, in part, on the ground
that the daughter had not been informed of the actual
amount to which she would be entitled under the custom,

(/) Worrall v. Jacob, 3 Meriv. considered.

256, 271. W Pusey v. Desbouvrie, 8 P.

(g) Harman v. Cam, 4 Vin. Abr. Wms. 315. See also M'Oarthy v.

387, pi. 3; 1 Fonbl. Eq., 5tli ed. Decoia;, 2 Euss. & M. 614 ; 37 B. R.

119, note. 250.

(h) The reader is referred to 1 {j) See Pulling, Laws and Cus-

Story, Ec[. Jurisp., 12th ed., Chap. toma of London, 180 et seq.

v., p. 138, where the cases are (k) The suit was compromised.

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220 FUNDAMENTAL LEGAL PRINCIPLES.

and did not appear to know that she was entitled to
have an account taken of her father's personal estate,
and that when she should be fully apprised of this, and
not till then, she was to make her election; and it is a
rule that a party is always entitled to a clear knowledge
of the funds between which he is to elect before he is
put to his election (l). In like manner it was held, in a
case which is frequently cited with reference to this subject,
that, where a person agrees to give up his claim to property
in favour of another, such renunciation will not be supported
if, at the time of making it, he was ignorant of his legal
rights and of the value of the property renounced, especially
if the party with whom he dealt possessed, and kept back
from him, better information on the subject (m).

Upon an examination, then, of the cases which have
been relied upon as exceptions to the general rule («)
observed by Courts of equity, some, as in the instances
above mentioned, may be supported upon the ground that
the circumstances disclosed an ignorance of fact as well
as of law, and in others there will be found to exist either
actual misrepresentation, undue influence, mental imbecility,
or that sort of surprise which equity regards as a just
foundation for relief. It is, indeed, laid down broadly that,
if a party, acting in ignorance of a plain and settled
principle of law, is induced to give up a portion of his
property to another, under the name of a compromise, a
Court of equity will grant relief ; and this proposition may
be illustrated by the case of an heir-at-law, who, knowing
that he is the eldest son, nevertheless agrees, through
ignorance of the law, to divide undevised fee-simple estates

(I) 3 p. Wms. 321 (x). J. Leach, Cockerill v. Cholmeley, 1

(m) M'Carthyy. Decaix, HBass. & Euss. & My. 418, 424, 425 ; aflarmed

M. 614; 37 E. E. 250; Smith v. ICl, &P.60; 36E.E. 16; seeS. C,

Pincombe, 8 Mao. & Gor. 653 ; Fane 3 Euss. 565, where the facts are set

V. Fane, L. E. 20 Bq. 698. out at length ; Marq. of Breadalbane

{n) Bearing upon the subject v. Marg^. of Chandos, 2 My. & Or.

touched upon in the text, see per Sir 711 : 4 01. & P. 43.

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FUNDAMENTAL LEGAL PEINOIPLBB. 221

of his ancestor with a younger brother, such an agreement
being one which would be held invalid by a Court of equity.
Even in so simple a case, however, there may be important
ingredients, independent of the mere ignorance of law, and
this very ignorance may well give rise to a presumption
of imposition, weakness, or abuse of confidence, which will
give a title to relief ; at all events, in cases similar to the
above, it seems clear that the mistake of law is not, per se,
the foundation of relief ; but is only the medium of proof
by which some other ground of rehef may be established,
and on the whole it may be safely affirmed that a mere
naked mistake of law, unattended by special circumstances,
will furnish no ground for the interposition of a Court of
equity, and that the present disposition of such a Court
is rather to narrow than to enlarge the operation of
exceptions to the above rule (o).

As bearing on the subject under consideration, it may Mistake of
be observed that in cases where a purchaser seeks to avoid ground to
specific performance of a contract of purchase, on the pg^ormanof."
ground of a mistake of fact, he can only do so provided
he shows that the mistake was mutual to both parties ; or
that he entered into the bargain under a mistake of fact
which, although not contributed to by the other party,
would inflict a hardship amounting to injustice if the
Court held him to his bargain (p) ; or where the mistake
was one to which the other party contributed, in other
words if the party seeking relief was misled by any act of
the vendor into making the bargain (g).

In criminal cases the maxim as to ignorantia facti applies Criminal
when a man, intending to do a lawful act, does that which
is unlawful. In this case there is not that conjunction

(o) See 1 story, Eq. Jurisp., 12th (p) TampUn v. James, 15 Ch. D.

ed. 131 etseq. ; per Ld. Cottenham, 215, 221.

C, Stewart v. Stewart, 6 01. & F. (q) Godda/rd v. Jeffries, 51 L. J.

964—971. See also Spence, Ohano. Ch. 57.
Juris. 633 et seg.

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222 FUNDAMENTAL LEGAL PEINCIPLES.

between the deed and the will which is necessary to form
a criminal act; but, in order that he may stand excused,
there must be an ignorance or mistake of fact, and not
an error in point of law. If a man, intending to kill a
burglar under circumstances which would justify him in
so doing, by mistake kills one of his own family, this is
no criminal act ; but if a man thinks he has a right to kill
an excommunicated person wherever he meets him, and
does so, this is wilful murder. For a mistake in point
of law, which every person of discretion not only may, but
is bound and presumed to know, is, in criminal cases, no
sort of defence (r). Ignorantia eorum qua: qiiis scire tenetur
non excusat (s).

Lastly, every man is presumed to be cognisant of the
statute law of this realm, and to construe it aright; and
if an individual infringe it through ignorance, he must,
nevertheless, abide by the consequences of his error : it is
not competent to him, to aver, in a Court of justice, that
he has mistaken the law, this being a plea which no Court
of justice is at liberty to receive (t). Where, however, the
passing of a statute could not have been known to an
accused at the time of doing an act thereby rendered
criminal, the Crown would probably think fit, in case of
conviction, to exercise its prerogative of mercy (u).

(r) 4 Blac. Com. 27 ; Doot. and he does know it ; " per Tindal, C J.,
Stud., Dial. ii. o. 46. A plea of 10 01. & F. 210.
ignorance of the law was rejected (t) Per Sir W. Scott, The Char-
in Lord Vaux's case, 1 Bulstr. Wto, 1 Dods. R. 392 ; perLd. Hard-
197. See also Re Barronet, 1 E. & wicke, Middleton v. Croft, Stra.
B- 1. 8. 1056; per Pollock, C.B., Cooper v.

(s) Hale, PI. Or. 42. "The law Simmons, 7 H. & N. 717; The

is administered upon the principle Katherina, 30 L. J., P. M. & A. 21.

that every one must be taken conclu- (u) B. v. Bailey, Russ. & Ry. 1 ;

sively to know it without proof that B. v. Esop, 7 C. & P. 456.

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FUNDAMENTAL LEGAL PRINCIPLES. 223

Volenti non fit Injuria. {Wing. Max. 482.) — Damage
suffered by consent is not a cause of action (v) .

In actions founded on tort the leave and licence of the Oonaent bars
plaintiff to do the act complained of usually constitutes action,
a good defence by reason of the maxim volenti non fit
injuria (x) ; and, as a rule, a man must bear loss arising
from acts to which he assented (y). Thus it was settled law
that in an action of aim. con. the husband's consent to the
wife's adultery went in bar of the action, whereas his
improper conduct, not amounting to consent, only went in
reduction of damages (z) ; and this doctrine now applies to
the husband's claim, by petition in the Divorce Division (a),
for damages on the ground of adultery with his wife (h).
Upon the same principle, a husband has no right to turn
his wife away on account of her adultery at which he
connived : he cannot complain of that to which he was a
willing party (c). Nor is it contrary to this principle that
an indictment lies for an illegal prize-fight notwithstanding
the consent of the combatants ; for the party complaining
of the breach of the peace is the Crown {d). It has, indeed,
been said that even in action for an assault it is no defence
to allege that the parties fought by consent, if the fight was
unlawful (e) ; but it does not follow that either of the
consenting parties to an unlawful fight can recover damages ;

(v) Damnum sentire non mdetwr Hag. Be. 57 ; 2 Curt. 213 ; Rob. Eo.

qui sibi damnum dedit, D. 50 17, 158.

204; see C. 2, 4, 34; C. 3, 28, 35. (a) Under the Matrimonial Causes

See also Plowd. 501 : 1 E. & E. 148 : Act, 1857 (20 & 21 Viot. o. 85), s. 33.

30 L. J. Ch. 769. (i) Bernstein v. Bernstein, [1893]

(x) Bullen & Leake, Prec, 3ra ed. P. 292, 804 : 63 L. J. P. 3 ; see also

740. 32 L. J. P. 213 : 11 P. D. 100 : 14

(y) i Bing. N. C. 142 (cited 2 p. D. 45.

Scott, N. R. 257) ; Yelv. 142 (cited (c) Wilson v. Qlossop, 20 Q. B. D.

1 Selden (U.S.), R. 12) ; 1 Curtis 354, 358 : 57 L. J. Q. B. 161.

(U.S.) R. 101. (d) Beg. v. Coney, 8 Q. B. D.

(z) Duberley v. Ounning, 4 T. R. 534, 553.

651, 657 ; 3 R. R. 664 ; see the (e) Boulter v. Cla/rke, Bull, N. P.

maxim cited, 1 Hag. Cons. 146 ; 3 16 ; see 8 Q. B. D. 538.

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224

FUNDAMENTAL LEGAL PRINCIPLKS.

Actions for

personal

injuries.

for, even if their consent, being illegal, be a nullity, it may
well be that the action would be dismissed by reason of the
maxim ex turpi causa non oritur actio (/).

The maxim volenti non fit injuria has been often cited,
and sometimes applied, in favour of defendants sued for
damage for personal injuries ; for instance it was so
applied against a man who was hurt by a spring-gun
while he trespassed in a wood after being warned by the
owner that there were spring-guns set in it (g) ; and it
seems that, as a rule, the application of the maxim is
justifiable if the plaintiff received his injuries under
circumstances leading necessarily to the inference that he
General rule, encountered the risk of them freely and voluntarily and
with full knowledge of the nature and extent of the risk :
in other words, if the real cause of the plaintiff running
the risk and receiving the injuries was his own rash act (/i) .
Whether the maxim ought to be applied in a particular
case is often a question rather of fact than law {i).

This question, we may notice, hardly arises unless the
facts disclose some breach by the defendant of a duty
owed by him to the plaintiff ; for if the injuries arose out
of a risk in respect of which the defendant owed no duty
to the plaintiff, or in respect of which the defendant
fulfilled such duty as he owed, the action fails, whether or
not the plaintiff ran the risk voluntarily, since the defendant
has done him no wrong {k). A defence founded on the
maxim is akin to a defence of contributory negligence, with
which we deal elsewhere {I).

No breach
of duty.

(/) Post, Ohap. IX.

(g) Ilott V. Wilkes, 3 B. & Aid.
304 ; 22 R. B. 400 ; see Bird v.
Holbrook, 4 Bing. 628; 29 R. R.
657 ; Jordin v. Crump, 8 M. & W.
782 ; Barnes v. Ward, 9 0. B. 392 ;
Wootten V. Dawkins, 2 0. B. N. S.
412; Harrold v. Watney, [1898] 2
Q. B. 320 : 67 L. J. Q. B. 771.

[h) See Thomas v. Quartermaine,

18 Q. B. D. 685 ; 56 L. J. Q. B. 340 ;
Yarmouth v. France, 19 Q. B. D. 647 :
57 L. J. Q. B. 7 ; Smith v. Baker,
[1891] A. C. 325 : 60 L. J. 683.

(i) Per Lindley, L.J., 19 Q. B. D.
659.

{k) Seeder Ld. Herschell, Membery
V. Q. W. B. Co., 14 App. Gas. 192.

(I) See maxima, respondeat superior.
Chap. IX.

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FUNDAMENTAL LEGAL PRINCIPLES. 225

It is to be observed that the leading word of the maxim Knowledge,
is not scienti, but volenti : there are degrees of knowledge,
and even full knowledge that an act is dangerous does not
necessarily render the act, if done, a voluntary act(m).
For instance, if by my misconduct towards a man he be
placed in a situation which only leaves him a choice
between perilous courses, I am liable for the consequences
of whichever course he takes : his knowledge of the risk
run by his taking that course is immaterial (ji). It seems
safe, however, to say that where the choice lies between
bearing a small temporary inconvenience and escaping
from it by an obviously dangerous act, the maxim may be
applied if the latter course be knowingly adopted (o). On
the other hand, a man's ignorance of a risk does not
necessarily render his act which exposes him to the
risk involuntary.

The following points may be mentioned in connection Instances,
with the foregoing remarks. If a man enter premises as
a bare licensee, he runs at his own peril, as a rule, any
risk, whether apparent or not, which arises out of the
condition of the premises or the business carried on
there (p). But if a man enter premises for business
purposes at the express or implied invitation of the
occupier, it is, as a rule, at the occupier's peril that the
man is exposed to any unusual risk which so arises, unless
the risk be obvious or fully known to him, or one of which
he has been clearly warned (q). Wrong-doers who endanger
the use of a highway are, as a rule, responsible for injuries
thereby caused to a person using it with some knowledge
of the danger, but doing no act which, having regard to

(to) See 18 Q. B. D. 696, per {p) See HounseUv. Smith,! G.B.

Bowen, L. J., who gives illustrations. N. S. 731 ; Qautret v. Egerton, L. R.

in) See per M. Smith, J., L. B. 2 0. P. 371 ; Ivay v.

4 0. P. 742. Q. B. D. 80 ; Batchelor v. Fortescue,

(o) Adams v. L. & Y. B. Co., 11 Id. 474.
L. E. 4 0. P. 739 ; see Gee v. Uetr. (q) See Indermaur v. Dames,

B. Co., L. E. 8 Q. B. 161. L. K. 1 C. P. 274 : 2 Id. 311.

L.M.

15

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servant.

226 FUNDAMENTAL LEGAL PBINOIPLBS.

that knowledge, can be considered unreasonable (r) ; and
the same general rule obtains in favour of passengers at
railway stations (s). Upon the true construction of a
statute, a duty thereby imposed upon one person to pre-
vent another from being subjected to a particular danger
may be so imperative that little short of a wilful inten-
tion to injure himself can deprive the latter of his remedy
for an injury resulting from the former's breach of his
duty(0.
Master and The great controversy regarding the application of the

maxim has arisen in actions brought by workmen against
their employers (m). We shall deal with such actions
more fully under the maxim respondeat superior. It is
sufficient to point out here that in its application to
questions between employer and employed, the maxim
" generally imports that the workman, either expressly or
by implication, agreed to take upon himself the risks
attendant upon the particular work which he was engaged
to perform, and from which he has suffered injury. The
question which has to be considered most frequently is
not whether he voluntarily and rashly exposed himself to
injury, but whether he agreed that, if injury should befall
him, the risk was to be his and not his master's. When
his acceptance or non-acceptance of the risk is left to
implication, the workman cannot reasonably be held to
have undertaken it, unless he knew of its existence and
appreciated or had the means of appreciating its danger."
And the mere fact of his continuing at his work with such
knowledge and appreciation does not necessarily imply his
acceptance of the risk. Whether it has that effect or not
depends " to a considerable extent upon the nature of .the

(r) Clayards v. Dethick, 12 Q. B. 937 ; Baddeley v. Oranville, 19

439 ; Lax v. Darlington, 5 Ex. D. 28. Q. B. D. 423.

(s) Osborne v. L. d N. W. B. Co., (u) See particularly tlie cases

21 Q. B. D. 220. cited, ante, p. 224, n. {h).

(t) See Clarkey. Holmes, TB.&'N.

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FUNDAMENTAL LEGAL PRINCIPLES. 227

risk, and the workman's conneefcion with it, as well as
upon other considerations which must vary according to
the circumstances of each case " (x).

The maxim is sometimes cited in cases where a person Contraota.
consents by the terms of a binding contract to give up
rights which he might otherwise assert {y). A railway
company usually owes a duty to a passenger to take
reasonable care of him, but he cannot demand such car^
if he expressly agree in consideration of a free pass to
travel at his own risk {z). The powers of a railway
company to escape by contract from liability for damage
done to goods by the company's default are somewhat
abridged by the Railway and Canal Traffic Acts {a), but a
special contract, not vitiated by those Acts, for the carriage
of goods at a lower rate at the owner's risk deprives him of
the usual right to have the goods carried safely (&).

Again, where a local Act gave to any person aggrieved Appeals,
by orders of commissioners a right of appeal against the
orders, the maxim was applied to defeat an appeal of a
person who had concurred in a resolution pursuant to
which the order he appealed from was made (c).

An important application of the maxim is to the case of Voluntary
a person seeking to recover money which he has paid, but P^^™®"^ ^•
which was not legally due from him. The general rule is
that a person who has paid money which he was not under
legal obligation to pay cannot recover it if he paid it volun-
tarily and with full knowledge of the facts (d). For example,
he cannot maintain an action to recover money so paid by

(x) Per Ld. Watson, [1891] A. 0. (b) (?. W. B. Co. v. McCarthy, 12

355. See WilUams v. Birmingham, App. Oas. 218 ; see further, 1 Sm.

<£c., Co., [1899] 2 Q. B. 338. L. C, 11th ed, 217 et seq.

(y) Of. the maxim, modus et con- (c) Harrup v. Bayley, 6 B. & B.

ventio vincunt legem, post. 224.

(z) McCawley v. Fwrness B. Co., (d) Bemfry v. Butler, E. B. & E.

L. E. 8 Q. B. 57. 887, 897 (as to which case, see

(a) See, for instance, Dickson v. London Founders' Ass. v. Clarke,

a. N. B. Co., 18 Q, B. D, 176. 20 Q. B. D. 576).

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228

FUNDAMENTAL LEGAL PEINCIPLES.

Payments
under illegal
compulsion.

him in discharge of a debt which was barred by the Statute
of Limitations (e), or of a debt which was void by reason of
his infancy (/). In these instances it may be said that he
was under a moral, though not a legal, duty to pay, and
the rule promotes natural justice. But the rule extends to
cases in which there was no moral consideration for the
payment. Thus, if the occupying tenant of lands, after
discharging the property tax assessed thereon, omits to
make the authorised deduction out of his next payment
of rent, he cannot, in the absence of an express agree-
ment ig), recover from his landlord the sum which he
might have deducted : it is a voluntary payment {h). This
case is closely alhed to several which have been already
mentioned under the maxim ignoraiitia legis non excusat {i).
A payment of money which is not due is not, however
necessarily voluntary by reason that it is made with full
knowledge of the facts. It is not voluntary if it be made
upon the unjust demand of a person who, abusing the
advantages his position gives him, wrongfully refuses a
man his legal rights except upon the condition that the
demand be complied with. A pawnbroker refuses to return
goods pledged to him unless he be paid more than he has
the right to claim : the party entitled to redeem, having
tendered the lesser sum actually due (j), and having been
then forced to pay the larger sum wrongfully demanded,
can recover the excess he paid for the purpose of getting
back the goods : the maxim, volenti non Jit injuria does not
apply (fc). The like law holds where goods are wrongfully

(e) Per Ld. Mansfield, BUe v.
Dickason, 1 T. B. 287 ; per De Grey,
C.J., Farmer v. Arundel, 2 W. Bl.
825.

{/) Valentini v. Ganali, 24 Q. B.
D. 166 : 59 L. J. Q. B. 74.

{g) Lamb v. Brewster, 4 Q. B. D.
607.

{h) Gumming v. Bedbm-cugh, 15

M. & W. 438 ; Denhy v. Moore,

1 B. & Aid. 128 ; 18 B. B. 444.
(i) Ante, p. 210.

(i) See Ashmole v. Wainwright,

2 Q. B. 845 ; Parker v. Bristol <£
E. B. Co., 6 Exoh. 702.

(7i;) Astley v. Reynolds, 2 Stra.
915.

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FUNDAMENTAL LEGAL PRINCIPLES. 229

detained under an unfounded claim of lien (l) : where rail-
way companies refuse to carry goods which they are bound
to carry, or to deliver goods after carriage, until they be
paid more than they are entitled to charge (m) : where a
landowner, having distrained cattle damage feasant and
put them into his private pound, extorts, as the price of
their restoration, an exorbitant sum for the damage done (n) :
where a mortgagee exacts more than is due to him by a
threat that unless it be paid he will sell the mortgaged
premises (o) : and generally wherever money is paid under
pressure of an untenable demand made colore officii (p). In
these and the like cases (q) the proper course is to pay what
is unjustly demanded under a protest showing that there is
no intention to give up the right (r) ; and the general rule
is that, though, in order to avoid a contract by reason of
duress, it must be duress of a man's person, not of his
goods (s), yet where money is paid simply to obtain pos-
session of goods wrongfully obtained, it may be recovered,
for the payment is not voluntary (t).

The cases show that where a person acting, or purporting Eecovery of
to act, as agent for another compels the payment of money ^°^^ ^™™
on an illegal ground, he may be sued for the money, though
he has already paid it over to his principal, unless it was
expressly paid to him for his principal's use : he is respon-
sible for his own illegal act (u). But it is otherwise where

(T) British Empire Co. v. Somes, 625 ; Traherne v. Qwrdner, 5 E. & B.

8 H. L. Gas. 338 ; Tamvaco v. 913 ; Hooper v. Exeter, 56 L. J.

Simpson, L. E. 1 0. P. 363. Q. B. 457 ; see Slater v. Burnley, 59

{m) Parker v. G. W. B. Co., 7 L. T. 636.

M. & Gr. 253 ; Parker v. Bristol S (q) See, for an instance of pay-

E. B. Co., 6 Exch. 702 ; L. S N. ment of a bill to save credit, Kendal

W. B. Co. V. Evershed, 3 App. Gas. v. Wood, L. E. 6 Ex. 243.

1029 (as to which case see [1892] (r) See per Tindal, C.J., Valpy v.

2 Q. B. 229). Manley, 1 G. B. 603.

(n) Green v. Duckett, 11 Q. B. D. (s) Skeate v. Beale, 11 A. & E. 983 ;

275 ; 52 L. J. Q. B. 435. see Wakefield v. Newborn, 6 Q. B. 276.

(o) Close V. PUpps, 7 M. & Gr. (t) Gates v. Hudson, 6 Exch. 346.

586 ; Eraser v. Pendlebury, 31 L. 3. (u) Snowdon v. Davis, 1 Taunt.

0. p. 1. 359 ; Parker v. Bristol & E. B. Co.,

(p) Steele v. WilUams, 8 Exch. and Steele v. Williams, supra.

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230

FUNDAMENTAL LEGAL PRINCIPLES.

Payment
under illegal
contract.

Payments
under pres-
sure of legal
process.

an agent has merely received money for his principal
and paid it to him without notice that it was wrongfully
obtained (v).

The question under what circumstances money paid under
an illegal contract can be recovered will be discussed here-
after, under the maxim in pari delicto potior est conditio
possidentis (x) ; but we may point out that the position of
the parties to the contract may be such that neither that
maxim nor the maxim volenti non Jit injuria should be
applied to defeat the recovery of money paid under it (y).

Again, the general rule is that money paid under the
pressure of legal process cannot be recovered, and this rule
usually prevents the recovery of money paid to satisfy a
demand, whether valid or not, after legal proceedings have
been commenced to enforce the demand (z) : it is immaterial
that the money was paid under a mistake of fact (z), or in
ignorance of the real facts (a), or with a protest that the
money was not due (b). This rule, however, does not
extend to cases in which money has been extorted under
" colourable legal process." A foreigner, ignorant of our
language, was arrested, under a writ of capias, for a
fictitious debt of £16,200 : to obtain his release he paid
£500, agreeing that it should be " a payment in part of
the writ : " the writ was afterwards set aside for a trivial
irregularity, and thereupon an action was brought to recover
the £500 : the jury found that the defendant knew that he
had no claim against the plaintiff, and upon this finding
it was held that the money was recoverable (c). In this

(v) Owen V. Cronk, [1895] 1 Q. B.
265; cf. Ellis v. Goulton, [1893] 1
Q. B. 350.

{x) Post, Chap. IX.

{y) See Atkinson v. Denby, 6 H. &
N. 778 : 7 Id. 934 ; Be Lemberg, 7
Ch. D. 650 ; Jones v. Merionethshire
Soc., [1892] 1 Oh. 173.

(z) Moore v. Fulham Vestry,

[1895] 1 Q. B. 399 : 64 L. 3. Q. B.
226.

(a) Hamlet v. Richardson, 9 Bing.
644 : 35 R. R. 650.

(b) Brown v. McKinally, 1 Esp.
279.

(c) De Cadaval v. Collins, 4 A. &
E. 858.

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FUNDAMENTAL LEGAL PRINCIPLES. 231

case, the arrest, though made under colour of legal process,
was illegal by reason of the defendant's knowledge that his
claim was groundless : an action might have been brought
against him for damages for malicious arrest (d) ; and it
seems that money paid as the price of obtaining release
from an illegal arrest is generally recoverable, either as
money had and received or as special damages for the
false imprisonment, not only if the money was not due
from the plaintiff (e), but even if he was under a liability
to pay the money or some part of it (/) : a fortiori, it is
recoverable if the arrest was not merely illegal, but malicious,
and there was no such liability. Where, however, a person
who is in law f ul custody pays money voluntarily and with
full knowledge of the facts as the price of his release, he
cannot recover it back (g).

This principle was followed in a case where, though
money was paid under compulsion of legal process, the
payee had not acted bond fide. The plaintiffs sued the
defendant for work and labour done, and by mistake credited
the defendant with a sum of £75 as paid on account and
sued for the balance. After issue of the writ the defendant
paid the balance claimed and took a receipt in full dis-
charge, although he knew there had been a mistake. It
was held that the plaintiffs were entitled to recover this
£.15 from the defendant in another action as money allowed
in account under a mistake of fact (/().

It is important here to notice the binding effect, as between Binding

„ • -. ,1-1 ii i i -i. efieotof

the parties thereto, of a judgment, vahd on the face ot it, judgments.
so long as the judgment stands. To avoid a seizure under
an execution for £100, issued upon a judgment signed

(d) See the judgment in DameZsv. 459. The maxim nemo commodum
Fielding, 16 M. & W. 200. capere potest de injuria sua propria

(e) Be Mesnil v. Dahin, L. E. 3 seems applicable.

Q -g j^g {g) Viner v. Hawkins, 9 Exch.

(/) OZar&v. TFbois, 2 Exoh. 395; 266.
Norton y. Monchton, 43 W. B. 350 ; (h) Ward & Co.. v. Wallis, [1900]

see also Pitt v. Coomes, 2 A. & E. 1 Q. B. 675 : 69 L. J. Q. B. 423.

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232 FUNDAMENTAL LEGAL PEINCIPLES.

against him for that sum, a m^an pays the sum in full;
while the judgment or the writ of execution stands, he
cannot, except in a proceeding to set it aside (i), allege
that the judgment was signed, or the execution issued,
maliciously and without probable cause, for a sum which
(by reason, for instance, of what he had previously paid),
exceeded what was really due (j). The general rule is that
no action for malicious prosecution lies until the result of
the prosecution has shown that there was no ground for
it (k).

The authorities already cited, however, sufficiently estab-
lish the position, that money paid under compulsion of
fraudulent legal process, which has been set aside, or of
wrongful pressure exercised upon the party paying it, can
generally be recovered back ; and it only remains to add,
that, a fortiori, money is recoverable which was paid, and
that an instrument may be avoided which was executed,
under threats of personal violence, duress, or illegal re-
straint of liberty (l) ; and this is in strict accordance with
the maxims laid down by Lord Bacon : nan ridetur consen-
sum retinuissc si qiiis ex prascripto minantis aliquid immu-
tavit (m), and corporalis injuria non recijnt cestimationem
de future (n).
Intentional It is worthy of observation that the maxim volenti non fit

injuria does not deprive even an intentional wrong-doer of
the benefit of a law framed on grounds of public policy.
Thus, a person who intentionally trespasses on horseback
may be sued in trespass, but the horse cannot, while it is

(i) See Wyatt v. Palmer, [1899] v. Bosshorough, 6 H. L. Gas. 45

2 Q. B. 106 ; of. 10 Q. B. 168. Gumming v. Ince, 11 Q. B. 112

(j) Buffer V. Allen, L. R. 2 Ex. Powell v. Hoyland, 6 Exoli. 67

15 ; De Medina v. Orove, 10 Q. B. Edward v. Trevellick, 4 E. & B. 59.

152, 172. (to) Bao. Max., reg. 22. Nil con-
Ik) Metropolitan Bank v. PooUy, sensui tarn contrarium est quam vis

10 App. Cas. 210, 216. atgm metus, D. 50, 17, 116.
(I) As to what may constitute («) Bao. Max., reg. 6.

duress, see perLd. Cranworth, Boyse

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wrong-doer.

FUNDAMENTAL LEGAL PRINCIPLES. 233

being ridden, be distrained damage feasant, the reason
being that its seizure would probably provoke a breach
of the peace (o).

NtJLLUS CoMMODUM CAPERE potest DE INJURIA SUA PROPRIA.

(fio. Litt. 148 b.) — No man can take advantage of his
own wrong.

It is a maxim of law, recognised and established, that no Rule stated.
man shall take advantage of his own wrong (p) ; and this
maxim, which is based on elementary principles, is fully
recognised in Courts of law and of equity, and, indeed,
admits of illustration from every branch of legal procedure.
The reasonableness of the rule being manifest, we proceed
at once to show its application by reference to decided cases ;
and, in the first place, we may observe that a man shall
not take advantage of his own wrong to gain the favourable
interpretation of the law (q) : frustra legis auxilium qucerit
qui in legem committit (r) ; wherefore, A. shall not have an Examples.
action of trespass against B., who lawfully enters to abate
a nuisance caused by A.'s wrongful act (s) ; nor shall an
executor de son tort obtain that assistance which the law
affords to a rightful executor (i). So if A., on whose goods
a distress has been levied, by his own misconduct prevent

(o) Field V. Adames, 12 A. & E. It " is contrary to all legal prin-

649 ; Storey v. Bohinson, 6 T. R. 138 ; oiple " that ." tlie plaintifl can take

3 R. R. 137 ; Bunch v. Kennington, advantage of his own wrong ; " per

1 Q. B. 679 ; c£. Sunbolf v. Alford, Willes, J., Ames v. Waterlow, L. R.

3 M. & W. 248 ; Gai/iard V. Morris, 5 C. P. 55. 'S>6e also Dean of Ohrist-

3 Exoh. 695. church v. Duhe of Buckingham, 17

(p) Per Ld. Abinger, Findon v. 0. B. N. S. 391.

Parker, 11 M. & W. 680 ; Daly v. (g) 1 Hale, P. C. 482.

Thompson, 10 Id. 309 ; Malins v. (r) 2 Hale, P. 0. 386.

Freeman, 4 Bing. N. G. 395, 399 ; (s) Dodd. 220, 221. See Perry v.

per Best, J., Doe v. Bancks, 4 B. & Fitzhmoe, 8 Q. B. 757.

Aid. 409 ; 23 R. R. 318; Co. Litt. (t) See Carmichaelv. Carmichael,

1 48 b ; Jenk. Cent. 209 ; 2 Inst. 2 PhiU, 101 ; Paull v. Simpson, 9

713 ; D. 50, 17, 134, § 1. Q. B. 365.

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234 FUNDAMENTAL LEGAL PRINCIPLES.

the distress from being realised, A. cannot complain of a
second distress as unlawful (u). So B., into whose field
cattle have strayed through defect of fences which he was
bound to repair, cannot distrain such cattle damage feasant in
another field, into which they have got by breaking through
a hedge which he had kept in good repair, because B.'s
negligence was causa sine qua non of the mischief (x). So
if a man be bound to appear on a certain day, and before
that day the obhgee put him in prison, the bond is void (y).
Construction It is contrary to justice that a party should avoid his own
of contracts, go^^^j-act by his own wrong. Accordingly, " in a long series
of decisions the Courts have construed clauses of forfeiture
in leases, declaring in terms, however clear and strong,
that they shall be void on breach of conditions by the
lessees, to mean that they shall be voidable only at the
option of the lessors. The same rule of construction has
been applied to other contracts, where a party bound by
a condition has sought to take advantage of his own breach
of it to annul the contract ; " and it is applicable even where
the legislature has imposed the condition, unless the scope
and purpose of the enactment be so opposed to the rule
that it ought not to prevail (n).
Landlord and The following instances also serve further to illustrate
the same general principle. If tenant for years fell timber-
trees, they will belong to the lessor ; for the tenant cannot,
by his own wrongful act, acquire a greater property in
them than he would otherwise have had (a). Where the
lessee is evicted by title paramount from part of the lands
demised, he will have to pay a rateable proportion for the
remainder (h) ; whereas if he be evicted from part of the

(m) Lee V. Cooke, 3 H. & N. 203. App. Gas. 128, 129. See the

(x) Singleton v. Williamson, 7 authorities there cited.

H. & N. 410. (a) Wing. Max., p. 574.

{y) Noy, Max., 9th ed., p. 45; (b) Smith v. Malings, Oro. Jao.

arg. Williams v. Qray, 9 0. B. 160. See Mayor of Poole v. Whitt,

737. 15 M. & W. 571 ; Selby v. Browne,

(e) Davenport v. The Queen, 3 7 Q. B. 632.

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FUNDAMENTAL LEGAL PRINCIPLES. 235

lands by his landlord, no apportionment, but a suspension
of the whole rent, takes place, except where the king is
landlord ; and there is no suspension, if the eviction has
followed upon the lessee's own wrongful act, as for a for-
feiture, but an apportionment only (c). And it is a well-
known rule, that a lessor or grantor cannot dispute, with
his lessee or grantee, his own title to the land which he
has assumed to demise or convey (d). Nor can a grantor
derogate from his own grant (e).

It is moreover a sound principle that he who prevents a Default in
thing from being done shall not avail himself of the non- of contoct^
performance he has occasioned. If the absence of an
insurance by the landlord be a condition of the tenant's
liability to insure, the landlord cannot charge the tenant
with a default loccasioned by his own untrue representation
that he himself has insured (/). Where a doctor has
bought a practice on the terms of his paying to the vendor
a share of the earnings to be made therein during the next
four years, he cannot rely upon the absence of any such
earnings, if that be due to his wilful abandonment of the
business, and if it be an imphed term of the contract that
he should carry it on (g).

An insurance company agreed with A. that he and B.
should be their joint agents at Glasgow, and that if they
should displace B. from the agency they would pay A. a
certain sum ; they subsequently sold their business, and it
was held that by so doing they displaced B. within the

(c) Walker's case, 3 Eep. 22; 17 Beav. 366; 22 L. J. Ch. 846;
Wing. Max., p. 569. See Boodle v. and between private individuals,
Campbell, 8 Scott, N. E. 104. Booth v. Alcock, L. E. 8 Ch. App.

(d) JuAgm., Doey. Some, SQ.B. 668: 42 L. J. Ch. 557; Taylor v.
766 ; cited per Alderson, B., 15 Corporation of St. Helens, 6 Ch. D.
M. & W. 576. 264 : 46 L. J. Ch. 857.

(e) 2 Shepp. Touchst. by Preston, (/) See Judgm., Doe v. Gladwin,
286. As to the canons of construe- 6 Q. B. 963.

tion appHcable to grants by the (g) M'Intyre v. Belcher, 14 C. B.

Crown, see A.-O.y. EwelmeBospital, N. S. 654.

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236

FUNDAMENTAL LEGAL PEINCIPLBS.

Tender.

Confusion of
goods.

meaning of the agreement (h). If a manufacturer has
agreed with a person to employ him as sole agent for the
sale of his goods for a definite period and at a fixed com-
mission, his wilful abandonment of his business is no excuse
for the non-fulfilment of his agreement (i). But, to bind
the manufacturer to continue his business, he must agree
to employ the agent therein either expressly or by necessary
implication from the terms actually expressed (k).

Again, where a creditor refuses to tender sufficient in
amount, and duly made, he cannot afterwards, for purposes
of oppression or extortion, avail himself of such refusal;
for, although the debtor still remains liable to pay when-
ever required so to do, yet the tender operates in bar of
any claim for damages and interest for not paying or for
detaining the debt, and also of the costs of an action
brought to recover the demand (I).

According to the same principle, if articles of unequal
value are mixed together, producing an article of a different
value from that of either separately, and, through the fault
of the person mixing them, the other party cannot tell what
was the original value of his property, he must have the
whole (m). " At law," said Lord Redesdale, in Bond v.
Hopkins (n), " fraud destroys rights — if I mix my corn
with another's he takes all (o) ; but if I induce another to
mix his corn with mine, I cannot then insist on having
the whole, the law in that case does not give me his corn."
So, where the plaintiff, pretending title to hay standing

(h) Stirling v. Maitland, 5 B. & S.
840, 853 ; see 38 Oh. D. 603, 604.

(i) Turner v. Ooldsmith, [1891]
1 Q. B. 544 : 60 L. J. Q. B. 247.

(k) Rhodes v. Forwood, 1 App. Gas.
256; Bamlyn v. Wood, [1891] 2
Q. B. 488 : 60 L. J. Q. B. 734.

(Z) See per Williams, J., Smith v.
Manners, 5 C. B. N. S. 636.

(m) Per Ld. Eldon, Lupton v.
White, 15 Ves. 442 ; 10 R. E. 94. See

Golwill V. Reeves, 2 Camp., N. P. C.
575 ; Warde v. Eyre, 2 Bulstr. 323.

(«) 1 Soho. & Lefr. 433.

(o) In Aldridge v. Johnson, 7
E. & B. 899, Ld. Campbell observes,
" Where the owner of suoh articles
as oil or wine mixes them with
similar articles belonging to another,
that is a wrongful act by the owner
for which he is punished by losing
his property."

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FUNDAMENTAL LEGAL PEINCIPLBS. 237

on defendant's land, mixed some of his own with it, it was
held that the defendant thereby became entitled to the
hay (p). A malting agent represented to his principals
that some barley which he had upon his premises had been
bought by him for them, and thereby induced them to
make him payments to cover the price of the barley; as
a matter of fact, only part of the barley had been bought
by him for his principals, but he had mixed it with his
own so that the two portions could not be separately
distinguished ; the agent having become bankrupt, his
trustee claimed to hold the whole of the barley against
the principals on the ground that the part bought for them
could not be identified, but it was held that he was not
so entitled, as no man can take advantage of his own
wrong iq) .

By the mixture of bales of cotton on board ship, and
their becoming undistinguishable by reason of the action
of the sea, and without the fault of their respective owners,
these parties become tenants in common of the cotton in
proportion to their respective interests ; but such a result
follows only in those cases where, after the adoption of all
reasonable means to identify or separate the goods, it has
been found impracticable to do so (r).

Again, where a party was sued by a wrong name, and Wrong name.
suffered judgment to go against him, without attempting to
rectify the mistake, he could not afterwards, in an action
against the sheriff for false imprisonment, complain of an
execution issued against him by that name (s) ; and, if
any instrument is executed under an assumed name, the
party so executing it is bound thereby in the same manner
as if he had executed it in his true name(t). "So, if a

(p) Popham, 38, pi. 2. (s) Fisher v. Magnay, 6 Scott, N.

(g) Harris v. Truman, 7 Q. B. D. B. 588 ; Morgan v. Bridges, 1 B. &

340 : 9 Id. 964 : 51 L. J. Q. B. 338. Aid. 647. See De Mesnil v. Dakin,

(r) Spence v. Union Marine Ins. L. B. 3 Q. B. 18 ; Kelly v. Lawrence,

Co., L. B. 3 C. P. 427. See Webster 3 H. & C. 1.
V. Power, L. E. 2 P. C. 69. (() 13 Peters (U.S.), B. 428, See

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238 FDNDAMBNTAL LEGAL PEINCIPLES.

man, having an opportunity of seeing what he is served
with, wilfully abstains from looking at it, that is virtually
a personal service " (u) ; and, where one of the Utigating
parties takes a step after having notice that a rule has
been obtained to set aside the proceedings, he does so in
his own wrong, and the step so taken will be set
aside (x).

Trespass A wrong-doer ought not to be permitted to make a profit

out of his own wrong (y) ; and therefore if a person for
his own purposes uses another's land, as by tipping thereon
refuse from a colliery, without the landowner's leave, he
ought to pay compensation for such user, and the measure
of damages is not merely the diminution in value of the
land (z).

Intention. Nq man is allowed to take advantage of his own wrong ;

far less of his wrong intention which is not expressed (a).
Nothing can be better settled than this, that "where a
man does an act which may be rightfully performed, he
cannot say that that act was intentionally and in fact done
wrongly. A man who has a right of entry cannot say he
committed a trespass in entering. A man who sells the
goods of another as agent for the owner cannot prevent the
owner from adopting the sale, and deny that he acted as
agent for the owner. It runs throughout our law, and we
are familiar with numerous instances in the law of real
property. A man who grants a lease believing he has
sufficient estate to grant it, although it turns out that he
has not, but has a power which enables him to grant it,
is not allowed to say he did not grant it under the power.
Wherever it can be done rightfully, he is not allowed to

Judgm., Trueman v. Loder, 11 A. & Oh. 761 ; per Ohitty, J., [1896] 1 Ch.

B. 59i— 595. 899.

(a) Per Tindal, O.J., Emerson v. («) WhitwhaniY. Westminster, dc,

Brown, 8 Scott, N. R. 222. Co., [1896] 2 Oh. 538.

(x) Per Pollock, G.B., Tiling v. (a) Per Willes, J., li 0. B. N. S.

Hodgson, 13 M. & W. 638. 658.

(y) Per Ld. Hatherley, L. R. 6

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FUNDAMENTAL LEGAL PRINCIPLES. 239

say, against the person entitled to the property or the right,
that he has done it wrongfully " (b).

The foregoing examples have been selected, in order to a party
show how the rule, which they serve to illustrate, has been advantage ^
applied to promote justice, in various and dissimilar circum- °^ '^'^ °^°
stances. The maxim under review applies also with peculiar
force to that extensive class of cases in which fraud has
been committed by one party to a transaction, and is relied
upon as a defence by the other. We do not propose to
consider how formerly a Court of equity dealt with fraud
or interfered to give relief from it : but we may state the
principle upon which that Court invariably acted, namely
— that the author of wrong, who has put a person in a
position in which he had no right to put him, shall not
take advantage of his own illegal act, or, in other words,
shall not avail himself of his own wrong (c) .

In a leading case on the subject of fraud (d), the facta Twyne's case.
were that A. owed B. 400L, and also owed C. 200Z. ; C.
brought an action of debt against A., and, pending the
writ. A., being possessed of chattels of the value of 300L,
in secret made a general deed of gift of all his chattels, real
and personal, to B., in satisfaction of his debt, but never-
theless remained in possession of the chattels, some of
which he sold ; he also shore the sheep, and marked them
with his own mark. Afterwards C. obtained judgment,
and issued a fi. fa. against A., and the question arose,
whether the gift was fraudulent and of no effect by virtue
of 13 Eliz. c. 5. It was determined, for the following

(b) Per Jessel, M.R., Be Hallett's that the Courts will not sustain or
Estate, 13 Oh. D. 727. sanction a fraudulent transaction.

(c) Per Ld. Oottenham, Hawkins In that case it was held, that a fine
V. Hall, 4t My. & Or. 281. fraudulently levied by lessee for

(i) Twyne's case, 3 Rep. 80 (with years should not bar the lessor ; and

which cf. Evans v. Jones, 3 H. & G. see the law on this subject stated by

428) ; Oraham, v. Furber, 14 0. B. Tindal, O.J., in Davies v. Lowndes,

410, 418 ; Tcurleton v. Liddell, 17 5 Bing. N. 0. 172. See also Wood

Q. B. 390 ; Eermor's case (3 Rep. v. Dixie, 7 Q. B. 892.
77), is also a leading case to show

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240 FUNDAMENTAL LEGAL PBINCIPLES.

reasons, that the gift was fraudulent within the statute : — 1,
it had the signs and marks of fraud, because it was general,
without excepting the wearing-apparel, or other necessaries
of the donor ; and it is commonly said, that dolosus versatur
in generaUhus {(•) — a person intending to deceive deals in
general terms ; a maxim, we may observe, which has been
adopted from the civil law, and has been frequently cited
in our Courts (/) ; 2, the donor continued in possession
and used the goods as his own, and by reason thereof
traded with others, and defrauded them (</) ; 3, the gift was
made in secret, and dona ciandestina sunt semper suspiciosa (h)
— clandestine gifts are always open to suspicion ; 4, it was
made pending the writ; 5, there was a trust between the
parties, for the donor possessed the goods and used them
as his own, and fraud is always clad with a trust, and a
trust is the cover of fraud ; and 6, the deed stated that the
gift was made honestly, truly, and bond fide, and dausuhe
inconsuetce semper inducimt suspicione7n : unusual clauses
excite suspicion.

In the foregoing case, it will be observed that the
transaction was invalidated on the ground of fraud, accord-
ing to the principle, that a wrongful or fraudulent act
shall not be allowed to conduce to the advantage of the
party who committed it ; nul prendra advantage de son tort
demesne (i).
Estoppel The doctrine of estoppel in pais, which has often been

applied, is obviously referable to the principle set forth in
the maxim before us, and has been defined as follows. If

(e) Wing. Max. 636 ; 2 Kep. 34 ; ject considered in the Note to

2 Bulstr. 226 ; 1 Roll. B. 157 ; Moor, Twyne's case, 1 Smith, L. 0. 11th

321 ; Mace v. Cammel, Lofft, 782. ed., 1.

(/) Auchterarder Presbytery v. (h) Noy, Max., 9th ed., p. 152;

Barl of Kinnoull, 6 01. & E". 698, Latimer v. Batson, 4 B. & C. 652 ;

699 ; Spicot's case, 5 Eep. 58. per Ld. Ellenborough, Leonard y.

(g) Cited per Ld. Mansfield, Baker, 1 M. & S. 253.

Worseleyy.Demattos, 1 Burr. 482; (i) 2 Inst. 713; Branch, Max.

Martindale v. Booth, 3 B. & Ad. 5th ed., p. 141. '
498 ; 37 R. E. 485. See this sub-

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in pais.

FUNDAMENTAL LEGAL PRINOIPLBS. 241

a man, by his words or conduct, wilfully endeavours to
cause another to believe in a certain state of things which
the first knows to be false, and if the second believes in
such state of things and acts upon his belief, he who
knowingly made the false statement is estopped from
averring afterwards that such a state of things did not
exist at the time : again, if a man, either in express terms
or by conduct, makes a representation to another of the ,
existence of a certain state of f^cts which he intends to be
acted upon in a certain way, and it be acted upon in that
way, in the belief of the existence of such a state of facts,
to the damage of him who so believes and acts, the first
is estopped from denying the existence of such a state of
facts : and thirdly, if a man, whatever his real meaning
may be, so conducts himself that a reasonable man would
take his conduct to mean a certain representation of facts,
and that it was a true representation, and that the latter
was intended to act upon it in a particular way, and he,
with such belief, does act in that way to his damage, the
first is estopped from denying that the facts were as
represented (A).

It has, in accordance with the principle of estoppel in
pais, been laid down that if a stranger begins to build on
land supposing it to be his own, and the real owner, per-
ceiving his mistake, abstains from setting him right, and
leaves him to persevere in his error, the real owner will
not afterwards be allowed to assert his title to the land
so as to deprive the stranger of the buildings erected
by him (Z).

The cases illustrative of the doctrine of estoppel in pais

are numerous, and reference here can only be made to

a few of the leading authorities. In Pickard v. Sears (m),

Ik) Oarr v. L. S N. W. B. Co., Vascomada v. Churchill <£ Sim,

L. B. 10 C. P. 307 : U L. J. C. P. [1906] 1 K. B. 237 : 75 L. J. K. B. 94.

109; M'Kemie-v. British Linen Co., (1) Bamsden v. Dyson, L. R. 1

6 App. Oas. 82 ; Picha/rd v. Sewrs, H. L. 129.

6 A. & B. 469 ; Compama NoAiiera (m) 6 A. & E. 469.

L.M. 1^

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242 FUNDAMENTAL LEGAL PRINCIPLES.

which was an action of trover, the goods in question were
seized, while in the actual possession of a third party,
under an execution against him, and were sold to the
defendant ; no claim was made by the plaintiff after the
seizure, and he consulted with the execution creditor as
to the disposal of the goods, without mentioning his own
claim, after he knew of the seizure and of the intention
to sell : it was held that a jury might properly infer from
the plaintiff's conduct that he had authorised the sale or
had in fact ceased to be the owner. In Gregg v. Wells (n),
it was held that the owner of goods, who stands by, and
voluntarily allows another to treat them as his own,
whereby a third person is induced to buy them, cannot
recover them from the buyer. " A party who negligently
or culpably stands by, and allows another to contract on
the faith and understanding of a fact which he can contra-
dict, cannot afterwards dispute that fact in an action
against the person whom he has himself assisted in
deceiving."

The principle on which such cases are decided was well
explained in Freeman v. Cooke (a), and the expression, in
Pickard v. Sears, "where one by his words or conduct
wilfully causes another to believe the existence of a certain
state of things," was stated to mean, " if not that the party
represents that to be true which he knows to be untrue, at
least that he means his representation to be acted upon, and
that it is acted upon accordingly ; and if, whatever a man's
real intention may be, he so conducts himself that a reason-
able man would take the representation to be true, and
believe that it was meant that he should act upon it, and
did act upon it as true, the party making the representation

(to) 10 A. & E. 90, 98. See Doe v. (o) 2 Exch. 654, 663—664 ; see

Groves, 10 Q. B. 486; Nickells v. Miles v. McUwraith, 8 App. Gas.

Atherstone, Id. 944, 949 ; and see 120, where the above statement

Farquharson v. King, [1901] 2 K. B. of the law was approved by Ld.

697 : 70 L. J. K. B. 985. Blaokburn.

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FUNDAMENTAL LEGAL PRINCIPLES. 243

would be equally precluded from contesting its truth ; and
conduct by negligence or omission, where there is a duty
cast upon a person by usage of trade or otherwise to disclose
the truth, may often have the same effect. As, for instance,
a retiring partner omitting to inform his customers of the
fact in the usual mode, that the continuing partners were
no longer authorised to act as his agents, is bound by all
contracts made by them with third persons, on the faith of
their being so authorised. ... In truth, in most cases
to which the doctrine in Pickard v. Sears is to be applied,
the representation is such as to amount to the contract or
licence of the party making it" (p).

An important limitation to the doctrine of estoppel in
pais was laid down by the House of Lords in Jordan v.
Money (q), namely, that there must be a misrepresentation
of existing facts, and not of a mere intention ; this distinc-
tion, which is now well recognised (r), is illustrated by
Williams v. Stern (s). There a loan repayable by instal-
ments was secured by a bill of sale over the debtor's goods-
An instalment having fallen due, the debtor asked for time,
and the creditor gave him a week ; yet he seized the goods
only three days later. It was held he had a right to seize
them, as his promise to wait was not a misstatement of an
existing fact, nor was it founded on any consideration to
make it binding (s).

Furthermore, a person who has expressly made a verbal Aiiegans
representation, on the faith of which another has acted, nonest
shall not afterwards be allowed to contradict his former '»«''»«»''««•
statement, in order to profit by that conduct which it has

ip) See per Ld. Chelmsford, 6 Castellam v. Thompson, 13 0. B.

H L. Cas. 656. See also in illus- N. S. 105, 121-122.

tration of the text, Martyn v. Gray, (q) 5 H. L. Oas. 185.

14 C B N. S. 824; Stephens v. (r) See BankofLov.%s%anaY. First

Bevnolds 5 H. & N. 513 ; Gwney Nat. Bank of New Orlecms, L. R. 6

V Eva^s, 3 Id. 122 ; Swnmers v. H. L. 352 : 43 L. J. Ch. 269.

SoUmum, 7 B. & B. 879 ; Bamazotti (s) 5 Q. B. D. 409.
V. Bowring, 7 0. B. N. S. 857;

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244 FUNDAMENTAL LEGAL PRINCIPLES.

induced (t). Whenever an attempt is made in the course of
legal proceedings to violate this principle, the law replies in
the words of a maxim which we have already cited (u),
allegans contraria non est audiendus, and, by applying the
doctrine of estoppel therein contained, prevents the unjust
consequences which would otherwise ensue (x). We may,
therefore, lay it down as a general rule, applicable alike in
law and equity, that a party shall not entitle himself to
substantiate a claim, or to enforce a defence, by reason of
acts or misrepresentations which proceeded from himself,
or were adopted or acquiesced in by him after full knowledge
of their nature and quality (,i/) : and further, that where
misrepresentations have been made by one of two litigating
parties, in his dealings with the other, a Court of law will
either decline to interfere, or will so adjust the equities
between them, as to prevent an undue benefit from accru-
ing to that party who is unfairly endeavouring to take
advantage of his own wrong (z).

If, therefore, the acceptor of a bill of exchange at the
time of acceptance knew the payee to be a fictitious person,
he shall not take advantage of his own fraud ; but a bond
fide holder may recover against him on the bill, treating it
as payable to bearer {a) : and, generally, a person will not

(t) Trickett v. Tomlinson, 13 C. B. v. Bosanguet, 4 B & S. 460, 486.
N. S. 663. (y) Tigers v. Pike, 8 CI. & F. 562.

(m) Ante, p. 136. See also Cannam (a) See Harrison v. Buscoe, 15 M.

V. Farmer, 3 Exoh. 698 ; Sallifax v. & W. 231, where an unintentional

Lyle, Id. 446 ; Fairhursty. Liverpool misrepresentation was made in giv-

AdeVphi Loan Association, 9 Exch. ing notice of tlie dishonour of a bill ;

422 ; Standishv. Boss, 3 Exoh. 527 ; Bayner v. Grote, Id. 359, where an

Freeman v. Steggall, 14 Q. B. 202 ; agent represented himself as prin-

Morgan v. Gouchman, 14 C. B. 100 ; cipal (citing Bickerton v. .Burrell,

Dunston v. Paterson, 2 C. B. N. S. 5 M. & S. 383) ; Humble v. Hunter,

*95- 12 Q. B. 310 ; Schmaltz v. Avery, 16

{x) Price V. Carter, 7 Q. B. 838 ; Q. B. 655 ; Cox v. Hubbard, 4 C. B.

Beg. V. Mayor of Sandwich, 10 Q. B. 317, 319 ; Cooke v. Wilson, 1 C. B.

563, 571 ; Banks v. Newton, 11 Q. B. N. S. 153.

340; Fetch y. Lyon,9Q.B.U7, and. (a) Gibson v. Minet, 1 H. Bla.

oases there cited ; Braithwaite v. 569 ; 1 B.. B.. 754 ; see 45 & 46 Vict.

Gardiner, 8 Q. B. 473. See Dresser o. 61, s. 7 (3).

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FUNDAMENTAL LEGAIj PRINCIPLES. 246

be allowed as plaintiff in a Court of law to rescind his own

act, on the ground that such act was a fraud on another

person, whether the party seeking to do this has sued in

his own name or jointly with such other person (&).

Further, we may remark that the maxim which precludes Further

a man from taking advantage of his own wrong is, in '^^^^^ ^'

principle, closely allied to the maxim, ex clolo malo non

oritur actio, which is likewise of general application, and

will be treated of hereafter in the Chapter upon Contracts.

The latter maxim is, indeed, included in that above noticed ;

for it is clear, that since a man cannot be permitted to take

advantage of his own wrong, he will not be allowed to

found a claim upon his own iniquity : nemo ex proprio dolo

consequitur actionem ; and, as before observed, /j-wstra legis

auxilium qucerit qui in legem committit (c).

Nevertheless, the principal maxim under our notice, and Principal

maxim, now
likewise the kindred rule, fraus et dolus nemini patrocinari qualified.

debent (d), are sometimes qualified in operation by the

maxim cited at a former page (e) : quod fieri non debet

factum valet (/). "Fraud renders any transaction voidable

at the election of the party defrauded; and if, when it

is avoided, nothing has occurred to alter the position of

affairs, the rights and remedies of the parties are the same

as if it had been void from the beginning; but if any

alteration has taken place, their rights and remedies are

subject to the effect of that alteration " {g). This may be

(6) Per Ld. Tenterden, Jones v. of his own wrong or default ; respect

Yates, 9 B. & 0. 538 ; 33 B. R. 258
Sparrow v. Chisman, Id. 241
Wallace v. Kelsall, 7 M. & W. 264

ing the right to costs, Pope v.
Fleming, 5 Exch. 249 ; theenrolment
of memorial of an annuity, Mollon

which cases are recognised, Gordon v. Camroux, 4 Exch. 17 ; an action

V. Ellis, 8 Scott, N. E. 305 ; Brandon against the sheriff for an escape,

V. Scott, 7 E. & B. 234 ; Husband v. Arden v. Goodacre, 11 C. B. 371, 377.

Dams, 10 0. B. 645. See Heilbut (d) 3 Bep. 78 b.

V. Nevill, L. E. 4 C. P. 354. (e) Ante, p. 148.

(c) The following oases also illus- (/) Cited per Martin, B., and

trate the maxim, that a man shall Wilde, B., 6 H. & N. 787, 792.

not be permitted to take advantage (g) Per Blackburn, J., 10 H. L.

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2i6 FUNDAMENTAL LEGAL PRINCIPLES.

illustrated by Reg. v. Saddlers' Co. (h). By the charter of
this company, the warden and assistants were empowered
to elect assistants from the freemen, and to remove any for
ill- conduct or other reasonable cause, and to make bye-laws
for the good government of the body in general and its
officers. A bye-law was made, " that no person who has
become insolvent, shall hereafter be admitted a member of
the court of assistants, unless it be proved to the satisfaction
of the court that such person, after his insolvency, has
paid his creditors in full." D. being otherwise qualified,
but being insolvent, was elected an assistant, and after
his election, of which he was not aware, but before his
admission, he made to the agents of the wardens and
assistants a statement, false to his own knowledge, that
he was solvent; he was then admitted, and exercised the
office of assistant. The bye-law being adjudged good, it was
further held, that the mere statement of a falsehood by D.
did not nullify his election, and that D. could not be legally
removed from his office by the wardens and assistants
without being heard in his defence (t).

In Hooper v. Lane (k), which strikingly illustrates the
rule that " no man shall take advantage of his own wrong,"
various instances were put by Bramwell, B. (I), showing
that the rule " only applies to the extent of undoing the
advantage gained, where that can be done, and not to the
extent of taking away a right previously possessed." The
instances adduced are as follows. " If A. lends a horse to
B., who uses it, and puts it in his stable, and A. comes for
it, and B. is away and the stable locked, and A. breaks it
open and takes his horse, he is liable to an action for the
trespass to the stable ; and yet the horse could not be got

Cas. 420—421 ; citing Clarke v. (k) 6 H. L. Cas. 443 ; Ockford v.

Dickson, E. B. & B. 148 ; and Fere Freston, and Chapman v. Freston,

y. Hill, 15 C. B. 207. 6 H. & N. 466, 472, 480, 481.

(h) 10 H. L. Cas. 404. (I) 6 H. L. Cas. 461. See also per

(i) See the maxim, Audi alteram Bowen, L.J., 39 Ch. D. 206.

partem, ante, p. 91.

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FUNDAMENTAL LEGAL PKINCIPLES. 247

back, and so A. would take advantage of his own wrong.
So, though a man might be indicted at common law for a
forcible entry, he could not be turned out if his title were
good. So, if goods are bought on a promise of cash
payment, the buyer, on non-payment, is subject to an
action, but may avail himself of a set-off and the goods
cannot be gotten back. So, if I promise a man I will sell
him more goods on credit if he pays what he already owes,
and he does so, and I refuse to sell, I may retain the money.
So, if I force another from a fishing-ground at sea, and
catch fish, the fish are mine."

The maxim, moreover, according to the opinion of the
same learned judge, " is never applicable where the right of
a third party is to be affected. . . . Can one man by his
wrongful act to another deprive a third of his right against
that other ? . . . A. obtains goods from B. under a contract
of sale, procured by A. from B. by fraud. A. sells to C. ;
C. may retain the goods (m). Surely A. might recover the
price from C. at which he sold to him ; yet he would in so
doing take advantage of his own wrong. So, if my lessee
covenants at the end of his term to deliver possession to
me, and in order to do so forcibly evicts one to whom he
had sub-let for a longer term, and I take possession without
notice, surely I can keep it ; at least, at the common law I
could. So, if a sub-lessee at an excessive rent purposely
omits to perform a covenant, the performance of which
would be a performance of the lessee's covenant to his
lessor, and by such non-performance the lessee's covenant
is broken, and the first lessor enters and avoids the lease
and evicts the sub-lessee, the sub-lessee may defend himself
against a claim for rent by his lessor (w) ; yet there he
takes advantage of his own wrong, because of the right of
the third person. So, if I sell goods, the property not to
pass till payment or tender, and the vendee has a week

(to) WMtev. Oarden, 10 0. B. 919. (n) Logan v. Ball, i 0. B. 598.

Of, Lindsay \. Ctmdy, 3 Ap^.Ca,sA&9.

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248 FUNDAMENTAL LEGAL PRINCIPLES.

in which to pay, and during that week I resell and deliver
to a third person, no action is maintainable against me
as for a detention or conversion, but. only for non-delivery;
yet there I take advantage of my own wrong, because
the right of a third party has accrued " (o).

Upon the same principle of protecting the rights of third
parties acquired bona fide under a fraudulent transaction, a
shareholder in a company who has been induced to take
shares by the fraud of the company cannot avoid the
contract and have his name removed from the register
after an order for the winding-up of the company has been
made, nor after a petition for winding-up has been pre-
sented on which an order is subsequently made (p), because
of the intervening rights of the creditors accruing under
the order.

Acta exterioea indicant intbriora Secreta. (8 Rep. 291.) —

Acts indicate the intention.

The Six The law, in some cases, judges of a man's previous

case. intentions by his subsequent acts ; and, on this principle,

it was resolved in a well-known case, that, if a man abuse
an authority given him by the law, he becomes a trespasser
ab initio, but that if he abuse an authority given him by
the party, he does not. The reason assigned for this dis-
tinction is that, where a general licence is given by the
law, the law judges by the subsequent act with what intent
the original act was done ; but where the party himself
gives a licence, he cannot for any subsequent cause punish
that which is done by his own licence. In the latter case,
therefore, the abuse alone is punishable (q).

(o) Per Bramwell, B,, 6 H. L. (j) The Six Carpenters' case, 8

Oas. 461—462. Eep. 290; 1 Smith, L. C, 11th ed.

{p) Oakes v. Turquand, L. E. 2 132. See Jacobsohnv. Blake,6'M.. &

H. L. 325: 36 L. J. 0. P. 949; Gr. 919; Peters v. CZarsora, 7 Id. 548;

Houldsworth v. City of Olasgow Webster v. Watts, 11 Q. B. 311 ;

Bank, 5 App. Cas. 317. North v. L. & S. W. B. Co., 14 C. B.

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FUNDAMENTAL LEGAL PRINCIPLES. 249

For instance, the law gives authority to a traveller to
enter a common inn to seek refreshment (r) ; to the owner
of land to distrain beasts thereon damage feasant, to detain
them until satisfaction made (s) ; and to the commoner to
enter upon the common to see his cattle. But, if the
traveller at the inn commits a trespass, or if the landowner
after distraining works or kills the distress, or if the com-
moner cuts down a tree, the law adjudges that he entered
or distrained for the specific purpose of committing the
particular injury, and because the act which demonstrates
the intention is a trespass, he is adjudged a trespasser
ab in itio (t) ; or, in other words, the subsequent illegality
shows that the party contemplated an illegality all along,
so that the whole becomes a trespass (u).

This doctrine bore hard upon landlords when distraining Distress for
for rent, and therefore for their relief the 11 Geo. 2, c. 19 (x),
has provided that where a distress is made for rent justly
due, and an irregularity or unlawful act is afterwards done,
the distress is not to be deemed unlawful, nor the party dis-
training a trespasser ab initio, but satisfaction for the special
damage sustained (y) may be recovered by action (z) unless
tender of amends be made before action brought. Like pro- or poor rate.
visions are contained in the 17 Geo. 2, c. 38, s. 9, with
regard to a distress for money justly due for the relief of
the poor.

The 11 Geo. 2, c. 19, does not, it must be observed,
render either the entry to distrain or the distress legal if

N. S. 132; per Bile, J., Ambergatc B. R. 133; Bagshaw v. Qowwrd,

n. Co. V. Midla/nd B. Co., 23 L. J. Cro. Jac. 147.

Q. B. 17, 20 ; Wing. Max., p. 108. (u) Per Littledale, 3., Smith v.

(r) See Lomond v. Bicha/rd, [1897] Egginton, 7 A. & E. 176.

1 Q. B. 541 : 66 L. J. Q. B. 315. (s) See ss. 19, 20.

(s) See Layton v. Hurry, 8 Q. B. (2/) See Bogers v. Parher, 18 0. B.

811 ; Oullwer v. Cosens, 1 0. B. 112 : 25 L. J. 0. P. 220 ; Lucas v.

788 ; Oreen v. Duckett, 11 Q. B. D. TarUton, 8 H. & N. 116 : 27 L. J.

275 : 52 L. J. Q. B. 435. Ex. 246.

{t) 8 Eep. 291 ; Wing. Max., p. (z) See Winterbourne v. Morgan,

109 ; OxUy v. Watts, 1 T. B. 12 : 1 11 East, 395 ; 10 B. B. 532.

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260

FUNDAMENTAL LEGAL PRINCIPLES.

Seizure of

several

chattels.

Sheriffs and
gaolers.

the entry be effected in an unlawful manner (a). Nor does
it protect from the doctrine of trespass ab initio a landlord
who distrains upon goods not distrainable by law (b). A
limit, however, has been set to the doctrine itself in cases
where several chattels are seized ; for the seizure of one
chattel which is seizable by law is not rendered unlawful
by the wrongful seizure of another chattel; and conse-
quently a landlord who distrains upon goods some of which
are distrainable, but others not, is a trespasser ab initio
only as regards the latter (c).

Similarly, where several beasts are distrained damage
feasant, the subsequent abuse of one does not invalidate
the seizure of the others (d). On the other hand, both the
entry by the lord of a manor to seize a beast as a heriot,
and the seizure, are rendered unlawful by the wrongful
seizure therewith of an additional beast, for to make the
entry good it must be good with reference to the seizure (e).

A sheriff who enters premises to execute a writ oifi.fa.
becomes a trespasser by remaining thereon for a longer
time than is reasonable for that purpose, and the trespass
may be alleged as commencing when the reasonable time
expired (/). His delay to withdraw, however, does not
invalidate his previous seizure of goods under the writ {ig),
nor does it render him a trespasser ab initio (h). There
are authorities which seem to support the contrary pro-
position (») ; but it seems that they must be treated now
as overruled. A gaoler by detaining a prisoner beyond

(a) Attack v. Bramwell, 3 B. & S.
520 : 32 L. J. Q. B. 146.

(6) Harvey v. Pocock, 11 M. & W.
740 : 12 L. J. Ex. 434.

(c) Harvey v. Pocock, supra.

(d) Dod V. Monger, 6 Mod. 215.

(e) Price v. Woodhouse, 1 Exch.
559.

(/) Playfair v. Musgrove, 14 M.
& W. 239 : 15 L. J. Ex. 26 ; Ash v.
Dawnay, 8 Exch. 237 : 22 L. J. Ex.

59 ; Lee v. Dangar, [1892] 1 Q. B.
231 : 2 Id. 337 : 61 L. 3. Q. B. 780.

(3) Lee V. Dwngar, supra; see
also Percival v. Stamp, 9 Exch. 167 :
23 L. J. Ex. 25.

(h) Beeper Denman, J., [1892] 1
Q. B. 242.

(i) Reed v. Harrison, 2 W. Bl.
1218; Aitkenhead v. Blades, 5
Taunt. 198.

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FUNDAMENTAL LEGAL PRINCIPLES. 251

the time at which he ought to be discharged becomes a
trespasser {k), but not, it appears, a trespasser ad initio,
because it would be unreasonable to assume that he
contemplated that illegality when he first received the
prisoner (0. It is, probably, for the like reason that a
sheriff does not become a trespasser ah initio by remaining
too long upon premises. For that reason he does not
become such by demanding fees to which he is not entitled,
and also because such demand is not a trespass (m).

The point actually decided in the Six Carpenters' case Non-feasance,
was that trespass does not lie against a guest at an inn for
non-payment of his bill, because a mere non-feasance, not
beiug a trespass, cannot make a man a trespasser ab initio (n) .
The importance of the doctrine of trespass ab initio w'as much
dimiuished when the old forms of action were abolished.

With respect to the proposition that the abuse of a Implied

1 T /> ATI O 6

licence given by the party does not make a man a
trespasser ab initio, it may be noticed that if a person
wrongfully take my goods and place them on his own close
I may enter for the purpose of recaption (o), and that the
reason given is that I have an implied licence from the
wrong-doer (p). For the Hke reason, if my neighbour has
wrongfully placed his goods upon my close, I may enter
his for the purpose of there depositing them for his use (q),
or if his cattle have trespassed on to my close, I may drive
them back on to his (r), and in neither case am I bound to

(k) Moone v. Bose, L. E. 4 Q. B. Patrick v. Golerick, 3 M. & W. 483 ;

4S6 : 38 L. J. Q. B. 286. Burridge v. Nicholetts, 6 H. & N.

(i) Smith V. Egginton, 7 A. & E. 383 : 30 L. J. Ex. 145.

167, 176,i)erLittleaale, J. (p) Per Parke, B., 3 M. & W.

(m) Shorlmd v. Qovett, 5 0. B. 485; see per Littleton, J., Y. B. 9

485, 489, per Bayley, J. ; see also Ed. IV. 35, where the distinction is

Lee V. Dangar, supra. drawn between a wrongful taking

(n) See West v. Nibbs, 4 0. B. and a detention after bailment.

172, 187 : 17 L. J. C. P. 150 ; (a) Bea v. Sheward, 2 M. & W.

Jacobsohn v. Blake, 6 M. & Gr. 424.

919 : 13 L. J. C. P. 81 ; Qardner v. (r) Tyrringham's case, 4 Kep.

Campbell, 15 Jolinson (U.S.), 401. 38 b.

(o) Vin. Abr., " Trespass " (I. a.) ;

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252 FUNDAMENTAL LEGAL PRINCIPLES.

distrain damage feasant. If my horse has been distrained
and impounded, I may nevertheless retake it upon the
distrainor removing it from the pound and wrongfully
working it (s) ; and, generally, if a trespasser take my
goods by force from my actual possession, I may, after
demand and refusal, use force sufficient to defend my right
and to recover them (t).

On the other hand, the mere fact that my goods are
upon my neighbour's land does not justify my entry
thereon to recover them (u) ; nor does the fact that they
were placed there by a trespasser who had wrongfully
taken them from me (v) ; except, perhaps, in cases where
he has feloniously stolen them (a;), or has taken them to
an inn, fair or common (y).

It has been said that if my fruit tree hang over my
neighbour's land , I may enter his land to gather up the
fruit which falls on to it (z) ; but, as I ought not to permit
my tree to hang over his land {a), this proposition may be
doubted. It has been also said that if my tree be blown
down by the wind, I may enter the land on to which it
falls to retake it [b) ; but, even if that be true (c), I may
not enter my neighbour's land without leave to retake a

(s) Smith V. Wright, 6 H. & N. (y) 3 Blac. Comm. 5.

821. (z) Vin. Abr., "Trespass" (L. a:

{t) Blades v. Higgs, 11 H. L. Gas. 6), citing Latch, 120, per Dode-

621. ridge, J.

(m) Anthony v. Saney, 8 Bing. {a) LemmonM. Wehb, [1895] A. C.

186 : 34 K. K. 670 ; see Williams v. 1 : 64 L. J. Ch. 205 ; Smith v.

Morris, 8 M. & W. 488. Giddy, [1904] 2 K. B. 448 : 78 L. J.

(v) 3 Blac. Comm. 4, 5, citing K. B. 894.

Biggins v. Andrewes, 2 Roll. Rep. (6) Vin. Abr., "Trespass" (H. a,

55, 208 : 2 Roll. Abr. 564 ; see per 2 : 11), citing Latch, 13 ; per Crew,'

Tindal, C.J., and Park, J., 8 Bing. C.J., who cites Y. B. 6 Ed. IV. 7 ';

192,193; and Com. Dig., " Pleader " Bac. Abr., "Trespass" (P.), citing

(3 M. 39), citing Cro. EUz, 246. Bro. Tresp. 213 (jm., for 310, where

(x) Ibid. ; see also Wehh v. Beavan, the reference is to Y. B. 6 Ed. IV. 7

6 M. & Gr. 1055. As to entering to per Choke, J.).

search for stolen goods, see Toplady (c) See Story, Bailments, 83 a.
V. Sealey, 2 Roll. Abr. 565.

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FUNDAMENTAL LEGAL PBINOIPLES. 253

tree which haa fallen there through my negligence in
cutting it (d).

Kes ipsa Loquitur {the thing speaks for itself).

The onus of proving negligence lies upon the party who
alleges it, for ei qui affirmat, non ei qui negat, incumhit
probatio (e) ; and, to establish a case to be left to the jury,
he must prove the negligence charged affirmatively, by
adducing reasonable evidence of it (/). As a rule, the
mere proof that an accident has happened, the cause of
which is unknown, is not evidence of negligence (g).

Under special circumstances, indeed, the mere fact that
an accident has happened may be prima facie evidence of
negUgence, casting upon the party charged with it the
onus of proving the contrary, for owing to the nature of
the accident, res ipsa loquitur. Thus, where a ship in
motion colUdes with a ship at anchor the collision is,
generally, prima facie evidence of negligence in the manage-
ment of the former (/i), and where two trains of the same
railway company collide, the burden of proving that the
colhsion was not due to their servants' neghgence falls
upon the company (i). Similarly, it was held that a
prima facie case of neghgence was established by evidence
that while the plaintiff was lawfully passing under the
doorway of the defendants' premises a bag of sugar fell
upon him from a crane fixed above the door (k), or that
while he was lawfully passing along a highway, he was

(i) See the authorities cited (h) The Annot Lyle, 11 P. D. 114 :

supra n (6) ; and 8 Bing. 192, :per 55 L. J. Adm. 62 ; The Indus, 12

Tindai, O.J. P- O- *6 : 56 L. J. Adm. 88.

(e) Per Ld. Halabiiry, 12 App. Gas. (i) Oarpue v. L. B. <& S. G. B. Co.,

45 5 Q. B. 747 ; Skimer v. L. B. S S.

(/) Per Curiam, 3 H. & C. 601. O. B. Co., 5 Exoh. 787.

(g) Per Bovill, C.J., Simpson v. (fe) Scott v. London Dock Co., 3

Lrnid. Oen. Omnibus Co., L. B. H. & G. 596: 34 L. J. Ex. 220.
8 C. P. 390, 392 : 42 L. J. C. P. 112.

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254 FUNDAMENTAL LEGAL PEINCIPLE3.

struck by a brick falling from the defendants' railway
bridge (I), or by a barrel tumbling out of an upper window
of their shop (m). For where an accident happens from
an inanimate object, which does not ordinarily happen if
the persons who have the management of it use proper
care, it may sometimes be inferred, in the absence of any
explanation from them, that it happened through their
want of care (n).

The general rule, however, is that where the evidence
adduced is equally consistent with the absence as with
the existence of negligence in the defendant, the case
ought not to be left to the jury (o) ; and the maxim, res
ipsa loquitur, ought not to be applied unless the facts proved
are more consistent with negligence in the defendant than
with a mere accident (j>). It is not enough, it has been
said, for the plaintiff to show that he has sustained an
injury under circumstances which may lead to a suspicion
that there may have been negligence on the part of the
defendant, but he must give evidence of some specific act
of negligence (q).

Accordingly, where damage is done by a horse bolting
in the street, the bolting is not in itself evidence of
negligence ; for it is indisputable that a horse sometimes
becomes unmanageable from fright or other cause without
want of care or skill in the person who has charge of it (?).

(I) Kearney v. L. B. & S. C. B. ahowing oircumstances negativing

Co., L. B. 5 Q. B. 411 : 6 Id. 759 : negligence {Phipps v. New Claridges

40 L. J. Q. B. 285. Hotel, Ltd., 22 Times, L. B. 49).

(m) Byrne v. Boodle, 2 H. & C. (o) Cotton v. Wood, 8 0. B. N. S.

722 ; see also Briggs v. Oliver, 4 568 : 29 L. J. C. P. 333.

H.& 0.403; and^erLd. Halabury, {p) Crisp v. Thomas, 63 L. T.

[1891] A. 0. 335. N. S. 756; see also Smith v. Midi.

(n) 8 H. & 0. 601. The rule is B. Co., 57 Id. 813.

not strictly limited to inanimate (g) Per WUles, J., 16 C. B. N. S.

things. Where a dog was given 692.

into the sole custody of a person aa (r) Hammock v. White, 11 0. B.

bailee and the dog was lost whilst N. S. 588 : 31 L. J. G. P. 129 ;

in his custody, the maxim applied Mannoni v. Douglas, 6 Q. B. D. 145 :

to throw on him the burden of 50 L. J. Q. B. 289 ; see also Holmes

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FUNDAMENTAL LEGAL PRINCIPLES.

Again, the maxim ought not to he applied to evidence
of an unexplained accident, if the evidence is as consistent
with the cause of the accident having been the victim's
own negligence, as with its having been that of the
defendant. For instance, if a railway company be sued
by a widow under Lord Campbell's Act, evidence that her
husband's dead body was found on the lines near a level
crossing, having been apparently run over by a passing
train, is insufficient ; for it is not to be presumed that
persons are careful when crossing lines ; nor is it sufficient
to give evidence of acts of negligence, if it remains merely
conjectural whether these acts were the cause of the
accident (s).

For this reason the decision in Fenna v. Clare (t) is
perhaps open to criticism. There the only evidence for
the plaintiff, a child of tender years, was that she was
found on the highway near a spiked wall which was a
nuisance, with injuries consistent either with her having
stumbled against the spikes while lawfully using the high-
way, or with her having wrongfully climbed on to the
wall (it) ; yet it was held that the case was properly left to
the jury.

In conclusion, it may be observed that, in decidmg m
any particular case whether the maxim, res ipsa locitur,
should be apphed, the reported facts of other cases are of
little value ; each case must be decided upon its own facts.

V Mather, L. R. 10 Ex. 261: 44 (t) [1895] 1 Q. B. 199: 64 L. J.

L. J. Ex. 176. Q- B. 238.

Is) Wahelm v. L. & 8. W. B. Co., (u) See, however, Hwrrold v. Wat-

12 App. Oas. 41 : 56 L. J. Q. B. 258 ; ney, [1898] 2 Q. B. 320 : 67 L. J.

see Smith v. S. E. B. Co., [1896] 1 Q. B. 771.
Q. B. 178 : 65 L. J. Q. B. 219.

255

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256

FUNDAMENTAL LEGAL PRINCIPLES.

Actus non facit reum nisi mens sit rba. (3 Inst. 107.) —
" The intent and the act must both concur to constitute
the crime" (7 T. R. 514, -per Lord Kenyon, G.J.)

Two leading cases upon this maxim of our criminal law
are Reg. v. Prince (v) and Reg. v. Tolson (w). The points
actually decided in these cases are mentioned below, but
the reader is advised to consult the judgments delivered
therein upon the general relation of mens rea to crime. In
the latter case Stephen, J., though he criticised the above
maxim, yet pointed out that the full definition of most
crimes contains expressly or by implication a proposition
as to a state of mind ; that the mental element is often
marked by the word " maliciously," " fraudulently," " negli-
gently," or " knowingly," and that competent age, sanity,
and some degree of freedom from some kinds of coercion are
assumed to be essential to criminality, though not intro-
duced into the statutory definitions of particular crimes {x) ;
while with regard to felony, of which it is said that "it is
always accompanied by an evil intention " (?/), Hawkins, J-,
defined the term " feloniously " as meaning " with a mind
bent on doing wrong, or, as it has been sometimes said,
with a guilty mind " {z).
General rule. Having regard to the judicial opinions expressed in the
above cited cases, and also in later cases, some of which
will be referred to shortly, it seems not inaccurate to say
that, as a general rule of our law, a guilty mind is an
essential ingredient of crime, and that this rule ought to be
borne in mind in construing all penal statutes.

The rule, however, is not inflexible, and a statute may
relate to such a subject-matter and may be so framed as to
make an act criminal whether or not there has been any

Its limita-
tions.

(v) L. B. 2 0. 0. R. 154 : 44
L. J. M. C. 122.

(w) 23 Q. B. D. 164: 58 L. J.
M. C. 97.

(x) 23 Q. B. D. 187.
(y) Hawk. P. C, bk. 1, c. 25, s. 3 ;
see L. R. 1 C. C. B. 289.
[z) 23 Q. B. D. 193, 194.

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FUNDAMENTAL LEGAL PRINCIPLES. 257

intention to break the law or otherwise to do wrong. There
is a large body of municipal law in the present day which
is so conceived. Whether a statute should be construed in
that sense or as subject to an implied qualification that
there must be a guilty mind depends, not entirely upon its
language, but also upon its subject-matter, and the various
circumstances that make the one construction or the other
reasonable, including the nature of the punishment imposed
for its infringement {a). As an instance of an offence to
which a guilty mind is not essential, it may be mentioned
that a dealer in tobacco is liable to penalties under 5 & 6
Vict. c. 93, s. 3, for having in his possession adulterated
tobacco, although ignorant of the adulteration (i) .

At common law, an honest and reasonable belief in the Mistake or
existence of circumstances which, if true, would make the ol fact,
act for which a man is indicted an innocent act, is a good
defence, this defence being embodied in the maxim under
consideration {c). Accordingly, where a woman is indicted
for bigamy, it is a good defence that she believed on reason-
able grounds that her husband was dead {d), or, where a
publican is charged with supplying liquor to a constable on
duty, that he similarly believed that the constable was off
duty (e). Yet, there are several classes of cases to which
the doctrine does not apply (/), and it has its limitations.
It has been held that a prisoner charged, under the Offences
against the Person Act, 1861 (g), with unlawfully taking an
unmarried girl under the age of sixteen out of the posses-
sion and against the will of her father is not to be excused
merely because he believed that the girl was over that

(a) See per Wills, J„ 23 Q. B. D. 1 Q. B. 918 : 64 L. J. M. 0. 218. Of.

172—176 citing several cases in Banfc o/W. S. TFafes v. Piper, [1897]

support ot this view of the law. A. 0. 383, 390 : 66 L. J. P. G. 73.

(6) Beg. v. Woodrow, 15 M. & W. (/) See the cases collected in

.Q^ Sherras v. De Butzen, supra; and

(c) Per Cave, J., 23 Q. B. D. 181. Hohhs v. Winchester Corporation,

(d) Beg. v. Tolsm, supra. [1910] 2 K. B. 471.

(e) Sherras v. De Butzen, [1895] (</) 24 & 25 Vict. o. 100, s. 25.

L.M.

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258 FUNDAMENTAL LEGAL PRINCIPLES.

age(/0. One of the grounds, however, for that decision
was that, notwithstanding such beUef, the prisoner intended
to do and did a wrongful or immoral act, and not an
innocent act, when he took the girl away (i). Moreover,
as has been already stated, it may be proper to construe a
penal statute as intending that ignorance of a material fact
shall not excuse the doing of the act thereby prohibited.
Thus, it is an offence for a pubUcan to sell intoxicating
liquor to a person who is in fact drunk, and the pubKcan's
ignorance of that fact is no excuse (k). He can commit
the offence of delivering such liquor to a child under four-
teen in a vessel not corked and sealed, though he honestly
believes it is corked and sealed (l) .
Master and Again, a person may be guilty of an offence of selling milk

adulterated with water under s. 6 of the Sale of Food and
Drugs Act, 1875 (m), although the water has been added by
his servant without his knowledge or authority, or by a
stranger without his knowledge or authority, and without
any default or negligence on his part or the part of any
servant of his («). As a general rule, which is founded
upon our maxim, a master is not criminally respon-
sible for acts done by his servant without his knowledge,
and the condition of the servant's mind is not to be
imputed to the master (o). But this rule is not absolute,
for a man may be indicted for a public nuisance upon his

{h) Beg. v. Pmux, supra. Q. B. D. 771 : 57 L. J. M. C. 100 ;

(i) See per Wills and Gave, 33., Dyke v. Ooiuer, [1892] 1 Q. B. 220:

23 Q. B. D. 179—181. 61 L. 3. M. C. 70; see too Goppen

{k) Gundy v. Le Gocc[, 13 Q. B. D. v. Moore, [1898] 2 Q. B. 306 : 67 L. 3.

207 : 53 L. 3. M. C. 125. Q. B. 689 ; and Christie, Manson

(Z) Broo&s V. JKasow, [1902] 2 K. B. & Woods v. Cooper, [1900] 2 Q. B.

743 : 72 L. 3. K. B. 19 ; op. Emary 522 : 69 L. J. Q. B. 708, cases on

V. Nolloth, [1908] 2 K. B. 264. oSences under the Merchandize

(to) 38 & 39 Vict. 0. 63. Marks Act, 1887.

(ro) Parferv.^Mer, [1899] 1 Q.B. (o) Chisholm v. Doulton, 22

20: 68L. J. Q.B.7; Brown \. Foot, Q. B. D. 736: 58 L. 3. Q. B. 133;

61 L. 3. M. C. 110: 66 L. T. 649; Massey v. Morriss, [1894] 2 Q. B-

see also Betts v. Armistead, 20 412 : 63 L. 3. M. 0. 185.

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FUNDAMENTAL LEGAL PRINCIPLES. 259

premises caused by the acts of his servants without his
knowledge (p) ; and where a penal statute has been
infringed by servants and criminal proceedings are taken
against the master, although it lies upon the prosecutor to
estabUsh the master's liability, yet the question whether
he is hable turns necessarily upon what is the true con-
struction to be placed upon the statute (q). And in several
cases the statute has been construed against the master.
For instance, a publican has been held guilty of the offence
of supplying liquor to a constable on duty, although it was
suppHed without his knowledge by his servant (;■).

It often happens that where it is necessary to prove a Evidence of
man's intention, evidence of overt acts is sufficient, because ^^ ™ ^°°"
every man is deemed prima facie to intend the necessary,
or even natural or probable consequences of his acts (s) .
Thus, upon an indictment for setting fire to a mill with
intent to injure the occupiers, it was held that, as such
injury was a necessary consequence of firing the mill, the
intent to injure might be inferred from the act (i). So, in
order to constitute the crime of murder, which is always
stated in the indictment to be committed with malice afore-
thought, it is unnecessary to show that the prisoner had any
enmity to the deceased ; nor is proof of absence of ill-will
any defence, when it is proved that the killing was inten-
tional, and done without justification or excusable cause {u).

(p) Beg. V. Stephens, L. R. 1 Q. B. (s) Per Ld. OampbeU, 9 CI. & F.

702 : 35 L. J. Q. B. 251 ; see A.-O- 321 ; per Littledale, J., B. v. Moore,

V. Tod HeatUy, [1897] 1 Ch. 560 : 3 B. & Ad. 188 ; 37 B. R. 383, and

66 L. J. Oh. 275. Beg. v. Lovett, 9 0. & P. 466 ; per

(q) Cqppera V. Koore (No. 2), [1898] Ld. Ellenborough, B. v. Dixon, 3

2 Q. B. 306, 313 : 67 L. J. Q. B. 689. M. & S. 15 ; 15 B. R. 381 (cited Beg.

(r) Mullms v. Collins, L. R. 9 v. Hicklin, L. R. 3 Q. B. 875) ; B. v.

Q. B. 292: 43 L. 3. M. C. 67; with Harvey, 2 B. & C. 261, 264, 267;

which cf. Newman v, Jones, 17 Beg. v. Martin, 8 Q. B. D. 54 ; Beg.

Q, B. D. 132 : 55 L. J. M. 0. 113. v. Salliday, 61 L. T. N. S. 701.

See other instances collected in (t) B. v. Farrmgton, Russ. & Ry.

Goppen V. Moore, supra; and see 207.

Anglo-American Oil Co. v. Mamiing, (u) Per Best, J., 2 B. & 0. 268.
[1908] 1 K. B. 536 : 77 L. J. K. B. 205.

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260 FUNDAMENTAL LEGAL PRINCIPLES.

And it is, as a general proposition, true, that if an act
manifestly unlawful and dangerous be done deliberately,
the mischievous intent will be presumed, unless the
contrary be shown (i). If a man knowingly utters a forged
instrument as a genuine one, the intent to defraud the
party to whom he utters it is a necessary inference (w).

Drunkenness. Although drunkenness, as a general rule, is no excuse
for crime, yet it may be a circumstance to be taken into
consideration where the question is with what intention an
act was done; for a person may be so drunk as to be
incapable of forming any intention (a). In a case where a
woman was charged with attempting to commit suicide,
Jervis, C.J., said : " If the prisoner was so drunk as not to
know what she was about, how can you say that she
intended to destroy herself ?" (2/). In a trial for murder
where the evidence was that the prisoner was drunk when he
committed the offence. Lord Coleridge, J., directed the jury
that " if the mind at that time is so obscure by drink, if the
reason is dethroned and the man is incapable therefore of
forming that intent {i.e. the intent to kill or inflict serious
injury), it justifies the reduction of the charge from murder
to manslaughter ; " and this direction was held right (z).

Murder. In cases of murder the degree of provocation which will

reduce the offence to manslaughter and negative malice
aforethought has been elaborately considered in the authori-
ties given below (a), and may be briefly summed up thus :
" if the act was done while smarting under provocation of
such a character and so recent that the prisoner might
reasonably be considered at the time not to be master of his
reason, then the crime is manslaughter ; but if the act was

(v) 1 East, p. 0. 231. 895 : 78 L. J. K. B. 476.

(w) B. V. Hill, 2 Mood. C. G. 30 ; (a) Stedman's case, Fos. 292 ; B.

8 0. & P. 274. V. Fisher, 8 G. & P. 182 ; B. v.

(x) Per Patteson, J., Be?. v.Cmse, Walters, 12 St. Tr. 113; B. v.

8 C. & P. 546. Thomas, 7 C. & P. 817 ; B. v. Kirk-

(y) Beg. v. Moore, 3 0. & K. 319. man, 8 G. & P. 115.

{z) Bex V. Meade, [1909] 1 K. B.

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FUNDAMENTAL LEGAL PRINCIPLES. 261

done with premeditation, in a spirit of revenge, or under
such circumstances that he ought to be considered master
of his reason at the time when the act was done, then the
crime is murder" (b).

It is a rule, laid down by Lord Mansfield, which has been Bare
said to comprise all the principles of previous decisions upon ™ ^^ '°°'
the subject, that so long as an act rests in bare intention,
it is not punishable by our law ; but when an act is done,
the law judges not only of the act itself, but of the intent
with which it was done; and if the act be coupled with
an unlawful and malicious intent, though in itself the
act would otherwise have been innocent, yet, the intent
being criminal, the act likewise becomes criminal and
punishable (c).

It is accordingly important to distinguish an attempt (d) Attempt,
from a bare intention; for the former a man may be made
answerable ; but not for the latter. The " will is not to be
taken for the deed," unless there be some external act which
shows that progress has been made in the direction of it, or
towards maturing and effecting it. If there be an attempt,
if there be something tangible and ostensible of which the
law can take hold, which can be alleged and proved, there
is nothing offensive to our ideas of justice in declaring it to
be punishable. Hence, an attempt to commit a felony is,
in many cases, a misdemeanor ; and the general rule is, that
" an attempt to commit a misdemeanor is a misdemeanor,
whether the offence is created by statute, or was an offence
at common law " (e). Moreover, under various statutes,
attempts to commit particular offences are indictable and

(6) See further on tlie subject, do an act : Diet, ad verb. See Beg.

Stephen's Digest of the Grim. Law v. M'Pherson, Dearsl. & B. 197 ;

(1877), p. 147. Beg. v. Cheeseman, L. & 0. 140 ;

(c) B. V. Scofield, cited 2 East, Beg. v. Duckworth, [1892] 2 Q. B.
P. C. 1028 ; Dugdale v. Beg., 1 E. & 83.

B. 435, 439. («) P^'>' Parke, B., B. v. Boderich,

(d) Which Dr. Johnson defines to 7 0. & P. 795.
be an " essay " or " endeavour " to

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262 FUNDAMENTAL LEGAL PKINCIPLES.

punishable, and the 14 & 15 Vict. c. 100, s. 9, enables a
jury to convict of the attempt upon an indictment for
commission of the substantive offence, wherever the evidence
suffices to establish the one though not the other (/).

A man who, by an overt act, attempts to commit a
particular crime, but fails to commit it, may be convicted of
the attempt, notwithstanding that the failure was inevitable.
For instance, if he put his hand into another's pocket,
intending to steal whatever he may find in it, he may be
convicted of the attempt to steal although there was
nothing in the pocket ( g) .
Eemoteness. It is worthy of remark that in Reg. v. Eagleton (h), the
Court, after observing that, although " the mere intention
to commit a misdemeanor is not criminal, some act is
required to make it so," added, " we do not think that all
acts towards committing a misdemeanor are indictable.
Acts remotely leading towards the commission of the
offence are not to be considered as attempts to commit it,
but acts immediately connected with it are." The doctrine
of "remoteness," already commended on (i), has here,
consequently, an important application.

Our law, with a view to determining the intention,
sometimes couples together two acts which were separated
the one from the other by an appreciable interval of time'
and ascribes to the later act that character and quahty
which undeniably attached and was ascribable to the earlier ;
and the doctrine of relation is also occasionally brought
into play to determine the degree of guilt of an offender.
Thus, if A., whilst engaged in the prosecution of a felonious
act, undesignedly causes the death of B., A. may be con-
victed of murder, the felonious purpose conjoined with the

(/) See Seg. v. Hapgood, L. B. G. 471.

1 0. 0. 221 : 39 L. J. M. C. 83. (h) Dearsl. 515. See Reg. v.

{g) Reg. v. Brown, 24 Q. B. D. Roberts, Id. 539; Eeg. v. Gardner,

357, 359 : 59 L. J. M. C. 47 ; Reg. v. Dearsl. & B. 40, with whioli compare

Ring, 61 L. J. M. C. 116 ; which Reg. v. Martin, L. R. 1 C. C. 56.

oases overrule Reg. v. Collins, L. & (i) Ante, pp, 179, 189.

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FUNDAMENTAL LEGAL PRINCIPLES. 263

homicide being held to fill out the legal conception of that
crime (j). So, in Reg. v. Eiley (k), a felonious intent was
held to relate back, and couple itself with a continuing act
of trespass, so as, taken in connection with it, to constitute
the crime of larceny.

Having thus briefly discussed the general rule, that Natural
"there must be as an essential ingredient in a criminal '^'^^^^"*^«^-
offence some blameworthy condition of mind " (l), it
remains to add that such condition of mind cannot justly
be imputed to persons who, by reason of their mental
imbecility, or immature years, are " under a natural
disability of distinguishing between good and evil " (m) ;
the maxims of our own, as of the civil law, upon this
subject, being, in omnibus pcenalihus judiciis et atati et
impntdcntice succurritur (n) , and furiosi nulla voluntas est(o).

With regard to insanity, the rule is that every person Insanity,
is presumed to be sane until the contrary be proved, and
that to establish the defence of insanity it must be clearly
proved that, at the time of committing the act charged, the
defendant " was labouring under such a defect of reason,
from disease of mind, as not to know the nature and quaUty
of the act he was doing, or, if he did know it, that he did
not know he was doing what was wrong " i}}).

The question whether a criminal intention may be Infancy.
ascribed to an infant depends upon the infant's age. An
infant under seven years of age cannot be guilty of felony,
for the law presumes that he is doli incapax, and against
this presumption no averment can be received (g'). An
infant above seven but under fourteen years, prima facie,

(j) Fost. Disc. Horn. 258, 259 ; (o) D. 50, 17, 5 ; D. 1, 18, 13, § 1.

Grim. L. Com., Ist Kep. 40, 41. Furiosus furore solum punitur ; 4

(fc) Dearsl. 149 ; see also Beg. v. Blac. Comm. 24.

Ashwell, 16 Q. B. D. 190; 55 L. J. (p) B. v. M'Naghten, 10 01. & P.

M. 0. 65. 210.

(Z) Per Cave, J., 22 Q. B. D. 741. (g) Marsh v. Loader, 14 C. B.

(m) 1 Hawk. P. C. 1. N. S. 535 : 1 Hale, P. 0. 27, 28,

(n) D. 50, 17, 108.

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264 FUNDAMENTAL LEGAL PRINCIPLES.

is cloli incapax, but the maxim, malitia supplet mtatcm (r),

applies: malice, or the intention to do a wrongful act,

makes up for the want of mature years. Accordingly, this

presumption of incapacity may, generally, be rebutted by

strong and pregnant evidence of a mischievous discretion,

but the evidence ought to be strong and clear beyond all

doubt and contradiction (s). Two questions should be left

to the jury, first whether the infant committed the acts

charged, and, secondly, whether he had at the time a guilty

knowledge that he was doing wrong (0- It is, however,

an irrebuttable presumption of law that a boy under

fourteen years of age cannot, by reason of physical inability,

commit rape or any offence of carnal knowledge (w). Yet

for aiding and abetting such offence he may be found guilty

as a principal in the second degree {x), and he may be

convicted of an indecent assault {y).

In the case of an infant who has attained fourteen years
of age, there is no presumption that he is incapax doli, and
his acts are subject to the same rule of construction as
the acts of an adult (2). He may be convicted of larceny
as a bailee (a).

Connected with the subject of criminal intention are two
important rules relative thereto; the first is, in crimi-
nalibus svfficit generalls malitia intentionis cum facto paris
gradus — if the malefactor conceive a malicious intent in
the execution of which he does harm to another person
he is equally guilty, although he had no intention of doing
that particular person an injury (h). The second is, exaisat

(r) Dyer, 104 b. Q. B. 320 : 62 L. J. M. 0. 69.

(s) 4 Blao. Oomm. 23, 24; Hale, (2) 1 Hale, P. C. 25. As to his

P. C. 26, 27. liability for misdemeanor, see 4

(t) B. V. Owen, 4 C. & P. 236. Blao. Comm. 22 ; B. v. Suttcm, 8

(m) Beg. V. Waite, [1892] 2 Q. B. A. & E. 597.

600 : 61 L. J. M. 0. 187. (a) Beg. v. McDonald, 15 Q. B. D.

{x) 1 Hale, P. C. 630; B. v. 328.

Eldershaw, 3 0. & P. 396. (6) Beg. v. Smith, Dearsl. 559.

(y) Beg. v. Williams, [1893] 1

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FUNDAMENTAL LEGAL PRINCIPLES. 265

aiit e.rtenuat delictum in capitalibiis quod non operatur in
ciiilibus — in capital cases the law is in favour of life, and
will not punish with death unless a malicious intention
appear (e) ; but it is otherwise in civil actions, where the
intent may be immaterial if the act done were injurious
to another (d) ; of which rule a familiar instance occurs
in the liabiHty of a sheriff, who, by mistake, seizes under
a fi. fa. the goods of the wrong person. So, an action for
the infringement of a patent "is maintainable in respect
of what the defendant does, not of what he intends " (e) ; the
patentee is not the less prejudiced because the invasion of
his right was unintentional (/).

One case, in which the principle in favor em ritce, adverted Gray v. Beg.
to by Lord Bacon, was considered, may here be noticed,
since it involves a point of considerable importance. It
was decided by the House of Lords, on writ of error from
the Court of Queen's Bench in Ireland, that the privilege
of peremptory challenge on the part of the prisoner extends
to all felonies, whether capital or not ; and it was observed
by Wightman, J., commenting on the position, that the
privilege referred to is allowed only in favorem vita, and
did not extend to cases where the punishment is not
capital, that it would seem that the origin of the privilege
in felony may have been the capital punishment usually
incident to the quality of crime; but that the privilege
was, at all events, annexed to the quality of crime called
felony, and continued so annexed in practice in England
(at least down to the time when the question was raised),
in all cases of felony, whether the punishment was capital
or not (gf).

(c) Bacon's Maxims, reg. 7. (/) Per Shadwell, V.-O., Heath

(d) PerLd.Kenyon, 2East, 103— v. Vnwin, 15 Sim. 552; S. C, 5
X04. H. L. Cas. 505.

(e) Stead v. Anderson, i 0. B. 806, (g) Gray v. Beg., 11 01. & P. 427 ;
834 ; Lee v. Simpson, 3 0. B. 871, Mulcahy v. Beg., L. B. 8 H. L. 306.
cited judgm., Beade v. Conguest, 11 The right of peremptory ohal-
C B. N. S. 492. lenge by the Crown was much

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266 FUNDAMENTAL LEGAL PRINCIPLES.

In all criminal cases whenever upon the evidence given
a reasonable doubt as to the prisoner's guilt or innocence
is raised, the best rule is to incline to an acquittal. Tutius
semper est errare in acquietando qiiam in puniendo, ex parte
misericordice, qiiam ex parte justiticB (h).

Nemo debet bis vexaei peg una et eadem Causa.
(5 Rep. 61.) — It is a rule of laio that a man shall not he
twice vexed for one and the same cause {i).

Eoman law. By the Eoman law, as administered by the praetors, an
action might be defended by showing such acts as might
induce the praetor, on equitable grounds, to declare certain
defences admissible, the effect of which, if established,
would be not, indeed, to destroy the action ipso jure, but
to render it ineffectual by means of the " exception " thus
specially prescribed by the prsetor for the consideration of
the judge to whose final decision the action was referred.
The class of exceptions just adverted to included the exceptio
rei judicata, from which our own law presumably derived
the plea of judgment recovered {k). The res judicata was
in fact, a result of the definitive sentence or decree of the
judge, and was binding upon, and in general unimpeach-
able by, the litigating parties (J) ; and this was expressed
by the well-known maxim, res judicata pro veritate accipi-
tur (m), which, however, it must be understood, applied only
when the same question as had already been judicially
decided was again raised between the same parties, the rule

considered in Mansell v. Eeg., 8 E, (k) See 1 CI. & F. 435 ; PUUimore,

& B. 54. Rom. L. 43.

(h) 2 Hale, P. 0. 290. {I) Brisson. ad verb. Bes. ;

(i) 5 Kep. 61. Bona fides non Pothier, ad D. 42, 1, pr.

patitur ut bis idem exigatur ; D. 50, (m) D. 50, 17, 207.
17, 57.

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FUNDAMENTAL LEGAL PRINCIPLES. 267

being exceptione7n reijudicatce ohstare quoties cadcm qumstio
inter easdem personas revoeatur (;)).

In our own law, the plea of judgment recovered at once Doctrine of
suggests itself as analogous to the " exceptio rei judicata " r^sjudiMtl°
above mentioned, and as directly founded on the general
rule that " a man shall not be twice vexed for the same
cause." " If an action be brought, and the merits of the
question be discussed between the parties, and a final judg-
ment (o) obtained by either, the parties are concluded, and
cannot canvass the same question again in another action,
although, perhaps, some objection or argument might have
been urged upon the first trial, which would have led to a
different judgment {p). In such a case, the matter in dis-
pute having passed in I'em judicatam, the former judgment,
while it stands, is conclusive between the parties, if either
attempts, by commencing another action, to re-open that
matter ; and for this rule two reasons are always assigned '•
the one, public policy, for interest rei puhlicce nt sit finis
litium ; the other, the hardship on the individual that he
should be twice vexed for the same cause (q).

in) T). a, 2, 3 ; Pothier, ad D party defendant, no real interest

44, 1, 1, pr. brought into question ; " per

(o) See Langmead v. MapU, 18 Wedderburn, S.-G-., arg. in Djichess

C.B.N. S. 255 ; Nouvionv. Freeman, of Kingston's case, 20 Howell, St.

15 App. Gas. 1 : 59 L. J. Cb. 337. A Tr. 478 ; adopted by Ld. Brougham,

judgment or sentence "is a judicial Earl ofBandon v. Becher, 3 CI. & F.

determination of a cause agitated 510. As to fictitious special cases,

between real parties ; upon which a see Doe v. Duntze, 6 0. B. 100;

real interest has been settled. In Bright v. Tyndall, 4 Oh. D. 189.
order to make a sentence, there must (p) Per Ld. Kenyon, Oreathead v.

be a real interest, a real argument, a Bromley, 7 T. R. 456 ; 4 E. K.

real prosecution, a real defence, a 490. See Ld. Bagot v. Williams,

real decision. Of all these requisites, 3 B. & C. 235; 27 R. R. 340;

not one takes place in the case of a Jewsbury v. Mummery, L. R. 8 0. P.

fraudulent and collusive suit. There 56 ; Hall v. Levy, 10 Id. 154 ; Shoe

is no judge : but a person invested Machinery Co. v. Ctitlan, [1896] 1

with the ensigns of a judicial office is Oh. 667 : 65 L. J. Ch. 314.
misemployed in listening to a ficti- (g) Lochyer v. Ferrymmi, 2 App.

tious cause proposed to him ; there Gas. 519.
is no party litigating, there is no

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268 FUNDAMENTAL LEGAL PEINCIPLBS.

A party who relies upon the doctrine of o^es judicata
" must show either an actual merger or that the same point
has already been decided between the same parties " (r).
Our subject may therefore be divided into two branches :
merger of cause of action, and estoppel by matter of record,
with both of which we propose briefly to deal.
Merger of The doctrine of merger was thus clearly stated in the

action. well-known judgment in Kmg v. Hoare (s). "If there be

a breach of contract, or wrong done, or any other cause of
action by one against another, and judgment be recovered
in a Court of record, the judgment is a bar (t) to the original
cause of action, because it is thereby reduced to a certainty,
and the object of the suit attained so far as it can be at that
stage ; and it would be useless and vexatious to subject the
defendant to another suit for the purpose of obtaining the
same result. Hence the legal maxim, transit in rein
judicatam : the cause of action is changed into matter of
record, which is of a higher nature, and the inferior
remedy is merged in the higher. This appears to be
equally true, where there is but one cause of action,
whether it be against a single person or several. The
judgment of a Court of record changes the nature of that
cause of action, and prevents it being the subject of
another suit, and the cause of action, being single, cannot
be afterwards divided into two."

In accordance with this exposition of the law, the general
rule {u) is that a judgment, without satisfaction, recovered
against one of two joint debtors (x), or one of two joint

(r) Per^illes,^., Nelson Y. Couch, (x) KingY. Scare, supra ; Ham-

15 C. B. N. S. 108. mond v. SchofieU, [1891] 1 Q. B.

(s) 13 M. & W. 494, 504. 453 ; Hoare v. Nihlett, Id. 781 : 60

(t) It must be pleaded; Edevain L. J. Q. B. 565. As to partnership

V. Cohen, 43 Ch. D. 188. debts, see 53 & 54 Viet. o. 39, s. 9 ;

(m) See 19 & 20 Vict. o. 97, s. 11 ; of. Kendall v. Hamilton, i App. Cas.

see also B. S. C, 0. 13, r. 4 ; 0. 14, 504 ; Be Hodgson, 31 Ch. D. 177 ;

r. 5 ; Weall v. James, 68 L. T. 515 ; 55 L. J. Ch. 241.
McLeod V. Power, [1898] 2 Ch. 295.

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FUNDAMENTAL LEGAL PRINCIPLES. 269

wrongdoers {y), may be pleaded as a bar to a subsequent
action against the other. This rule, however, does not apply-
where the liability for a debt is several as well as joint, for
then a judgment against one of the debtors is not a bar to
an action against the other upon his several liability, until
the judgment has been satisfied (z) ; and if one of two joint
debtors give his cheque for the debt, an unsatisfied judg-
ment upon the cheque does not bar an action for the debt
against the other debtor, for the cause of action is not the
same (a).

The question whether a defendant is being vexed again for Meaning of
the same cause of action depends, not upon technical con- o/aotion!''^^^
siderations, but upon matter of substance Q)). One test of
identity is that the same evidence will support both
actions (c). In Brunsden v. H^unplircy (d), the defendant had
damaged the plaintiff's cab, and also caused him personal
injuries, by the same act of negligence. Having sued for
and recovered damages in respect of the cab, the plaintiff
sued again for the personal injuries. The majority in the
Court of Appeal, applying the above test, held that the second
action was not barred. While fully recognising the rule that
where there is but one cause of action damages must be
assessed once for all, they considered that since two distinct
rights of the plaintiff had been infringed, he had a
separate cause of action in respect of each of those rights.

Although the cause of action is the same, yet to constitute Further
the former recovery a bar, " the circumstances must be such ^^^^ ^'
that the plaintiff might have recovered in the former suit
that which he seeks to recover in the second" (e). The

(y) Brinsmead v. Harrison, L. E, (d) 14 Q. B. D. 141 : 53 L. J. Q. B.

7 0. P. 547 : 41 L. J. 0. P. 19. 476 ; cf . Macdougall v. Knight, 25

(z) Bermondsey Vestry v. Bamsey, Q. B. D. 1 : 59 L. J. Q. B. 517.

L. E. 6 C. P. 247 : 40 L. J. C. P. 206. (e) Per WiUes, J., 15 0. B. N. S.

(a) Wegg-ProsserY. Evans, {1S95] 109; Midland B. Co. v. Martin,

1 Q. B. 108 : 64 L. J. Q. B. 1. [1893] 2 Q. B. 172 : 62 L. J. Q. B.

(6) 14 Q. B. D. 148. 517. See Wright v. London Gen.

(c) 2 W. Bl. 831 : 2 B. & P. 71 : Omnibus Co., 2 Q. B. D. 271.
31 L. J. Oh. 350.

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270

FUNDAMENTAL LEGAL PRINCIPLES.

Vexatious
litigation.

Estoppel by
record.

defendant's ship having negligently run down the plaintiffs
ship at sea, the plaintiff, by proceeding in rem in Admiralty,
obtained a sale of the defendant's ship and received the sum
thereby realised; but as this sum compensated him only
for a portion of his loss, he then brought a common law
action for damages for the recovery of the residue, and
it was held that the Admiralty decree was not a bar to the
action (/).

When a party to litigation seeks improperly to raise again
the identical question which has been decided by a competent
Court, a summary remedy may be found in the inherent
jurisdiction which our Courts possess of preventing an
abuse of process (g). Moreover, the legislature has provided
means for preventing further abuse of process by any person
who has habitually and persistently instituted vexatious
legal proceedings without reasonable ground (li). Although
it is not a good defence in law to an action brought in this
country that another action between the same parties for the
same cause is pending in a foreign country, yet the Court
here will interfere to protect the defendant from such double
litigation if it be shown that it is in fact vexatious (i).

The distinction between merger and estoppel by record
was thus explained by Lord Ellenborough in Outram v.
Moreicood (k). " It is not the recovery, but the matter
alleged by the party, and upon which the recovery proceeds,
which creates the estoppel. The recovery of itself in an
action of trespass is only a bar to the future recovery of
damages for the same injury: but the estoppel precludes
parties and privies from contending to the contrary of that
point, or matter of fact, which having been once distinctly
put in issue by them, or by those to whom they are privy in

(/) Nelsons. Couch,15C.B.'!<i.S.
99.

{g) Stephenscm v. Oarnett, [1898]
1 Q. B. 678 : 67 L. J. Q. B. 447.

(h) 59 & 60 Vict. o. 51.

(i) McHenry v. Lewis, 22 Ch. D.
397 ; Peruvian Oiiano Co. v. Bock-
woUt, 23 Id. 225 ; The Christians-
borg, 10 P. D. 141 : 54 L. J. A. 84.

(k) 3 East, 845, 854.

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FUNDAMENTAL LEGAL PKINCIPLES. 271

estate or law(Z), has been, on such issue joined, solemnly
found against them." "According to the practice of every
Court, after a matter has once been put in issue and tried,
and there has been a finding or a verdict upon that issue,
and thereupon a judgment, such finding and judgment are
conclusive between the same parties on that issue. In all
Courts it would be treated as an estoppel " (??i).
A judgment by consent, or by default (71), however, raises Judgment by

consent.

an estoppel no less than does a judgment which results from

a decision of the Court after a matter has been fought out to

the end(o). A judgment by consent is intended to put a

stop to litigation between the parties, and a reasonable

interpretation should be given to it, in order to prevent

questions which were really involved in the action from

being litigated again (p).

The following rules relative to judgments being given in ^^^^ ^^^

down in
evidence in civil suits are taken from the famous opinion of Duchess of

the judges, delivered by De Grey, C. J., in the Duchess of ccmf

Kingston's case (g). They were prefaced by a reference to

the principle, on which the limitation of estoppel per 'rem

judicatam to parties and privies depends, embodied in the

maxim, res inter alios acta alteri nocere non potest (r).

(i) See Mercantile, dc, Co. v. (jp) Per Ld. HersoheU, [1895] 1

Biver Plate, dc, Co., [1894] 1 Ch. Oh. 50. If parties consent to the
578 : 63 L. J. Ch. 366 ; Young v. withdrawal of a juror, no future
Holloway [1895] P. 87. action can be maintained for the

(m) Judgm., Fi/nney v. Finney, same cause; Oibbs -v. Ralph, li M.
L. B. 1 P. & D- 484. See Conradi & W. 805 ; see Strauss v. Francis,
^,'conradi,U.5U;ButlerY.ButUr, L. B. 1 Q. B. 379: 85 L. J. Q. B.
[1894] P. 25 ; Buck v. Buck, [1896] 133.

P. 152 ; Humphries v. Humphries, (q) 20 Howell, St, Tr. 537 : 2 Sm,

[1910] 2 K. B. 531. L. C, 11th ed. 731.

(n) HMjferv.^iZew.L.E. 2EX.15. (r) See post. Chap. X. This

(o) Be S. American Co., [1895] 1 maxim applies where a party sues
Ch. 37: 68 L. J. Ch. 803; The first in one capacity, and then in
Bellcairn, 10 P. D. 161 : 55 L. J. P. another, and as a different person
3 ■ BibbU Joint Committee v. Croston in law ; see Leggott v. O. W. B. Co.,
U. D. C, [1897] 1 Q. B. 251: 66 1 Q. B. D. 599: 45 L. J. Q. B. 557;
l' J. Q.'b. 384; see G. N.-W. Be DeeUy's Patent, [1895] 1 Ch.
Central B. Co. v. Charlebois, [1899] 687 : 64 L. J. Oh, 480.
A. C. 114.

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proceedings.

272 FUNDAMENTAL LEGAL PEINCIPLES.

1. " The judgment of a Court of concurrent jurisdiction,
directly upon the point, is, as a plea, a bar, or, as evidence,
conclusive, between the same parties, upon the same matter,
directly in question in another Court." That is to say, as
later authorities show, it is conclusive as evidence, if pleaded
in bar : but if not so pleaded, it is not conclusive, unless
there has been no opportunity of pleading it (s).

2. " The judgment of a Court of exclusive jurisdiction,
directly upon the point, is, in like manner, conclusive upon
the same matter, between the same parties, coming incident-
ally in question in another Court, for a different purpose."

3. " But neither the judgment of a concurrent or exclusive
jurisdiction is evidence of any matter which came collaterally
in question, though within the jurisdiction, nor of any matter
incidentally cognisable, nor of any matter to be inferred by
argument from the judgment." For a judgment "is final
only for its own proper purpose and no further " (t).

Collusive In the Duchess of Kingston's case, in which these three

rules were enunciated, the Duchess, being indicted for
bigamy, sought to rely upon a sentence against her marriage
with her husband, pronounced in a suit between them for
jactitation of marriage ; this sentence had been obtained by
fraud and collusion, and the judges were unanimously of
opinion that proof that it had been so obtained wholly
destroyed the effect of such sentence. And it may be safely
laid down that the maxim, )iemo debet his vcxari pro cddem
causa, can never be relied upon where the former proceedings
were fraudulent and collusive. For instance, in Girdlestone
V. Brighton Aquarium Co. (m), which was an action to

(s) Vooght V. Winch, 2 B. & Aid. Jackson, 1 Y. & 0. 585, 595 (see per

662 ; 21 E. E. U6 ; Doe v. Huddart, Ld. Selborne, 6 Q. B. D. 304) ;

2 0. M. & E. 316; Doe v. Wright, Hobbs v. Henning, 17 0. B. N. S.

10 A. & B. 763 ; Magrath v. Hardy, 826. See also Concha v. Concha, H

4 Bing. 2Sr. 0. 782 ; Feversham v. App. Gas. 541 : 29 Oh. D. 268

Emerson, 11 Exoh. 385. („) 3 Ex. D. 187 : 4 Id. 107 : 48

(t) Per Ld. Ellenborough, 3 East, L. J. Ex. 378.
357; per Bruce, V.-O., Barrs v.

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FUNDAMENTAL LEGAL PRINCIPLES. 273

recover a penalty incurred by keeping the Aquarium open
on a Sunday, the defendants pleaded a judgment already
recovered for the same penalty by another informer ; but
the plaintiff replied, and proved at the trial, that this judg-
ment was recovered by covin and collusion between the
parties thereto, who had previously agreed that such judg-
ment should not be enforced ; and it was therefore held that
such fictitious judgment was no bar to the action.

It may be further observed that a judgment of a Court
in a matter which is beyond its statutory jurisdiction does
not operate as an estoppel (v).

The maxim nemo debet bis vexari pro una et eddem causa, Criminal law.
expresses a great fundamental rule of our criminal law,
which forbids that a man should be put in jeopardy twice
for one and the same offence. It is the foundation of the
special pleas of autrefois acquit and autrefois convict (x).
When a criminal charge has been once adjudicated upon General rule.
by a Court of competent jurisdiction, that adjudication is
final, whether it takes the form of an acquittal or a conviction,
and it may be pleaded in bar of a subsequent prosecution
for the same offence, whether charged with or without
matters of mere aggravation, and whether such matters
relate to the intent with which the offence was committed
or to the consequences of the offence (y). Provided that the
adjudication be by a Court of competent jurisdiction, it is
immaterial whether it be upon a summary proceeding before
justices or upon a trial before a jury {z).

Accordingly, a man, who has been indicted for an offence Previous
and acquitted, may not be indicted again for the same '■'=l'i>"^i-
offence, provided that the first indictment were such that he
could have been lawfully convicted upon it by proof of the
facts aUeged in the second indictment; and if he be thus

M Tormto Bailway v. Toronto {y) Beg. v. Miles, 24 Q. B. D.
Corporation, [1904] A. 0. 809 : 73 423, 431 : 59 L. J. M. 0. 56.
L J P 0 120 W M.; Wemyssv. Hopkms, Ij.ii.

\x) 2"Hlwk.' P. 0., c. 35, s. 1 ; 10 Q. B. 378, 381.

c. 36, s. 10.

lb
L.M.

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274

t'UNDAMENTAL LEGAL PEINCIPLES.

Previous
conviction.

Abortive
trial.

indicted again, his plea of autrefois acquit is a good bar to the
indictment. The true test by which to decide whether a
plea of autrefois acquit is a sufficient bar in any particular
case is, whether the evidence necessary to support the second
indictment would have been sufficient to procure a legal
conviction upon the first (a). Thus an acquittal upon an
indictment for the murder may be pleaded to an indictment
for the manslaughter of the same person, and an acquittal
upon an indictment for burglary and larceny to an indict-
ment for the larceny of the same goods ; for in either of these
cases the prisoner might have been convicted, on the first
indictment, of the offence charged in the second (&).

Similarly, the plea of autrefois convict operates to bar a
second indictment after the prisoner has been prosecuted to
conviction for what is substantially the same offence (c).
Nemo debet his imniii pro uno delicto (d) ; and it is an
established principle that out of the same state of facts a
series of prosecutions against a prisoner is not to be
allowed (e) ; for instance, upon this ground a conviction for
obtaining credit for goods by false pretences bars a further
indictment for larceny of the same goods (/). The pleas of
autrefois convict and autrefois acquit, however, apply " only
where there has been a former judicial decision on the same
accusation in substance ; " and therefore where, after a
summary conviction for an assault, the victim of the assault
died, it was held that an indictment for manslaughter still
lay against his assailant (c/).

Although our law forbids that a man should be again put
in peril, after his conviction or acquittal upon a verdict given
by a jury on a good indictment on which he could be legally
convicted : yet an abortive trial without a verdict is no legal

(a) Arch. Or. PL, 22nd ed. 155.

(b) 2 Hale, P. 0. 245, 246.

(c) Arch. Cr. PL, 22nd ed. 159.

(d) i Eep. 43.

(c) Beg. V. Ellington, 1 B. & S.
688, 696 ; Welton v. Tanebarne, 99

L. T. 668 : 24 T. L. K. 873.

(/) Beg. V. King, [1897] 1 Q. B.
214 : 66 L. J. Q. B. 87.

(g) Beg. v. Morris, L. R. 1 C. C. R.
90.

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FUNDAMENTAL LEGAL PRINCIPLES. 275

bar to a second trial either on the same or a fresh indict-
ment ; for instance, the jury, if unable to agree upon a verdict,
may be discharged, and another jury be summoned (h).
Moreover, the conviction or acquittal of a party is strictly,
not by the verdict of the jury, but by the judgment of the
Court thereon (t), and a plea of autrefois convict could not be
founded upon a judgment of conviction after the reversal of
that judgment for error (k).

The dismissal at petty sessions of a bastardy summons is
no bar in law to a second summons, for it is not an adjudi-
cation (T). But an order of quarter sessions, quashing an
affiliation order made at petty sessions, is an adjudication
whereby a second bastardy summons is barred (m).

The legislature has frequently recognised the maxim statutory
under review ; for instance, after a trial upon an indictment ^axfrn. ^°^ °
for committing an offence, another indictment for attempting
to commit it is forbidden by the same enactment as allows
a verdict of guilty of the attempt to be found upon the
ear her indictment (n). Again, it has been enacted that
where an act or omission constitutes an offence under two
or more Acts, or both under an Act and at common law,
the offender shall, unless the contrary intention appears,
be liable to be punished under either or any of those Acts
or at common law, but shall not be liable to be punished
twice for the same offence (o).

It is important to notice how narrow are the limits within
which a conviction operates as a judgment in rem. A
judgment of conviction on an indictment for forging a

(h) Winsor's case, L. E. 1 Q. B. (m) Beg. v. Glynne, L. E. 7 Q. B.

289 390. 16. But it is not a bar to an action

(i) See per Tindal, G.J., 7 M. & for seduction brought by tlie master

Gr. 504 605. of tlie woman, because it is res inter

(k) Beg. v. Drury, 18 L. J. M. 0. alios acta ; Anderson v. CoUinson,

189. [1901] 2 K. B. 107; 70 L. J. K. B.

(I) Beg. V. Gaunt, L. E. 2 Q. B. 620.

466 ; see Williams v. Davies, 11 (») 14 & 15 Viot. o. 100, s. 9.

Q. B. D. 74. (o) 52 & 53 Vict. c. 63, s. 33.

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276 FUNDAMENTAL LEGAL PRINCIPLES.

cheque is conclusive, as between all persons, as to the
prisoner being a convicted felon, but it is not even
admissible evidence of the forgery in a subsequent action
on the cheque (jo).

{p) See per Blackburn, J., L. E. [1896] 2 Q. B. 462.
i H. L. 434; cited ty Smith, L.J.,

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277

CHAPTER VI

ACQUISITION, ENJOYMENT, AND TRANSFER OF PROPERTY.

This chapter contains three sections, treating respectively
of the acquisition, enjoyment, and transfer of property. In
connection with the first of these subjects, one maxim only
has been considered, which sets forth the principle, that
title is acquired by priority of occupation ; a principle so
extensively applicable that the following pages give little
more than a mere outline of a course of investigation,
which, if pursued in detail, would prove ahke interesting
and instructive. It is, indeed, only proper to observe
in limine, — since, from the titles which have been selected
with a view of showing the mode of treatment adopted,
much more might be expected in the ensuing pages than
has been attempted, — that a succinct statement of only the
more important of the rights, liabilities, and incidents
annexed to property is here offered ; so that a perusal of
the contents of this chapter may prove serviceable in
recalling the attention of the practitioner to the appli-
cation and illustration of principles with which he must
necessarily be already familiar ; and may, without wearying
his attention, direct the student to sources of information
whence may be derived more copious supplies of knowledge.

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278 THE MODE OF ACQUIRING PROPEIiTY.

§ I. THE MODE OP ACQUIRING PROPERTY.

Qui PRIOR EST Tempore potior est Jure. {Go. Litt.
14 a.) — He has the better title who ivas first in point
of time.
Title, by The title of the finder to unappropriated land or chattels

priority of _ .

occupation must evidently depend either upon the law of nature, upon
international law, or upon the laws of that particular
community to which he belongs. According to the law of
nature, there can be no doubt that priority of occupancy
alone constitutes a valid title : qiiocl ivuUius est id ratione
naturali occupanti conceclitiir (a) ; but this rule has been so
much restricted by the advance of civilization, by inter-
national laws, and by the civil and exclusive ordinances
of each separate state, that it is now of little practical
application. It is, indeed, true, that an unappropriated
tract of land, or a desert island, may legitimately be seized
and reduced into possession by the first occupant, and,
consequently, that the title to colonial possessions may,
and in some cases, does, in fact, depend upon priority of
occupation. But within the limits of this country, and
between subjects, it is apprehended that the maxim which
we here propose to consider, has no longer any direct
application as regards the acquisition of title to reality by
entry and occupation. It is, moreover, a general rule, that
whenever the owner or person actually seised of land dies
intestate and without heir, the law vests the ownership of
such land either in the Crown (b), or in the subordinate
lord of the fee, by escheat (c) ; and this is in accordance
with the spirit of the ancient feudal doctrine expressed in
the maxim, quod nullius est, est domini regis (d).

{a) D. 41, 1, 3 ; I. 2, 1, 12. 18 ; Bobsony. A.-O., 10 01. & P. 497 ;

(6) So, " there is no doubt tbat, Dyke v. Walford, 5 Moore, P. G.

by the law of the land the Crown is 434.

entitled to the undisposed-ofp«?-S0MfflZ (c) 2 Blao. Com. 244.

estate of any person who happens to (d) Fleta, lib. 3 ; Bac. Abr.

die without next of kin;" 14 Sim. "Prerogative" (B).

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THE MODE OP ACQUIRING PBOPERTY. 279

On the maxim, prior tempore, potior jure, may depend,
however, the right of property in treasure trove, in wreck,
derelicts (e), waifs, and estrays, which being bona vacantia,
belong by the law of nature to the first occupant or finder,
but which have, in some cases, been annexed to the supreme
power by the positive laws of the state (/). "There are,"
moreover, " some few things which, notwithstanding the
general introduction and continuance of property, must
still unavoidably remain in common; being such that
nothing but an usufructuary property is capable of being
had in them ; and therefore they still belong to the first
occupant during the time he holds possession of them, and
no longer. Such (among others) are the elements of light,
air, and water, which a man may occupy by means of his
windows, his gardens, his mills, and other conveniences.
Such, also, are the generality of those animals which are
said to be ferce natures, or of a wild and untameable
disposition (g) ; which any man may seize upon and keep
for his own use or pleasure. All these things, so long as
they remain in possession, every man has a right to enjoy
without disturbance ; but, if once they escape from his
custody or he voluntarily abandon the use of them, they
return to the common stock, and any man else has an equal
right to seize and enjoy them afterwards " (/?).

So, the finder of a chattel lying apparently without an

(e) Goods are " ' derelict ' which followed in Blades v. Higgs, 12 G. B.

have been voluntarily abandoned N. S. 501; Morgan y. Earl of Abei--

and given up as worthless, the mind gavenny, 8 C. B. 768 ; Ford v. Tynte,

of the owner being alive to the cir- 31 L. J. Oh. 177; SannamY. Mockett,

cumstancea at the time;" per 2 B. & 0. 934; 26 R. B. 591;

Tindal, O.J., Legge v. Boyd, 1 0. B. Ibottson v. Peat, 3 H. & 0. 644.
112. Qi) 2 Blao. Com. 14 ; Wood, Civ.

(/) The reader is referred for in- L., Srd ed. 82 ; Holden v. Small-

formation on these subjects to 2 hroohe, Vaugh. 187. See Acton v.

Comby Broom & Hadley, Chap. Blundell, 12 M. & W. 324, 333;

XXVI. Judgm., Embrey v. Owen, 6 Exoh.

{g) See Bigg v. Earl of Lonsdale, 369, 372 ; Chasemore v. Richards,

1 H. & N. 923 : 11 Exoh. 654 ; 2 H. & N. 168 : 7 H. L. Cas. 349.

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280 THE MODE OF ACQUIEING PROPERTY.

owner, may, by virtue of the maxim under notice, acquire
a special property therein (i). But chattels lying upon
private lands are, prima, facie, in the possession of the
owner of the land, and he is therefore entitled to them, in
the absence of a better title elsewhere Qc).

As against a wrong-doer, mere right to possession con-
stitutes a valid title, and the wrong-doer cannot set up jus
tertii against one whose claim to the goods in question
rests on possession and nothing more (l).
Primogeni- In accordance with the maxim, qui prior est temjwre

potior est jure, the rule in descents is, that amongst males
of equal degree the eldest inherits land in preference to
the others, unless, indeed, there is a particular custom to
the contrary; as in the case of gavelkind, by which land
descends to all the males of equal degree together ; or borough
English, according to which the youngest son succeeds
on the death of his father; or burgage tenure, which
prevails in certain towns, and is characterised by special
customs (7?)). Where A. had three sons, and D., the
youngest, died, leaving a daughter, E., and then A. pur-
chased lands in borough English, and died, it was held,
in accordance with the custom, that the lands should go
to E. («). The right of primogeniture above-mentioned
does not, however, exist amongst females, and, therefore

(i) Armory v. Delamirie, 1 Stra. owners, and become ftonaDacawfta;"

504 (cited, White v. Mullett, 6 Exoh. Spence v. Union Marine Ins. Co.,

7 ; and distinguished in Buckley v. L. R. 3 C. P. 438. See ante, p. 236.

Gross, 3 B. & S. 564) ; Bridges v. (k) S. Staffordshire Water Co. v.

Hawkesworth, 21 L. J. Q. B. 75. Sharman, [1896] 2 Q. B. 44.

See also Waller v. Drakeford, 1 (I) Jeffries v. G. W. B. Co., 5 E.

E. & B. 749 ; Mortimer v. Cradock & B. 806 ; Glenwood Lujnber Co. v.

(C. P.), 7 Jur. 45 ; Merry v. Green, Phillips, [1904] A. C. 405, 410 : 73

7 M. & W. 623. L. J. P. C. 62.

" There is no authority," how- (m) 2 Blac. Com. 83, 84. See

ever, "nor sound reason for saying Miiggleton v. Barnett, 1 H. & N.

that the goods of several persona 282 : 2 Id. 653.

which are accidentally mixed to- (m) Clements v. Scudamore, 2 Ld.

gether thereby absolutely cease to Raym. 1024.
be the property of their several

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THE MODE OF ACQUIRING PROPERTY. 281

if a person dies possessed of land, leaving daughters only,
they take jointly as co-parceners (o).

The maxim now under consideration usually determines Real
the rights of persons who make conflicting claims to real ^^°'^^^ ^'
property. At law the general rule clearly is that different
conveyances of the same lands take effect according to their
priority in time, and that prior possession is of no avail
against prior title. Equity follows the law, and, where the
legal estate is outstanding in a first unsatisfied mortgagee,
of two subsequent equitable incumbrancers he who is prior
in time is prior in equity (ji). Equitable incumbrancers
are ranked, as a rule, according to the dates of their
securities: Qui prior est tempore potior est jure; the first
grantee is potior, that is potentior ,- he has a better and
superior, because a prior, equity (q).

The maxim, however, is, in our law, subject to an im- Effect of
porfcant qualification, that " where equities are equal, the leg^^Sate.
legal title prevails." Equality here means, not equality in
point of time, but the absence of circumstances rendering
the conduct of one of the rival claimants less meritorious.
Equitable owners who are upon an equality in this respect
may struggle for the legal estate, and he who obtains it,
having then both law and equity on his side, is in a
better position than he who has equity only. This doctrine
is not confined to tacking mortgages, but applies in
favour of all equitable owners or incumbrancers for value
without notice of prior equitable interests, who get in
the legal estate from persons committing no breach of
trust in conveying it to them (r). A later incumbrancer,
who purchases without notice, and who afterwards
acquires the legal estate, may hold it, as a rule,

(o) 2 Blao. Com. 187, 356, 385. (p) Jones v. Jones, 8 Sim. 641—

In Godfrey v. Bulloch, 1 Roll. 623, 643.

n. (3) ; cited 2 Ld. Raym. 1027 ; the (g) PUlUps v. Phillips, 4 D. F. &

custom was, that, in default of issue j. 215 : 31 L. J. Ch. 325.
male the eldest daughter should have (r) Bailey v. Barnes, [1894] 1 Oh.

the land. 25, 36, 37 : 63 L. J. Ch. 73.

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282

THE MODE OP ACQUIRING PROPERTY,

Taoking,

Mortgagee
and tenant.

against one whose equitable title is prior in point of
time; and the mere fact that he has notice of the prior
equitable incumbrance when he acquires the legal estate
is immaterial (s).

This doctrine of the protection given by the legal
estate (t) enables a legal mortgagee, who makes further
advances upon the security of the mortgaged property, to
" tack " as against mesne incumbrancers of which he had
no notice when he made such advances ; and also enables
an equitable mortgagee, who afterwards acquires the legal
estate, to " tack " as against prior equitable mortgagees of
whom he had no notice when he took his own equitable
mortgage. This right of tacking, whereby priority is
gained, never arises unless the legal estate is held or
acquired; one equitable incumbrance cannot be tacked to
another, for "in all cases where the legal estate is out-
standing, the several incumbrances must be paid accord-
ing to their priority in time " (u) ; and it is essential
to the right to tack a later incumbrance as against an
earlier that the latter be taken without notice of the
earlier (r).

A mortgagee may, (subject to the Conveyancing Act,
1881) {w), eject, without notice to quit, a tenant who claims
under a lease from the mortgagor, granted after the mortgage'
and without the mortgagee's privity ; for the tenant stands
in the place of the mortgagor, and the possession of the
mortgagor cannot be considered as holding out a false
appearance, since it is of the very nature of the transaction
that the mortgagor should continue in possession; and

(s) Taylor v. Eussell, [1892] A. C.
2ii, 255, 259 : 61 L. J. Ch. 657.

(t) The doctrine no longer afiecta
lands in YorkaUre; see 47 & 48
Viot. 0. 54, s. 16. It was temporarily
abolished by 37 & 38 Vict. o. 78,
H. 7 ; but that section was repealed
by 38 & 89 Vict. c. 87, s. 129.

(u) Brace v. Duchess of Marl-
boroiigh, 2 P. Wms. 491, 495.

(v) Hopkinson v. Bolt, 9 H. L.
Ca?. 514: 34 L. J. Oh. 468. See
further as to taoking. Marsh v. Lee,
1 Wh. & T., L. C. in Eq.

(w) 44 & 45 Vict. 0. 41, s. 18.

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THE MODE OP ACQUIRING PROPERTY. 283

whenever one of two innocent parties must be a loser, then
the rule applies, qui prior est tempore, potior est jure. If,
in the instance just given, one party must suffer, it is he
who has not used due diligence in looking into the title {x).

With regard to equitable interests in personal property, Choses in
the general rule is that an assignee for value, who, at the
date of the assignment to him, had no notice of an earlier
assignment, obtains priority by giving notice, to the person
who has legal dominion over the fund, before notice is given
by the earlier assignee : a rule which applies generally to
assignments of choses in action, or of such interests in real
estate as can only reach the hands of the beneficiary or
assignor in the shape of money, but not to assignments of an
equitable interest in real estate, such as an equity of redemp-
tion iy). If the fund be in Court, a stop-order is equivalent
to notice {z). If the notices be given contemporaneously,
then the assignments take effect according to their dates (a).

The above rule as to gaining priority by notice does not, shares.
however, apply as between the assignees for value of
equitable rights in shares of companies governed by the
Companies Clauses Consolidation Act, 1842, or the Com-
panies (Consolidation) Act, 1908, for such companies
are reheved by statute from the duty of taking any notice
of equitable rights in their shares [h) ; except, indeed, in so
far as such notice affects their own right of charging the
shares with debts due from the shareholder (c). Conse-
quently, where two persons claim title to shares registered
in the name of a third, the earlier title usually prevails, and
not that of which the company first had notice {d).

(x) Keech v. Hall, Dougl. 21. (6) Sociiti General v. Walker, 11

(y) Wa/rd-v.Duncomhe,[1893]A.G. App. Oas. 20: 55 L. J. Oh. 169;

369, 384, 390 : 62 L. J. Ch. 881 ; Powell v. L. S Provincial Bank,

and cases there eoUected. [1893] 2 Oh. 555 : 62 L. J. Ch. 795.

(«) Mack V. Postle, [1894] 2 Ch. (c) Bradford Bank v. Briggs, 12

449, 455 : 63 L. J. Ch. 593. App. 29 : 56 L. J. Ch. 364.

{a) Calisher v. Forbes, L. E. 7 Ch, (d) Moore v. N. W. Bank, [1891]

109. 2 Ch. 599 : 60 L. 3. Ch. 627.

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284 THE MODE OF ACQUIRING PROPERTY,

Bills of sale. If two Or more bills of sale be given, comprising the
same chattels, their priority generally depends now upon
the order of date, not of their execution, but of their
registration (c). Thus an earlier bill of sale, whether
absolute or by way of security, if not registered, cannot
prevail against an absolute bill of sale, given later, but
registered (/). But a bill of sale given by way of
security is void, except as against the grantor, in respect
of chattels of which the grantor is not the " true owner "
at the time of the execution of the bill of sale(^), and
therefore it cannot acquire priority, through registration,
over an earlier absolute bill of sale, not registered Qi).
This reasoning, however, does not apply as between two
absolute bills of sale, or two bills of sale given by way of
security (i). A person who buys goods by a bill of sale
and leaves the seller in possession of the goods, now runs
the risk of the seller delivering the goods, under a sale or
pledge, to a person receiving them in good faith and without
notice of the previous sale (k).

Transfers Assignments of ships and shares therein are not affected

^^' by the Bills of Sale Acts (Z), but are regulated, as regards

registered British ships, by the Merchant Shipping Act,
1894 (m). If there are more mortgages than one registered
in respect of the same ship or share, the mortgagees, not-
withstanding any express, implied or constructive notice,
are entitled in priority, one over the other, according to
the date at which each mortgage is recorded in the register
book, and not according to the date of each mortgage
itself (n).

(«) 41 & 42 Vict. 0. 31, s. 10. Q. B. 408 : 60 L. J. Q. B. 722.

(/) Conelly v. Steer, 7 Q. B. D. (fc) See 52 & 53 Vict. o. 45, s. 8;

520 ; Lyons v. Tucker, Id. 523 : 50 56 & 57 Vict. o. 71, s. 25 (1).

L. J. Q. B. 661 ; see also 45 & 46 (I) 41 & 42 Vict. o. 31, s. 4 ; see

Vict. u. 43, s. 8. Gapp v. Bond, 19 Q. B. D. 200 : 56

(g) 45 & 46 Vict. c. 48, s. 5. L. J. Q. B. 438.

(h) Tuck V. Southern Counties De- (ni) 57 & 58 Vict. c. 60, ss. 24—46.

posit Bank, 42 Ch. D. 471. (n) Id. s. 33 ; see Black v. Wil-

(i) Thomas v. Searles, [1891] 2 Hams, [1895] 1 Ch. 408 ; Barclay £

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THE MODE OF ACQUIRING PROPERTY. 285

Bottomry bonds form an exception to the rule. If bonds Bottomry
are given at different periods of a voyage, and the value of ^°"^^"
the ship is insufficient to discharge them all, the last in
point of date is entitled to priority of payment, because the
last loan furnished the means of preserving the ship, and
without it the former lenders would have entirely lost their
security — salvam fecit totius pignoris causam (o).

The respective rights of execution creditors inter se must Priority of
often be determined by applying the maxim as to priority.
Where two writs of execution against the same person are
deHvered to the sheriff, his duty is to execute both, giving
priority to that which first came to his hands (p) ; unless,
indeed, the earlier writ be void as against the later, in
which case he must disregard the earlier in favour of the
later (q). For instance, where goods seized under a Ji. fa.
founded on a judgment fraudulent against creditors remain
in the sheriff's hands, or are capable of being seized by
him, he ought to sell, -or seize and sell, such goods under
a subsequent writ of f. fa. founded on a bond fide debt (?•).
Where, moreover, a party is in possession of goods appa-
rently the property of a debtor, the sheriff who has a fi. fa-
to execute is bound to inquire whether the party in pos-
session is so bona fide, and, if he find that the possession
is held under a fraudulent or an unregistered (s) bill of sale,
he is bound to treat it as null and void, and levy under
the writ (f).

A writ of fi.fa. or other writ of execution against goods,
binds the property in the goods of the execution debtor as

Co., Ltd. V. Poole, [1907] 2 Ch. 284 : Exoh. 725 ; Imray v. Magnay, 11

76 L. J. Ch. 488. M. & W. 267 ; Drewe v. Lainson, 11

(o) Abbott, Shipping, 14th ed. 196. A. & E. 529.

Ip) Dennis v. Whetham, L. B. 9 (s) See Exp. Blaiberg, 23 Ch. D.

Q. B. 345 : 43 L. 3. Q. B. 129. 254.

(9) See per Cave, 3., 14 Q. B. D. {«) Lovick v. Growder, 8 B. & C.

969. 135, 137 ; Wa/rmoll v. Young, 5 B. &

(r) Christopherson v. Burton, 3 C. 660, 666. See, also, the oases

Exch. 160 ; Shattock v. Garden, 6 cited, Arg., 12 M. & W. 664.

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286 THE MODE OF ACQUIEING PROPERTY.

from the time when the writ is delivered to the sheriff to
be executed ; but subject to the rule that the writ does not
prejudice the title to such goods acquired by a person in
good faith, and for valuable consideration, unless he had,
when he acquired his title, notice that such writ, or any
other writ by virtue whereof the debtor's goods might be
seized or attached, had been delivered to and remained
unexecuted in the hands of the sheriff («).
Patents. We may observe that the law relative to patents and to

copyright is referable to the maxim as to priority. With
respect to patents, the general rule is that the original
inventor of a machine, who has first brought his invention
into actual use, is entitled to priority as patentee, and that
consequently a subsequent original inventor cannot avail
himself of the invention ; and this is evidently in accord-
ance with the rule, qui piiov est tempore, potior est jure (x).
If, therefore, several persons simultaneously discover the
same thing, the party first communicating it to the public
under the protection of the patent is the legal inventor,
and is entitled to the benefit of it (y).

A person, however, to be entitled to a patent for an
invention must be the first and true inventor {z) ; so that,
if there be any public user thereof by himself or others
before the grant of the patent {a), or if the invention has
been previously made public in this country by a descrip-
tion contained in a work, whether written o rinted, which
has been publicly circulated, one who afterwards takes out
a patent for it is not the true and first inventor within the

(m) 56 & 57 Vict. c. 71, s. 26. See (z) See Norman Pat. Chap. 8.

Hobson\. Thelluson, L. R. 2 Q. B. (a) Househill Coaland IronCo.v.

6i2, Neilson, 9 CI. & P. 788. See Brmon

(x) See 3 Wheaton(U.S.),B. App. v. Annandale, Webs. Pats. Cas. 433.

24. And generally, in regard to the ques-

(y) Per Abbott, O.J., Forsyth v. tion, what is such prior user as will

Biviere, Webs. Pat. Cas. 97, n. ; per avoid a patent, see Norman Pat.

Tindal, C.J., Cornish v. Keene, Id. Chap. 5.
508.

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THE MODE OF ACQUIRING PROPERTY. 287

21 Jac. 1, c. 3, even though, in the latter case, he has not
borrowed his invention from such publication (&). But a
communication from abroad of a manufacture openly pub-
lished there may be the subject of a patent in this country,
and an importer of an invention from abroad is an
inventor (c). A communication made in England by one
British subject to another of an invention never published
in this country does not make the person to whom the
invention is communicated the first and true inventor (d).

Although it is generally true that a new principle, or
modus operandi, carried into practical and useful effect by
the use of new instruments, or by a new combination of
old ones, is an original invention, for which a patent may
be supported (e) ; yet, if a person merely substitute, for
part of a patented invention, some well-known equivalent,
whether chemical or mechanical, this, being in truth but
a colourable variation, amounts to an infringement of
the patent (/) ; and where letters patent were granted
for improvements in apparatus for manufacturing cer-
tain chemical substances, and the jury found that the
apparatus was not new, but that the patentee's mode of
connecting the parts of that apparatus was new, the Court,
in an action for an alleged infringement of the patent,
directed the verdict to be entered for the defendant, upon
an issue taken as to the novelty of the invention (r/) ; and
"no sounder or more wholesome doctrine" in reference to

(6) Stead v. WilUams, 7 M. & Gr. 207, 208 ; Holmes v. L. <& N. W. E.

818 ; Stead v. Anderson, i 0. B. 806. Co., 12 C. B. 831, 851. See TetUy

See Booth v. Kermard, 2 H. & N. 84. v. Easton, 2 0. B. N. S. 106 ; Patent

See Patent Act, 1883, 46 & 47 Vict. Bottle Envelope Co. v. Seymer, 5 Id.

c. 57, s. 33 et seg. 164.

(c) Be Claridge's Patent, 7 Moo. (/) See Seath v. Unwin, 13 M. &
P. C. 394. W. 583 ; S. C, 12 0. B. 522 ; 5 H. L.

(d) Marsden v. SoAiille Street Cas. 505. And see further on this
Fotmdry Co., 3 Ex. D. 203. subject, Newton v. G-r. Junction B.

(e) Bcmlton v. Bull, 2 H. Bla. 463 ; Co., 5 Exch. 331 ; NewtonY. Vaucher,
3 R. B. 439 ; S. C, 8 T. R. 95 ; Sail's 6 Exch. 859.

case, "Webs. Pat. Oaa. 98 ; cited, per {g) Gamble v. Kurtz, 3 C. B. 425.

Ld. Abinger, Losh v. Hague, Id.

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288 PBOPEETY ITS BIGHTS AND LIABILITIES.

this subject was ever established than that a patent cannot
be had "for a well-known mechanical contrivance merely
when it is applied in a manner or to a purpose which is
not quite the same, but is analogous to the manner or the
purpose in or to which it has been hitherto notoriously
used"(;i).
Copyright. Copyright in a published book means the sole and exclu-

sive liberty of printing or otherwise multiplying copies of
the book (i). Such right is now regulated entirely by statute
law (&), and is the property, for a term of years, of the author
and his assigns (t). The great object of such law is to
stimulate, by the protection given, the composition and
publication of learned and useful works (l) ; and the author's
right rests upon the like principle as that of a patentee, viz.,
priority of invention, coupled with publication. Copyright
in his book can be acquired by a British subject wherever
resident, or by an alien friend while resident in British
dominions, and is acquired throughout such dominions by
publishing the book first in the United Kingdom (m), or, as
a rule, by producing it first in a British possession (n).
With regard to books first published in a foreign country,
copyright in this country can only exist by virtue of Orders
in Council under the International Copyright Acts (o).

§ II. — PROPERTY ITS EIGHTS AND LIABILITIES.

This section contains remarks upon the legitimate mode
of enjoying property, the limits and extent of that enjoyment,
and the rights and liabilities attaching to it. The maxims

(/i) Per Ld. Westbury, Earwood (m) See 5 & 6 Vict. u. 45 ; Eout-

V. G. N. B. Co., 11 H. L. Gas. 682. ledge v. Low, L. R. 3 H. L. 100 : 37

(i) 5 & 6 Vict. c. 45, ss. 2, 3. L. J. Oh. 454.

(k) Jefferys v. Boosey, 4 H. L. Gas. (n) See 49 & 50 Vict. u. 33, s. 8.

815 : 24 L. J. Ex. 81. (o) See 49 & 50 Vict. c. 33 ; Pitts

.(Z) Pe»- Ld. Gairns, L. R. 3 H. L. v. Oeorge, [1896] 2 Ch. 866: 66

108. L. J. Oh, 1.

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PROPERTY ITS EIGHTS AND LIABILITIES. 289

commented upon, in connection with this subject, are four :
that a man shall so use his own property as not to injure
his neighbour ; that the owner of the soil is entitled to that
which is above and underneath it ; that what is annexed to
the freehold usually becomes subject to the same rights of
ownership; that " every man's house is his castle."

Sic utere tuo ut alibnum non l^das. (9 liejJ. 59.) —
Enjoy your own property in such a manner as not to
injure that of another person (p).

A man must enjoy his own property in such a manner as injuries
not to invade the legal rights of his neighbour : expedit wrou^ui use
reipublicce ne sua re quis male utatur{q). "Every man," o^P^^oP^^y-
observed Lord Truro (r), "is restricted against using his
property to the prejudice of others ; " and " the principle
embodied in the maxim, sic utere tuo ut alienum non Imlax,
applies to the public in at least as full force as to individuals.
There are other maxims equally expressive of the principle :
nihil quod est inconveniens est licitum (s), and salus reipuhlicce
sHprema lex" (t). To so large a class of cases, indeed, and
under circumstances so dissimilar, is the rule before us
capable of being applied, that we can here merely suggest
some few leading illustrations, omitting references to many
reported decisions which might equally well exemplify its
meaning.

In the first place, then, we must observe that, as a rule,

{p) Such is the literal translation Richards, 7 H. L. Cas. 388; per

of tlie above maxim ; its true legal PoUock, O.B., Bagnall v. L. & N.

meaning would rather be, "So use W. B. Co., 7 H. & N. 440 ; Williams

your own property as not to injure v. Qroucott, 4 B. & S. 149, 155 — 156.

the rights of another." See Arg., (g) I. 1, 8, 2.

Jeffries v. WilUams, 5 Exch. 797. (r) Egerton v. Earl Brownloiv, 4

The maxim is cited, commented H. L. Cas. 195.

on, or applied, in Bonomi v. Back- (s) Ante, p. 150.

house, E. B. & E. 637, 639, 643: (<) Ante.y.l.
9 H. L. Cas. 511 ; Chasemore v.

L.M.

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290 PEOPEKTY — ITS EIGHTS AND LIABILITIES.

the invasion of an established right, of itself, constitutes an
injury, for which damages are recoverable; for "in all civil
acts our law does not so much regard the intent of the actor
as the loss and damage of the party suffering." In trespass
qii. d.fr., the defendant pleaded that he had land adjoining
plaintiff's close, and upon it a hedge of thorns ; that he cut
the thorns, and that they, ijiso invito, fell upon the plaintiffs
land, and the defendant took them off as soon as he could.
On demurrer, judgment was given for the plaintiff, on the
ground that, " though a man do a lawful thing, yet if damage
thereby befalls another, he shall answer it, if he could have
avoided it " (h). So, where the defendants planted on their
own land, about four feet from their boundary fence, a
yew tree, which grew so as to project beyond the fence
and over an adjoining field hired by the plaintiff for
pasture, and his horse, feeding in the field, ate of that part
of the yew tree which so projected, and thereby died of
poison : it was held that the defendants were liable for the
value of the horse (x).

Accordingly, " in considering whether a defendant is liable
to a plaintiff for damage which the latter has sustained, the
(]uestion often is, not whether the defendant has acted with
due care and caution, but whether his acts have occasioned
the damage : " and this doctrine "is founded on good sense.
For when one person in managing his own affairs causes,
however innocently, damage to another, it is obviously only
just that he should be the party to suffer. He is bound sic
xdi siio ut lion hedat alicnuin " (y).

(u) See Lambert v. Bessey, T. 3 0. B. 229 ; Grocers' Co. v. Donne,

Eaym. 422 ; Weaver v. Ward, Hob. 3 Bing. N. C. 34 ; Aldridge v. G. W.

134 ; per Blaokstone, J., Scott v. B. Co., 4 Scott, N. K. 156.

Shepherd, 3 Wils. 403; per Ld. (x) CrowhurstY.AmershamBurial

Kenyon, Haycraft v. Creasy, 2 East, Board, 4 Ex. Div. 5 : 48 L. J. Ex.

104 ; 6 R. B. 380 ; Turberville v. 109 ; Surdman v. N. E. R. Co., 3

Stampe, 1 Ld. Kaym. 264 ; Jones v. C. P. D. 168 ; 47 L. J. C. P. 368.

Pesiiniog B. Co., L. E. 3 Q. B. 735 ; (y) Per Ld. Cranworth, Bylands

Vaughan v. Menlovc, 3 Bing. N. C. v. Fletcher, L. R. 3 H. L. 341, citing

468 ; Piggott v. E. Counties E. Co., Lambert v. Bessey, supra.

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PROPERTY ITS RIGHTS AND LIABILITIES. 291

In the next place, it may be laid down, as a true proposi-
tion, that, although bare negligence unproductive of damage
to another will not give a right of action, negligence causing
damage will do so (2) ; negligence being defined to be " the
omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do " (a) ;
negligence, moreover, not being " absolute or intrinsic," but
" always relative to some circumstances of time, place, or
person," imposing a duty to take care (b).

Having thus premised, the following instances will serve
to show in what manner the maxim placed at the head of
these remarks is applied, to impose restrictions, first, upon
the enjoyment of property (c), and secondly, upon the
conduct of each individual member of the community. In
illustration of the first branch of the subject, we may observe,
that, if a man build a house so close to mine that his roof injury to
overhangs mine, and throws the water off upon it, this is a house.

(z) SeeBroom'sCom.,4thed. 656; Co., 11 C. B. 855; Yose v. Lane, t.6

Wiitehouse v. Birmingham Co., 27 Y. B. Co., 2 H. & N. 728; Harris v.

L. J. Ex. 25; Bayley v. Wolver- ^ratZei-sora, 14 C. B. N. S.499; Beevc

Hampton Co., 6 H. & N. 241 ; Dzick- v. Palmer, 5 Id. 84 ; Manchester B.

worth V. Johnson, 4 Id. 653. Co. v. FwUarton, 14 Id. 54 ; Boberts

(a) Per Alderson, B., Blythv. Bir- v. G. W. B. Co., 4 Id. 506 ; Norths,

mingham Co., 11 Exoh. 784. See Smith, 10 Id. 572 ; Manley v. St.

also Heaven v. Pender, 11 Q. B. D. HeUn's Canal Co., 2 H. & N. 840;

503; he Lievre v. Gould, [1893] Willoughby v. Horridge, 12 0. B.

1 Q. B. 491. 742 ; TemplemanY. Haydon,l&. 507 ;

iocTies has been defined to be " a Melville v. Doidge, 6 0. B. 450;

neglect to do something which by Grote v. Chester & Holyhead B. Co.,

law a man is obliged to do;" per 2Excb.251; Danseyv.Bichardson,

Ld. EUenborough, Sebag v. Abitbol, 3 E. & B. 144 ; Boberts v. Smith, 2

4 M. & S. 462 ; adopted by Abbott, H. & N. 213 ; Cashill v. Wright, 6

C.J., Turner v. Hayden, 4 B. & C. 2. E. & B. 891 ; Houlder v. Soulby, 8

(6) Judgm., Degg v. Midland B. 0. B. N. S. 254.
Co., 1 H. dc N. 781 ; approved in (c) See per Holt, O.J., Tenant v.

Potter V. Faulkner, 1 B. & S. 800. Goldwin, 2 Ld. Baym. 1092—1093,

As to proof of negligence, see ante, followed in Hodgkinson v. Ennor, 4

p. 258 ; Assop V. Yates, 2 H. & N. B. & S. 241.
768 ; Perren v. Monmouthshire B.

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292 PROPERTY — ITS RIGHTS AND LIABILITIES.

nuisance, for which an action Hes (d). So, an action hes, if,
by an erection on his own land, he causes a nuisance by
obstructing my ancient hghts and windows ( c) ; for a man
has no right to erect a new edifice on his ground so as to
prejudice what has long been enjoyed by another (/) :
(edificarc in ti(o pivprio solo non licet quod alteri noceat (rj).
In like manner, if a man, in pulling down his house,
occasion damage to, or accelerate the fall of, his neighbour's,
he will be liable, provided there was negligence on the part
of those engaged in pulling down the house ; and he will
not be exonerated from liability by employing a competent
contractor to do the work. Therefore, where the defendant
and the plaintiff occupied adjoining houses, and the
defendant rebuilt his house, employing a competent builder
and architect for that purpose, and in the course of the
work the workmen employed by the builder began to fix a
staircase, and, in so doing, negligently and without the
knowledge of the defendant or his architect cut into a
party wall dividing the defendant's house from the
plaintiff's, and thereby injured the plaintiff's house ; it was
held that the defendant was liable {h). The operation being
a hazardous one, the defendant was bound to see that it was
carried out with reasonable care and skill, and he could not
avoid responsibility by delegating the control of that opera-
tion to a third person, however competent that person might
be. It would seem that the defendant's duty in such a case

(d) Penruddocke's case, 5 Rep. Partridge v. Scott, 3 M. & W. 220 ;
100 ; Fay v. Prentice, 1 C. B. 828. recognisiDg Wyatt v. Harrison, 3

(e) Colls V. Home and Colonial B. & Ad. 871 ; 37 B. E. 566 ; Brown
Stores, [1904] A. C. 179 : 73 L. J. v. Windsor, 1 Or. & 0". 20.

Ch. 484. (g) 3 Inst. 201.

(/) Seeder Pollock, G.B., Bagnall (fe) Percival v. Hughes, 9 Q. B. D.

V. L. <& N. W. B. Co., 7 H. & N. 440 ; 441 : 51 L. J. Q. B. 388 : 8 App. Gas.

S. 0., 1 H. & 0. 544, which well 443. See also Bradbee v. Mayor of

illustrates the maxim commented London, 5 Scott, N. E. 120 ; per

on. See Dodd v. Solme, 1 A. & E. Ld. Denman, Dodd v. Holme, 1 A. &

493 ; recognised Bradbee \. Mayor E. 505. See Peyton v. Mayor of

of London, 5 Scott, N. R. 120 ; London, 9 B. & G. 725 ; 33 R. R. 311.

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PEOPEETY — ITS EIGHTS AND LIABILITIES. 293

does not go beyond the exercise of reasonable care and skill,
and that although the law has been varying somewhat in the
direction of treating parties engaged in such a work, as
insurers of their neighbours, or warranting them against
injury, it has not quite reached that point (t).

The mere circumstance of juxtaposition does not, in the
absence of any right of easement, render it necessary for a
person who pulls down his wall to give notice of his intention
to the owner of an adjoining wall, nor is such person, if he
be ignorant of the existence of the adjoining wall, bound
to use extraordinary caution in pulling down his own (;) .

Neither is any " obligation towards a neighbour cast by
law on the owner of a house, merely as such, to keep it
repaired in a lasting and substantial manner : the only duty
is to keep it in such a state that his neighbour may not be
injured by its fall ; the house may, therefore, be in a ruinous
state, provided it be shored sufficiently, or the house may be
demolished altogether " (k). Where, however, several houses
belonging to the same owner are built together, so that each
requires the support of the adjoining house, and the owner
parts with one of these houses, the right to such support is
not thereby lost (Z).

As between the owner of the surface of land and the owner
of subjacent mineral strata, and as between owners of
adjoining mines, questions frequently arise involving a
consideration of the maxim, sic iitere tuo iit alienum non
Icedas (m), and needing an interpretation of it not too much

(i) Per Ld. Fitzgerald, Hughes v. support by an adjacent house, Solo-

Percival, 8 App. Oas., p. 455. monv. Vintners' Co., 4 H. &N. 585 ;

(j) Ohadwick v. Trower, 6 Bing. Angus v. Dalton, 6 App. Cas. 740.

N. 0. 1 ; reversing S. 0., 3 Id. 334 ; (k) Judgm., Chauntler v. Bobin-

oited 5 Scott, N. R. 119 ; Grocers' Co. son, 4 Bxou. 170. As to tte right of

V. Dorme, 8 Bing. N. 0. 34 ; Davis v. support for a sewer, see Metr. Board

L.<&BlacTcwaUB. Co.,28cott,tiJ.B,. of Works v. Metr. B. Co., L. R. 4

74 ; see jper GoUins, L.J., Southwark, C. P. 192 : 38 L. J. C. P. 172.

Sc, Co. V. Wandsworth B. of W., (0 Bicha/rdsv. Bose, 9 Exch. 218.

[1898] 2 Ch. 613. {m) See Williams v. Oroucott, 4

See further, as to the right to B. & S. 149.

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294 PROPBETY — ITS RIGHTS AND LIABILITIES.

curtailing the rights of ownership. In Hiimjjhries v.
Brogden {n), the plaintiff, being the occupier of the surface
of land, sued the defendant for working the subjacent
minerals negligently and improperly, and without leaving
any sufficient pillars and supports, and contrary to the
custom of mining in that district ; pe)- quod the surface
gave way. Issue being joined on a plea of not guilty, it was
proved at the trial that plaintiff occupied the surface, which
was not built upon, and defendant the subjacent minerals,
but there was no. evidence showing how the occupation of
the superior and inferior strata came into different hands.
The jury found that the defendant had worked the mines
carefully and according to the custom, but without leaving
sufficient support for the surface. And the Court held, that
upon this finding the verdict should be for the plaintiff,
because of common right the owner of the surface is entitled
to support from the subjacent strata.

The prmid facie rights and obligations of parties so
situated relatively to each other may, however, be varied by
the production of title deeds or other evidence (o).

In Smith v. Kenrick (p), the mutual obligations of the
owners of adjoining mines were much considered, and it was
there laid down that " it would seem to be the natural right

(«) 12 Q. B. 739 (with whicli of. support of land by subjacent water ;

Hilton V. Whitehead, Id. 734); PoppZeMieHv. abdfcmsow, L. R. 4 Ex.

Haines v. Roberts, 7 E. & B. 625 ; 248 : 88 L.J. Ex. 126. See Jordeson

S. C, 6 Id. 643 ; Bowbotham v. v. Sutton Gas Co., [1899] 2 Oh. 217 ;

Wilson, 8 H. L. Gas. 348 ; S. C, 8 Trinidad Asphalt Go. v. Ambard,

E. & B. 123, 6 Id. 593 ; Smart v. [1899] A. C. 594 ; but see also Salt

Morton, 5 H. &'B. 30; Backhouse v. Union v. Brunner, Mond & Co.,

Bonomi, 9 H. L. Gas. 503; S. C., [1906] 2 K. B. 822 ; 76 L. J. K. B. 55.

E. B. & E. 503; Davis v. Treharne, (p) 7 0. B. 15, 564; with which

6 App. Oas. 460; A.-G. v. Conduit of. Baird v. Williamson, 15 0. B.

Co., [1895] 1 Q. B. 301. N. S. 376, which is distinguished

(o) Per Ld. GampbeU, in Hum- from Smith v. Kenrick, supra, by

phries v. Brogden, and Smart v. Ld. Orauworth, Rylands v. Fletcher,

Morton, supra ; Eowbotham v. L. E. 3 H. L. 341—342: 37 L. J.

Wilson, supra. Ex. 161.

There is no general right to the

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PROPERTY — ITS RIGHTS AND LIABILITIES. 295

of each of the owners of two adjoining coal mines — neither
being subject to any servitude to the other — to work his own
in the manner most convenient and beneficial to himself,
although the natural consequence may be that some prejudice
will accrue to the owner of the adjoining mine, so long as
that does not arise from the negligent or malicious conduct
of the pa'ty." It has accordingly been held that if in
consequence of a mine owner on the rise working out his
minerals, water comes by natural gravitation into the mines
of the owner on the dip, the latter cannot maintain an action
if the working is carried on with skill, and in the usual
manner (q). But if one mine owner in working his own
mine diverts a natural watercourse, or causes by artificial
means more water to come into his mine than otherwise
would come, whereby an adjoining mine is flooded, the mine
owner is liable for the damage so caused (r).

From the above and similar cases we may infer that
much caution is needed in applying the maxim under our
notice — in determining how far it may, on a given state of
facts, restrict the mode in which property may be enjoyed
or used : a principle here applicable under very dissimilar
circumstances being, that " if a man brings or uses a thing
of a dangerous nature on his own land, he must keep it
in at his own peril, and is liable for the consequences if
it escapes and does injury to his neighbour" (s). "The
person, " therefore, " whose grass or corn is eaten down
by the escaping cattle of his neighbour, or whose mine is
flooded by the water from his neighbour's reservoir (t), or

(2) Wilson V. Waddell, 2 App. 3 Q. B. 736 : 37 L. J. Q. B. 214 ;

Oas. 95 ; see Hurdman v. N. E. B. Bijlands v. Fletcher, L. R. 3 H. L.

Co., 3 C. P. D. 168 : 47 L. J. 0. P. 830, 839, 340 : 37 L. J. Ex. 161,

368. where many cases illustrating the

(r) BaArd v. Williamson, 15 G. B. text are coUeoted.

N. S. 376: 33 L. J. G. P. 101; (t) "Suppose A. has a drain

Fletcher v. Smith, 2 App. Gas. 781 : through the lands of B. and G., and

47 L. J. Ex. 4 ; Crompton v. Lea, 0. stops up the inlet into his land

L. B. 19 Eq. 115 : 44 L. J. Ch. 69. from B.'s, and A. nevertheless,

(s) Jones-v. Festiniog B. Co. ,11.^1. knowing this, pours water in the

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296 PKOPBRTY — ITS BIGHTS AND LIABILITIES.

whose cellar is invaded by the filth of his neighbour's
privy (u), or whose habitation is made unhealthy by the
fumes and noisome vapours of his neighbour's alkali
works (v), is damnified without any fault of his own ; and it
seems but reasonable and just that the neighbour who
has brought something on his own property, which was not
naturally there, harmless to others so long as it is confined
to his own property, but which he knows will be mis-
chievous if it gets on his neighbour's, should be obliged to
make good the damage which ensues if he does not
succeed in confining it to his own property" (tv).
Use of flow- Again, the rule of law which governs the enjoyment of
ing wa ei. ^ stream flowing in its natural course over the surface of
lands belonging to different owners is well established, and
illustrates the maxim under notice. Each owner has a
right to the advantage of the stream flowing in its natural
course over his land, and to use the same as he pleases for
any purposes of his own connected with his tenement (x),
provided that they be not inconsistent with a similar right
in the owner of the lands above or below : so that neither
can any owner above diminish the quantity or injure the
quality of the water, which would otherwise naturally
descend ; nor can any owner below throw back the water
without the licence or the grant of the owner above (?/).

drain and damages B., A. is liable Co., [1902] A. C. 381 : 71 L. J. P. C.

to B." Judgm., Harrison v. G. N. 122 (escape of electricity) ; WUt-

B. Co., 3 H. & C. 238; Collins v. i>K>res{Edenbridge), Ltd. v. Stanford,

Middle Level Commrs., L. E. 4 C. P. [1909] 1 Ch. 427 : 78 L. J". Ch. 144.'

279 : 38 L. J. C. P. 236. (x) Macartney v. Lough Smllij

(u) Cf. Foster v. Warblington Railway, [1904] A. C. 301 : 73 L. J".

Urbam. Council, [1906] 1 K. B. 648 : P. C. 73.

75 L. J. K. B. 514. (y) Mason v. Hill, 5 B. & Ad. 1 ;

(v) St. Helen's Smelting Co. v. SQ'R.'R. 35i; Ormerody. Todmorden

Tipping, 11 H. L. Cas. 642. J. 8. Mill Co., 11 Q. B. D. 155 : 52

(w) Judgm., Fletcher v. Eylands, L. J. Q. B. 445 ; Wrighty. Howard,
L. B. 1 Ex. 280, adopted by Ld. 1 Sim. & Stu. 190; cited Judgm.j
Cairns in S. C, L. E. 3 H. L. 340 : 12 M. & W. 349; Judgm., Embrey
37 L. J. Ex. 161. See Eastern Tele- v. Owen, 6 Exoh. 368—373 ; Chase-
graph Co. V. Cape Town Tramways more v. Bichards, 7 H. L. Cas. 349 •

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PEOPERTY— ITS EIGHTS AND LIABILITIES. 297

Where, therefore, the owner of land applies the stream
running through it to the use of a newly erected mill, he
may, if the stream be diverted or obstructed by the owner
of land above, recover for the consequential injury to the
mill; and the same principle seems to apply where the
obstruction or diversion has taken place before the erection
of the mill, unless, indeed, the owner of land higher up the
stream has acquired a right to any particular mode of using
the water by prescription, that is, by user continued until
the presumption of a grant has arisen (z).

What has been Just said applies generally to surface Artificial
water flowing naturally over land— between which and ^*''®^™-
water artificially flowing the distinction is important as
regards the mode of applying our principal maxim, and
has been thus explained. " The flow of a natural stream
creates natural rights and liabilities between all the riparian
proprietors along the whole of its course. Subject to
reasonable use by himself, each proprietor is bound to
allow the water to flow on without altering the quantity
or quality. These natural rights and liabilities may be
altered by grant or by user of an easement to alter the
stream, as by diverting, or fouling, or penning back, or
the hke. If the stream flows at its source by the operation
of nature, that is, if it is a natural stream, the rights and
liabilities of the party owning the land at its source are
the same as those of the proprietors in the course below.
If the stream flows at its source by the operation of man,
that is, if it is an artificial stream, the owner of the land
at its source or the commencement of the flow is not subject
to any rights or liabilities towards any other person, in
respect of the water of that stream. The owner of such

Bmostron v. Taylor, 11 Exch. 369 ; 250 : 5 Id. 74.
Broadbent v. Bamsbotham, Id. 602, (z) Judgm., Mason v. Hill, 5 B,

See also Whalley v. Lamg, 3 H. & & Ad. 25 ; 39 E. E. 372, where the

N. 675, 901 ; Hipkms v. Bvrnmig- Boman law upon the subject is

ham & S. Gas Light Co., 6 H. & N. briefly considered.

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298 PROPERTY— ITS RIGHTS AND LIABILITIES.

land may make himself liable to duties in respect of such
water by grant or contract ; but the party claiming a right
to compel performance of those duties must give evidence
of such right, beyond the mere suffering by him of the
servitude of receiving such water " (a).

" Eights and liabilities in respect of artificial streams
when first flowing on the surface are entirely distinct from
rights and liabilities in respect of natural streams so
flowing. The water in an artificial stream flowing in the
land of the party by whom it is caused to flow is the
property of that party, and is not subject to any rights or
liabilities in respect of other persons. If the stream so
brought to the surface is made to flow upon the land of a
neighbour without his consent, it is a wrong for which the
party causing it so to flow is liable. If there is a grant by
the neighbour, the terms of the grant regulate the rights
and liabilities of the parties thereto. If there is uninter-
rupted user of the land of the neighbour for receiving the
flow as of right for twenty years, such user is evidence that
the land from which the water is sent into the neighbour's
land has become the dominant tenement, having a right
to the easement of so sending the water, and that the
neighbour's land has become subject to the easement of
receiving that water. But such user of the easement of
sending on the water of an artificial stream is of itself
alone no evidence that the land from which the water is
sent has become subject to the servitude of being bound
to send on the water to the land of the neighbour below.
The enjoyment of the easement is of itself no evidence that
the party enjoying it has become subject to the servitude
of being bound to exercise the easement for the benefit of
the neighbour." "A party by the mere exercise of a
right to make an artificial drain into his neighbour's land,
either from mine or surface, does not raise any presumption

(a) Judgm., Gaved v. Martyn, 19 Bracewell, L. R. 2 Ex. 1 : 3C L. J.
C, B. N. S. 759. See mutall v. Ex. 1.

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PROPERTY — ITS EIGHTS AND LIABILITIES. 299

that he is subject to any duty to continue his artificial
drain, by twenty years' user, although there may be
additional circumstances by which that presumption could
be raised, or the right proved. Also, if it be proved that
the stream was originally intended to have a permanent
flow, or if the party by whom or on whose behalf the
artificial stream was caused to flow is shown to have
abandoned permanently, without intention to resume, the
works by which the flow was caused, and given up all right
to and control over the stream, such stream may become
subject to the laws relating to natural streams " [h).

Accordingly, if an artificial water course has existed for
a considerable number of years, and is of a permanent
nature, the water cannot be diverted or lessened in quantity
by the owner of the land at its source, or by owners of
land through which it passes, to the injury of owners lower
down the stream (c) ; but it is otherwise, if the stream was
temporary in its character, as, for instance, created by a
pumping-engme used to drain land, and was allowed to
flow on to the adjoining land under circumstances which
negative an intention to give the use of the artificial
stream as a matter of right (d).

With respect to water percolating underground by unde- Undergronnd
fined channels, the general rule of law is that if a land-
owner, by any lawful operation upon his own land, as by
mining or by sinking a well therein, intercepts such water
on its way to his neighbour's land, or drain such water out
of his neighbour's land, the neighbour has no cause of action
for damage sustained thereby, whether the damage be that

(6) Judgm., Gaved v. Martyn, 19 WHtmores (Edenhridge), Ltd. v.

C. B. N. S. 757—759. Stanford, [1909] 1 Gh. 427 ; Baihj

\c) SutcliffY. Booth, 9 Jur. N. S. v. Clark <S Morland, [1902] 1 Ch.

1037 ; Ivimey v. Stacker, L. K. 1 649 : 71 L. J.Gh. 396.
Oh 396; Bameshur Pershad Narain (d) Arkwright v. Gell, 5 M. & W.

Singh's case, 4 App. Gas. 121. See 282 ; Staffordshire d W. Canal Co. v.

Kensit v. G. E. B. Co., 27 Oh. D. Birmingham C anal Navigatioyi,'L.'R.

122 : 54 L. J. Oh. 19 ; Mostyn v. 1 H. L, 254 : 85 L. J. Ch. 757.
Atherton, [1899] 2 Ch. 360. See also

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300 PROPERTY — ITS RIGHTS AND LIABILITIES.

the wells or ponds in the neighbour's land run dry (e), or that
his land subsides from want of the natural subjacent support
it formerly derived from the water (/). In the absence of
any grant, contract, or statute, rendering the general rule
inapplicable, such damage is damnum absque injuria. But
a landowner, though he may lawfully deprive his neighbour
of water percolating towards his well, is not entitled to foul
his neighbour's well by polluting such water with sewage :
he must keep his own filth in (g).
Confliotmg The principle, which the above instances have been

selected to illustrate, likewise applies where various rights,
which are at particular times unavoidably inconsistent with
each other, are exercised concurrently by different indi-
viduals ; as, in the case of a highway, where right of common
of pasture and right of common of turbary may exist at
the same time ; or of the ocean, which in time of peace is
the common highway of all (/t) ; in that of a right of free
passage along the street, which right may be sometimes
interrupted by the exercise of other rights (i), or in that of a
port or navigable river (A), which may be likewise subject at

(e) Acton v. Blundell, 12 M. & W. (i) See A.-G. v. Brighton, Sc, Co.,

324 ; Chasemore v. Richards, 7 H. L. [1900] 1 Ch. 276.

Gas. 349; 2 H. & N. 168 (where (k) See Uayw of Colchester v.

Coleridge, J., diss., cited the maxim Brooke, 7 Q. B. 839; Morant v.

under notice) ; Bradford Corpor. v. Chamberlin, 6 H. & N. 541 ; Dobson

Pickles, [1895] A. 0. 587 : 64 L. J. v. Blackjnore, 9 Q. B. 991 ; Dimes v.

Ch. 759 ; Mcnab v. Robertson, [1897] Petley, 15 Q. B. 276 ; Reg. v. Betts

A. C. 129 : 66 L. J. P. C. 27 ; Brad- 15 Q. B. 1022. As to the liabUity of

ford Corpor. v. Ferrand, [1902] 2 the owner of a vessel, anchor, or

Ch. 665. other thing, which having been sunk

(/) PoppleweUv.Hodkiiison,'L.'R. in a river obstructs the navigation,

4 Ex. 248 : 38 L. J. Ex. 126 ; see Gr. see Brown v. Mallett, 5 C. B. 599*

Junction Canal Co. v. Shugar, L. E. recognised 2 H. & N. 854 ; Hancock

6 Ch. 488; and amte, p. 294, n. (o) ; v. York, dc, B. Co., 10 C. B. 848 ;

see also Salt Union v. Brunner, White v. Crisp, 10 Exch. 312; per

Mond cB Co., [1906] 2 K. B. 822: Bo\m, G.J. , Vivian v. Mersey Docks

76 L. J. K. B. 55. Board, L. R. 5 0. P. 29 ; 39 L. J.

{g) Ballard v. TomUnso^i, 29 Ch. C.P. 8 ; BartlettY. Baker,3 H. &C.

D. 115 : 54 L. J. Ch. 454. 153 ; The Snarh, [1900] P. 105.

{h) Per Story, J., Tlw Marianna As to the liability of a ship-

Flora, 11 Wheaton (U.S.), R. 42. owner for negligently damaging a

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PKOPERTY ITS EIGHTS AND LIABILITIES. 301

times to temporary obstruction. In these and similar cases,
where such different co-existing rights happen to clash, the
maxim, sic Mere tuo ut aUenum non ladas, will, it has been
observed, generally serve as a clue to the labyrinth {I). And
further, the possible jarring of pre-existing rights can furnish
no warrant for an innovation which seeks to create a new
right to the prejudice of an old one ; for there is no legal
principle to justify such a proceeding (vi).

Not only, moreover, does the law give redress where a Nuisance,
substantive injury to property is committed, but, on the
same principle, the erection of anything offensive so near
the house of another as to render it useless and unfit for
habitation is actionable {n) ; the action in such case being
foimded on the infringement or violation of the rights and
duties arising by reason of vicinage (o). The doctrine upon
this subject, as laid down by the Exchequer Chamber (p),
and substantially adopted by the House of Lords {q), being,
" that whenever, taking all the circumstances into considera-
tion, including the nature and the extent of the plaintiff's
enjoyment before the acts complained of, the annoyance is
sufficiently great to amount to a nuisance according to the
ordinary rule of law, an action will lie, whatever the locality
my be;" but trifling inconveniences merely are not to
be regarded (/•), for lex non favet votis delicatorum (s) . An

telegraphic cable, see Sub-Marine Oxford, dc, B. Co., 1 H. & N. 34.

Telegraphic Co. v. Dickson, 15 O.B. (o) Alston v. Grant, 3 E. & B.

jq-_ g_ 757_ 528 ; Judgm., 4 Exch. 256, 257.

See also Mersey Docks Trustees v. (p) Bamford v. Turnley, 3 B. & S.

Gibbs, L. B. 1 H. L. 93 ; WUte v. 62, 77.

Phillips, 15 C. B. N. S. 245. (s) St. Helen's Smelting Co. v.

{V) Judgm., B. V. Ward, 4 A. & E. Tipping, 11 H. L. Gas. 642.

384; Judgm., 15 Johns. (U.S.), R. (r) 11 H. L. Gas. 645, 655 ; Gaunt

218 ; PanUm v. Holland, 17 Id. 100. v. Fymney, L. E. 8 Oh. App. 8 : 42

(to) Judgm., B. V. Ward, supra. L. J. Oh. 122.

(») Per Burrough, J., Deane v. (s) 9 Bep. 58 a ; 41 Oh. T>. 97.

Clayton, 7 Taunt. 497 ; 18 B. B. See further as to what may con-

553 ; Doe v. KeeUng, 1 M. & S. 95 ; stitute a nuisance ; Beg. v. Bradford

14 R. B. 405. See Simpsons. Savage, Nav. Co., 6 B. & S. 631 ; Cleveland

1 C. B. N. S. 347 ; Mumford v. v. Sfier, 16 C. B. N. S. 399.

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302 PROPERTY — ITS RIGHTS AND LIABILITIES.

action, however, does not lie if a man build a house whereby
my prospect is interrupted (0, or open a window whereby
my privacy is disturbed ; in the latter case the only remedy
is to build on the adjoining land opposite to the offensive
window (it)- In these instances the general principle applies
— qui jure suo utitur nemincm lcEclit{x).

In connection with the law concerning nuisances, the
practitioner may have to decide between asserted rights
which are in conflict with each other — the right to erect or
maintain, and the right to abate a nuisance — in doing so
the following propositions {y) may guide him. 1. A person
may justify an interference with the property of another
for the purpose of abating a nuisance, if that other is the
wrong-doer, but only so far as the interference is necessary
to abating the nuisance. 2. It is the duty of a person who
enters upon the land of another to abate a nuisance, to
act in the way least injurious to the owner of the land.
3. Where there are alternative ways of abating a nuisance,
if one way would cause injury to the property of an innocent
third party or to the public, that cannot be justified ; although
the nuisance may be abated by interference with the pro-
perty of the wrong-doer. Therefore, where the alternative
ways involve an interference with the property either of an
innocent person or of the wrong-doer, the interference must
be with the property of the wrong-doer.
Easement of The right to the reception of light in a lateral direction
° ■ (Avithout obstruction) is an easement. The strict right of

property entitles the owner only to so much light (and air)

(t) Com. Dig., "Action upon the 290: 34 L. J. 0. P. 342.

Case for a Nuisance" (C.) ; Aldred's (x) Vide D. 50, 17, 151, and 155,

case, 9 Eep. 58. According to the § 1.

Boman law it was forbidden to (y) Roberts v. Ease, L. B. 1 Ex.

obstruct the prospect from a neigh- 82 : 4 H. & G. 103, 105—106. See

hour's house : see D. 8, 2, 3, and further as to abating a nuisance,

15 ; Wood, Civ. Law, 3rd ed. 92, Drake v. Pywell, 4 H. & 0. 78 ;

93- Lemmon v. Webb, [1895] A. C. 1 :

(u) Per Eyre, G.J,, cited 3 Camp. 64 L. J. Ch. 205.
82 ; Jones v. Tapling, 11 H. L. Gas.

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PEOPEETY ITS RIGHTS AND LIABILITIES. 308

as fall perpendicularly on his land («). The law on this
subject formerly was, that no action would lie, unless a
right had been gamed in the lights by prescription (a) ; but
it was subsequently held, that, upon evidence of an adverse
enjoyment of lights for twenty years or upwards unex-
plained, a jury might be directed to presume a right by
grant or otherwise, even though no lights had existed there
before the commencement of the twenty years (b) : and
although, formerly, if the period of enjoyment fell short
of twenty years, a presumption in favour of the plaintiff's
right might have been raised from other circumstances, it is
now enacted by 2 & 3 Will. 4, c. 71, s. 6, that no presump-
tion shall be allowed or made in support of any claim upon
proof of the exercise of the enjoyment of the right or matter
claimed for less than twenty years ; and by s. 3 of the
same statute, that, "when the access and use of light to and
for any dwelling-house, workshop, or other building, shall
have been actually enjoyed (c) therewith for the full period
of twenty years, without interruption (cT), the right thereto
shall be deemed absolute and indefeasible, any local usage
or custom to the contrary notwithstanding, unless it shall
appear that the same was enjoyed by some consent or agree-
ment expressly made or given for that purpose by deed or
writing." And by s. 4, " the period of twenty years shall
be taken to be the period next before some suit or action
wherein the claim shall have been brought into question ;
and no act or matter shall be deemed to be an interruption
within the meaning of the statute, unless the same shall have
been submitted to or acquiesced in, for one year after the
party interrupted shall have had notice thereof, and of the

(z) Gale on Easements, 5th ed. (a)See D. 8, 2, 9.

319 ; and in regard to the enjoy- (6) 2 Selw., N. P., 12th ed. 1134.

ment of light and air, see White v. (c) See Courtauld v. Legh, L. B.

Bass, 7 H. & N. 722 ; Frewen v. 4 Ex. 126.

PhiUpps, 11 0. B. N. S. ii9 ; (d) See Benmson v. Carkoright, 5

Chastey v. Ackland, [1897] A. C. B. & S. 1 ; Plasterers' Co. v. Parish

155 : [1895] 2 Ch. 389. Clerks' Co., 6 Exoh. 630.

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304 PROPERTY ITS EIGHTS AND LIABILITIES.

person making or authorising the same to be made." The
last section of this Act is applicable not only to obstructions
preceded and followed by portions of the twenty years, but
also to an obstruction ending with that period ; and, there-
fore, a prescriptive title to the access and use of light may
be gained by an enjoyment for nineteen years and 330 days,
followed by an obstruction for thirty-five days (e).

It may be well to add that " every man may open any
number of windows looking over his neighbour's land ; and,
on the other hand, the neighbour may, by building on
his own land, within twenty years after the opening of the
window obstruct the light which would otherwise reach

it"(/).

After a good deal of controversy it is now established that,
when an easement of light has been acquired by prescription,
no action will lie for obstructing the access of light, unless
the obstruction is so great as to amount to a nuisance. The
owner of the dominant tenement is not necessarily entitled
to complain because there has been some diminution of the
light previously enjoyed (g).
Air. The right to air as distinguished from light appears in

some respects to be governed at common law by the same
principles as apply to light ; but the right to the unin-
terrupted passage of air across one's neighbour's ground
cannot be acquired under the Prescription Act, 2 & 3 Will. 4,
c. 76, s. 2, and it would further seem that no presumption
of a grant of such a right will arise from a long and
continuous user of the right claimed (h). A total deprivation
of air would, however, under certain circumstances, amount
to a nuisance, and as such would be restrained, and in the
cases cited below injunctions were granted to prevent and

(e) Flight v. Thomas, 11 A. & E. (g) Colls v. Home & Colonial

688, affirmed 8 01. & P. 231. See Stores, [1904] A. C. 179: 73 L. J.

Eaton V. Swansea Waterworks Co., Oh. 484.

17 Q. B. 267. (h) Webb v. Bird, 10 0. B. N. S.

(/) Per Ld. Oranworth, Tapling 268: 13 Id. 841.
V. Jones, 11 H. L. Oas. 311.

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PEOPBKTY— ITS EIGHTS AND LIABILITIES. 305

remove obstructions which impeded the ventilation of the
plaintiffs premises (i).

To the instances already given, showing that, according Liability for
to the maxim, sic iitere tuo ut alienum non leedas, a person
is held liable at law for the consequences of his negligence,
may be added the following: — It has been held, that an
action lies against a party for so negligently constructing a
hay-rick on the extremity of his land, that, in consequence
of its spontaneous ignition, his neighbour's house was
burnt down (j). So, the owners of a canal, taking tolls for
the navigation, are, by the common law, bound to use
reasonable care in making the navigation secure, and are
responsible for the breach of such duty, upon a similar
principle to that which makes a shopkeeper, who invites (k)
the public to his shop, liable for neglect in leaving a trap-
door open without any protection, by which his customers
suffer injury (Z). The trustees of docks are likewise answer-
able for their negligence and breach of duty causing
damage (m).

The law also, through regard to the safety of the com- Dangerous

, . . ., . , T instruments.

munity, requires that persons having in their custody

instruments of danger, should keep them with the utmost

care (n). Accordingly, where the defendant sent a young

(i) Gale V. Abbot, 8 Jur. (N. S.) B. Co., 3 H. & G. 534; Holmes v.

987 ; DentY. Auction Mart Co.,!!. E. N. E. E. Co., L. B. 4 Ex. 254 ; Limt

2 Eq. 238. V. L. & N. W. B. Co., L. B. 1 Q. B.

( / ) Vaughan v. Menlove, 3 Bing. 277, 286.

N. 0. 468 ; Turberville v. Stampe, {I) Parnaby v. Lancaster Canal

Ld. Raym. 264; S. C, 1 Salk. 13; Co., 11 A, & E. 233, 243; Birkett

Jones V. Festiniog B. Co., 37 L. J. v. Whitehaven Junction B. Co., 4

Q. B. 214: L. B. B Q. B. 783. As H. &N. 780; Chapman v. Bothwell,

to liability for fire, caused by negli- E. B. & E. 168 ; Bayley v. Wolver-

genoe, see further, Filliter v. Phip- hampton Waterworks.Co., 6 H. & N.

pard, 11 Q. B. 347 ; per Tindal, C.J., 241.

Boss V. Hill, 2 0. B. 889, and 3 0. B. (m) Mersey Docks Trustees v.

241 ; Smith v. Frampton, 1 Ld. Oibbs, L. R. 1 H. L. 98.

Raym. 62 ; Vise. CoMterbv/ry v. (n) " The law of England, in its

A.-G., 1 Phill. 306 ; Sm/ith v. L. d care for human life, requires con.

S. W. B. Co., L. R. 5 0. P. 98. summate caution in the person who

(k) See Nicholson v. Lane. & Y. deals with dangerous weapons; "per

L.:

20

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306 PEOPBRTY ITS EIGHTS AND LIABILITIES.

girl to fetch his loaded gun, and the girl, having got the
gun, pointed it at a child and drew the trigger, in the
mistaken belief that the priming had been removed : it was
held that the defendant was liable for the injuries the child
sustained through the gun going off (o). "If," observed
Lord Denman in a subsequent case, "I am guilty of
negligence in leaving anything dangerous in a place where
I know it to be extremely probable that some other person
will unjustifiably set it in motion, to the injury of a third,
and if that injury should be brought about, I presume that
the sufferer might have redress by action against both or
either of the two, but unquestionably against the first " (p).
This principle has been applied in later cases to the sale of
dangerous articles, and it has been laid down that a person
who sells a dangerous article, knowing that it is dangerous
and that the purchaser is or may be unaware of its dangerous
character, is bound to give warning of the danger to the
purchaser, and is liable for the consequences of his failure to
give it. (g).
Mischievous Although the owner of an animal which is fera yiatura has
the right to keep it, yet he keeps it at his peril, and if the
animal does an injury to any person, the owner is answer-
able for the injury, unless the person injured brought it
upon himself. In this respect there is no distinction between
an animal which is ferce natures, and an animal which,

Erie, C.J., Potter v. Faulkner, 1 B. Caswell v. Worth, 5 E. & B. 849 I

& S. 805. Bylands v. Fletcher, L. E. Englehart v. Farrant, [1897] 1 Q. B.

3 H. L. 330, also exemplifies the 240 ; McDowall v. G. W. E., [1903]

text. 2 K. B. 331 : 72 L. J. K. B. 652 ;

(o) Dixon V. Bell, 5 M. & S. 198 ; Dominion Natural Gas Co. v.

17 R. B. 308 ; Sullivan v. Creed, Collins, [1909] A. 0. 640 : 79 L. J.

[1904] 2 Ir. E. 317 ; see also Clark P. C. 13 ; Cooke v. Midland G. W.

V. Chambers, 3 Q. B. D. 327. JR., [1909] A. C. 229 : 78 L. J. P. c!

(p) Lynch v. Nurdin, 1 Q. B. 29, 76.

35, with which of. Ma/ngan v. Alter- (q) Clarke v. Army d Navy

ton, L. B. 1 Ex. 239 ; Lygo v. New- Stores, [1903] 1 K. B. 155 : 72 L J

bold, 9 Exeh. 302; G. N. B, Co. v. K. B. 153. See also George v. SMv-

Harrison, 10 Exch. 376 ; Austin v. ington, L. R. 5 Ex 1
G. W. E. Co., L. R. 2 Q. B. 442;

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PROPERTY— ITS RIGHTS AND LIABILITIES. 307

though it belong to a class of animals considered to be
mansueUc naturce, is in fact dangerous, and is known by its
owner to be such (r). Whoever keeps an animal accustomed
to attack or bite mankind, with knowledge that it is so
accustomed, is prima facie liable to any person attacked or
bitten by it, and the gist of an action for the injury is the
keeping the animal with knowledge of its mischievous
propensity (s). An owner of an animal known to be savage
is not, however, liable for injuries inflicted on persons
trespassing on enclosed land in which the animal is kept (t).
To render the owner of a dog liable for its biting the
plaintiff, it is sufficient to prove his knowledge that it had
previously attempted to bite another person, but his know-
ledge that it had bitten some other animal is generally not
enough (»)■ As a rule, the owner of a dog is only liable for
the particular vice which he knew that it had (r) ; but, by
statute, he is now liable, without proof of scienter, for injury
done by his dog to cattle, including horses, sheep, and
swine (x).

The owner of animals mansuetce naturce, such as oxen,
horses, sheep, and pigs, is, as a general rule, bound to
prevent their straying upon his neighbour's land, and
if they so stray, he is liable for all the ordinary con-
sequences of the trespass ; the question whether the
trespass was due to his negligence being, generally, imma-
terial iy). To this rule there is an exception, necessary

(>•) FUburnv. People's Palace Co., 1; Osborne v. Choeqtieel, [1896] 2

25 Q. B. D. 258 : 59 L. J. Q. B. 471 ; Q. B. 109 : 65 L. J. Q. B. 534.

Jackson v. Smithson, 15 M. & W. 563, {v) See Read v. Edwards, 17 C. B.

565 ; Brady v. Warren, [1900] 2 Ir. N. S. 245 : 34 L. J. C. P. 31 ; cf .

jlep_ 632. Coolte v. Waring, 2 H. & C. 332 : 32

(s) May V. Burdett, 9 Q. B. 101 ; L. J. Ex. 262.

Hiidsonr. Roberts, 6 'Ex. 679 ■,Bal{er (x) Dogs Act, 1906 (6 Edw. 7,

V. Snell, [1908] 2 K. B. 825 : 77 L. J. c. 32), ss. 1, 7.

K. B. 1090. (y) Coa v. Burbidge, 13 C. B.

\t) Loiuery v. Walker, [1909] 2 N. S. 480, 438 : 32 L. J. C. P. 89 ;

K. B. 483 : 78 L. J. K. B. 874. Ellis v. Loftus Iron Co., L. E. 10

\u) Worth V. Gillimg, L. B. 2 C. P. 0. P. 10 : 44 L, J. C. P. 24 ; Lee v.

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308 PROPERTY — ITS RIGHTS AND LIABILITIES.

for the conduct of the common affairs of life, in cases
where such an animal, in the course of being lawfully
driven along a highway, strays upon adjoining premises,
The defendant's ox, while being driven through the street,
entered the plaintiff's shop through the open doorway, and
damaged his goods. In the absence of proof of negligence
on the drover's part, it was held that the defendant was
not liable, on the ground that owners of property adjacent
to a highway hold it subject to risk of injury from accidents
not caused by negligence (z). It seems too that the owner
of domestic animals is not liable for the damage they cause,
while straying on a highway, to a person using the highway,
who is not the owner of the soil (a).

The above instances (which might easily be extended
through a much greater space than it has been thought
desirable to occupy), will, it is hoped, suffice to give a
general view of the manner in which the maxim, sic titere
tuo ut alienum non Icedas, is applied in our law to restrict
the enjoyment of property, and to regulate in some
measure the conduct of individuals, by enforcing com-
pensation for injuries wrongfully occasioned by a violation
of the principle which it involves, a principle which is
obviously based in justice, and essential to the peace, order,
and well-being of the community. As deducible from the
cases cited in the preceding pages, and from others to be
found in our Reports, the following propositions may, it is
conceived, be stated : —

1. It is, pi'i'nia facie, competent to any man to enjoy
and deal with his own property as he chooses.

2. He must, however, so enjoy and use it as not to affect
injuriously the rights of others.

BiUy, 18 C. B. N. S. 722 : 34 L. J. 17 : 52 L. 3. Q. B. 61.
0. P. 212; seeSwjiefojiv. mZKam- (a) Per Bray, J., Hadwell v

son, 7 H. & N. 410 : 31 L. J. Ex. BigMon, [1907] 2 K B 345 346 •

287; Dixmy. O. W. B. Co.. [1897] 76 L. J. K. B. 891; Biggins v'

1 Q. B. 300 I 66 L. J. Q. B. 132. SearU, 100 L. T. 280.
(z) Tillett V. Ward, 10 Q. B. D,

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PROPBKTY— ITS BIGHTS AND LIABILITIES. 309

3. Where rights are such as, if exercised, to conflict
with each other, we must consider whether the exercise of
the right claimed by either party be not restrained by the
existence of some duty imposed on him towards the other.
Whether such duty be or be not imposed must be deter-
mined by reference to abstract rules and principles of law.

4. A man cannot by his tortious act impose a duty on
another.

5. But, lastly, a wrongdoer is not necessarily, by reason
of his being such, disentitled to redress by action, as
against the party who causes him damage, for sometimes
the maxim holds that injuria non excusat injuiiam (&) .

CUJUS EST SOLUJI EJUS EST USQUE AD CcELUM. (Co. Litt.

4 a.) — He who possesses land j^ossesses also that which
is above it (c).

Land, in its legal signification, has an indefinite extent Signifloation
upwards, so that, by a conveyance of land, all buildings; "land."
growing timber, and water, erected and being thereupon,
likewise pass {d). So, if a man eject another from land,
and afterwards build upon it, the building belongs to the
owner of the ground on which it is built, according to the
principle cedificatum solo solo cedit (e), which we shall
presently consider.

From the maxim cvji(,s est solumejus est usque ad caelum, injury caused
it follows that a person has no right to erect a building on building""'^
his own land which interferes with the due enjoyment of
adjoining premises, and occasions damage thereto, either
by overhanging them, or by the flow of water from the

(6) This maxim is also sometimes L. B. 4 Q. B. 602.

applicable where the action is (c) A maxim of general applioa-

founded upon contract. Qee (ex.gr.) tion.jper Grove, J., Beg. v. Keyn, 2

Alston V. Herring, 11 Exoh. 822, Ex. D. 116.

830 ; Hilton v. Eckersley, 6 E. & B. (d) Co. Litt. 4 a : 9 Kep. 54 ;

76 ; with which ace. Hornby v. Close, Allaway v. Wagstaff, 4 H. & N. 307.

L. R. 2 Q. B. 153 ; Farrer v. Close, (e) Post, p. 314.

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310

PROPERTY — ITS EIGHTS AND LIABILITIES.

Injury to
reversion.

Injury by

overhanging

trees.

roof and eaves upon them, unless, indeed, a legal right so
to build has been conceded by grant, or may be presumed
by user and by operation of the 2 & 3 Will. 4, c. 71.

Where the declaration alleged that the defendant had
erected a house upon his freehold, so as to project over
the plaintiffs' house ad mciimentum liberi tenementi ipsorum,
but did not assign any special nuisance, the Court held the
declaration good, because the erection must evidently have
been a nuisance productive of legal damage (/) ; and it has
been held that the erection of a cornice projecting over
another's garden is a nuisance, from which the law will
infer injury, and for which, therefore, an action will
lie ig).

With respect to the nature of the remedy for an injury
of this kind, not only will an action he at suit of the
occupier, but the reversioner may also sue where injury
is done to the reversion ; provided such injury be of a
permanent character (/(), or prejudicially affect the rever-
sionary interest (i). It is well settled, that a man may be
guilty of a nuisance as well in continuing as in erecting a
building on the land of another (fc).

If a landowner allows the branches of his trees to
overhang his boundary, his neighbour has a right of

(/) Baten's case, 9 Bep. 53. See
also Pcnruddock's case, 5 Bep. 100.

(g) Fay v. Prentice, 1 G. B. 828 ;
per Pollock, C.B., Solomon v. Vint-
ners' Co., 4 H. & N. 600.

{h) Simpson v. Savage, 1 0. B.
N. S. 347, where the cases are col-
lected. See particularly Mumford
V. Oxford, &c., B. Co., 1 H. & N. 34 ;
BattisMU V. Beed, 18 0. B. 696 ; Cox
V. Glue, 5 C. B. 538; Tucker v.
Newman, 11 A. & E. 40; Jachsony.
I'esked, 1 M. & S. 234 ; 14 E. B. 417 ;
Kidgill v. Moor, 9 0. B. 364 ; Belly.
Midland B. Co., 10 C. B. N. S. 287.

As to the distinction between in-
jvuriea to realty of a permanent and

of a merely temporary kind, see also
Hammersmith <& City B. Co. v.
Brand, L. B. 4 H. L. 171 ; Bichet v.
Metr. B. Co., L. E. 2 H. L. 175.

Case will lie by the reversioner for
a permanent injury to a chattel let
out on hire, Mears v. L. <& S. W. B.
Co., 11 C. B. N. S. 850.

(i) Metr. Association v. Fetch, 5
C. B. N. S. 504 ; Nott v. Shoolbred,
L. B. 20 Eq. 22 ; Cooper y. Crabtrec,
20 Ch. D. 589 : 51 L. J. Ch. 544.

{k) BattisMU v. Beed, 18 C. B.
713; citing Holmes v. Wilson, 10
A. & E. 508; Thompson y. Qibson,
7 M. & W. 456; Boioyer v. Cook,
4 C. B. 236.

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PROPERTY — ITS RIGHTS AND LIABILITIES. 311

action for actual damage caused thereby ; and the neighbour
is entitled to cut the branches back, whether or not they
cause damage ; but it is doubtful whether, in the absence
of actual damage, an action lies(0. In an action of Action for
trespass for nailing a board on the defendant's own wall, so
as to overhang the plaintiff's garden, the maxim ciijus est
solum ejus est usque ad cvelum was cited in support of the
form of action, but Lord Ellenborough {m) observed that he
did not think it was a trespass to interfere with the column
of air superincumbent on the close : that, if it was, then an
aeronaut was Hable to an action of trespass by the occupier
of every field over which his balloon might pass ; since the
question, whether the action was maintainable, could not
depend upon the length of time for which the superin-
cumbent air was invaded : and that, if any damage arose
from the board overhanging the close, the remedy was
by action on the case, and not by action of trespass {n).

It must be observed, moreover, that the maxim under
consideration is not a presumption of law applicable in
all cases and under all circumstances ; for example, it
does not apply to chambers in the inns of court (o) ; for
" a man may have an inheritance in an upper chamber,
though the lower buildings and soil be in another " (p).

Not only has land in its legal signification an indefinite Land extends
extent upwards, but in law it extends also downwards, so well as
that whatever is in a direct line between the surface and "^^^"^ ^'
the centre of the earth belongs to the owner of the surface ;
and hence the word "land," which is 7iomen generalissimum,
includes, not only the face of the earth, but everything

(i) Smith V. Giddy, [1904] 2 K. B. & S. 249, 252.

448 : 73 L. J. K. B. 894 ; Lemmonv. (re) See Reynolds v. Clarke, 2 Ld.

Webb, [1895] A. 0. 1 ; 64 L. J. Ch. Baym. 1899 ; Fay v. Prentice, 1

205. C. B. 828 ; Cwbeft v. Hill, L. E. 9

(m) Pickering v. Eudd, 4 Camp. Eq. 671.

219; 16 R. E. 777; per Shadwell, (o) Per Maule, J., 1 C. B. 840.

V.-C, Saunders v. Smith, ed. by (p) Co. Litt. 48 b.
Crawford, 20 ; Kenyan v Hart, 6 B.

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312

PBOPEETY — ITS EIGHTS AND LIABILITIES.

Separate
property in
surface and
minerals.

under it or over it ; and if a man grants all his lands, he
grants thereby all his mines, woods, waters, and houses,
as well as his ; fields and meadows (q). Where, however, a
demise was made of premises late in the occupation of A.
(particularly described), part of which was a yard, it was
held, that a cellar, situate under the yard, and late in the
occupation of B., did not pass ; for though jJrimd facie it
would pass, yet that might be regulated and explained by
circumstances (/•).

The maxim, then, above cited, gives to the owner of
the soil all that lies beneath its surface. Whether, there-
fore, it be solid rock, or porous grorand, or venous earth, or
part soil and part water, the owner of the surface may dig
therein, and apply all that is there found to his own
purposes, at his free will and pleasure (s) ; although, as
already stated, he may incur liabihty by so digging at the
extremity and under the surface of own land as to
occasion damage to his neighbour's ancient house {t).

But, although the general rule, which obtains in the
absence of any express agreement between the parties
interested in land, is as above stated, and although it is a
presumption of law that the owner of the freehold has a
right to the minerals underneath, yet this presumption
may be rebutted by showing a distinct title to the surface,
and to that which is beneath; for mines may form a
distinct possession and different inheritance : and it
frequently happens that a person, being entitled both to
the mines and to the land above, grants away the land,
excepting out of the grant the mines, which would otherwise
have passed thereby, and also reserving to himself power
to enter upon the surface of the land granted away, in

(2) 2 Blac. Com. 18.

(r) Doe V. Burt, 1 T. E. 701 ; 1
E. E. 367. See Denison v. HoUiday,
1 H. & N. 631; and the maxim,
cuicungue alig;uis quid concedit, con-

cedere videtur et id sine qiio res
ipsa esse nonpotuit ; infra, p. 367.

(s) Judgm., 12 M. & W. 324, 354.

(0 1 Orabb, Eeal Prop., p. 93.

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PBOPBETY— ITS EIGHTS AND LIABILITIES. 813

order to do all acts necessary for the purpose of getting the
minerals excepted out of the grant, compensation being
made to the grantee for the exercise of the power. In this
case one person has the land above, the other has the
mines below, with the power of getting the minerals ; and
the rule is, according to the maxim sic utere tuo ut alienum
lion Icedas, already considered, that each shall so use his
own right of property as not to injure his neighbour ; and,
therefore, the grantor will be entitled to such mines only
as he can work, leaving a proper support to the surface. And -
here we may observe, that if a man excepts out of a grant
all mines and minerals, he excepts also the right of doing
all things necessary for the purpose of obtaining the mines
and minerals so excepted (u), as, for example, the right of
going upon the land and making shafts and erecting
engines.

If there be a grant of an upper room in a house with a
reservation of a lower room to the grantor, he undertaking
not to do anything which will derogate from the right to
occupy the upper room ; in this case, if the grantor were to
remove the supports of the upper room, he would be Uable
in an action of covenant (x).

It may be noticed, in conclusion, that the maxim under
consideration does not apply in favour of local authorities,
in whom streets are vested by virtue of the Public Health
Act, 1875, s. 149, or any similar enactment. Such enact-
ments vest in the authority such property only as is
necessary for the control, protection and maintenance of the
streets as highways for public use, and confer no general
proprietary rights in the air above or the ground below the
streets {y).

{u) Earl of Cardigan v. Armitage, (y) Ttmbridge Wells v. Baird,

2 B. & C. 197 ; Clark v. Cogge, Oro. [1896] A. C. 434 : 65 L. J. Q. B.

Jao. 170; Sayles v. Pease, [1899] 451; Wo/iidsworth v. United Tele-

1 Oh. 567 : 68 L. J. Oh. 222. phone Co., 13 Q. B. D. 904.

(x) 5 M. & W. 71, 76.

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314 PKOPERTY— ITS EIGHTS AND LIABILITIES.

QUICQUID PLANTATUE SoLO SOLO CEDIT. (WcntlV. Of. Ex.,

Uth ed. 14:5.)— Whatever is affixed to the soil belongs
thereto.
It may be stated, as a general rule of great antiquity, that,
whatever is affixed (z) to the soil becomes, in contemplation
of law, a part of it, and is subjected to the same rights of
property as the soil itself. In the Institutes of the Civil
Law it is laid down, that if a man build on his own land
with the materials of another, the owner of the soil becomes,
in law, the owner also of the building : quia omne quod solo
incedificatur solo credit (b) . In this case, indeed, the property
in the materials used still continued in the original owner ;
and although, by a law of the XII. Tables, the object of
which was to prevent the destruction of buildings, he was
unable, unless the building were taken down, to reclaim the
materials in specie, he was, nevertheless, entitled to recover
double their value as compensation by the action de tigno
jiiHcto (b). On the other hand, if a person built, with his
own materials, on the land of another, the house likewise
belonged to the owner of the soil ; for in this case, the
builder was presumed intentionally to have transferred his
property in the materials to such owner (c). In like manner,
if trees were planted or seed sown in the land of another,
the owner of the soil became owner also of the tree, the
plant, or the seed, as soon as it had taken root(rf). And
this latter proposition is fully adopted, almost in the words
of the civil law, by our own law writers — Britton, Bracton,
and the author of Fleta (e). By Roman law, indeed, where
buildings were erected upon, or improvements made to
property, by the party in possession, bona fide and without

{z) "In several of the old books (6) I. 2, 1, 29: D. 47, 3, 1.

the woxdLfixatur is used as synony- (c) I. 2, 1, 30.

mous with plantatur " in this {d) I. 2, 1, 31 & 32 : D. 41, 1, 7, 13.

maxim; Judgm., L. K. 3 Ex. 260. (e) Britton (by Wingate), o. 33,

As to buried chattels, see 33 Ch. D. 180; Bracton, c. 3, ss. 4, 6; Pleta,

566, 567. lib. 3, o. 2, s. 12.

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PKOPEKTY— ITS lUGHTS AND LIABILITIES. 315

notice of any adverse title, compensation was, it seems,
allowed for such buildings and improvements to the party
making them, as against the rightful owner (/) ; and
although this principle is not recognised by our own common
law, nor to its full extent by Courts of equity, yet, where a
man, supposing that he has an absolute title to an estate,
builds upon the land with the knowledge of the rightful
owner, who stands by, and suffers the erection to proceed,
without giving any notice of his own claim, he will be
compelled, by a Court of equity, in a suit brought for
recovery of the land, to make due compensation for such
improvements (g). " As to the equity arising from valuable
and lasting improvements, I do not consider," remarked
Lord Chancellor Clare Qi), " that a man who is conscious of
a defect in his title, and with that conviction on his mind
expends a sum of money in improvements, is entitled to
avail himself of it. If the person really entitled to the
estate will encourage the possessor of it to expend his money
iu improvements, or if he will look on and suffer such
expenditure without apprising the party of his intention to
dispute his title, and will afterwards endeavour to avail
himself of such fraud — upon the ground of fraud the
jurisdiction of a Court of equity will clearly attach upon
the case."

Having thus touched upon the general doctrine, that
what has been affixed to the freehold becomes a portion of
it, we shall consider how the maxim, quicqidd plantatur solo
solo cedit, applies to : 1st, trees ; 2ndly, emblements ; 3rdly,
away -going crops ; and, 4thly, fixtures ; — treating these

(/) Sed guamvis CBdAflcium fwido (g) 1 Story, Eq. Jurisp., 12th ed.,

cedat, fundi tamen dominus condem- s. 388 : 2 Id., s. 1237 ; Eamsden v.

nari solet ut eum duntaxat recijpiat, Dyson, L. B. 1 H. L. 129.

reddito sumpki quo pretiosior foetus (h) Kenney v. Browne, 3 Bidgw.,

est, aut super fundo atgue cedificio Par. Cas. 462, 519 ; cited, Arg.,

pensio imponatur ex meUorationis Austin v. Chambers, 6 CI. & F. 31.

CBstvmationesimaluerit: Gothofred. See, per Ld. Brougham, Perrott v.

ad I. 2, 1. 30. Palmer, 3 My. & K. 640.

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316 PROPERTY — ITS RIGHTS AND LIABILITIES.

important subjects with brevity, and merely endeavouring
to give a concise outline of the law respecting each.

Who may cut 1. A tree, whether alive or de^d, so long as it is attached
to the soil, is realty : by severance from the soil it becomes
personalty (i). Trees are divisible into two classes, timber
trees and trees which do not bear timber. By the general
law oak, ash and elm are timber, if they be of the age of
twenty years or more and contain a reasonable quantity of
useable wood ; whereas other trees are not timber except by
special local custom (k). As a rule, timber is part of the
inheritance, and may not be felled by a tenant for life or
years, impeachable for waste ; but an exception to this rule
has been established in the case of " timber estates,"
cultivated merely for the produce of saleable timber and
where the timber is cut periodically in due course (/).
Moreover, a tenant, who is answerable for waste only, may
fell timber of suitable wood, as well as other trees, for the
purpose of making therewith necessary repairs to the
premises, the decay not being due to his own default (m).

Who may cut Trees which are not timber may, as a rule, be cut by
a tenant for life or years impeachable for waste ; but he may
not cut down trees planted for ornament, or protection of a
house or bank, nor may he change the nature of the premises,
as by stubbing up a wood or a hedge, or stools of underwood,
for such acts, being prejudicial to the inheritance, are acts
of waste; and he may not cut trees destined to become
timber, except for the purpose of allowing the growth of
other timber in a proper manner {n).

(i) Be AinsUe, 30 Oh. D. 485 ; Be (m) Co. Litt. 41 b, 53 a, b, 54 b ;

LlewelUn, 37 Ch. T>. 824. Simmons v. Norton, 7 Bing. 640 ;

(k) Honywood v. Honywood, L. R. 33 R. R. 588 ; Sowerby v. Fryer,

18 Eq. 309; see Cm. Dig., 4th ed. L. R. 7 Eq. 417.

116 (7). (n) Ld. D'Arcy v. Ashwith, Hob.

(I) Dashwood v. Magniac, [1891] 3 234 ; PhilUpps v. Smith, 14 M. & W.

Ch. 306 : 60 L. J. Ch. 809, where 589 ; Honywood v. Honywood, L. R.

much of the law relating to timber 18 Eq. 310. See Bagot v. Bagot, 32

is collected. Beav. 509 : 33 L. J. Ch. 116.

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PROPERTY— ITS RIGHTS AND LIABILITIES. 317

A tenant for life or years, " without impeachment of Tenant with-
waste," is entitled to cut down all the ordinary timber, as ment°rf^^°
well as other trees, upon the estate; but it has long been ^^^*^'
established that equity will restrain him from committing
who is called " equitable waste," as by felling timber
planted or left standing for the shelter or ornament of the
mansion house or grounds (o).

An ordinary tenant in tail may fell timber at his pleasure ; Tenant in

but if standing woods be sold by him and these be not felled

during his life, the property therein descends with the

estate and the buyer cannot cut them (p). A tenant in tail,

after possibiUty of issue extinct, may cut timber ; but his

position differs from that of an ordinary tenant in taU, for

he may be restrained from equitable waste (g).

The Settled Land Act, 1882 (r), provides that where a Settled Land

Act.
tenant for life is impeachable for waste in respect of timber,

and there is timber ripe and fit for cutting, he may, on
obtaining the consent of the trustees of the settlement, or
an order of the Court, cut and sell that timber. Three-
fourths of the net proceeds become capital money, and the
residue goes as rents and profits.

Apart from " timber estates," and from cases where timber Property in
'^ _ , severed trees,

is cut pursuant to statute, the general rule is that timber,

severed during the possession of a tenant for life or years

who is impeachable for waste, belongs to the person entitled

to the first vested estate of inheritance in fee or in tail (s) ;

and this rule holds, although there be intermediate

interests (f). Equity, however, will interfere to protect such

(o) Packmgton's case, 3 Atk. 215 ; Marlborough, 3 Madd. 538 ; 18 R. R.

Marquis of Downshire v. Lady 273.

Sandys, 6 Ves. 107 ; Baker v. (r) 45 & 46 Vict. o. 88, s. 35.

Sebright, 13 Ch. D. 179. (s) 11 Rep. 81 h ; Bewick v. Whit-

{p) 11 Rep. 50 a; CholmeUy v. field, 3 P. Wms. 268; Honywoodv.

Paxton, 3 Ring. 211 ; 28 R. R. 619 ; Bonywood, L. R. 18 Eq. 311.

S. 0., Cockerellv. ChoVmeley, 10 B. (t) Pigot v. Bullock, 1 Ves. 479,

& 0. 564. 4:84 ; 2 R. R. 148 ; Be Barrington,

(q) Williams v, WilUams, 15 Ves. 33 Oh. D. 527.
427 : 12 East, 209 ; A.-G. v. Duke of

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818 PROPBBTY — ITS RIGHTS AND LIABILITIES.

interests, and will prevent the tenant from deriving benefit
from his wrongful act, if the owner of the first vested estate
of inheritance collude with the tenant to induce him to cut
down timber (li). If the tenant in possession be without
impeachment of waste, the property in the timber, when
severed, generally vests in him (x). The property in trees
not being timber generally vests, upon their severance, in
the tenant in possession (y).
Emblements. 2. Emblements comprise not only corn sown, but roots
planted, and other annual artificial profits of the land (z) ; and
these, in certain cases, are distinct from the realty, and subject
to many of the incidents attending personal property. The
rule at common law, and irrespective of the statute noticed
below (a) is, that those only are entitled to emblements who
have an uncertain estate or interest in land, which is deter-
mined by the act of God, or of the law, between the sowing
and the severance of the crop (&). Where, however, the
tenancy is determined by the tenant's own act, as by for-
feiture for waste, or by the marriage of a tenant durante
riduitate, the tenant is not entitled to emblements ; for the
principle on which the law gives emblements is, that the
tenant may be encouraged to cultivate by being sure of
receiving the fruit of his labour, notwithstanding the deter-
mination of his estate by some unforeseen and unavoidable
event (c). By this rule, however, the tenant is not entitled
to all the fruits of his labour, or such right might be extended
to things of a more permanent nature, such as trees, or to
more crops than one, since the cultivator often looks for a
compensation for his capital and labour in the produce of
successive years ; but the principle is limited to this extent,

(u) L. R. 18 Eq. 311 : 28 Ch. D. Patch, 5 B. & C. 897 ; Berriman v.

228 ; see Seagram v. Knight, L. R. Peacock, 9 Bing. 384 ; 85 R. E. 568.

2 Ch. 628 ; Lowndes v. Norton, 6 (z) Com. Dig., " Biens " (G 1)

Ch. D. 139. (a) Post, p. 321.

(x) Pyne v. Dor, 1 T. R. 55 ; see (b) Co. Litt. 55 a.

83 Ch. D. 527. (c) Com. Dig., " Biens " (G. 2)

(y) L. E. 18 Eq. 311 ; Channony. '

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PEOPEKTY — ITS RIGHTS AND LIABILITIES. 319

that he is entitled to one crop of that species only which
ordinarily repays the labour by which it is produced within
the year in which that labour is bestowed, though the crop
may, in extraordinary seasons, be delayed beyond that
period (d).

If, then, a tenant for life, or pur autre vie, sow the land. Tenant for
and die before harvest, his executors shall have the emble- ^' ®'
ments or profits of the crop ; and if a tenant for life sow the
land, and afterwards grant over his estate, and the grantee
die before the corn is severed, it shall go to the tenant for life,
and not to the grantee's executor ; whereas, if a man sow
land, and let it for life, and the lessee for life die before
the corn is severed, the reversioner, and not the lessee's
executor, shall have the emblements, although, if the lessee
himself had sown, it would have been otherwise (e).

Further, the tenants or under-tenants of tenant for life
will be entitled to emblements, in cases where tenant for
life shall not have them, viz., where the life estate deter-
mines by the act of the tenant for life. Thus, where a
woman holds durante vidititate, her marriage is her own act,
and therefore deprives her of the emblements : but if she
lease her estate to a tenant, who sows the land, and she
then marries, this act shall not deprive her tenant of his
emblements ; for he is a stranger and could not prevent
her (/). All these cases evidently involve the application of
the general principle above stated.

So, the parochial clergy are tenants for their own lives, parson.
and emblements are expressly given to them by 28 Hen. 8,
c. 11, s. 6, with a power enabling the parson to dispose of
the corn by will ; but, if the estate is determined by the act
of the parson himself, as by his resigning his living, then

(d) Graves v. Weld, 5 B. & Ad. emblements, being " such things as

117, 118; 39 R. B. 419; citing grow by tbe manurance and industry

Kingsbury v. Collins, i Bing. 202; of the owner."

29 R. B. 534. In Latham v. Atwood, (e) Arg., Knevett v. Pool, Cro. Eliz.

Cro. Car. 51S, hops growing from 464.

ancient roots were held to be Uke (/) Co, Litt. 55 b.

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320 PROPERTY ITS RIGHTS AND LIABILITIES.

according to the principle above stated, he will not be

entitled to emblements. The position, however, of the

lessee of the glebe, if the parson resign, is different ; for, his

tenancy being determined by another's act, he shall have the

emblements (g).

Tenant for A tenant for years, where the end of the term is cer-

tenant from tain, is not entitled to emblements (/O, but a tenant from

year to year. y^^^. ^^ ^^^^^ -^ ^-^^ lessor determine the tenancy, seems

to be entitled to emblements because he does not know
in what year his lessor may determine the tenancy by
notice to quit, and in that respect he has an uncertain
estate (i). If the tenancy depend upon an uncertainty, as
upon the death of the lessor, who is tenant for life or a
husband seised in right of his wife, or if the term be deter-
minable upon a life or lives, in these and similar cases, the
estate not being certainly to expire for a time foreknown, but
merely by the act of God, the tenant, or his representatives,
shall have the emblements in the same manner as a tenant
for life would be entitled to them (j), and if the lessee of
tenant for life be disseised, and the lessee of the disseisor
sow, and then the tenant for life dies, and the remainderman
enters, the latter shall not have the corn, but the lessee
of the tenant for life (k).

Where, however, a tenant for years, or from year to year,
himself determines the tenancy, as if he commit forfeiture,
the landlord shall have the emblements (l) ; and it is a
general rule that he shall take them when he enters for a
condition broken, because he enters by title paramount, and
is in as of his first estate (?n). Where a lease was granted
on condition, that, if the lessee should be sued for any
debt to judgment, followed by execution, the lessor should

(g) Bulwer v. Bulioer, 2 B. & Aid. 790—791.

470, 472 ; 21 E. R. 358. {k) Knevetty. Pool, Cro. Eliz. 463.

(h) Co. Litt. 56 a. {I) Co. Litt. 55 b.

(i) Kingsbury v. Collins, i Bing. (m) Per Bosanquet, J., 7 Bing.

207; 29 E. R. 534. 160; Com. Dig., •• Biens'' (G. 2);

(j) Woodf., L. & T., 16th ed. Co. Litt. 55 b.

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PROPERTY — ITS EIGHTS AND LIABILITIES. 321

re-euter as of his former estate, it was held that the lessor,
having re-entered after a judgment and execution, was
entitled to the emblements (n) .

Where a tenant of any farm or lands holds the same at a Tenant at
rack-rent, it is now provided by the Landlord and Tenant ^^ "''®'^''
Act, 1851 (o), that, instead of claiming emblements, he " shall
continue to hold and occupy such farm or lands until the
expiration of the then current year of his tenancy, and shall
then quit, upon the terms of his lease or holding, in the
same manner as if such lease or tenancy were then
determined by effluxion of time or other lawful means
dm-ing the continuance of his landlord's estate ; " and the
section further provides for an apportionment of the rent as
between the tenant and the succeeding owner. The Act
applies to any tenancy in respect of which there is a sub-
stantial claim to emblements (p).

It has been mentioned that emblements are subject to Heir, devisee,
many of the incidents attending personal property. Thus,
by the Distress for Eent Act (q), they may be distrained for
rent (r), they were forfeitable by outlawry in a personal
action, they were devisable before the Statute of Wills, and
at the death of the owner they vest in his executors and not
in his heir (s). So, where tenant in fee or in tail dies after
the corn has been sown, but before severance, it shall go to
his personal representatives and not to the heir (t). If, how-
ever, tenant in fee sows land, and then devises the land by
will and dies before severance, the devisee shall have the corn,
and not the devisor's executors («) ; and although it is not
easy to account for this distinction, which gives growing corn

(n) Davis v. Eyixm, 7 Bing. 154 ; (r) See also 56 Geo. 3, c. 50 ; Hutt

33 R. B. 408. V. Morrell, 11 Q. B. 425.

(o) 14 & 15 Viot. 0. 25, s. 1. (s) 2 Blao. Com. 404.

(p) Sainesv. Welch, Ij.B,.iG. P. (t) Com. Dig., " Biens" (G. 2);

91. See, also, as to the operation of Co. Litt. 55 b, n. (2), by Hargrave.
the kct, Ld. Stradbrokev.Mulcahy, (u) Anon., Oro. Eliz. 61; Co.

2 Ir. C. L. Rep. 406. Litt- 55 b, n. (2) ; Spencer's case,

(g) 11 Geo. 2, o. 19. Winch. 51.

L.M.

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21

322 PROPERTY — ITS RIGHTS AND LIABILITIES.

to the devisee, but denies it to the heir (v), it is clear law that
the growing crops pass to the devisee of the land, unless
expressly bequeathed to some one else (x). The remainder-
man for life shall also have the emblements sown by the
devisor in fee, in preference to the executor of the tenant for
life (y) ; and the legatee of goods, stock, and movables, is
entitled to growing corn in preference both to the devisee of
the land and the executor (z).

Tenant at In the case of strict tenancy at will, if the tenant sow his

^' ■ land, and the landlord, before the corn is ripe, or reaped,

put him out, the tenant shall have the emblements, since
he could not know when his landlord would determine his
will, and therefore could not provide against it ; but it is
otherwise if the tenant himself determine the will, for then
the landlord shall have the profits of the land (a).

Tenant under Tenants Under execution are entitled to emblements,
when, by some sudden and casual profit, arising between
seed-time and harvest, the tenancy is determined by the
judgment being satisfied (b). Again, if A. acknowledge a
statute or recognizance, and afterwards sow the land, and
the conusee extend the land, the conusee shall have the
emblements (c). Where judgment was given against a
person, and he then sowed the land and brought a writ of
error to reverse the judgment, but it was affirmed, it was
held that the recoveror should have the corn (d).

Away-going 3. An away-going crop may be defined to be the cron

sown during the last year of tenancy, but not ripe until
after its expiration. The right to this is usually vested in
the out-going tenant, either by the express terms of the
lease or contract, or by the usage or custom of the country ;

{v) See Oo. Litt. 55 b, n. (2) ; 8 E. R. 570 ; West v. Moore, 8 East

Gilb. Ev. 250. 839 ; 9 R. B. i60.

{x) Cooper v. Woolfitt, 2 H. & N. (a) Litt. s. 68 : Co. Litt. 55.

122, 127; citing Shepp. Touoh. (ed. (6) Woodf. L. & T., 16th ed. 791.

by Preston), 472. (c) 2 Leon. 54.

(y) Toll. Exors. 157. (d) Wichs v. Jordan, 2 Bulstr.

(a) Ooav, Godsatoe, 6 East, 604, n.; 213.

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PROPERTY — ITS RIGHTS AND LIABILITIES. 323

but in the absence of any contract or custom, and provided
the law of emblements does not apply, the landlord is
entitled to crops unsevered at the determination of the
tenancy, as being a portion of the realty, and by virtue of
the general maxim, quicquid plantatur solo solo ceclit ; and
this rule of the common law still obtains, except in so far
as it has been modified by statute (e).

The common law, it has been observed, does so little
to prescribe the relative duties of landlord and tenant, that
it is not surprising that the Courts have been favourably
inclined to the introduction of those regulations in the
mode of cultivation which custom and usage have estab-
lished in each district to be the most beneficial to all
parties (/). The rule, therefore, is, that evidence of
custom is receivable, although there be a written instru-
ment of demise, provided the incident which it is sought to
import into the contract be consistent with the terms of
such contract; but evidence of custom is inadmissible, if
inconsistent with the express or implied terms of the
instrument; and this rule applies to tenancies as well by
oral agreement as by deed or written contract (g).

In Wigglesu-orth v. DaUison (li), a leading case on this wiggleswarth
subject, the tenant was allowed an away-going crop,
although there was a formal lease under seal. The lease
was entirely silent concerning such a right; and Lord
Mansfield said that " the custom did not alter or contradict
the lease, but only added something to it."

In Hutton v. Warren (i), it was held that a custom, by Button v.

Warren .

(e) Asto the tenant's right, under H. & N. 216; Clarke v. Boystone,

modern statutes, to compensation 13 M. & W. 752.
for improvements, see the Agricul- {h) 1 Dougl. 201 ; afdrmed in

tural Holdings Act, 1908, 8 Edw. 7, error. Id. 207, n. (8). See Beavan v.

g 28. Delahay, 1 H. Bla. 5 ; 2 R. R. 696 ;

(/) Judgm., Hutton r. Warren, 1 recognised Griffiths v. Puleston, 13

M &W. 466. M. & W. 358, 360; Knight v.

(g) Wiggleswarth v. DaUison, 1 BewweW, 3 Bing. 361; 28 R.R. 640;

Dougl. 201 ; FavieU v. Gashoin, 7 WUte v. SoAjer, Palm. R. 211.
Exch. 273 ; Muncey v. Dennis, 1 (i) 1 M. & W. 466. Proof of the

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324

PKOPBRTY ITS BIGHTS AND LIABILITIES.

Tenant
holding
over.

Principle on
which right
depends.

Avhich the tenant, cultivating according to the course of
good husbandry, was entitled on quitting to receive from
the landlord or incoming tenant a reasonable allowance for
seeds and labour bestowed on the arable land in the' last
year of the tenancy, and was bound to leave the manure for
the landlord, if he would buy it, was not excluded by a
stipulation in the lease to consume three-fourths of the
hay and straw on the farm, and spread the manure arising
therefrom, and leave such of it as should not be so spread
on the land for the use of the landlord on receiving a
reasonable price for it.

Where a tenant continues to hold over after the expira-
tion of his lease, without coming to any fresh agreement
with his landlord, he must be taken to hold generally
under the terms of the lease (k), on which, therefore, the
admissibility of evidence of custom will depend (I).

The principle with respect to the right to an away-going
crop applies equally to a tenancy from year to year as to a
lease for a longer term (m) ; such custom, it has been
observed, is just, for he who sows ought to reap, and it is
for the encouragement of agriculture. It is, indeed, against
the general rule concerning emblements, which are not
allowed to tenants who know when their term is to cease,
because it is their fault or folly to sow when they know
their interest will expire before they can reap. But the
custom of a particular place may rectify what otherwise
would be imprudence (n). It may be observed, too, that
the question as to away-going crops under custom is quite

custom lies on the out-going tenant :
Caldecott v. Smythies, 7 C. & P. 808.

(k) See further as to this, Syatt
V. Griffiths, lY Q. B. 505 ; Thomas
V, Packer, 1 H. & N. 669.

{Vj Bm-aston v. Oreen, 16 East,
71; 14K. R.297; Boberts v. Barker,
1 Cr. & M. 808; 38 R. R. 733;
Griffiths V. Puleston, 13 M. & W.
358. See Kimpton v. Eve, 8 Yes. &

B, 349 ; 13 R. R. 116.

(to) Onslow V. , 16 Ves. jun.

173. See Thorpe v. Eyre, 1 A. & E.
926, where the custom was held not
to be available upon a tenancy
being determined by an award ; Ex
p. Handrail, 2 Mad. 815.

[n] Judgm., Wigglesworth v. Dal-
lison, 1 Dougl. 201 ; Dalbyv. Hirst,
1 B. & B. 224 ; 21 R. R. 577.

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PEOPEKTY — ITS EIGHTS AND LIABILITIES. 325

a different matter from emblements, which are by the
common law (o).

4. The doctrine as to fixtm'es peculiarly illustrates the Fixtures:—
maxim under consideration ; for the general rule, laid down remarks?^'^^
in the old books, is, that " whenever a tenant has affixed
anything to the demised premises during his term, he can
never again sever it without the consent of his land-
lord" (p). The old rule, observed Martin, B. (q), is, "that
if the tenant or the occupier of a house or land annex
anything to the freehold, neither he nor his representatives
can afterwards take it away, the maxim being, quicquid
plaiitatur solo solo cedit. But as society progressed, and
tenants for lives or for terms of years of houses, for the
more convenient or luxurious occupation of them, or for
the purposes of trade, affixed valuable articles to the free-
hold, the injustice of denying the tenant the right to
remove them at his pleasure, and of deeming such things
practically forfeited to the owner of the fee simply by the
mere act of annexation, became apparent to all ; and
there long ago sprung up a right, supported by the Courts
of law and equity, in the temporary owner or occupier
of real property, or his representative, to disannex
and remove certain articles, though annexed by him to
the freehold, and these articles have been denominated
Jixtures."

Questions respecting the right to what are ordinarily called
fixtures principally arise between three classes of persons ;
1st, between the heir and the personal representatives
of tenant in fee ; 2ndly, between the personal representa-
tives of tenant for life or in tail and the remainderman or
reversioner; 3rdly, between landlord and tenant. In the
first of these cases, the general rule obtains with the most
rigour in favour of the inheritance, and against the right

(o) Per Taunton, J., 1 A. & E. (,p) Amos & Fer. on Fixtures,

133 ; citing Com. Dig., " Biens " Snd ed. 19.
(G. 2). (2) 10 Exoh. 507, 508.

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326 PBOPBBTY — ITS EIGHTS AND LIABILITIES.

to disannex therefrom, and to treat as a personal chattel
anything which has been affixed thereto ; in the second
case, the claims of the personal representatives to fixtures
are considered more favourably; and, in the last case, the
greatest indulgence has been allowed in favour of the
tenant (r) ;— so that decisions, establishing the right of the
personal representatives to fixtures in the first or second
case, apply, a fortiori, to the third.
Meaning o£ It is here necessary to remark, that the term " fixtures "

is often used indiscriminately of articles which are not by
law removable when once attached to the freehold, and
of articles which are severable therefrom (s) . But, in its
correct sense, to constitute an article a fixture, i.e., part of
the realty, it must be actually annexed thereto ; and,
e converso, whatever is so annexed becomes part of the
realty, and the person, who was the owner of it when a
chattel, loses his property in it, which immediately vests
in the owner of the soil. It must be observed, however, that
the mere fact of physical attachment is not conclusive as to
whether an article is a fixture. Thus, even if a chattel is
actually affixed to the freehold it does not become part
thereof if the annexation is incomplete so that it can be
easily removed without damage to itself or the premises to

(r) Per Ld. EUenborough, Elwes to its convenient use, that even a

V. Maw, 3 East, 51 ; 6 E. K. 523 ; tenant could not remove them. An

per Abbott, C.J. ; Colegrave v. Dias example of this class of chattel may

Santos, 2 B. & G. 78. be found in doors or windows.

(s) Per Parke, B., Minshall v. Lastly, things may be annexed to
Lloyd, 2 M. & W. 459; Judgm., land for the purposes of trade, or of
L. R. 3 Ex. 260. " There is no domestic convenience or ornament,
doubt that sometimes things an- in so permanent a manner as really
nexed to land remain chattels as to form a part of the land, and yet
much after they have been annexed the tenant who has erected them is
as they were before. The case of entitled to remove them during his
pictures hung on a waU for the term, or it may be within a reason-
purpose of being more conveniently able time after its expiration."
seen, may be mentioned by way of Judgm., L. E. 4 Ex. 329 ; Long-
illustration. On the other hand bottom v. Beiry, L. E. 5 Q. B. 123,
things may be made so completely 139 ; per Blackburn, J., Beg. v. Lee,
a part of the land as being essential L. B. 1 Q. B. 258.

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PEOPEBTY — ITS KIGHIS AND LIABILITIES. 327

which it is attached, and the annexation is merely for a
temporary purpose and its more complete enjoyment and
use as a chattel (t). On the other hand articles placed in
a house with the object of improving the inheritance are
fixtures and become part of the freehold even though
they are not physically attached to the structure of the
house (((). Moreover, there are cases in which things which
are fixtures may be disannexed and carried away by some
person claiming property in them, as against the owner
of the freehold (a-).

The strictness of the rule under consideration was very Trade
early relaxed, as between landlord and tenant, in favour
of such fiLxtures as are partly or wholly essential to trade
or manufacture (y) ; and the same relaxation has, in several
cases, been extended to disputes between heir and executor.
In Elwcs v. Maw, which is a leading authority on fixtures,
Lord Ellenborough observed (z) that, in determining whether
a particular fixed instrument, machine, or even building,
should be considered as removable by the executor as
against the heir, the Court in three earlier cases (a) may
be considered as having decided mainly on this ground,
that where the fixed instrument, engine, or utensil, (and the
building covering it falls within the same principle), was
an accessory to a matter of a personal nature, it should be
itself considered as personalty. In two of these cases (6),
a fire-engine was considered as an accessory to the trade
of getting and vending coals — a matter of a personal
nature. In Lord Dvdley v. Lord Ward, Lord Hardwicke

(t) Lyon V. London City & Mid- Story, J., Van Ness v. Pacard, 2

land Bank, [1903] 2 K. B. 135: 72 Peters (U.S.), B. 143, 145.

L. J. K. B. 465 ; Leigh v. Tayhr, (2) 3 East, 38 ; 6 R. K. 523.

[1902] A. 0. 157 : 71 L. J. Ch. 272 ; (a) LawtonY. Lawton, 3 Atk. 13 ;

Hill V. Bullock, [1897] 2 Ch. 482 ; Ld. Dudley v. Ld. Ward, Amb. 113 ;

66 L. J. Ch. 705. and Lawton v. Salmon, 1 H. Bla.

(m) MmH V. Barnes, [1901] 1 259, n. ; 2 B. E. 764.

Q. B. 205 : 70 L. J. K. B. 225. (6) Lawton v. Lawton, 3 Atk. 13 ;

(x) 2 Smith's L. C, 11th ed. 209. Ld. Dudley v. Ld. Ward, Amb. 113.

(2/) Judgm., 3 East, 51, 52; per

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328 PROPERTY ITS EIGHTS AND LIABILITIES.

said, " A colliery is not only an enjoyment of the estate,
but in part carrying on a trade ; " and in Laivton v. Laxvton
he said, " One reason that weighs with me is its being a
mixed case, between enjoying the profits of the lands and
carrying on a species of trade ; and, considering it in this
light, it comes very near the instances in brewhouses, &c.,
of furnaces and coppers." Upon the same principle
Comyns, C.B., may be considered as having decided the
case of the cyder-mill (c), i.e., as a mixed case, between
enjoying the profits of the land and carrying on a trade,
and as considering the cyder-mill as properly an accessory
to the trade of making cyder. In the case of the salt-
pans {d), Lord Mansfield does not seem to have considered
them as accessory to the carrying on a trade, but as
merely the means of enjoying the benefit of the inheritance.
Upon this principle he considered them as belonging to
the heir as parcel of the inheritance, for the enjoyment of
which they were made, and not to the executor as the
instrument of carrying on a trade (e).

In a case before the House of Lords, it appeared that
the absolute owner of land, for the purpose of better using
and enjoying that land, had affixed to the freehold certain
machinery. It was held that, in the absence of any
disposition by him of this machinery it went to the heir
as part of the real estate ; and, further, that if the corpus
of the machinery passed to the heir, all that belonged to
such machinery, although more or less capable of being

(c) Cited in Lawton v. Lawton, 3 & F. 329 ; and see as to the cyder -

Atk. 13 ; but see Ld. Hardwicke's mil] case, per Wood, V.-C, Mather

observations on tbis case in Lawton v. Fraser, 2 K. & J. 536, reviewing

V. Salmon, 1 H. Bla. 259, n. ; 2 R. E. the prior authorities.

764 ; Ld. Dudley v. Ld. Ward, Amb. {d) Lawton v. Salmon, 1 H. Bla.

113 ; and in Ex p. Quincey, 3 Atk. 259, n. ; 2 E. R. 764.

477, and Bull., N. P. 34. It seems (e) Per Ld. Ellenborough, 3

that no rule of law can be extracted East, 54. See Winn v. Ingilby,

from a case of the particulars of 5 B. & Aid. 625 ; 24 E. E. 503 ; B.

which so little is known ; per Ld. v. St. Dunstan, 4 B. & C. 686, 691 ;

Cottenham, Fisher v. Dixon, 12 CI. Harvey v. Harvey, Stra. 1141.

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PKOPEETY — ITS RIGHTS AND LIABILITIES. 329

detached from it, aud of being used in such detached state,
also passed to him (/). On the other hand, an engine or
other article, though used for the purpose of trade, may be
so affixed to the premises as to become a fixture and, as
such, part of the freehold (g).

As between devisee and executor the rule is the same as Devisee and
that already considered, the devisee standing in place of
the heir as regards his right to fixtures ; for, if- a freehold
house be devised, fixtures pass (/t) ; but if tenant for life
or in tail devise fixtures, his devise is void, he having no
power to devise the realty to which they are incident. He
may, however, devise such fixtures as would pass to his
executor (i).

As between the heir and devisee, it may be considered Devisee and
as a rule, that the devisee is entitled to all articles which
are affixed to the land, whether the annexation took place
before or after the date of the devise, according to the
maxim, quod cedificatur in area, legatd cedit legato; and,
therefore, by a devise of a house, all personal chattels
annexed to the house and essential to its enjoyment pass
to the devise (k).

As between vendor and vendee, everything which forms Vendor and
part of the freehold passes by a sale and conveyance of
the freehold itself, if there be nothing to indicate a contrary

vendee.

(/) Fishery. Dixon, 12 CI. & F. Lee, [1908] 1 K. B. 86 : 77L. J.K.B.

312. In this case the exception in 199 ; Provincial Bill Posting Co. v.

favour of trade was held not appli- Low Moor Iron Co., [1909] 2 K. B.

cable ; the judgments delivered con- 34.4 : 78 L. J. K. B. 702 (advertise-

taia, however, some remarks as to ment hoarding),

the limits of this exception, which [h) Per Best, J., Colegrave v. Dias

are worthy of consideration. See Santos, 2 B. & C. 80 ; Norton v.

aiso Mather \.Fraser,2K.& 3. 5S6, Dashwood, [1896] 2 Ch. 500: 65

545 ; Judgm., CUmie v. Wood, L. R. L. J. Ch. 737 ; Whaley v. Boehrich,

i Ex. 330 ; Judgm., Longbottom v. [1908] 1 Ch. 615 : 77 L. J. Ch. 367.

, L. K. 5 Q. B. 136. (i) Shep. Touch. 469, 470 ; 4

{g) Hobson v. Oorrimge, [1897] Bep. 62. See D'Eyncomt v.

1 Ch. 182 : 66 L. J. Ch. 182 ; Gregory, L. B. 3 Eq. 382.

Beynoldsy. Ashby,ll90321K.'B.87 : (,h) Amos & Per., Fixtures, 2nd

73 L. J. K. B. 946 ; Crossley Bros. v. ed. 246.

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330

PROPERTY — ITS RIGHTS ANB LIABILITIES.

Mortgagor

and

mortgagee.

intention (l). Thus, in Colegrave v. Bias Santos (m), the
owner of a freehold house, containing fixtures, sold it by
auction. Nothing was said about the fixtures, A con-
veyance of the house was executed, and possession given to
the purchaser, the fixtures still remaining in the house.
It was held that they passed by the conveyance ; and that,
even if they did not, the vendor, after giving up possession,
could not maintain trover for them.

The maxim quicquid plantatur solo solo ceclit applies in
favour of a legal mortgagee («) of freeholds (o) or lease-
holds (j)) ; and in the absence of a stipulation to the con-
trary iq) all fixtures, whether annexed before (/■) or after (s)
the date of the mortgage, including trade fixtures (t),
form part of the mortgagee's security and may not be
removed without his consent, expressed or implied {it).

(I) Colegrave v. Dias Santos, 2 B.
& 0. 76; cited, Arg., Id. 610; per
Parke, B., nUchman v. Walton, 4
M. & W. 416; per Patteson, J.,
Hare v. Horton, 5 B. & Ad. 730;
39 B. E. 633. See Steward v.
Lombe, 1 B. & B. 506, 518; 21
B. B. 700; Eyall v. BolU, 1 Atk.
175 ; Thompson v. Pettitt, 10 Q. B.
101 ; Wiltshear v. Cottrell, 1 E. &
B. 674.

(m) 2B.&C.76. See Manning v.
Bailey, 2 Exoh. 45.

(n) As to an equitable mortgagee,
see Tebb v. Hodge, L. E. 5 0. P. 73 :
39 L. J. C. P. 56 ; re Lusty, 60 L. T.
160 ; re Samuel Allen & Son, Ltd.,
[1907] 1 Ch. 575: 76 L. J. Ch. 362.

(o) Climie v. Wood, L. E. 3 Ex.
257 : 4 Id. 328 : 37 L. J. Ex. 158 :
38 Id. 223 ; Longbottom v. Berry,
L. E. 5 Q. B. 123 : 39 L. J. Q. B. 37 ;
Holland v. Hodgson, L. E. 7 0. P.
328 : 41 L. J. 0. P. 146 ; Hobson v.
Gorringe, [1897] 1 Oh. 182: 66 L.J.
Oh. 114 ; ElUs v. Olover & Hobson,
Ltd., [1908] 1 K. B. 388: 77 L. J.
K. B. 251.

(p) Ex p. Astbury, L. E. 4 Ch.
630 : 38 L. J. Bkcy. 9 ; Meux v.
Jacobs, L. E. 7 H. L. 481 : 44 L. J.
Ch. 481 ; Southport Banking Co. v.
Thompson, 37 Ch. D. 64 : 57 L. J.
Ch. 114; Reynolds v. Ashby & Son,
[1904] A. 0. 466 : 78 L. J. K. B.
946.

(g) It is a question of construction
whether a mortgage which specifies
some fixtures passes all ; Southport
Banking Co. v. Thompson, supra.

(r) Climie v. Wood, Holland v.
Hodgson, Hobson v. Gorringe, supra.

(s) Walmsley v. Milne, 7 0. B.
N. S. 115 : 29 L. J. 0. P. 97 ; Long-
bottom V. Berry ; Beynolds v. Ashby
& Son; Ellis v. Glover <£ Hobson,
Ltd., supra.

(t) Climie v. Wood; Longbottom
V. Berry ; Hobson v. Gorringe ; Rey-
nolds V. Ashby £0 Son, supra.

(m) Oough V. Wood, [1894] 1 Q. B.
718 : 68 L. J. Q. B. 564, was a case
of implied consent ; see Hobson v.
Gorringe, and Ellis v. Glover d
Hobson, Ltd., supra.

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PKOPEBTY — ITS EIGHTS AND LIABILITIES. 381

This rule applies, where the mortgagor attorns tenant to
the mortgagee, to fixtures annexed by the mortgagor
during the tenancy (x) ; but if a mortgagor in posses-
sion lets the premises with the mortgagee's consent, his
tenant has the same right to remove fixtures as other
tenants (y). A mortgage of lands, which discloses no inten-
tion to confer such a power, does not empower the
mortgagee to sever the fixtures thereon and sell them as
chattels (z). The effect of the Bills of Sale Acts, 1878
and 1882 (a), is that a separate bill of sale is necessary
in order that the mortgagee may have this power over
any fixtures which are trade machinery, as defined by
s. 5 of the earlier of these Acts (&). The Acts, however, do
not affect mortgages of lands which give such a power over
fixtures thereon other than trade machinery, or which pass
trade machinery thereon without giving any power to sever
and sell it (c).

In case of an absolute sale of premises, where the con- Valuation of
veyance is not general, but contains a stipulation that " the
fixtures are to be taken at a valuation," those things only
should in strictness be valued which would be deemed
personal assets as between heir and executor, and would not
pass with the inheritance (d).

It has been thought that ornamental fixtures form an Ornamental
exception to the general rule, and that fixtures which
otherwise would pass to the heir or remainderman, do not
pass, if they can be shown to be used for purposes of
ornament merely. The true test nevertheless seems to be, in

(x) Ex p. Punnett, 16 Ch. D. 226 : 1 Oh. 686 : 63 L. J. Oh. 270 ; Be

50 L. J. Ch. 212. Brooke, [1894] 2 Ch. 600 : 64 L. J.

(y) Sanders v. Davis, 15 Q. B. D. Ch. 21.

218 : 54 L. J. Q. B. 576 ; recognised (a) 41 & 42 Vict. c. 31 ; 45 & 46

in Qough v. Wood, supra ; see Vict. c. 43.

Thomasv. Jennings, Geii.J. Q.B. 5. (b) Be Yates, supra; Small v.

(z) Southport Banking Co. v. National Provincial Bank, supra,

Thompson, supra; Be Tales, 38 Oh. (c) Be Tales, supra.

D. 112; 57 L. J. Oh. 697; Small v. (d) Amos & Fer., Fixtures, 2nd

National Provincial Bank, [1894] ed. 221.

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332

PKOPEBTY — ITS RIGHTS AND LIABILITIES.

Trade fix-
tures as
between
tenant for
life and
remainder-
man.

Landlord and
tenant.

questions between a tenant for life or other limited owner
and the remainderman, the intention with which they are
fixed. If they are fixed with the intention of enjoying
them whilst they are there and not with the intention of
improving the freehold, they do not become part of the
freehold, but remain personalty (e). An element in determin-
ing the intention is the method of fixing to the permanent
structure and the extent to which it would be damaged by
their removal (/). As between heir or devisee and legatee
of personalty, the question is rather as to the intention of
the testator, — whether or not he intends them to pass by his
will as chattels or to go with the freehold : and here also it
is material to consider whether the things in question were
fixed as part of a general scheme of decoration, or merely
for their better enjoyment as chattels (g). In the former case
they pass under a devise of the house and not under a general
gift of chattels.

In the case of trade fixtures as between tenant for life and
remainderman, the same question arises as in the case of
ornamental fixtures, viz. the intention with which they are
fixed, having regard to all the facts of the case, not the mode
of attachment. And as it is advantageous that the tenant
for life should be able to improve the estate for his own
enjoyment without being compelled to make a present
to the remainderman, the strict rule has been largely
relaxed in his case and the law will regard trade fixtures as
personalty unless there is evidence of an intention to make
a present of them to the remainderman (h).

In cases between landlord and tenant, the general rule,
that whatever has once been annexed to the freehold
becomes a part of it, and cannot afterwards be removed,

(e) Leigh v. Taylor, [1902] A. G.
157 : 71 L. J. Oh. 272.

(/) Viscount Sill v. Bullock,
[1897] 2 Ch. 482 : 66 L. J. Ch. 705.

(g) Whalcy v. Boehrich, [1908]

1 Ch. 615.

(h) In re Hulse, Beattie v. Bulse,
[1905] 1 Oh. 406 : 74 L. J. Ch. 246 ;
Lawton v. Laivton, 3 Atk. 13 ; Ld.
Dudley V. Ld. Ward, Amb. 113.

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PKOPEBTY ITS RIGHTS AND LIABILITIES.

333

except by or with the consent of him who is entitled to the
inheritance (i), must be quaUfied more largely than in the
preceding classes. Thus, the tenant may take away during
his term, or at the end of it, although not after he has
quitted possession, such fixtures as he has himself put
upon the demised premises, either for the purposes of trade,
or for the ornament or furniture of his house (j) ; but here
a distinction must be observed between erections for the
purposes of trade annexed to the freehold, and erections
for purposes merely agricultural (k). With respect to the
former, the exception engrafted upon the general rule is of
almost as high antiquity as the rule itself, being founded
upon principles of public policy, and originating in a desire

(i) Co. Litt. 53 a ; per Kindersley,
V.-C, Gibson v. Hammersmith E.
Co., 32 L. J. Oh. 840 et seq. Trover
does not lie for fixtiares until after
severance ; Dumergue v. Rumsey, 2
H. & C. 777, 790 ; Minshall v. Lloyd,
2 il. & W. 450 ; recognised, Mackin-
tosh V. Trotter, 3 Id. 194—186;
Boffey V. Henderson, 17 Q. B. 574,
586 ; London Loan Co. v. Drake, 6
0. B. N. S. 798, 811. In Wilde v.
WaUrs, 16 C. B. 651, Maule, J.,
observes, " Generally speaking, no
doubt, fixtures are part of the free-
hold, and are not such goods and
chattels as can he made the subject
of an action of trover. But there
are various exceptions to this rule,
in respect of things which are set
up for ornament or for the purpose
of trade, or for other particular pur-
poses. As to these, there are many
distinctions, some of which are nice
and intricate." See, also, Clarke v.
Holford, 2 C. & K. 540.

(j) Such as stoves, grates, orna-
mental chimney-pieces, wainscots
fastened with screws, coppers, a
pump very slightly affixed to the
freehold, and various other articles ;

2}er Erie, J., and Crowder, J., Bishop
V. Elliott, 11 Exch. 115 ; Orymes v.
Boweren, 6 Blng. 437 ; and per
Tindal, O.J., Id. 439, 440; Horn v.
Baker, 9 East, 215, 328; 9 R. R.
541. In Buckland v. Butterfleld, 2
B. &B.54; 22 R. R. 649; which is an
important decision on this subject,
it was held that a conservatory
erected on a brick foundation, at-
tached to a dwelling-house, and
communicating with it by windows,
and by a flue passing into the
parlour-ohinmey, becomes part of
the freehold, and cannot be removed
by the tenant or his assignees. See
West V. Blakeway, 2 M. & Gr. 729 ;
Burt V. Haslett, 18 C. B. 162, 898,

See also Powell v. Farmer, 18
0. B. N. S. 168, 178; Powell v.
Boraston, Id. 175.

(k) Per Ld. Kenyon, Penton v.
Bobart, 2 East, 20 ; 6 R. R. 376 ;
SnAgm., Ea7-l of Mansfield v. Black-
burne, 3 Bing. N . C. 438 . A nursery-
man may remove trees planted for
sale ; Amos & Per., Fixtures, 2nd
ed. 68 ; but not orchard trees
(Mears v. Cullender, [1901] 2 Oh.
388).

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334 PROPERTY — ITS RIGHTS AND LIABILITIES.

to encourage trade and manufactures. With respect to the
latter, however, it has been expressly decided that to such
cases the general rule must be applied, unless the provisions
of the Landlord and Tenant Act, 1851, or some other statute
apply, or the purpose of the erections related partly to
trade of any description, such as cyder-mills, machinery
for working mines or collieries (Z).
Elwis V. In the leading case on this subject (m), it was held that a

^"^' tenant in agriculture, who erected at his own expense, and

for the necessary and convenient occupation of his farm, a
beast-house and carpenter's shop, built of brick and mortar,
and tiled, and let into the ground, could not legally remove
them even during his term, although by so doing he would
leave the premises in the same state as when he entered ;
and a distinction was taken between annexations to the
freehold for purposes of trade, and those made for purposes
of agriculture and for better enjoying the immediate profits
of the land.
Later cases. In a later case it has been held that glass houses erected

by a tenant for the purposes of his trade as a market
gardener (and not for mere pleasure and ornament) are
removable as trade fixtures (n). And where a superin-
cumbent shed is erected as a mere accessory to a personal
chattel, as an engine, it may, as coming within the definition
of a trade fixture, be removed ; but where it is accessory to
the realty it cannot be removed (o).

The right of removal, where it exists, should be exercised
during the continuance of the term, or during a certain time
after its expiration during which the tenant has a right to
consider himself as still in possession of the premises as
tenant under the landlord (p). In one case, the lessee of

(l) Woodfall, L. & T., 16th ed. 27 L. J. Ex. 83.
675. See 14 & 15 Vict. c. 25, s. 3 ; (w) Mears v. Cullender, [1901] 2

and the Agricultural Holdings Act, Ch. 888 : 70 L. J. Ch. 621.
1908. (o) Whitehead v. Bennett, 27 L. J.

(?») Elwes V. Maw, 3 East, 38 ; 6 Ch. 474.
R. R. 523. See Smith v. Render, (p) Exp. Stephens,! Oh.T). 127 ;

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PEOPBETY — ITS EIGHTS AND LIABILITIES.

business premises having become bankrupt, the trustee sold
the fixtures upon the terms that they were to be removed
within two days after the sale, which was not done, as the
buyer was negotiating with the landlord of the premises for
their purchase. The negotiations having fallen through, the
trustee surrendered the lease to the landlord, who relet the
premises with the fixtures on them. About a fortnight after-
wards the buyer, hearing of the surrender, applied for the
fixtures, and it was held he was entitled to them, as he had
not lost his right by delay or laches {q). This case seems to
engraft an equitable exception upon the common law rule that
the fixtures must be removed during such time as the tenant
has a right to consider himself in possession. It is also
important to remark that the legal right of a tenant to
remove fixtures may be either extended or controlled by the
express agreement of the parties ; and the ordinary right of
the tenant to disannex tenants' fixtures during the term
may thus be renounced (r). Leases often contain a cove-
nant for this purpose, either specifying what fixtures shall be
removable by the tenant, or stipulating that he shall, at the
end of the term, deliver up all fixtures annexed during its
continuance (s). Where a lessee mortgaged tenant's fixtures,
and afterwards surrendered his lease to the lessor, who
granted a fresh lease to a third party, the mortgagees were
held entitled to enter and sever the fixtures (t).

It is also worthy of notice, that a special usage prevail-
ing in the particular neighbourhood may modify the right

47 L. 3. Bk. 22 ; see TJumas v. C. 777.

Jennings, 66 L. J. Q. B. 5. See (s) See Bishopw. Elliott,ll "Exch.

also In re OlasdAr Copper Mines, 113 ; Stcmsfeld v. Mayor of Ports-

[1904] 1 Ch. 819 : 73 L. J. Ch. 461, mouth, 4 0. B. N. S. 120 ; Earl of

as to the right of mortgagee or Mansfield v. Blaekburne, 3 Bing.

purchaser from tenant to remove N. 0. 438; Foley v. Addenbrooke,

tenant's fixtures within a reasonable 13 M. & W. 174 ; Sleddon v. Cniik-

timeaftet surrender of lease. shank, 16 M. & W. 71; Heap v.

(g) SoMit V. Pilley, L. R. 10 Ex. Barton, 12 C. B. 274.

137 ; 44 L. J. Ex. 137. (0 London Loan Co. v. Drake,

(r) Dumergue v. Bumsey, 2 H. & 6 0. B. N. S. 798.

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336

PnOPEKTY — ITS EIGHTS AND LIABILITIES.

Wake V. Hall.

Mining

fixtures.

of property in fixtures as between parties bound by that
usage ('(.) ; and that an agreement may, as between the
parties thereto, confer upon the one party a right to remove
chattels which he has affixed to the soil of the other ; but
that such right, not being an easement created by deed, nor
conferred by a covenant running with the land, does not
affect a purchaser of the land for value without notice (v).

In Wake v. Hall (x) the question of the right of a mine
owner against the surface owner to remove buildings erected
by the mine owner on the surface for the purpose of winning
the minerals was discussed. From this case it appears that
the mine owner has the right to remove all buildings and
other erections lawfully erected by him on the surface for
the purpose of his mining operations, and that this right
of removal continues for a reasonable time after he has
ceased to work the minerals.

Seymayne's
case.

DoMus SUA cuiQUB EST TUTissiMUM Eefugium. (5 Rep. 92.)
— Every man's Jiouse is his castle (y).

In a leading case which well exemplifies the application
of this maxim, the defendant and one B. were joint tenants
of a house in London. B. acknowledged a recognizance in
the nature of a statute staple to the plaintiff, and, being
possessed of certain goods in the house, died, whereupon
the house in which the goods remained became vested in
the defendant by survivorship. Subsequently the plaintiff
sued out process of extent on the statute, and had a writ to
extend all the goods which B. had at the day of his death.
This writ he delivered to the sheriffs, telling them that divers

(jt) Vin. Abr., " Executors," U.
74. See Davis v. Jones, 2 B. & Aid.
165, 168 ; 20 E. E. 396.

(v) See Hobson v. Gorringe, [1897]
1 Ch. 182, where Wood v. Hewett, 8
Q. B. 913, and Lancaster v. Eve, 5

C. B. N. S. 717, were explained.

(x) 8 App. Cas. 195 : 7 Q. B. D.
295: 52 L. J. Q. B. 49i: 50 Id.
545.

(y) Nemo de dm}W szid extralii
debet,!). 50, 17, 103.

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PROPERTY — ITS RIGHTS AND LIABILITIES. 387

goods belonging to B. at the time of his death were in the
defendant's house ; whereupon the sheriffs charged the jury
to make inquiry according to the writ, and the sheriffs and
jury came to the house, and offered to enter in order to
extend the goods, the outer door of the house being then
open; but the defendant, 'prcemissorum non ignarus, and
intending to disturb the execution, shut the door against
them, whereby the plaintiff lost the benefit of his writ(3).

The five points bearing upon the present subject, which
were resolved in this case, will now be stated shortly, with
some references to other authorities affecting them.

1. The house of every one is to him as his castle, as well First reso-

'' . lution.

for his defence against injury and violence, as for his repose ;
wherefore, although the life of man is a thing precious in
law, yet if thieves come to a man's house to rob or murder
him, and he or his servants kill any of the thieves in defence
of himself and his house, this is not felony.

Accordingly, if a person attempt to burn or burglariously
to break and enter a dwelling-house in the night-time, or
attempt to break open a house in the day-time with intent
to rob, and be killed in the attempt, the slayer shall be
acquitted and discharged, for the homicide is justifiable (a).
And in such cases, not only the owner whose person or
property is thus attacked, but his servant and the members
of his family, or even strangers who are present at the time,
are equally justified in killing the assailant (b). In order,
however, that a case may fall within this rule, the intent to
commit the crime above mentioned must be clearly mani-
fested by the felon ; otherwise, the homicide will amount to
manslaughter, at least, if not to murder (c).

2. When any house is recovered by action, the sheriff Second
may break the house, and deliver the possession to the

(z) Seymayne's case, 5 Eep. 91. MIIb another In his own defence.

(a) 1 Hale, P. 0. 481, 488. By 24 (6) 1 Hale, P. C. 481, 484 et seq.

& 25 Vict. c. 100, 8. 7, no punish- (c) 1 Hale, P. 0. 484; B. v.

ment is incurred by a person who Scully, 1 C. & P. 319.

L.M. 22

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resolution.

338 PROPERTY — ITS RIGHTS AND LIABILITIES.

plaintiff; for after judgment it is not the house of the
defendant.

It is the duty of the sheriff, before he dehvers possession,
to remove from the house all persons and goods within it (d) ;
unless the plaintiff has recovered only an undivided portion
of the house, in which case he should merely put the
plaintiff in possession of his portion (e). After verdict and
judgment in ejectment, it was in practice usual for the lessor
of the plaintiff to point out to the sheriff the premises
recovered, and then the sheriff gave the lessor, at his own
peril, execution of what he demanded (/).
Third 3. In all cases where the king is party, (as where a felony

or misdemeanor (g) has been committed), the sheriff, if the
doors be not open, may break the party's house, to execute
the king's process, if otherwise he cannot enter ; but before
he breaks it, he ought to signify the cause of his coming,
and make request to open doors.

Bare suspicion, however, touching the guilt of the party
will not warrant proceeding to this extremity, though a
felony has been actually committed, unless the officer
comes armed with a warrant from a magistrate grounded
on such suspicion (h). And the mere entry, by an open door,
into a man's house, on suspicion of felony, but without a
warrant, is not justified by a plea which does not show that
the defendant had reason to believe that the suspected person
was there, and entered for the purpose of apprehending
him (i).

(d) Upton ■V. Wells, lljeon. Ii5. ing was justified under the Speaker's

(e) Per Parke, B., Doe v. King, warrant ; see Harvey v. Harvey, 26
6 Exoh. 791. Oh. D. 644. As to the power of

(/) Ad. Eject., 4th ed. 300, 301. arrest under the warrant of a

See,jper Patteson, J., Doe d. Stevens Secretary of State, see R. v. Wilkes,

V. Lord, 6 Dowl. 256, 266. 2 Wils. 151 ; Entick v. Carrington,

(g) Launock v. Brown, 2 B. & Id. 275 ; S. 0., 19 Howell, St. Tr.

Aid. 592 ; 21 E. R. 410. The rule 1030.

extends to process for contempt of (h) Poster on Homicide, 320.

Court ; Burdett v. Abbot, 14 East, (i) Smith v. Shirley, 3 C. B. 142.
157 ; 12 B. B. 450, where the break-

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PROPERTY — ITS RIGHTS AND LIABIIilTIES. 339

4. In all cases when the door is open, the sheriff may Fourth
enter the house and do execution, at the suit of any
subject ; and so may the lord in such case enter the house and
distrain for his rent. But it is not lawful for the sheriff,
on request made and denial, to break the defendant's house,
to execute any process at the suit of any subject.

This rule is well established. " Nothing is more certain
than that in the ordinary cases of the execution of
civil process between subject and subject, no person is
warranted in breaking open the outer door in order to
execute such process ; the law values the private repose and
security of every man in his own house, which it considers
as his castle, beyond the civil satisfaction of a creditor " (k).
This rule, however, is strictly confined, as regards the
sheriffs officer, to a man s house ; and barns and other
buildings, not parcel of or connected with his dwelling-
house, may be broken open to levy an execution (I). On
the other hand, the landlord's bailiff, though he may
lift the latch of a door (m), or enter through an open
window (n), or over a wall (o), to distrain for rent, may not
break open the outer door of any building whatever (j)),
except in the case of goods fraudulently removed (q). The
rule also admits of this exception, that if a defendant
escape from arrest, the sheriff may, after demand of admis-
sion and refusal, break open either his own house or that

(k) Per Lord Bllenborough, Q. B. 590; orifastened by a hasp;

Burdett v. Abbot, 14 East, 154 ; 12 Hancock v. Austin, 14 C. B. N. S.

R. R. 450. 634: 32 L. 3. 0. P. 252; Attack y.

(I) Penton v. Browne, 1 Sid. 186 ; Bramwell, 3 B. & S. 520 : 32 L. 3".

Hodder v. Williams, [1895] 2 Q. B. Q. B. 146.

668 : 65 L. J. Q. B. 70. (o) Long v. Clarke, [1894] 1 Q. B.

(to) Byan v. Shilcock, 7 Exch. 119 : 63 L. J. Q. B. 108.

72 : 21 L. J. Ex. 75. (p) Brown v. Olenn, 16 Q. B.

(to) Nixon V. Freeman, 5 H. & N. 254 : 20 L. J. Q. B. 205 ; American

652 : 29 L. 3. Ex. 273 ; Crabtree v. Musi Co. v. Hendry, 62 L. J. Q. B.

Bobimson, 15 Q. B. D. 312 : 54 L. J. 388.

Q. B. 544 ; secus,. of a window (3) Williams v. Boherts, 7 Exoh.

closed ; Nash v. Lucas, L. R. 2 618 : 22 L. 3. Ex. 61.

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840 PEOPBETY — ITS EIGHTS AND LIABILITIES.

of a stranger for the purpose of retaking him (r) ; and
if an officer or bailiff, who has lawfully entered a house
to execute process (s), or to distrain for rent (t), be forcibly
ejected, or locked in, he may break open the outer door
to re-enter the house, or to quit it. In these cases a
request to re-open the door is usually unnecessary, " for
the law in its wisdom only requires this ceremony to be
observed when it possibly may be attended with some
advantage, and may render the breaking open of the outer
door unnecessary" (u).

The rule applies only to outer doors. When the sheriff
has lawfully obtained admission within a house, he may
break open inner doors and cupboards, if necessary, in
order to execute his process (x), and a landlord has the
same right, when distraining (y). Therefore, where A. let
a house, except one room, which he reserved and occupied
separately, and, the outer door of the house being open,
a constable, in order to arrest him, broke open the door of
this room, it was held that trespass would not lie against
the constable (z)- So, where the front door of a house
was generally kept fastened, the usual entrance being
through the back door, and the sheriff, having entered by
the back door while open in the night, broke open the
door of an inner room in which B. was with his

(r) Anon., 6 Moi. 105; Ijont. 390; (u) Aga KurbooUe Mahomed's

Lloyd V. Sandilands, 8 Taunt. 250 ; case, supra.

19 R. R. 507 ; Sandon v. Jervis, (x) B. v. Bird, 2 Show. 87 ; Lee

E. B. & B. 942 : 28 L. J. Ex. 156 ; v. OanseU, Cowp. 1 ; Batcliffe v.

see Qenner v. Sparkes, 1 Salk. 79. Burton, 3 B. & P. 223 ; 6 R. R.

(s) White V. Wiltshire, Palm. 52 : 771 ; Hutchinson v. Birch, 4 Taunt.

Cro. Jao. 555; Pugh v. Griffith, 619; 13 R. R. 703, which shows

7 A. & E. 827 ; 7 L. J. Q. B. 169 ; that, in the case of a fl. fa. no

Aga Kurhoolie Mahomed v. The request is necessary.

Queen, i Moo. P. 0. 237. (y) Browning v. Dann, Cas. temp.

(<) Eagleton v. Qutteridge, 11 M. Hardw. 167 ; but see Bod v. Monger,

& W. 465 : 12 L. J. Ex. 359 ; 6 Mod. 215.

Eldridge v. Stacey, 15 0. B. N. S. («) Williams v. Spence, 5 Johns.

458 ; see Bannister v. Hyde, 2 E. & (U.S.) R. 352.
E. 627 : 29 L. J. Q. B. 141.

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PBOPBETY ITS RIGHTS AND LIABILITIES. 341

family, and there arrested him, the arrest was held to be
lawful (a).

It was laid down in a very early case that if the sheriff,
in order to execute a.fi. fa., break open an outer door when
not justified in doing so, this does not vitiate the execution,
but merely renders the sheriff liable to an action of tres-
pass (6). This doctrine, so far as it relates to an execution
against goods, seems to be countenanced by later cases (c) ;
but it apparently does not apply to an arrest of the
person (d).

5. The house of any one is not a castle but for himself, and Fifth
shall not extend to protect any person who flies to his
house, or the goods of any other which are brought into his
house, to prevent a lawful execution, and to escape the
ordinary process of the law ; and therefore in such cases,
after denial on request made, the sheriff may break the
house.

It must be observed, however, that the sheriff, whether
he breaks the stranger's house, or merely enters it by an
open door, does so at his peril ; and if the defendant or
his goods be not in the house, the sheriff is a trespasser (e).
He may enter the defendant's own house to ascertain
whether the defendant or his goods be there (/), at any rate
if he has reasonable grounds for believing that such is the
case (g) ; but if he enter the house of a stranger with the
like object, he can be justified only by the event (h). The

(a) Hubbard v. Mace, 17 Johns. (d) Eerbey v. Denby, 1 M. & W.
(U.S.) B. 127. 336 : 5 L. J. Ex. 162 ; Hodgson v.

(b) y. B. 18 Edw. 4, i a, cited in Towning, 5 Dowl. 410.
Seymayne's case ; see 4th resolution, (e) Cooke v. Birt, 5 Taunt. 765 ;
g^ flfi_ 15 E. R. 652 ; Johnson v. Leigh, 6

(c) See PercivaU. Stomp, 9Exch. Taunt. 246; 16 K. B. 614; Morrish
167 : 23 L. J. Ex. 25 ; Brunswick v. v. Murrey, 13 M. & W. 52.
Slownum, 8 0. B. 317: 18 L. J. (/) BatcliffeY. Burton, 3 B. &F.
0. P. 299 ; De Qondouin v. Lewis, 223 ; 6 E. B. 771.

10 A. & E. 117: 9 L. J. Q. B. (g) Morrish \. Murrey, supra, per

148 ; but see also Yates v. Dela- Alderson, B.

mayne, Bao. Ahr., " Execution " [h) See note (e), supra.

(N.).

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entry.

342 PEOPEBTY— ITS RIGHTS AND LIABILITIES.

reason for this distinction is that the most probable place
to find the defendant or his goods is the house in which
he dwells (i) ; and therefore the husband's house must be
treated as being also that of the wife, if they are cohabit-
ing (i). It has been suggested that, for this reason, if
the defendant be on a visit with a stranger, the latter's
dwelling-house must be considered to be pro tempore also
that of the defendant, so as to justify the sheriff's entry to
search for him, though he be not actually there 0')- I*- is
clear that the sheriff may not enter the stranger's house after
the defendant has ended his visit and gone away (k).
Forcible It may not be inappropriate to add, in connection with

the maxim under consideration, that, although, as a
general rule, where a house has been unlawfully erected
on a common, a commoner, whose enjoyment of the
common has been thus interrupted, may pull it down (l),
he is, nevertheless, not justified in doing so, without
previous notice or request, while there are persons actually
in it (?)!.). But, as remarked by Lord Campbell (n), it
would be a most dangerous extension of this doctrine " to
hold that the owner of a house could not exercise the right
of pulling it down because a trespasser was in it." The
right of the owner of a house who is entitled to possession
of it to take possession of it peaceably (o), and, when he
has done that, to expel all trespassers therefrom without

(i) Cooke V. Birt, supra. 3 Oh. 411 : 61 L. J. Oh. 55.

{fl Smith's L. C, 11th ed., vol. i. (n) Burling v. Bead, 11 Q. B.

112, citing Sheers v. Brooks, 2 H. 904 : 19 L. J. Q. B. 291. See Jones

Bl. 120 ; 3 B. R. 357. v. Foley, [1891] 1 Q. B. 730 : 60

{k) Morrish v. Murrey, supra. L. J. Q. B. 464.

(I) Arlett V. Ellis, 7 B. & C. 346 ; (o) Tauntony. Costar, 7 T. E. 431 ;

9 Id. 671 ; 31 R. B. 214, 231 ; see 4 R. B. 481 ; Butcher v. Butcher, 7

Smith V. Earl Brownlow, L. B. 9 B. & C. 399 ; 31 E. E. 237 ; Wildbor

Eq. 241. V. Rainforth, 8 B. & C. 4 ; 32 E. B.

{m) Perry v. Fitzhowe, 8 Q. B. 323 ; Browne v. Dawson, 12 A. & E.

757: Davies v. Williams, 16 Id. 624: 10 L. J. Q. B. 7; Delaney v.

546: 20 L. J. Q. B. 330; Jones v. Fox, 1 0. B. N. S. 166: 26 L. J.

Jones, 1 H. & 0. 1 : 31 L. J. Ex. C. P. 5 ; Pollen v. Brewer, 7 C. B.

506 ; see Lane v. Capsey, [1891] N. S. 371.

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THE TEANSFER OF PEOPBRTY.

343

unnecessary force (p) is clearly established ; and even if he
enter forcibly, thereby rendering himself liable to an
indictment (q), he is not liable to an action for trespass to
the land (>•). It has been held, however, that he is liable
to an action for assaults to the person or damage to goods
committed or done in the course of the forcible entry (s).

§ ni. THE TRANSFER OF PROPERTY.

Two leading maxims relative to the transfer of property
are, first, that alienation is favoured by the law ; and,
secondly, that an assignee holds property subject to the
same rights and liabilities as attached to it whilst in the
possession of the grantor. Besides these very general
principles, we have included in this section several minor
maxims of practical importance, connected with the same
subject; and, according to the plan pursued throughout
this Work, each maxim has been briefly illustrated.

(p) Hey V. Moorehouse, 6 Bing.
N. G. 52 : 9 L. J. C. P. 113 ; Butcher
V. Butcher, supra ; Browne v. Daw-
son, supra; see Lows v. Telford, 1
App. Gas. 414 : 45 L. J. Ex. 613.

(g) See 5 Bic. 2, st. 1, o. 7 (c. 8,
Rufi.) ; Milner v. Maclean, 2 G. &
P. 17.

(r) Turner v. Meymott, 1 Bing.
158; 25 B. E. 612; Harvey v.
Bridges, 14 M. & W. 437 : 1 Exch.
261 ; Davison v. Wilson, 11 Q. B.
890 : 17 L. J. Q. B. 196 ; Burling v.
Bead, supra ; Wright v. Borroughes,
3 G. B. 685: 16 L. J. C. P. 6;
Beddall v. Mmtland, 17 Oh. D. 174 :
50 L. J. Oh. 401.

(s) Newton v. Harlcmd, 1 M. &
Gr. 644, Ooltman, J., dissenting;

Beddall v. Maitland, supra; Edwick
V. Hawhes, 18 Oh. D. 199 : 50 L. J.
Oh. 577. For dicta to the contrary,
see Harvey v. Bridges, 14 M. & W.
437, per Parke and Alderson, BB.
In Blades v. Higgs, 10 G. B. N. S.
713 : 30 L. J. 0. P. 374, Erie, G.J.,
treated Newton v. Harland as over-
ruled by Harvey v. Bridges. But
the point decided in Newton v. Har-
land did not actually arise for
decision either in Harvey Y. Bridges,
or in Blades v. Higgs. The latter
case decides that the owner of a
chattel can justify an assault to
recapture it after demand and
refusal; see S. 0., 11 H. L. Gas.
621.

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344

THE TEANSFEE OF PEOPEETY.

Feudal
system was
opposed to
alienation.

AlIENATIO EbI PEiBFEETUE JUEI ACCEESCBNDI. {Co. Litt.

185 a.) — Alienation is favoured by the law rather than
accumulation.

Alicnatio is defined to be, omnis actus per quern dominium
transfertur{t), and it is the well-known policy of our law
to favour alienation, and to discountenance every attempt
to tie up property unreasonably, or in other words, to
create a perpetuity.

The reader will at once remark, that the feudal policy
was directly opposed to those wiser views which have now
long prevailed. It is, indeed, generally admitted (u), that,
under the Saxon sway, the power of alienating real property
was unrestricted, and that land first ceased to be alienable
when the feudal system was introduced after the Norman
conquest ; for, although the Conqueror's right to the
Crown of England seems to have been founded on title,
and not on conquest, yet, according to the fundamental
principle of that system, all land within the king's
territories was held to be derived, either mediately or
immediately, from him as the supreme lord, and was
subjected to the burthens and restrictions incident to the
feudal tenure. Now this tenure originated in the mutual
contract between lord and vassal, whereby the vassal, in
consideration of the feud with which he was invested,
bound himself to render services to his lord, and as the
vassal could not, without the lord's consent, substitute
the services of another for his own (x), so neither could
the lord transfer the vassal's fealty and allegiance,
without his consent, to another (y). It is, however,
necessary to bear in mind the distinction, recognised by
the feudal laws, between alienation and subinfeudation :
for, although alienation, meaning thereby the transfer of
the original feud or substitution of a new for the old

{t) Brisson. ad verb. " Alienatio."
{u) Wright, Tenures, 154 et seci.
{xj See Bradshaw v. Lawson, i

T. R. 443 ; 2 a. E. 429.

(y) Wright, Tenures, 171 ; Mr.
Butler's note, Co. Litt. 309 a (1).

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THE TRANSFER OF PROPERTY. 345

feudatory, was prohibited, yet subinfeudation, whereby a
new and inferior feud was carved out of that originally
created, was permitted. Moreover, as feudatories did, in
fact, under cover of subinfeudation, frequently dispose of
their lands, this practice, being opposed in its tendency
to the spirit of the feudal institutions, was expressly
restrained by Magna Oharta, c. 32, which was merely in
affirmance of the common law of this subject, and which
allowed tenants of mesne lords — though not, it seems,
tenants holding directly of the Crown — to dispose of a
reasonable part of their lands to subfeudatories.

The right of subinfeudation to the extent thus expressly Stat. Quia
allowed by statute prepared the way for the more "''^
extensive power of alienation conferred on mesne feuda-
tories by the statute Quia Emptorcs, 18 Edw. 1, st. 1, c. 1.
This statute, which effected a material change in the
natm-e of the feudal tenure, by permitting the transfer or
alienation of lands in lieu of subinfeudation, after stating,
by way of preamble, that in consequence of this latter
practice, the chief lords had many times lost their
escheats, marriages, and wardships of land and tenements
belonging to their fees, enacted "that from henceforth it
shall be lawful to every freeman to sell at his own pleasure
his lands and tenements, or part of them, so that the
feoffee shall hold the same lands and tenements of the
chief lord of the same fee, by such service and customs as
his feoffee held before."

This statute did not extend to tenants in capite ; and 17 Edw. 2,

c 6
although by the 17 Edw. 2, c. 6, JDe Prcerogativd Regis, it

was subsequently declared that no one holding of the

Crown by military service could, without the king's licence,

alien the greater part of his lands, so that enough should

not remain for the due performance of such service : (from

which it has been inferred that, before this enactment,

tenants in capite had the same right of subinfeudation as

ordinary feudatories had before the stat. Quia Emptores) :

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346 THE TRANSFBB OF PROPEETY.

yet it does not appear that even after -the stat. De
Prcerogativa, alienation of any part of lands held in cajnte
ever occurred without the king's licence; and, at all
events, this question was set at rest by the subsequent
stat. 34 Edw. 3, c. 15, which rendered valid such
alienations as had been made by tenants holding under
Hen. 3, and preceding sovereigns, although there was a
reservation of the royal prerogative as regarded alienations
made during the reigns of the first two Edwards.

Having thus remarked, that, by a fiction of the feudal
law, all land was held, either directly or (owing to the
practice of subinfeudation) mediately of the Crown, we
may next observe that gifts of land were in their origin
simple, without any condition or modification annexed to
them; and although limited or conditional donations
were gradually introduced for the purpose of restraining
the right of alienation, yet, since the Courts construed
such limitations liberally, in order to favour that right
which they were intended to restrain, the stat. of Westm.
stat. De 2, 13 Edw. 1, usually called the statute De Bonis, was

passed, which enacted, " that the will of the giver
according to the form in the deed of gift, manifestly
expressed, shall be from henceforth observed, so that
they to whom the land was given under such condition
shall have no power to alien the land so given, but that
it shall remain unto the issue of them to whom it was
given, after their death, or shall revert unto the giver,
or his heir, if issue fail." The effect, therefore, of this
statute was to prevent a tenant in tail from alienating
his estate for a greater term than that of his own life;
or rather, its effect was to render the grantee's estate
certain and indefeasible only during the life of the tenant
in tail, upon whose death it became defeasible by his issue
or the remainderman or reversioner [z).

Before this Act, indeed, where land was granted to a
(z) 1 Cruise, Dig., 4th ed. 77, 78.

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Donis.

THE TKANSFER OF PKOPEETY. 347

man and the heirs of his body, the donee was held to
take a conditional fee-simple, which became absolute the
instant issue was born; but after the passing of the stat.
De Donis, the estate was, in contemplation of law, divided
into two parts, the donee taking a new kind of particular
estate, which our judges denominated a fee-tail, the
ultimate fee-simple of the land expectant on the failure of
issue remaining vested in the donor.

"At last," says Lord Mansfield (a), "the people having
groaned for two hundred years under the inconveniences
of so much property being unalienable; and the great
men, to raise the pride of their families, and (in those
turbulent times) to preserve their estates from forfeitures,
preventing any alteration by the legislature," the judges
adopted various modes of evading the statute De Donis, Evasion o£
and of enabling tenants in tail to charge or alien then- ^D^nis."
estates (b). The first of these was founded on the idea
of a recompense in value ; in consequence of which it
was held that the issue in tail was bound by the warranty
of his ancestor, where assets of equal value descended to
him from such ancestor. In the next place, they held,
in the reign of Edw. 4, that a feigned recovery should bar
the issue in tail and the remainders and reversion (c).
And, by the 32 Hen. 8, c. 36, the legislature expressly
declared that a fine should be a bar to the issue in tail (d).
Finally, under the Act for abolishing fines and recoveries, 3 & 4 Will. 4,
3 & 4 Will. 4, c, 74, a tenant in tail became empowered by

(a) Taylor v. Horde, 1 Burr. suffered would destroy an entaU,

115. although they decided that, in the

(6) In Mary Partington's case, 10 particular case, the entail had not

Rep. 35 b, it was held, in accordance been destroyed,

with prior authorities, that tenant (d) Except where the reversion

in tail could not be restrained by was in the Grown, 34 & 35 Hen. 8,

any condition or limitation from o. 20. As to the respective effects

suffering a common recovery. of the 4 Hen. 7, c. 24, and 32 Hen. 8,

(c) Talta/rwn's case, Yr. Bk. 12 u. 36, see Mr. Hargrave's note (1),

Edw. 4, 14, 19, where the Court Co. Litt. 121 a.
assumed that a recovery properly

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348 THE TEANSFBB OF PKOPBETY.

any species of deed, made and enrolled in conformity with
the Act, absolutely to dispose of the estate of which he is
seised in tail in the same manner as if he were absolutely
seised thereof in fee (e).

Having thus seen how the restrictions which were, in
accordance with the spirit of the feudal laws, imposed upon
the alienation of land by deed, were gradually relaxed, we
may further observe that the power of disposing of land
by will was equally opposed to the policy of those laws.
Consequently, although land was devisable until the
Conquest, yet shortly afterwards it became inalienable by
will (/), and so remained until the 32 Hen. 8, c. 1, and
34 & 35 Hen. 8, c. 5. The latter of these statutes was
explanatory of the former, and declared that every person
(except as therein mentioned) having a sole estate or
interest or being seised in fee-simple of and in any
manors, lands, tenements, rents, or other hereditaments in
possession, reversion, remainder, or of rents or services
incident to any reversion or remainder, shall have full and
free liberty, power, and authority to give, dispose, will,
or devise to any person or persons (except bodies politic
and corporate) by his last will in writing, all his said
manors, lands, tenements, rents, and hereditaments, or any
of them, at his own free will and pleasure. It is, indeed,
true, that, by these statutes, some restriction was imposed
upon the right of alienating by will lands held by military
tenure; yet since such tenures were, by the 12 Car. 2,
c. 24, converted into free and common socage tenures, we
do, in fact, derive from the Acts of Hen. 8, the important
right of disposing by will of all lands and tenements other
than copyholds (cj) : a privilege which received important
1 Vict. 0. 26. extensions by the 1 Vict. c. 26 (amended by 15 & 16
Vict. c. 24), and which now attaches to all real and

(e) See 1 Cruise, Dig., 4th ed. 83. Tenures, 207.

(/) A tenant in gavelkind, how- (3) As to copyholds see 1 Vict,

ever, could devise by will ; Wright, c. 26, s. 3 ; Shelf. Copyholds, 52.

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THE TBANSPBR OF PROPEETY. 849

personal estate to which a person may be entitled, either
at law or in equity, at the time of his death (h).

It remains to consider how far the right of alienation Right of
exists at common law, when viewed without reference to at^oommon
the arbitrary restrictions imposed under the feudal system, i^'''-
and to show how this right has been favoured by our
Courts of law, and encouraged by the legislature. In the
first place, we may observe that the potestas alienandi,
or right of alienation, is a right necessarily incident, in
contemplation of law, to an estate in fee-simple ; it is
inseparably annexed to it, and cannot, in general, be
indefinitely restrained by any proviso or condition what-
soever (i) ; for, although a " fee-simple " is explained by
Littleton {k) as being hcereditas pur a, yet it is not so
described as importing an estate purely allodial (for we
have already seen that such an estate did not, in fact, exist
in this country), but because it implies a simple inheritance,
clear of any condition, limitation, or restriction to any
particular heirs, and descendible to heirs general, whether
male or female, lineal or collateral (Z). In illustration of
this incident of an estate in fee-simple, we find it laid
down (m) that " if a man makes a feoffment on condition
that the feoffee shall not aUen Ito any, the condition is
void ; because where a man is enfeoffed of land or
tenements, he has power to alien them to any person by
the law ; for, if such condition should be good, then the
condition would oust him of the whole power which the
law gives him, which would be against reason, and there-
fore such condition is void." A testator devised land to
A. and his heirs for ever ; but, in case A. died without
heirs, then to C. (a stranger in blood to A.) and his heirs ;
and, in case A. offered to mortgage or suffer a fine or

ifi) S. 3. (m) Mildmay's case, 6 Rep. 42 ;

(i) 4 Cruiae, Dig., 4th ed. 330. Co. Litt. 206 b ; see Be Bosher, 26

(k) S. 1. Ch. D. 801 ; Be Elliot, [1896] 2 Ch.

(J) Wright, Tenures, 147. 353 : 65 L. J. Oh. 753.

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350 THE TRANSFER OF PROPERTY.

recovery upon the whole or any part thereof, then to the
said C. and his heirs. It was held that A. took an estate
in fee, with an executory devise over, to take effect upon
the happening of conditions which were void in law, and
that a purchaser in fee from A. had a good title against
all persons claiming under the will(rt). So, if a man,
before the statute De Bonis, had made a gift to one and
the heirs of his body, after issue born the donee had, by
the common law, potestatem alienandi ; and, therefore, if the
donor had added a condition, that, after issue the donee
should not alien, the condition would have been repugnant
and void. And, by like reasoning, if, after the statute, a
man had made a gift in tail, on condition that the tenant
in tail should not suffer a common recovery, such condition
would have been void ; for, by the gift in tail, the tenant
had an absolute power given to suffer a recovery, and so
to bar the entail (o). And here we may remark, that the
distinction which exists between real and personal property
is further illustrative of the present subject ; for, with
respect to personalty, it is laid down, that, where an
estate tail in things personal is given to the first or any
subsequent possessor, it vests in him the total property,
and no remainder over shall be permitted on such a
limitation ; for this, if allowed, would tend to a perpetuity,
as the devise, or grantee in tail of a chattel has no method
of barring the entail ; wherefore the law vests in him
at once the entire dominion of goods, being analogous to
the fee-simple which a tenant in tail may acquire in real
estate (p).

We may, in connection with this subject, likewise refer
to Sir W. Blackstone's celebrated judgment in Perrin v.
Blake (q), where a distinction is drawn between those rules

(n) Ware v. Gann, 10 B. & C. Eep. 35.

433 ; 34 B. E. 469. (p) 2 Blao. Com. 398.

(o) 6 Rep. 41 ; arg., Taylor v. (q) Hargrave's Tracts, fol. 500.

Horde, 1 Burr. 84; Corbet's case, As to this judgment, see per Ld.

1 Eep. 83 ; Partington's case, 10 Maonaghten, [1897] A. C. 674—676.

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THE TRANSFER OF PROPERTY. 351

of law which are to be considered as the fundamental rules
of the property of this kingdom (r), and which cannot be
transgressed by any intention of a testator, however clearly
expressed, and those rules of a more arbitrary, technical,
and artificial kind, which the intention of a testator may
control. Amongst rules appertaining to the former class,
Sir W. Blackstone mentioned these : — (1) every tenant in
fee-simple or fee-tail shall have the power of alienating his
estates by the several modes adapted to their respective
interests ; and (2) no disposition shall be allowed which, in
its consequence, tends to a perpetuity (s).

Not only will our Courts oppose the creation of a perpetuity Eestraint
by deed, but they will likewise frustrate the attempt to petuitiesby
create it by will; and, therefore, " upon the introduction of *^'^^^-
executory devises, and the indulgence thereby allowed to
testators, care was taken that the property which was the
subject of them should not be tied up beyond a reason-
able time, and that too great a restraint upon alienation
should not be permitted" (t). The rule is accordingly well
established, that, although an estate may be rendered
inalienable during the existence of a life or of any number
of lives in being, and twenty-one years after, or, possibly,
even for nine months beyond the twenty-one years, in case
the person ultimately entitled to the estate should, at the
time of its accruing to him, be an infant m wem^re sa mere (u),
yet that all attempts to postpone the enjoyment of the fee
for a longer period are void (v). Moreover, an estate cannot

tr) See, also, Egerton v. Earl devised with remainder over in case

Brovmlow, i H. L. Cas. 1, passim. A.'s son die under 21, and A. dies

is) Mr. Butler's note, Co. Litt. leaving a son m ventre sa mire, then

376 b (1). i£ tte son marries in his 2lBt year,

{t) Judgm.,-OadeZZ v. Palmer, 10 and dies leaving his widow enceinte,

Bing. 142. See Ware v. Cann, 10 the estate vests, nevertheless, in the

B. & C. 433 ; 34 B. B. 469. infant in ventre sa mire, and does

(m) In an executory devise, the not go over. See, per Ld. Eldon,

period of gestation may be reckoned Thellusson v. Woodford, 11 Ves. 149 ;

both at the beginning and the end 8 B. B. 119.

of the 21 years; thus, if land is (v) Cadell v. Palmer, 10 Bing.

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352 THE TEANSFEB OF PROPERTY.

be limited to an unborn person for life followed by an estate
to any child of such unborn person (w).
Trusta for With respsct to trusts for accumulation, we may observe,

aooumula- . , , , „ ,, , j- i

tion. that restrictions, beyond those of the common law, mentioned

above, are imposed upon them by an Act, commonly called
" Thellusson Act " (x), which was passed in 1880 in conse-
quence of the will of Mr. Thellusson and the establishment
of its validity in Thellusson v. Woodford (y).

By this Act, no settlement of realty or personalty may,
as a rule, be made in such a manner that its profits be
accumulated for any longer term than one only of these
periods, viz., (1) the settlor's life; (2) twenty-one years
from his death ; (3) the minority of any person living, or
in ventre sa mere, at the time of the settlor's death ; (4) the
minority of any person who, by the settlement, would for
the time being, if of full age, be entitled to the profits
directed to be accumulated. And the Act provides that
every direction to accumulate for a longer term shall be
void, and that the profits shall, so long as they shall be
directed to be accumulated contrary to its provisions, go to
such person or persons as would have been entitled thereto
if such excessive accumulation had not been directed. But
the Act does not extend to provisions for the payment of
debts, or for raising portions for children, or touching
the produce of timber or wood upon lands. The Accumula-
tions Act, 1892 (z), further, as a rule, prohibits the settle-
ment of property in such a manner that its profits shall
be accumulated, for the purchase of land only, for a longer
period than during the minority or respective minorities of

140. See Ld. Dungannon v. Smith, (w) See Whitby v. Mitchell, 42

12 01. & F. 546, distinguished in Oh. D. 494 : 44 Id. 85.

V. aosUng, L. K. 1 H. L. (x) 39 & 40 Geo. III. c. 98.

279, 292 ; Spencer v. IHcke of Marl- (y) 4 Yes. 227 ; S. C, 11 Id. 112

borough, 3 Bro. P. C. 232. As to in which case Mr. Hargrave's argu-

covenants to reconvey, see L. d S. ment respecting perpetuities is

W. B. Co. V. Gomm, 20 Oh. D. 562 : worthy of perusal.

51 L. J. Ch. 580. («) 55 & 56 Yiot. o. 58.

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TH"E TRANSFEE OF PROPEKTY. 353

any person or persons who, under the uses or trusts of the
settlement, would for the time being, if of full age, be
entitled to receive the profits directed to be accumulated.

It will be evident, from the preceding remarks, that the Exception
rule against perpetuities is observed by Courts both of law '° '"^°'
and of equity (a). In consequence, however, of the peculiar feme covert.
jurisdiction which Courts of equity exercise, to protect the
interests of married women, the right of alienation has, in
one case, with a view to their benefit, been restricted, and
that restriction thus imposed may be regarded as an excep-
tion to the operation of the maxim in favour of alienation.
It is now fully established, that where property is conveyed
to the separate use of a married woman in fee, with a clause
in restraint of anticipation during coverture, such clause is
valid ; for equity, having in this instance created a particular
kind of estate, will reserve to itself the power of modifying
that estate in such manner as the Court may think fit, and
will so regulate its enjoyment as to effect the purpose for
which the estate was originally created {h). The law upon
this subject was settled in Tullett v. Armstrong (c), and Tullettv.
Scarborough v. Borman (d), where Lord Cottenham, after '^"" ^°"'^'
an elaborate review of the authorities, held that a gift to
the sole and separate use of a woman, whether married or
unmarried, with a clause against anticipation, was good
against an after-acquired husband ; and in subsequent cases
this decision has been fully recognised and followed (e).

The reason of the rule thus established was afterwards
stated by his Lordship in these words : — " When first, by the
law of this country, property was settled to the separate
use of the wife, equity considered the wife as a feme sole, to
the extent of having a dominion over the property. But

(a) See, also, per Wilmot, O.J., (c) 4 My. & Cr. 377, 390. See
Bridgman v. Oreen, Wilmot, Opin. Wright v. Wright, 2 J. & H. 647,
61. 652.

(b) See per Ld. Lyndhurst, (d) 4 My. & Cr. 378.

Baggett v. Meux, 1 Phill. 627 : 1 (e) Baggett v. Meux, supra ; and

Coll. 138. see 45 & 46 Vict. c. 75, s. 19.

L.M. 23

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354

THE TRANSFER OF PROPERTY.

Alienaticn of
personalty
favoured .

Jus ac-cres-
cendi inter
iHsrcatores
non habet.

then it was found that that, though useful and operative,
so far as securing to her a dominion over the property so
devoted to her support, was open to this difficulty — that she,
being considered as a feme sole, was of course at liberty to
dispose of it as a feme sole might have disposed of it, and
that, of course, exposing her to the influence of her husband,
was found to destroy the object of giving her a separate
property ; therefore, to meet that, a provision was adopted
of prohibiting the anticipation of the income of the property,
so that she had no dominion over the property till the
payments actually became due" (/).

Having thus observed that our law favours the alienation
of real property, or to use the words of Lord Mansfield,
that " the sense of wise men, and the general bent of the
people in this country, have ever been against making land
perpetually unalienable : " and having seen that " the utility
of the end was thought to justify any means to attain
it " (g), it remains to add, that the same policy obtains with
reference to personalty ; and, in support of this remark,
may be adduced the well-known rule of the law merchant,
that for the encouragement of commerce, the right of
survivorship, which is ordinarily incident to a joint tenancy,
does not exist amongst trading partners : jus accrescendi inter
mercatores pro leneficio commercii locum non habet (h) : a rule
which evidently favours alienation, by rendering the capital
invested by the partners in their trade applicable to the
purposes of their partnership, and available to the creditors
of the firm (i).

We have already observed that there cannot be an estate
tail in personalty {j ) ; nor can a perpetuity be created

(/) Per Ld. Cottenham, Bennie
V. Bitehie, 12 CI. & F. 234. See
also Hood-Barrs v. Heriot, [1896]
A. C. 174 ; 65 L. J. Q. B. 352.

{g) Per Ld. Mansfield,! Burr. 115

Lex Mere. 6th ed. 42.

(i) The reader must now consult
on this subject the Partnership Act,
1890.

{j) As to heir-looms, see the

(h) Co. Litt. 182 a ; Brownl. 99 ; maxim accessorium seguitur princi-
Noy, Max., 9th ed. 79 ; 1 Beawes, pale, post. As to annexing personal

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THE TRANSPBE OP PROPERTY. 355

therein. Indeed, where the subject-matter of a grant is a
personal chattel, it is impossible so to tie up the use and
enjoyment of it as to create in the donee a life estate which
he may not alien (k). It is true, however, that this object
may be attained indirectly, in a manner consistent with
the rules of law, by annexing to the gift a forfeiture or
defeasance on the happening of a particular event, or on a
particular act being done ; for in that case the donee takes
by the limitation a certain estate, of which the event or act
is the measure, and upon the happening of the event or
the doing of the act, a new and distinct estate accrues to
another person. If, for instance, a testator desire to give
an annuity without the power of anticipation, he can only
do so by declaring that the act of alienation shall determine
the interest of the legatee, and create a new interest in
another (l).

Property may also be given to a party to be enjoyed by Limitation of
him until he become bankrupt, with a proviso that upon ™*®'^®^*-
the happening of that event the property shall go over
to another party. A person cannot, however, create an
absolute interest in property and, at the same time, deprive
the party to whom that interest is given of those incidents
and of that right of alienation which belong, according
to the elementary principles of the common law, to the
ownership of the estate. Where, therefore, a testator
directed his trustees to pay an annuity to his brother, until
he should attempt to charge it, or some other person should
claim it, and then to apply it for his maintenance, it
was held that, on the insolvency of the annuitant, his
assignees became entitled to the annuity (m).

to real estate, the latter being d Co., [1904] 1 Oh. 354 ; 73 L. J. Ch.

devised in strict settlement, see 2 191 ; McQruther v. Pitcher, [1904] 2

Jarm., Wills, 2nd ed. 492. Ch. 306 : 73 L. J. Ch. 653).

(k) So too a condition cannot be (I) Per Ld. Brougham, 2 My. &

attached by the vendor to goods so K. 204.

as to affect subsequent purchasers (m) Yotmghusband v. Oisborne, 1

with notice {Toddy & Co. v. Sterious Colly. 400.

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356

THE TRANSFER OF PROPERTY.

Settled Land
Act, 1882.

The distinction between a proviso or condition subse-
quent, and a limitation above exemplified, may be further
explained in the words of Lord Eldon, who says: "there
is no doubt that property may be given to a man until he
shall become bankrupt. It is equally clear, generally
speaking, that, if property is given to a man for his life,
the donor cannot take away the incidents to a life estate ;
and ... a disposition to a man until he shall become
bankrupt, and after his bankruptcy over, is quite different
from an attempt to give to him for his life, with a proviso
that he shall not sell or alien it. If that condition is so
expressed as to amount to a limitation, reducing the
interest short of a life estate, neither the man nor his
assignees can have it beyond the period limited " (n).

An important extension of the maxim that the law
favours alienation is to be found in the Settled Land Act,
1882 (o), which confers upon the tenant for life of settled
land power to sell the fee-simple without the consent of the
other parties interested under the settlement. The Act
expressly provides that this power shall not be capable of
assignment or release, and it renders void any contract by
the tenant for Hfe not to exercise the power, or any provision
in the settlement prohibiting its exercise (ji). In exercising
the power the tenant for Hfe acts as trustee for all parties
interested under the settlement (q).

Derivation
of rule.

Cujus EST DARE EJUS EST DispoNBRE. (Wing. Max. 53.)

The bestower of a gift has a right to regulate its
disposal (r).

It will be evident, from a perusal of the preceding
pages, that this general rule must now be received with

(n) Brandon v. Robinson, 18 Ves.
433, 434; 11 E. E. 226. See Re
Dugdale, 38 Ch. D. 176, 181.

(o) 45 & 46 Viot. c. 38.

{ p) See ss. 50, 51.
(g) S. 53.

(r) Bell, Diet. & Dig. of Scotch
Law, 242,

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THE TRANSFER OF PROPERTY. 357

considerable qualification. It does, in fact, set forth the
principle on which the old feudal system of feoffment de-
pended ; tenor est qui legem dat feudo (s) — it is the tenor of
the feudal grant which regulates its effect and extent : and
the maxim itself is, in another form, still applicable to modern
grants — modus legem dat donationi (t) — the bargainor of an
estate may, since the land moves from him, annex such con-
ditions as he pleases to the estate bargained, provided that
they are not illegal, repugnant, or impossible (m). Moreover,
it is always necessary that the grantor should expressly
limit and declare the continuance and quantity of the estate
which he means to confer ; for, by a bare grant of lands, the
grantee takes only an estate for life, a feoffment being still
considered as a gift, which is not to be extended beyond the
express limitation or manifest intention of the feoffor (x).
As, moreover, the owner may, subject to certain beneficial Reservation

. . . . in demise

restrictions, impose conditions at his pleasure upon the of laud.
feoffee, so he may likewise, by insertion of special covenants
in a conveyance or demise reserve to himself rights of ease-
ment and other privileges in the land so conveyed or
demised, and thus surrender the enjoyment of it only
partially, and not absolutely, to the feoffee or tenant. " It
is not," as remarked by Lord Brougham (y), " at all incon-
sistent with the nature of property, that certain things
should be reserved to the reversioners all the while the
term continues. It is only something taken out of the
demise — some exception to the temporary surrender of the
enjoyment : it is only that they retain more or less partially
the use of what was wholly used by them before the demise,
and what will again be wholly used by them when that
demise is at an end."

It must not, however, therefore be inferred that " inci-
dents of a novel kind can be devised and attached to

(s) Craig, Jus Feud., 3rd ed. 66. {x) Wright, Tenures, 151, 152.

(«) Co. Litt. 19 a. (y) 2 My. & K. 536, 537.

{u) 2 Eep. 71.

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358 THE TRANSFBK OF PKOPERTY.

property at the fancy or caprice of any owner (0). "No
man," remarks Lord St. Leonards, in Egerton v. Earl
Broivnlow (a), "can attach any condition to his property
which is against the pubUc good," nor can he " alter the
usual line of descent by a creation of his own. A man
cannot give an estate in fee-simple to a person and his heirs
on the part of his mother. Why ? Because the law has
already said how a fee-simple estate should descend " (b).

It is further to be observed that it is not in the power of
an owner of land to create rights not connected with its use
or enjoyment, and to annex them to it, nor can he subject
the land to a new species of burden, so as to bind it in the
hands of an assignee; thus, in the well-known case of
Ackroyd v. Smith (c) the plaintiff and his mortgagee had
granted to the defendants' predecessors in title, their heirs
and assigns, certain premises, together with the right of
passing and repassing for all purposes along a certain road.
It was held that as the right was to use the road for all
purposes, it was not a right incidental to the enjoyment of
the premises granted, and, therefore, was not appurtenant
to them, and was not assignable, and that the defendants
who justified their user of the road under the grant as
assignees must be treated as trespassers.
Landlord " The general principle," says Ashhurst, J., " is clear,

that the landlord having the jus disponeiidi may annex
whatever conditions he pleases to his grant, provided
they be not illegal or unreasonable." It is, for instance,
" reasonable that a landlord should exercise his judgment
with respect to the person to whom he trusts the manage-
ment of his estate ; and, therefore, a covenant not to assign

(z) Per Ld, Brougham, 2 My. & CressweU, J., and Watson, B., Bow-

K. 535 ; Ackroyd v. Smith, 10 0. B. botham v. Wilson, 8 E. & B. 123 ;

164; Bailey v. Stepliens, 12 C. B. S. C, 8 H. L. Gas. 848.

N. S. 91 ; Ellis v. Mayor of Bridg- (a) 4 H. L. Cas. 241, 242.

noHh, 15 C. B. N. S. 52, 78 ; Tulk (b) See also Marquis of Salisbury

V. Moxhay, 2 Phill. 774 ; Hill v. v. Qladstmie, 9 H. L. Oas. 241.

Tupper, 2 H. & C. 121, 128; ^w (c) 10 0. B. 164.

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THE TRANSFEK OF PEOPEETY. 359

is legal " (d) ; and ejectment will lie on breach of such
a covenant.

On this principle, likewise, an agreement by defendant to
allow plaintiff, with whom ho cohabited, an annuity for
life, provided she should continue single, was held to be
valid, for this was only an original gift, with a condition
annexed ; and cujus est dare ejtis est disponere. Moreover,
the grant of the annuity was not an inducement to the
plaintiff to continue the cohabitation, it was rather an
inducement to separate (c).

Another remarkable illustration of the jus disponeiidi
presents itself in that strict compliance with the wishes of
the grantor, which was formerly (/) regarded as essential
to the due execution of a power {g).

ASSIGNATUS UTITUR JuEB AucTOEis. {Hcdk. Max., p.

14.) — An assignee is clothed witlt, the rights of his

principal {h).

It is laid down as a leading rule concerning alienations

and forfeitures, that qitod memn est sine facto meo vel defect ii

meo amitti, vel in alium transfcrri, non potest (i), where

factum may be translated " alienation," and defectus

" forfeiture " {k) ; and it seems desirable to preface our

(d) Roe V. Galliers, 2 T. B. 137, (h) " Auctores " dictmter a qtdbus
138 ; 1 E. E. 445. jusinnostransiit. Brisson, adverb.

(e) Gibson v. Dickie, 3 M. & S. " Auctor."

463 ; 16 E. E. 333 ; cited arg., (i) TMs maxim is well illustrated

Parker v. Bolls, 14 0. B. 697. by Vynor v. Mersey Docks Board, 14

(/) By 1 Vict. 0. 26, s. 10, every 0. B. N. S. 753.

wiU executed as prescribed by that (k) 1 Prest., Abs. Tit. 147, 318.

Act is now a valid execution of The kindred maxims are, Quod semel

a power of appointment by will, meum est am,plius meum esse non

although other required solemnities potest, Co. Litt. 49 b ; Duo non

may not have been observed. possunt in solido unam rem possi-

(g) Rutland v. Doe, 12 M. & W. dere, Co. Litt. 368 a. See 1 Prest.,

357, 378, 378 ; S. C, 10 01. & P. Abs. Tit. 318 ; 2 Id. 86, 286 ; 2

419 ; Doe v. Burrotigh, 6 Q. B. 229 ; Dods., Adm. E. 157 ; 2 Curt. 76.
Doe V. Eyre, 3 C. B. 557.

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360 THE TRANSFER OF PROPERTY.

remarks as to the rights and liabilities which pass by the
transfer of property, by stating this elementary principle,
that where property in land or chattels has once been
effectively and indefeasibly acquired, the right of property
can only be lost by some act amounting to alienation or
forfeiture by the owner or his representatives.
Who is an An " assignee " is one who, by such act as aforesaid, or

by the operation of law, as in the event of death, possesses
a thing or enjoys a benefit ; the main distinction between
an assignee (l) and a deputy being, that the former occupies
in his own right, whereas the latter occupies in the right
of another (m). A familiar instance of a transfer by the
owner's act occurs in the assignment of a lease by deed ;
and of a transfer by operation of law, in the case of the
heir of an intestate, who is an assignee in law of his
ancestor (n). Further, the term " assigns "(o) includes
the assignee of an assignee in pevpetuum (p), provided the
interest of the person originally entitled is transmitted
on each successive devolution of the estate or thing
assigned ; for instance, the executor of A.'s executor is
the assignee of A., but not so the executor of A.'s
administrator, or the administrator of A.'s executor, who
is in no sense the representative of A., and to whom,
therefore, the unadministered residue of A.'s estate will
not pass.

In order to place in a clear light the general bearing
of the maxim assignatus utitur jure auctoris, we will briefly
notice, first, the quantity, and, secondly, the quality or
nature, of the interest in property which can be assigned

(I) See Bromage v. Lloyd, 1 Exch. v. De Crespigny, L. B. 4 Q. B. 186.

32 ; Bishop v. Curtis, 18 Q. B. 878 ; See also Mitcalfe v. Westaway, 17

Lysaght v. Bryant, 9 0. B. 46. C. B. N. S. 658. An underlease of

(w) Perkin's Prof. Bk., s. 100; the whole term amounts to an

Dyer, 6. assignment ; Beardman v. Wilson,

(to) Spencer's case, 5 Eep. 16. L. E. 4 C. P. 57.

(o) As to the meaning of the word (p) Co. Litt. 384 b.

'' assigns " in a covenant, see Baily

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THE TBANSFEE OF PBOPERTY.

361

by the owner to another party. And, 1st, it is a well-known

general rule, imported into our own from the civil law, that

no man can transfer a greater right or interest than he

himself possesses : nemo plus juris ad aliuni transferre potest What amount

quam ipse haheret (q). The owner, for example, of a base can be

or determinable fee can do no more than transfer to ^^^^sne ■

another his own estate, or some interest of inferior degree

created out of it ; and if there be two joint tenants of land,

a grant or a lease by one operates only on his own

moiety (r). In like manner, where the grantor originally

possessed only a temporary or revocable right in the thing

granted, and this right becomes extinguished by efflux of

time or by revocation, the assignee's title ceases to be valid,

according to the rule resolute jure concedentis resolvitur jus

concessum (s).

We find it laid down, however, that the maxim above
mentioned, which is one of the leading rules as to titles,
or the equivalent maxim, non dat qui non liahct, did not,
before the 8 & 9 Vict. c. 106, apply to wrongful convey-
ances or tortious acts (t). For instance, before that Act,
if a tenant for years made a feoffment, this feoffment
vested in the feoifee a defeasible estate of freehold ; for,
according to the ancient doctrine, every person having
possession of land, however slender or tortious his possession
might be, was, nevertheless (unless, indeed, he were the
mere baUiff of the party having title), considered to be in
of the seisin in fee, so as to be able by livery to transfer
it to another; and, consequently, if, in the case above
supposed, the feoffee had, after the conveyance, levied a
fine, such fine would, at the end of five years from the
expiration of the term, have barred the lessor (it). But

(2) D. 50, 17, 54; Wing. Max., (m) See Mr. Butler's note (1), Co.

p. 56. Litt. 330 b ; Machell v. Clarke, 2

(r) 3 Prest., Abs. Tit. 25, 222. Ld. Baym. 778 ; 1 Cruise, Dig., 4tli

(s) Maokeia., Civ. Law, 179. ed. 80.
(t) 3 Prest., Abs. Tit. 25 ; Id. 244.

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362

THE TKANSFEK OF PKOPBETY.

Eule holds
generally in
mercantile
transactions.

now, by s. 4 of the above Act (x), a feoffment " shall not
have any tortious operation."

In connection with copyhold law also, there is an
exception to the elementary rule above noticed; for the
lord of a manor, having only a particular interest therein
as tenant for life, may grant by copy for an estate which
may continue longer than his own estate in the manor,
or for an estate in reversion, which may not come into
possession during the existence of his own estate : the
special principle, on which the grants of a lord pro tempore
stand good after his estate has ceased, being that the
grantee's estate is not derived out of the lord's only, but
stands on the custom (//).

In mercantile transactions, as well as in those connected
with real property, the general rule undoubtedly is, that
a person cannot transfer to another a right which he does
not himself possess. The law does not " enable any man
by a written engagement to give a floating right of action
at the suit of any one into whose hands the writing
may come, and who may thus acquire a right of action
better than the right of him under whom he derives
title" (2).

Of the rule above stated, a familiar instance, noticed
by M. Pothier, is that, where prescription has begun to
run against a creditor, it will continue to run as against
his heir, executors, or assigns, for the latter succeed only
to the rights of their principal, and cannot stand in a better
position than he did : nemo plus juris in alium transferre
potest quam ipse habet (a). However, in considering here-
after the maxim caveat emptor {b), we shall have occasion
to notice several cases which are directly opposed in

Prop

(x) See Shelford, Eeal
Stats., 6th ed. 595.

{y) Shelford, Copyholds, 20.

(z) Per Ld. Cranworth, Dixon v.
Bovill, 3 Macq^. Sc. App. Cas. 16 ;
see Crouch v. Credit Fonder, L. R.

8 Q. B. 374, 381 ; as to which case,
see 1 Sm. L. C, 11th ed. 480 et. seq.

(a) 2 Pothier, ObHg. 263. This
maxim was applied by Parke, B., in
Awde V. Dixon, 6 Exoh. 872.

(b) Post, Chapter IX.

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THE TBANSFEK OF PROPERTY.

363

principle to the nile; for two very important exceptions
to the rule nemo dat quod non habet (c) relate, the one to
sales in market overt, and the other to the transfer of
negotiable instruments. Here we shall content ourselves
with briefly pointing out how at the present day a seller
of goods may lose his right of stoppage in transitu, through
the bill of lading coming to the hands of a sub-buyer (d).

As a general rule, when the buyer of goods becomes Transfer of
insolvent, the unpaid seller who has parted with the possession
of the goods may stop them in transitu : he may resume
possession of them so long as they are in course of transit,
and retain them until payment of the price (c) ; and this
right is usually not affected by any sub-sale of the goods
which the buyer may have made without the seller's assent,
but the sub-sale, even if for cash paid down, takes effect
subject to the original seller's right of stoppage (/). If,
however, the seller has indorsed and delivered to the buyer
the bill of lading, or any other document of title to the
goods, and the buyer has indorsed and delivered it to his
sub-buyer, then the sub-buyer, provided he has taken the
document in good faith, as well as for valuable considera-
tion (g), is entitled to the goods, free from any right in
the original seller to stop them, and thus his position is
better than that of the original buyer (/;). Moreover,
although the property in the goods does not pass to a buyer
who, having received the bill of lading together with the
seller's draft upon him for the price of the goods, wrongfully
retains the bill of lading without honouring the draft (i) :

(c) Per Willes, J., U C. B. N. S. 1893 (declaring the common law).
257. (/) Id. s. 47; see Kemp v. Falk,

(d) As to the law relating to the 7 App. Cas. 573, 582.

passing of the property in the goods (g) See Leask v. Scott, 2 Q. B. D.

by the indorsement and delivery of 376.

the bUl of lading, see Sewell v. (h) Sale of Goods Apt, 1893, s. 47

Burdick, 10 App. Oaa. 74 ; Bristol (declaring the common law) : Lick-

Bcmk V. Midi. B. Co., [1891] 2 Q. B. barrow v. Mason, 1 Sm. L. C.

653 : 61 L. J. Q. B. 115. (i) Id. s. 19 (3) ; Shepherd v.

(e) S. 44 of the Sale of Goods Act, Harrison, L. R. 5 H. L. 116, 133.

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364

Amount of
interest taken
by assignee.

Assignee of
a chose in
action may
sue for it
in liis own
name.

THE TBANSFEK OF PKOPEETY.

yet, the seller's right of stoppage may now be defeated by
such buyer wrongfully transferring the bill of lading to his
sub-buyer ; for the sub-buyer acquires a good title to the
goods by taking the bill of lading in good faith and without
notice of the rights of the original seller in respect of the
goods ij) . The legislature has thus altered the common law
which made a transfer of a bill of lading meffectual if the
transferor was not himself the owner of the goods (k).

Having thus adverted to the quantity of interest assignable,
Avith reference more especially to the grantor, we must next
observe that, as a general rule, the assignee of property
takes it subject to all the obhgations or liabihties (I), and
clothed with all the rights, which attached to it in the hands
of the assignor (m) ; and this is in accordance with the maxim
of the civil law, qui in jus d,ominmmve altcrius succcdit jure
ijiis uti debet {n). We have already given one instance
illustrative of this rule, viz., where an heir or executor
becomes vested with the right to property against which the
Statute of Limitations has begun to run.

We may here remark that, although formerly at law there
was a distinction between the transfer of a chose in action
and the transfer of the right to sue for the same, the
importance of that distinction has largely ceased since the
Judicature Act, 1873, whereby an absolute assignment, by
writing, under the hand of the assignor, of any debt, or other
legal chose in action, of which express notice in writing has

U) Sale of Goods Act, 1893, s.
25 (2) ; Cahn v. Pockett's Co., [1899]
1 Q. B. 643 : 68 L. J. Q. B. 515.

(k) Per Collins, L.J., [1897] 1
Q. B. 660. See Gurney v. Behrend,
3 E. & B. 683, 634 ; Glyn-^. E. S W.
India Docks Co., 7 App. Cas. 591.

{I) See WTiite v. Crisp, 10 Exch.
312 ; Newfoundland Oovernment v.
Newf. B. Co., 18 App. Oas. 199.

(to) As to this rule, see Mangles v.
Dixon, 3 H. L. Cas. 702, cited Higgs
V. Assam Tea Co., L. R. 4 Ex. 396 ;

Bodger v. Convptoir d'Escompte,
L. R. 2 P. C. 398, 405 ; Dickson v.
Swansea Vale B. Co., L. R. 4 Q. B.
44, 48. If a man gives a licence and
then parts with the property over
which the privilege is to he exercised,
the licence is gone ; Colman v.
Foster, 1 H. & N. 37, 40.

{») D. 50, 17, 177, pr. For in-
stance, fee-simple estates are sub-
ject, in the hands of the heir or
devisee, to debts of all kinds con-
tracted by the deceased.

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THE TRANSFER OF PROPERTY. 365

been given to the debtor, trustee, or other person from whom
the assignor would have been entitled to receive or claim
such debt or chose in action, is effectual in law (subject to all
equities entitled to priority over the right of the assignee)
to pass and transfer the legal right to such debt or chose in
action, and all legal and other remedies for the same (o).

Without attempting to enumerate the various rights which
are assignable, either by the express act of the party, or by
the operation of law, we may observe, generally, that the
maxim, assignatus utitur jure auctoris, is subject to many
restrictions (p) besides those to which we have alluded.
For instance, at common law, the assignee of the reversion
upon a lease of lands could not, according to the better
opinion, sue upon the covenants contained in the lease (5) ;
and, though the law has been altered in his favour by the
32 Hen. 8, c. 34, s. 1, and the 44 & 45 Vict. c. 41, s. 10, yet
those statutes enable him to sue only upon such covenants
as touch and concern the thing demised, or have reference
to the subject-matter of the lease, and not upon merely
collateral covenants (r). Again, notwithstanding that the
property of a bankrupt which vests in his trustee includes
" things in action " and " every description of property " (.s),
yet rights of action in respect of torts, or even breaches of
contract, resulting immediately in injuries wholly to the
person or feelings of the bankrupt, do not pass to the
trustee, although the bankrupt's estate may have been
consequentially damaged thereby («) . And, as we shall here-
after see {u), the rule that a vested right of action is by death

(0) S. 25, sub-s. 6. (s) 46 & 47 Vict. c. 42, ss. 54, 168.

(■p) See Sandrey v. Michell, 3 B. (i) Beckham v. Drake, 2 H. L.

& S. 405 ; Young v. Sughes, 4 H. & Oas. 579 ; Sogers v. Spence, 12 01.

N. 76 ; M'Kune v. Joynson, 5 0. B. & P. 700 ; Base v. Buckett, [1901]

N. S. 218. 2 K. B. 449 : 70 L. J. K. B. 736.

(2) 1 Wms. Saund. (ed. 1871), See Williams, Bankoy., 9th ed. 226.

p. 299, n. (b) : p. 300, n. (10). (u) See the maxim, actio per-

(r) See Spencer's case, and the sonalis moritur cum persona, post,

notes, 1 Smith, L. 0., 11th ed,, Chap. IX.
pp. 55 et seq.

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866

THE TRANSFER OF PROPERTY.

Absolute
and special
property.

transferred to the personal representatives of the deceased is
subject to important exceptions.

The case of a pawn or pledge of a chattel should perhaps
also be referred to in connection with the principle, assignatus
utiUirjure auctoris, for here the pawnor retains a property
in the chattel, qualified by the right vested in the pawnee ;
and a sale of the chattel by the pawnor would, therefore,
transfer to the buyer that qualified right only which the
seller himself possessed (x) . To constitute a vaHd pledge,
there must, however, be a delivery of the chattel, either
actual or constructive, to the pawnee (2/), and if the pawnee
parts with the possession of the chattel he may lose the
benefit of his security, and will do so if such parting is
absolute (s).

Again, the well-known distinction between absolute and
special property may be adverted to generally, as showing
how and under what circumstances the maxim, that an
assignee succeeds to the rights of his grantor, must, in
a large class of cases, be understood. Ahsolute property,
according to Lawrence, J., is, where one, having the
possession of chattels, has also the exclusive right to enjoy
them, which right can only be defeated by some act of
his own. Special property, on the other hand, is, where
he who has the possession holds them subject to the claims
of other persons (a). According, therefore, as the property
in the grantor was absolute or subject to a special lien, so
will be that transferred to his assignee : qui in jus dominiumre
alterius succedit jure ejus uti debet ; and the same principle

(x) Franklin v. Neate, 13 M. &
W. 481, cited Be Attenborough, 11
Exch. 463. As to tte true nature
of a pledge, see per Parke, B.,
Cheesman v. Email, 6 Exch. 344.
As to the right of the pledgee to
sell the pledge, see Halliday \-.
Holgate, L. R. 3 Ex. 299.

(y) Per Erie, C.J., Martin v. Beid,
11 C. B. N. S. 734.

(0) Meyerstein v. Barber, L. R. 2
C. P. 51 : 36 L. J. 0. P. 57 ; Totmg
V. Lambert, L. R. 3 C. P. 142 ; Byal
V. Bolle, 1 Atk. 164 ; N. W. Bank
V. Poynter, [1895] A. 0. 56 : 64 L. J
P. 0. 27.

(a) Webb v. Fox, 7 T. R. 398 ; 4
E. R. 472. See per Pollock, C.B.,
Lancashire Waggon Co. v. Fitzlmgh,
6 H. & N. 506.

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THE TRANSFER OF PROPERTY. 367

applies where a subsequent transfer of the property is made
by such assignee (h).

We shall now proceed to consider a few other kindred
maxims, which, though, perhaps, of minor importance, yet
could not properly be omitted in even the most cursory
notice of the law relating to the transfer of property.

CuiCUNQUE ALIQUIS QUID CONCEDIT CONOEDERB VIDBTUB ET
ID SINE QUO RbS ipsa ESSE NON POTUIT. (11 Rcp. 52.)

— IJlioever grants a thing is deemed also to grant that
without which the grant itself would he of no effect.

" When anything is granted, all the means to attain it. General rule.
and all the fruits and effects of it, are granted also, and
shall pass inclusive, together with the thing, by the grant of
the thing itself, without the words cum pertinentiis, or any
such like words "(c). Therefore, where a man, having a Examples.
close surrounded with his land, grants the close, the grantee
shall have a way over the land as incident to the grant {d) ;
and, if the land be granted with a reservation of the close,
the grantor shall have a way of necessity to the close {d),
notwithstanding the general rule that a grantor shall not
derogate from his grant and that if he intend to reserve any
right over the land granted he must reserve it expressly (e).
So, if a man lease his land and all mines therein, when
there are no open mines, the lessee may dig for the
minerals (/) ; by the grant of the fish in a man's pond is
granted power to come upon the banks and fish for them {g) ;
and where minerals are granted, the presumption is that
they are to be enjoyed, and that a power to get them is also

(6) As to a sale or wrongful con. (i) 1 Wms. Savmd. 323 ; Pinning-

version by bailee for hire, see Cooper ton v. Oalland, 9 Exoh. 1.
V. Willomatt, 1 C. B. 672 ; Brycmt (e) See Wheeldon v. Burrows, 12

V. Warden, 2 Exoh. 479 ; Fenn v. Oh. D. 31, id, citei post, p. 360.
BittUston, 7 Exoh. 152 ; Spackman (/) Sounder's case, 5 Eep. 12 a.

V. MilUr, 12 0. B. N. S. 659, 676. (g) Shep. Touch. 89.

(c) Shep. Touch. 89.

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368

THE TRANSFER OP PROPERTY.

Repair of
pipes.

Erections
necessary
for mining.

granted as a necessary incident (//). On the same principle,
if trees be excepted in a lease, the lessor has power, as
incident to the exception, to enter the land demised at any
reasonable times to fell and remove the trees ; and the like
law holds of a demise by parol (i). So a rector may, as
incident to his right to tithes, enter a close to carry the
tithes away by the usual road (k) ; and a tenant at will, after
notice from his landlord to quit, or other person entitled to
emblements, shall have free entry, egress and regress, to
cut and carry away the corn (I).

So, it has been observed that, when the use of a thing is
granted, everything is granted whereby the grantee may
have and enjoy such use ; as, if a man give me a licence to
lay pipes in his land to convey water to mine, I may enter
and dig his land, in order to mend the pipes (m). And
where it was found by special verdict that a coal-shoot and
certain pipes were necessary for the convenience and bene-
ficial use and occupation of a messuage, and it was held
that under the circumstances they passed to the lessee as
part of the messuage : it was further held, in accordance
with the rule under consideration, that the right to go over
the soil of a certain passage, in order to use the coal-shoot,
and to use and repair the pipes, also passed to the lessee as
a necessary incident to the demise, although not mentioned
in the lease (n).

Again, where a deed of conveyance of land excepted and
reserved out of the grant all coal-mines, together with suffi-
cient way-leave and stay-leave to and from the mines, and

(h) See per Ld. Wensleydale.
Bowbotham v. Wilscm, 8 H. L. Cas.
360.

(i) Liford's case, 11 Eep. 32 a ;
Hewitt V. Isham, 7 Exoh. 77.

{k) See Cobb v. Selby, 2 N. R.
466; James v. Dodds, 2 Cr. & M.
266.

(I) Litt. s. 68 ; Co. Litt. 56 a.

(m) Per Twysden, J., Pomfret v.
Eicroft, 1 Saund. 323 ; Hodgson v.
Field, 7 East, 622 ; 8 E. B. 701 ;
Blakesley v. Whieldon, 1 Hare, 180 ;
Goodhart v. Hyett, 25 Ch. D. 182,
187 : 58 L. J. Ch. 219.

(«) Hinchcliffe v. Earl of Kinnoul,
5 Bing. N. G. 1,

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THE TRANSFER OP PROPERTY. 369

the liberty of sinking pits : it was held that, as a right to sink
pits to get the coals was reserved, all things depending
on that right and necessary for its enjoyment were also
reserved, and that the grantor had, as incident to the liberty
to sink pits, the right to affix to the land all machinery
necessary to drain the mines, and draw the coals from the
pits : and also that a pond to supply the engine, and an
engine-house, were necessary accessories to the engine, and
were lawfully made (o) .

The maxim under consideration is applicable in construing statutoi-y
Acts of Parliament. Thus, where a statute empowered one '^'^ ^'
railway company to carry their line across that of another
by a bridge, it was held that the former might place
temporary scaffolding on the land of the latter, if that were
necessary for constructing the bridge (i^). And, generally
where an express statutory right is given to make and
maintain a thing necessarily requiring support, the statute,
in the absence of a context implying the contrary, means
that the right to necessary support of the thing constructed
shall accompany the right to make and maintain it (q).

On the same principle, the power of making bye-laws is powcr of
incident to a corporation; for when the Crown creates a f™^°^''g''°"
corporation, it grants to it, by implication, all powers bye-laws.
necessary for carrying out the objects for which it is created,
and securing a perpetuity of succession ; and a discretionary
power to make minor regulations, usually called bye-laws,
in order to effect the objects of the charter, is necessary ;
and the reasonable exercise of this power is, therefore,
impliedly ;conferred by the very act of incorporation (;) .
On the same principle also seems to rest the doctrine that a
grant from the Crown to the men of a particular parish for
a specific purpose has the effect of incorporating them so as

(o) Dand v. Kingscote, 6 M. & W. {q) L. & N. W. M. Co. v. Evans

174. [1893] 1 Oil. 16, 28 : 62 L. J. Oh. 1.

(p) Clarence B. Co. v. O. N. B. (r) Per Parke, J., B. v. Westwood,

Co., 13 M. & W. 706, 721. 7 Bing. 20 ; 83 R. R. 24.

L.M. 24

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370

THE TRANSFER OF PROPERTY.

Rule limited
to necessary
incidents.

WiccldoH ■
Burrows.

to carry that purpose into effect (s); and the rule that a
corporation formed for trading purposes has an impHed
power to contract by parol for purposes necessary for
carrying on its trade (t).

Our maxim, however, must be understood as applying
only to such things as are incident to the grant and directly
necessary to the enjoyment of the thing granted. Thus, if
a man grant the fish in his pond, the grantee may not cut
the banks to lay the ponds dry, for he can take the fish by
nets or other engines (u). If a man let a house, reserving
a way through it to a back-house, he may not use the way
but upon request and at seasonable times (.c). A way of
necessity is also limited by the necessity which created it,
and, when such necessity ceases, the right of way likewise
ceases ; therefore, if, at any later time, the party formerly
entitled to such a way can, by passing over his own land,
reach the place to which it led by a's direct a course as
that of the old Avay, the way ceases to exist as of
necessity (ij). Moreover, it seems" that a way of necessity is
not a way for all purposes, but only for that of enjoying the
place in its original condition (z).

We may conclude this part of our subject by citing the "^
following observations from the judgment of Thesiger, L.J.,
in an important case upon the relative rights of the parties
to the grant of part of a tenement : — " I think that two
propositions may be stated as what I may call the general
rules governing cases of this kind. The first is that on the
grant by the owner of a tenement of part of that tenement
as it is then used and enjoyed, there will pass to the grantee
all those continuous and apparent easements (by which, of

(s) See Ld. Bivers v. Admns, 3
Ex. D. 366.

(t) 8. of Ireland Colliery Co. \.
Waddle, L. R. i 0. P. 617.

(m) Perk., Grants, s. 110; Hob.
234 ; Plowd. 16 a ; 2>er Parke, B.,
li M, & W. 189.

(x) Tomlin v. Fuller, 1 Ventr. 48.

(i/) Holmes v. Goring, 2 Bing. 76 ;
27 R. R. 549 ; see Pearson v. Spencer,
IB. &_S. 571, 584: 3 Id. 762.

{a) London Corporation v. Biggs,
18 Ch. D. 798.

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THE TRANSFER OF PROPERTY. JJ7_[

course, I mean quasi easements), or, in other words, all
those easements which are necessary to the reasonable
enjoyment of the property granted, and which have been
and are at the time of the grant used by the owner of the
entirety for the benefit of the part granted. The second
proposition is that, if the grantor intend to reserve any
right over the tenement granted, it is his duty to reserve it
expressly in the grant. Those are the general rules govern-
ing cases of this kind, but the second rule is subject to
certain exceptions. One of these exceptions is the well-
known exception which attaches to cases of what are called
ways of necessity. . . . Both of the general rules I have
mentioned are founded upon a maxim which is as well
established by authority as it is consonant to reason and
common sense, viz., that a grantor shall not derogate from
his grant " (a).

Upon a principle similar to that which has been thus Authority
briefly considered, it is a rule that, when the law commands i^^^^^ ^^
a thing to be done, it authorises the performance of what-
ever may be necessary for executing its command : qttando
aliquid vmndatur, inandatur ct oinnc per quod pervenifur ad
illud (b). Thus when a statute gives a justice of the peace
jurisdiction over an offence, it impliedly gives him power

• (a) Wheeldon v. Burrows, 12 Oh. to a favourable termination ; per

T>. 31, 49 : 48 L. J. Oh. 853. See Parke, B., 6 Exch. 889 ; per Ld.

Bussell V. Watts, 10 App. Cas. 590 ; Blackburn, 10 App. Gas. 116 ; and

Brown v. Alabaster, 37 Oh. D. 490, the maxim applies to the authority

504 ; Birmingham Banking Co. v. of agents generally ; see per Ld.

Ross, 38 Id. 295 ; Orosvenor Hotel Blackburn, 9 App. Cas. 546 : it

Co. V. Hamilton, [1894] 2 Q. B. 836 : being a general rule that " there is

63 L. J. Q. B. 661. As to what an implied authority to do all those

easements pass by a conveyance of things that are necessary for the

land made since 1881, see 44 & 45 protection of the property entrusted

Vict. c. 41, s. 6. to a person, or for fulfilling the

(6) 5 Eep. 116. Upon this maxim duty which a person has to per-

rests the authority of the master of form ; " per Blackburn, J., L. R 6

a ship to bind the owner for all that Q. B. 69; per Lopes, L.J., [1891]

is necessary for the purpose of con- 1 Q. B. 522,
ducting the navigation of the ship

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372 THE TRANSFBE OP PROPERTY.

to apprehend any person charged with such offence (c).
So, constables, whose duty it is to see the peace kept, may,
when necessary, command the assistance of others (d). In
Hke manner, the sheriff is authorised to take the j^osse
comitatus, or power of the county, to help him in executing
a writ of execution, and every one is bound to assist him
when required so to do (<■) ; and, by analogy, the persons
named in a writ of rebelKon, and charged with the
execution of it, have a right, at their discretion, to require
the assistance of any of the liege subjects of the Crown to
aid in the execution of the writ (/).

The foregoing are simple illustrations of the last-
mentioned maxim, or of the synonymous expression,
qiiando lex aliqidd aliciii concedit, conceditur et id sine quo
res ipsa esse non potest (g), the full import of which has
been thus elaborately set forth (/i) :— " Whenever anything
is authorised, and especially if, as matter of duty, required
to be done by law, and it is found impossible to do that
thing unless something else not authorised in express
terms be also done, then that something else will be
supplied by necessary intendment. But if, when the
maxim comes to be applied adversely to the liberties or
interests of others, it be found that no such impossibility
exists, — that the power may be legally exercised without
the doing that something else, or, even going a step
farther, that it is only in some particular instances, as
opposed to its general operation, that the law fails in its
intention unless the enforcing power be supplied, — then in
any such case the soundest rules of construction point to
the exclusion of the maxim, and regard the absence of

(o) Bane v. Mefhiwn, 2 Bing. 63 ; Siandish, 6 C. B. 521.

27 B. E. 546. See B, v. Benn, 6 (/) Miller v. Knox, 4 Bing. H. 0.

T. B. 198. 574.

(d) Noy, Max., 9th ed., p. 55. (g) 12 Eep. 131.

(e) Foljamb's case, 5 Eep. 116 ; {h) Fenton v. Hampton, 11 Moo.
cited 4 Bing. N. C. 583 ; Noy, Max., P. C. 360.

9th ed., p. 55 ; Judgm., Soioden v.

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THE TRANSFER OF PROPERTY. 373

the power which it would supply by implication as a casus
omissus."

The mode of applying the maxim just cited may be
thus exemplified. The Lower House of Assembly of
Dominica being a legislative assembly constituted under
royal proclamation, with a view to the making of
laws for the peace, welfare, and good government of the
inhabitants of the colony (i) : the question arose (A;),
whether the Assembly had the right to punish its
members by committal to gaol, when guilty of con-
tempt of the House, or of obstructing its business, in
its presence and during its sittings. In deciding this
question adversely to the asserted right, the Judicial
Committee of the Privy Council observed in substance as
follows : — It must be conceded that as the common law
sanctions the exercise of the prerogative by which the
Assembly was created, the principle of the common law,
embodied in the maxim, quando lex aliquicl concedit
concedere videtur et illud sine quo res ipsa esse non potest,
appUes to the body so created. The question, therefore,
is, whether the power to punish for contempts committed
in its presence is necessary to the existence of such a body
and the proper exercise of the functions which it is intended
to execute. It is necessary to distinguish between a power
to commit for a contempt, which is a judicial power, and
a power to remove an obstruction oifered to the deliberations
of a legislative body during its sitting, which last power
is necessary for self-preservation. If a member of a
Colonial Assembly is guilty of disorderly conduct of the
House whilst sitting, he may be removed, or excluded for
a time, or even expelled ; but there is a great difference
between such powers and the judicial power of inflicting
a penal sentence for the offence. The right to remove for
self-security is one thing, the right to inflict punishment

(i) Clark, Col. L. 134. P. 0. 328.

(k) Doyle v. Falccmer, L. B. 1

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374 THE TRANSFER OF PROPERTY.

is another. The former is all that is warranted by the
maxim above cited, but the latter is not its legitimate
consequence. To establish the privilege claimed, it must
be shown to be essential to the existence of the Assembly —
an incident sine quo res ipsa esse non potest (l).
Prohibition On the other hand, quanclo aliquid prohihetur, proliihetur

by^iw^ <'f omne per quod devcnitur ad illiid (m) : " Whatever is

prohibited by law to be done directly cannot legally be
effected by an indirect and circuitous contrivance "(h):
and a transaction will not be upheld which is " a mere
device for carrying into effect that which the legislature
has said shall not be done"(o). Wherever Courts of law
see attempts made to conceal illegal or void transactions by
fictitious documents, they " brush away the cobweb varnish,
and show the transactions in their true light "(_/;). For
instance, when the question is whether the Bills of Sale
Acts apply, the Courts disregard the form of the documents,
and look to the true nature of the transaction and the real
intention of the parties (q) ; and the same rule obtains,
where the question is whether the Gaming Act applies (r).
Again, as an example of the maxim, that what " cannot be
done per directum shall not be done per obliquum " (.s), it
may be mentioned that a tenant who has covenanted not
to transfer his lease, commits a fraud upon his landlord,
and breaks his covenant, if an alienation be effected
by his collusion under colour of a seizure of the term
in execution (f). Of fraud itself it has been said that

(l) L. R. 1 P. C. 338. See Bartcn [1892] 1 Ch. 173 : 61 L. J. Ch.

V. Taylm; 11 App. Cas. 197. 138.

(m) 2 Inst. 48. (5) Be Watson, 25 Q. B. D. 27 ;

{n) Per Tiuclal, C.J., Booth v. Madell v. Thomas, [1891] 1 Q. B.

Bank of England, 7 01. & F. 509, 230 : 60 L. J. Q. B. 227.

S38. ()■) Universal Stock Exchange v.

(0) Per Martin, B., Morris v. Strachan, [1896] A. 0. 166, 173 : 65

Blackman, 2 H. & 0. 912, 918. L. j, Q. B. 428.

(p) Per Wilmot, C.J., Collins v. (s) Co. Litt. 223 b.

Blantern, 2 Wils. 341, 349 ; cf. Jones (t) Doe v. Carter, 8 T. B. 300 ; 4

V. Merionethshire Building Society, R. R. 586.

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THE TBANSFER OF PROPERTY. 375

it is " infinite in variety ; sometimes it is audacious
and unblushing; sometimes it pays a sort of homage
to virtue, and then it is modest and retiring ; it would
be honesty itself if it could only afford it. But fraud
is fraud all the same ; and it is the fraud, not the manner
of it, which calls for the interposition of the Courts " (h).

With regard to the argument that a transaction is an "Evasion-
"evasion "of a prohibitory Act, it must be observed that
the real question always is whether the transaction is or is
not within the Act, although it does not follow that it is not
within it, because the very words of the Act have not been
^•iolated (c). For clauses in statutes avoiding transactions,
when the meaning is open to question, are to receive a wide
or a hmited construction according as the one or the other
will best effectuate the purpose of the statute (w) ; and
statutes made against fraud may be liberally expounded to
suppress the fraud (,b). Nevertheless, what the legislature
intended not to be done can be legitimately ascertained only
from what it has enacted, either in express words or by
reasonable and necessary implication (y). And in con-
sidering an Act imposing a tax, Chitty, L.J., said, " the
whole argument on evasion of the Act is fallacious.
The case either falls within the Act or it does not. If it
does not, there is no such thing as an evasion " (z). Evasion
is intentionally doing something whereby a person escapes
the consequences of an Act although he is brought within
it (a).

{it) Per Ld. Macnaghten, Redda- (z) A.-G. v. Beech, [1898] 2 Q. B.

way V. Bmiham, [1896] A. C. 199, 147, 157 : 67 L. J. Q. B. 585. See

221 : 65 L. J. Q. B. 381. also jper Ld. Macnaghten, A.-O. v.

(v) See Per Ld. Cranworth, Richmond (£ Gordon (Duke), [1909]

Edwards v. Hall, 6 D. M. & G. A. C. 466, 473: 78 L. J. K. B.

74, 89. 998.

[lo) Re Burdett, 20 Q. B. D. 310, (a) See per Ld. Lindley in Bulh-

3]^^^ vant V. A.-G. foi- Victoria, [1901]

(x) Twym's case, 3 Rep. 82 a. A. C. 196, 207; and per Ld. Hob-

(y) Per Ld. Watson, [1897] A. C. house in Simms v. Registrar of Pro-

38. bates, [1900] A. 0. 323, 334.

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376

THE TRANSFER OF PROPERTY.

Rule derived
f torn Roman
law.

ACCESSORIUM NON DUCIT SED SBQUITUR SUUM PrINCIPALE.

{Co. Litt. 152 a.) — Tlie incident shall pass by the grant
of the principal, but not the principal by the grant of
the incident (6).
Upon the maxim, res accessoria sequitur rem princi-
palem (c), depended the doctrine of accessio (d) in the Eoman
law, accessio being that mode of acquiring property whereby
the owner of the principal thing became, ipso jure, owner
also of all that belonged to the principal as accessory to it.
Two extensive classes of cases accordingly fell within the
operation of the doctrine : 1, that in which the owner of a
thing acquired a right of property in its organic products,
as in the young of animals, the fruit of trees, the alluvion
or deposit on land, and in some other kinds of property
originating under analogous circumstances : 2, that in
which one thing became so closely connected with and
attached to another that their separation could not be
effected at all, or at least not without injury to one or other
of them ; for in such cases the owner of the principal
thing was held to acquire also the accessory connected
therewith (e).

(i) Co. Litt. 152 a, 151 b; per
Vaughan, B., Harding v. Pollock, 6
Bing. 63 ; 32 R. E. 47.

(c) " A principal thing {res prin-
cipalis) is a thing which can subsist
by itself, and does not exist for the
sake of any other thing. All that
belongs to a principal thing, or is
in connection with it, is called an
accessory thing {res accessoria)."
Mackeld. Civ. Law, 155. See Ash-
worth V. Heyworth, L. R. 4 Q. B.
316, 319.

{d) " Accessio is the general name
given" in the Roman Law "to
every accessory thing, whether cor-
poreal or incorporeal, that has been

added to a principal thing from
without, and has been connected
with it, whether by the powers of
nature or by the will of man, so
that in virtue of this connection
it is regarded as part and parcel
of the thing. The appurtenances
to a thing are to be noticed as a
peculiar kind of accession ; they
are things connected with another
thing, with the view of serving for
its perpetual use." Mackeld. Rom.
Law, 155, 156.

{e) See Mackeld. Civ. Law, 279,
281 ; I. 2, 1, De Berum Divisionc ;
Brisson. ad verb. " Accessorium."

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XHE TRANSFER OP PROPERTY. 877

The maxim, aeccssoriK.m non dticit sed sequitur suttin2))'inci- Examples of
pale, is, then, derived from the Eoman law, and signifies law.
that the accessory right follows the principal (/) ; it may be
illustrated by the remarks appended to the rule immediately
preceding (g), as also by the following examples.

An easement to take water from a river to fill a canal
ceases when the canal no longer exists (h). The owner of
land has, prima facie, a right to the title-deeds, as something
annexed to his estate therein, and it is accordingly laid
down that, if a man seised in fee conveys land to another
and his heirs, without warranty, all the title-deeds belong
to the purchaser, as incident to the land(i), though not
granted by express words (L). In like manner, heir-looms
are such goods and chattels as go by special custom to the
heir along with the inheritance, and not to the executor of
the last owner of the estate ; they are due to the hen- l\y
custom, and not by the common law, and he shall accord-
ingly have an action for them. There are also some other
things in the nature of heirlooms which likewise descend
with the particular title or dignity to which they are

appurtenant (0-

Again, rent is incident to the reversion, and, therefore, by
a general grant of the reversion, the rent will pass ; though,
by the grant of the rent generally, the reversion will not
pass, for accessormm non ducit sed sequitur suum principale :
however, by the introduction of special words, the reversion
may be granted away, and the rent reserved (m). So, an
advowson appendant to a manor is so intimately connected Advowson

'^^ appendant.

(/) Bell, Diet, and Dig. of Scotoh wood v. Pattison, 3 C. B. 248 ; and

Law, p. Y. See also Co. Litt. Id., n. (b).

389 a. m Ld. BucTchurst's case, 1 Eep.

(g) See also Chanel v. Bobotham, 1 ; Ooode v. Burton, 1 Exoh. 189,

Yelv. 68; Wood -7. Bell, 5 E. & B. 193 et seq. ; Allwood v. Heywood,

772. 32 L. J. Ex. 153.

(h) National Guaranteed Manure (I) See 1 Crabb, Real Prop. 11, 12.

Co. V. Donald, 4 H. & N. 8. (to) 2 Blac. Comm. 176 ; Litt. s.

(i) See per Tindal, C.J,, Tinnis- 229 ; Co. Litt. 143 a.

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378

THE TRANSFER OF PROPERTY.

Severance
from grant.

Common

appendant,

&c.

with it, as to pass by the grant of the manor cum x>ertinentiis,
without being expressly referred to ; and, therefore, if a tenant
in tail of a manor with an advowson appendant suffered a
recovery, it was not necessary for him to express his intention
to include the advowson in the recovery ; for any dealing
with the manor, which is the principal, operates on the
advowson, which is the accessory, whether expressly named
or not. It is, however, to be observed that, although the
conveyance of the manor prima facie draws after it the
advowson also, yet it is always competent for the owner
to sever the advowson from the manor, by conveying the
advowson away from the manor, or by conveying the manor
without the advowson {n) ; and hence there is a marked
distinction between the preceding cases and those in which
the incident is held to be inseparably connected with the
principal, so that it cannot be severed therefrom. Thus, it
is laid down that estovers, or wood granted to be used as
fuel in a particular house, shall go to him that hath the
house ; and that, inasmuch as a Court baron is incident to
a manor, the manor cannot be granted and the Court
reserved (o). In some cases, also, that which is parcel or of
the essence of a thing passes by the grant of the thing
itself, although at the time of the grant it were actually
severed from it; by the grant, therefore, of a mill, the
mill-stone may pass, although temporarily severed fi-om
the mill (p).

Again, common of pasture appendant is the privilege
belonging to the owners or occupiers of arable land holden
of a manor, to put upon the wastes of the manor their
cattle or sheep ; it is; appendant to the particular farm, and

(m) Judgm., Moseley v. Motteux,
10 M. & W. 544 ; Bac. Abr.,
"Ch-ants" (1.4).

(o) Finch, Law, 15.

(p) Shep. Touch. 90. See Wyld
V. Pickford, 8 M. & W. 443. As to

what shall be deemed to pass as
appendant, appurtenant, or inci-
dent, see Bac. Abr., " Orants "
(I. 4) ; Smith v. Ridgeivay, 4 H. &
C. 37, 577; Langley v. Hammond,
L. B. 3 Ex. 161 : 37 L. J. Ex. 118.

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THE TRANSFER OF PROPERTY. 379

passes with it, as incident to the grant (q). But divers
things which, though continually enjoyed with other things,
are only appendant thereto, do not pass by a grant of those
things : as, if a man has a warren in his land, and grants
or demises the land, by this the warren does not pass,
unless, indeed, he grant or demise the land cum peHinentiis,
or with all the profits, privileges, &c., thereunto belonging,
in which case the warren might, perhaps, pass (r).

In Ewart v. Cochrane (s), it was stated to be the law of
England that when two properties are possessed by the
same owner, and there has been a severance made of one
part from the other, anything which was used and was
necessary for the comfortable enjoyment of that part of
the property which is granted, shall be considered to follow
from the grant if there are the usual words in the
conveyance.

Another well-known application of the maxun under
consideration is to covenants running with the land, which
pass therewith, and on which the assignee of the lessee, or
the heir or devisee of the covenantor, is in many cases
liable, according to the kindred maxim of law, transit terra
cum onere {t) ; a maxim, the principle of which holds not
merely with reference to covenants, but likewise with
reference to customs annexed to land: for instance, it is
laid down that the custom of gavelkind, being a custom by
reason of the land, runs therewith, and is not affected by a
fine or recovery had of the land ; but " otherwise it is of
lands in ancient demesne partible among the males, for
there the custom runneth not with the land simply, but by
reason of the ancient demesne : and, therefore, because the

(g) Shep. Touch. 89, 240; Bao. 320; cited in Jeffryes v. Evans, 19

Abr., "Grants" (I. 4); Co. Litt., 0. B.N. S. 266; EarlofLonsdaUv.

by Thomas, vol. i. p. 227. Bigg, 11 Exoh. 654 : 1 H. & N.

(r) Step. Touch. 89; 1 Crabb, 923.

Real Prop. 488. See Parnnell v. (s) 4 Maoq. 122 ; Francis v.

Mill, 3 C. B. 625 ; Graham v, Hayward, 20 Ch. D. 773 : 22 Id. 177.

Ewart, 1 H. & N. 550 ; 11 Exoh. (t) Co. Litt. 231 a.

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380

THE TRANSFER OF PKOPEKTY.

Application
of rule to
titles.

Slercantile
traDsaotions.

nature of the land is changed, by the fine or recovery, from
ancient demesne to land at the common law, the custom of
parting it among the males is also gone " («)•

With reference to titles, moreover, one of the leading
rules is, cessante statu priniitivo cessat derivativus (x) — the
derived estate ceases on the determination of the original
estate ; and the exceptions to this rule have been said to
create some of the many difficulties which present themselves
in the investigation of titles (y). The rule itself may be
illustrated by the case of a demise for years by a tenant for
life, or by any person having a particular or defeasible
estate, which, unless confirmed by the remainderman or
reversioner, or authorised by statute, will determine on the
death of the lessor ; and the same principle usually applies
whenever the original estate determines according to the
express terms or nature of its limitation, or is defeated by a
condition in consequence of the act of the party, as by the
marriage of a tenant durante riduitate, or by the resignation
of the parson who has leased the glebe lands or tithes
belonging to the living (z).

An exception to the foregoing rule arises in cases of
copyholds, where the tenant has granted a lease to another
with the license of the lord, and then commits a forfeiture :
here the license operates as a confirmation by the lord of the
term thus created, and, therefore, pending the term, the
lord cannot maintain ejectment for the land (a).

The law relative to contracts and mercantile transactions
likewise presents many examples of the rule that the acces-
sory follows and cannot exist without its principal ; thus.

(m) Pinoli, Law, 1, 16.

Ix) 8 Eep. 84.

(y) 1 Prest., Abs. Tit. 245.

The maxim " applies only when
the original estate determines by
limitation or is defeated by a condi-
tion. It does not apply when the
owner of the estate does any act
which amounts to an alienation or

transfer, though such alienation or
transfer produces an extinguishment
of the original estate." Shep.
Touch, by Preston, 286. See
London Loan Co. v. Drake, 6 C. B.
N. S. 798, 810.

(s) 1 Prest. Abs. Tit. 197, 317,
358, 359.

(a) Clarke v. Arden, 16 0. B. 227.

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THE TKANSFEK 01' PROPERTY. 381

where framed pictures are sent by a carrier, the frames, as
well as the pictures, are within the Carriers Act, 1830,
s. 1 (b). Again, the obligation of the surety is accessory to
that of the principal, and is extinguished by the release or
discharge of the latter, for quum principalis causa non coii-
sistit lie ea qaidem qitce seqimntur locum habent (c) , and qiue
accessioiium locum obtinent extinguuntur cum frincipales res
pcrempta fuerintid). The converse, however, of the case
just instanced does not hold, and the reason is that
aceessorium non trahit principale (e).

So, Ukewise, interest of money is accessory to the principal. Principal and
and must, in legal language, " follow its nature " (/) ; and,
therefore, if the plaintiff in any action is barred from
recovering the principal, he must, as a rule (g), be equally
barred from recovering the interest (h). And, " If by a will
the whole of the personal estate, or the residue of the
personal estate, be the subject of an executory bequest, the
income of such personal estate follows the principal as an
accessory, and must, during the period which the law
allows for accumulation, be accumulated and added to the
principal " (i) ; and where stock, to which the assignor was
entitled in reversion upon his mother's death, was assigned
with all his right, title, and interest therein, it was held that

(6) Henderson v. L. & N. W. B. Pothier, Oblig., 479. " The giving

Co., L. B. 5 Ex.90: 39 L.J. Ex. 55; of interest is not by way of a

distinguishing Treadwin v. G. E. B, penalty, but is merely doing the

Co., L. B. 3 0. P. 308. plaintifi full justice, by having his

(c) D. 50, 17, 129, § 1 ; 1 Pothier, debt with all the advantages pro-
Oblig., 413. perly belonging to it. It is in truth

(d) 2 Pothier, Oblig., 202. a compensation for delay." Judgm.,

(e) 1 Pothier, Oblig., 477 ; 2 Id. 16 M. & W. 144.

147, 202. See HoUis v. Palmer, 2 Bing.

(/) 3 Inst. 139 ; Knoh, Law, 23. N. 0. 713 ; Florence v. Drayson, 1

{g) See Parr's Banh v. Yates, C. B. N. S. 584 ; Florence v.

[1898] 2 Q. B. 460 ; 67 L. J. Q. B. Jennings, 2 Id. 454 ; Forbes v.

851. Forbes, 18 Beav. 552.

(h) Judgm., Clarke v. Alexander, (i) Per Ld. Westbury, Bective v.

8 Scott, N. E. 165. See per Ld. Hodgson, 10 H. L. Oas. 665.

EUenborough, 3 M. & S. 10 ; 2

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382

THE TEANSFEB OP PROPERTY.

Freight
follows
ownership
of vessel.

the assignment passed the bonuses which afterwards accrued
during the mother's life (k).

The title to freight is prima facie an incident of owner-
ship, and, if a sale or transfer of shares be effected, while
the ship is under a contract of affreightment, without the
mention of the word freight, that will pass to the purchaser
the corresponding share in the freight, notwithstanding a
subsequent contract of the vendor to transfer this particular
freight to another {I).

Rule laid
down by
Lord Baoou.

Grant of
after-
acquired
property.

Licet Dispositio de intekbsse futuko sit inutilis tamen

FIERI potest DeCLARATIO PR^CEDENS Q,XiM SOBTIATUR

efpectum intervbnientb NOVO AcTU. {Bac. Max.,
reg. 14.) — Although the grant of a future interest is
inoperatire, yet it may become a declaration precedent,
taking effect upon the intervention of some new act.

" The law," said Lord Bacon, " doth not allow of grants
except there be a foundation of an interest in the grantor ;
for the law will not accept of grants of titles, or of things
in action which are imperfect interests, much less will it
allow a man to grant or incumber that which is no interest
at all, but merely future. But of declarations precedent,
before any interest vested, the law doth allow, but with
this difference, so that there be some new act or conveyance
to give life and vigour to the declaration precedent " (m).

It has been observed (n) that Lord Bacon treats the first
branch of the maxim, namely, that a disposition of after -
acquired property passes nothing in law, as a legal proposi-
tion beyond dispute, and only labours to establish the second

(k) Be Armstrong's Trusts, 3 K. 522 ; see also Busden v. Pojpe, L. R.

& J. i86 ; Cooper v. WoolfiU, 2 H. 3 Ex. 270 : 37 L. J. Ex. 137,

& N. 122. (m) Bao. Max., reg. 14.

(l) Lindsay v. Gibbs, 22 Beav. (n) Judgm., 1 C. B. 386.

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THE TKANSFEE OF PROPEKTY. 383

branch, namely, that such disposition may be considered
as a declaration precedent which derives effect from some
new act of the party after the property is acquired. The
same general rule is laid down by all the other writers of
authority. " It is," says Perkins (o), " a common learning
in the law that a man cannot grant or charge that which
he hath not." Again, it has been said that, if a man grant
me all the wool of his sheep, meaning thereby the wool of
the sheep which he then has, the grant is good (p) ; but
that he cannot grant me all the wool which shall grow upon
the sheep that he shall buy hereafter (q).

Lord Bacon's maxim relates, however, only to the acquisi- Euie in
tion of a legal title. " At law, property, non-existing, but to ^'^"^ ^'
be acquired at a future time, is not assignable ; but in equity
it is. At law, although a power is given in the deed of
assignment to take possession of after-acquired property, no
interest is transferred, even as between the parties them-
selves, unless possession is actually taken ; but, in equity,
the moment the property comes into existence the agreement
operates upon it " (r). Accordingly, if a man purports to
assign property of which he is not the owner, the assignment,
although it does not operate to pass the legal interest in the
property, may yet operate as a contract by him to convey it
upon his becoming the owner, and if the contract be for value,
equity, treating as done that which ought to be done, fastens
upon the property as soon as he has acquired it, and the
contract to assign becomes in equity an assignment (s).
Such assignment, however, is an assignment only of the
equitable interest, and consequently, until the assignee has

(o) Tit. " Grants," s. 65 ; see also by Preston, 241.
Vin. Abr., " Grants" (H. 6) ; Noy, (r) Per Ld. Chelmsford, Holroyd

Max., 9th ed. 162; Com. Dig., v. Marshall, 10 H. L. Gas. 191,

" Orcmt" (D.). 219.

(p) Perk., tit. " Grants," s. 90 ; (s) Collijer v. Isaacs, 19 Ch. D.

see per Pollock, C.B., 15 M. & W. 342 ; Be Clarke, 36 Id. 348 ; Tailby

116. V. Official Receiver, 13 App. Oas.

(2) Hob. 132; see Shep. Touch. 523; Be Turcan, 40 Ch. D. 5.

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384

THE TEANSPEK OF PEOPEETY.

Possession,

Bill of sale
of future
property.

Contract to
sell future
goods.

also acquired the legal interest, his position is precarious,
for the equitable interest will be defeated if the legal
interest be acquired by a third person for value and without
notice of the equitable interest {t). The difference between
legal and equitable interests has not been swept away
by the Judicature Acts: the Courts administer both
law and equity, but a conveyance void at common
law has not become valid as a conveyance at common
law (u).

As a rule, therefore, " an assignment or contract for value
of future property without possession creates an equitable
title only ; but if possession is actually taken of the property
when it comes into existence, then a legal interest is
acquired " (x). It seems, however, that the possession, to
confer the legal title, must be given by the assignor, or be
taken under his authority, for the purpose of carrying the
former assignment into effect (y).

Under the Bills of Sale Act, 1882 (z), the rule is
that a bill of sale made by way of security for the
payment of money is void, if it purport to assign after-
acquired property (a). To this rule, however, there are
certain exceptions relating to substituted fixtures, plant
and trade machinery (6) .

By the Sale of Goods Act, 1893, the goods forming the
subject of a contract of sale may be future goods, i.e., goods
to be manufactured or acquired by the seller after the making
of the contract ; and the Act provides that where by a
contract of sale the seller purports to effect a present sale of
future goods, the contract operates as an agreement to sell

(t) Joseph V. Lyons, 15 Q. B. D.
280 ; JSallas v. Robinson, 15 Q. B. D.
288.

(m) Per Cotton, L.J., 15 Q. B. D.
285, 286.

(x) Morris v. Delobbel-Flipo,
[1892] 2 Ch. 860.

{y) Lunn v. Thornton, 1 G. B.

879, 387; Congreve v. Evetts, 10
Exoh. 298, 308; Carr v. Allatt, 27
L. J. Ex. 385.

(z) 45 & 46 Viot. 0. 48.

(a) Thomas v. Kelly, 13 App. Oas.
506.

(6) S. 6 (2) ; London, dc, Co. v.
Oreasey, [1897] 1 Q. B. 768.

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THE TRANSFER OF PROPERTY. 385

the goods (f). An agreement to sell future goods has always
been allowed by our law (d).

Property to which a testator becomes entitled after the Disposition
execution of his will may pass under it ; for a will is an ^^ ^'^^'
instrument of a peculiar nature, speaking and taking effect
as if it had been executed immediately before the testator's
death, unless a contrary intention appears by the will (e) ;
and two maxims relating to wills are amhidatoria est voluntas
defiincti usque ad vitce supremum exitum (/), and omne
testamentum morte consummrttum est (</).

(c) 56 & 57 Vict. 0. 71, a. 5. (e) 1 Vict. o. 26, s. 24.

(d) Hibblewhite v. M' Marine, 5 (/) D. 34, 4, 4; 4 Rep. 61.
M. & W. 462. (g) Oo. Litt. 322 b.

L.M. 25

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386

CHAPTER VII.

RULES RELATING TO MARRIAGE AND DESCENT.

It has been thought convenient to insert a selection of
rules relating to Marriage and Descent immediately after
those which concern the legal rights and liabilities attaching
to property in general.

Consensus, non Concubitus, facit Matrimonium. {Co.

Litt. 33 a.) — It is the consent of the parties, not their

concubinage, which constitutes a valid marriage.

Marriage how Marriage, as understood in Christendom, is the voluntary

constituted, union for life of one man and one woman to the exclusion of

all others (a). It is constituted by the conjunctio animoriim

or present consent of the parties expressed under such

circumstances as the law requires, so that, as soon as such

consent has been given, each of the parties, although they

do not consummate the marriage conjunctione corporum,

nevertheless possesses all the legal rights of husband or wife.

The above maxim has been adopted from the civil law (b)

by the common lawyers, who, indeed, borrowed (especially

in ancient times) almost all their notions of the legitimacy

of marriage from the canon and civil laws (c). By the

(a) Per Ld. Penzance, Hyde v. (6) Niiptias non concvbitus sed

Byde, L. B. 1 P. & D. 130 ; see Re consensus facit ; D. 50, 17, 30.
BetUll, 38 Ch. D. 220 : 57 L. J. Ch. (c) 1 Blao. Comm. 434. See 2

487 ; Brinkley v. A.-G., 15 P. D. 76 : Voet. Com. Pandect., lib. 23, tit. 2.
59 L. J. P. 51.

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RULES RELATING TO MARRIAGE AND DESCENT. 387

latter, as well as by the earlier ecclesiastical law (d), marriage
was a mere consensual contract, only differing from other
contracts of this class in being indissoluble even by the
consent of the contracting parties : it was always deemed
to be " a contract executed without any part performance ; "
so that the maxim was undisputed, consensus, non concuhitus,
facit nuptias rel matrimonium {e).

By the law of England (/), also, marriage is considered English law
in the light of a contract, to which, with some exceptions, °^ carnage.
the ordinary principles which govern contracts in general
must be applied ; and the leading principle is that embodied
in the above maxim, that marriage can only be constituted
by the consent of the parties : concuhitus may take place
for the mere gratification of present appetite, but marriage
requires an agreement of the parties looking to the consortium
ritte (cj).

It must be treated, however, as an established proposition
that, by our common law, marriage could not be constituted
by a mere civil contract, though followed by concuhitus.
Long after the abolition by statute (/() of all proceedings in
ecclesiastical courts to compel the celebration of a marriage
in facie ecclesice by reason of a civil contract of matrimony

(d) The contract, though made Bill, 2 H. L. Cas. 48, well illustrates
without the intervention of a priesty the maxim.

amounted to a perfect marriage by (/) The following cases may be

the canon law, until modified by referred to upon the law of Scotland

the decree of the Council of Trent ; respecting marriages per verba de

See pei- Ld. Campbell, Beamish v. prcesenti : Telverton v. Longworth, 4

Beamish, 9 H. L. Cas. 335. Macq. So. App. Gas. 743 ; Dalrymple

(e) Per Ld. Brougham, Beg. v. v. Dalrymple, 2 Hagg. Cons. 54;
MilUs, 10 01. & ¥. 719. See also Hamilton v. Hamilton, 9 CI. & F.
Ld. Stowell's celebrated judgment 327 ; Stewart v. Menkes, 8 Id. 309 ;
in Dalrymple v. Dalrymple (by Bell v. Graham, 13 Moo. P. C. 242 ;
Dodson), p. 10 (a), where many Dysart Peerage Case, 6 App. Cas.
authorities respecting this maxim 489.

are collected. See also the remarks (?) Per Ld. Stowell, 2 Hagg. Cons,

upon this case, 10 CI. & F. 679 ; and, 62, 63.

per GressweU, J., Brook v. Brook, (h) By 26 Geo. 2, c. 33, s. 13 ;

27 L. J. Ch. 401 ; S. C, 9 H. L. Cas. repealed, but re-enacted by 4 Geo. 4,

198. Field's Marriage Armullimg o. 76, s. 27.

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388

RULES RELATING TO MARRIAGE AND DESCENT.

Remarks of
Tindal, C J.,
in Beg. v.
Millis, on
the requisites
of a valid
marriage
at common
law.

per rerha fir prasrnti or per verba cle futuro, the effect at
common law of the civil contract was very fully considered («') ,
and it was then decided in the House of Lords (j), in
accordance with the unanimous opinion of the judges that,
although a present and perfect consent, expressed per rerha
de prcesenti, " was sufficient to render a contract of marriage
indissoluble between the parties themselves, and to afford
to either of them, by application to the spiritual court,
the power of compelling the solemnisation of an actual
marriage": yet, such contract "never constituted a full
and complete marriage in itself, unless made in the presence
and with the intervention of a minister in holy orders " (k).
In Reg. v. Millis (i), where this was decided, the following
remarks, apposite to the maxim under our notice, were
made by Tindal, CJ., in delivering the opinion of the
judges. " It will appear, no doubt," said his lordship, " upon
referring to the different authorities, that at various periods
of our history there have been decisions as to the nature
and description of the religious forms and ceremonies
necessary for the completion of a perfect marriage, which
cannot be reconciled together ; but there will be found no
authority to contravene the general position, that, at all
times, by the common law of England, it was essential to
the constitution of a full and complete marriage, that there
must be some religious solemnity; that both modes of
obhgation should exist together, the civil and religious;
that, besides the civil contract, that is, the contract per
verba de prcesenti, which has always remained the same.

(i) In Beg. v. Millis, 10 CI. & Fin.
534.

(j) The lords being equally
divided in opinion, the rule, semper
prcesurmtur pro neganti, was applied.

(k) Per Tindal, C.J., 10 01. & F.
655 ; see also Catherwood v. Caslon,
13 M. & W. 261 ; Beamish v. Bea^
mish, 9 H. L. Gas. 274. There is a
strong legal presumption in favour

of marriage ; Piers v. Piers, 2 H. L.
Gas. 331 ; Beg. v. Manwai-ing,
Dearsl. & B. 132 ; Lauderdale Peer-
age case, 10 App. Gas. 692. But in
Shedden v. Patrick, L. R. 1 So. App.
Gas. 470, the presumption of a mar-
riage, arising from cohabitation and
acknowledgment, was held to be
rebutted.

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RULES RELATING TO MARRIAGE AND DESCENT. 389

there has at all times been also a religious ceremony, which
has not always remained the same, but has varied from
time to time, according to the variation of the laws of
the Church; with respect to which ceremony, it is to
be observed, that, whatever at any time has been held by
the law of the Church to be a sufficient rehgious ceremony
of marriage, the same has at all times satisfied the common
law of England in that respect." For instance, before the
Marriage Act, 1753, the Church held that a marriage
celebrated by a minister in holy orders, but not in a church,
or by such minister in a church, but without publication of
banns or licence, was irregular, but was sufficient, neverthe-
less, to constitute the religious part of the obligation, and
that the marriage was valid notwithstanding such irregu-
larity ; and the law of the land followed the spiritual court
in that respect, and held such marriage to be valid. " But
it will not be found in any period of our history, either that
the Church of England has held the religious celebration
sufficient to constitute a valid marriage, unless it was
performed in the presence of an ordained minister, or that
the common law has held a marriage complete without such
celebration" (Z).

In support of these opinions, the Chief Justice referred to
the state of the law upon the marriages of Quakers and Jews,
both before and after the Marriage Act, 1753. After that
Act, he observed, it was generally supposed that the exception
therein, as to the marriages of Quakers and Jews, amounted
to a tacit acknowledgment by the legislature, that a
marriage solemnised with the religious ceremonies which
they were known to adopt ought to be deemed sufficient ;
but before that Act, when the question was open, we find
no case in which it was held that a marriage between
Quakers was legal, on the ground that it was a marriage
by a contract per verba de pnesenti ; on the contrary, the

(I) 10 Cl. & F. 655, 656.

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390

KTJLES RELATING TO MAKKIAGB AND DESCENT.

Statutory
changes in
the law.

Promises of
marriage.

inference is strong that it was never considered legal. As
to marriages between Jews, he pointed out that, in early
times, Jews stood in a very peculiar condition : for many
centuries they were treated not as natural-born subjects,
but as foreigners, and were scarcely recognised as partici-
pating in the civil rights of other subjects of the Crown :
the ceremony of marriage by their own peculiar forms
might, therefore, be regarded as constituting a legal
marriage, without affording any argument as to the nature
of a contract of marriage, jjer verba de iJrcesenti, between
other subjects (m).

The preceding remarks must be understood, of course,
as relating to the requisites of the marriage contract at
common law. By various enactments, commencing with
the Marriage Act, 1836 (u), the legislature has recognised
marriage as essentially a civil contract, and has enabled
persons to contract marriage per verba de prcesenti without
any religious ceremony, provided that the provisions of
those enactments are complied with.

Having thus observed that marriage is a contract entered
into by consent of the parties with the forms, whether of a
religious or civil nature, prescribed by law, the difference
must be noticed between a contract of marriage per verba de
prcesenti and a contract to marry per verba de futuro. The
latter never constitutes a marriage by our law (o) ; only gives
a right of action for damages if violated ; and may be deter-
mined by mutual consent (^j) . A person can avoid this contract
on the ground that he was an infant when he made it (g).

(m) 10 01. & F. 671, 673.

{n) 6 & 7 Will. 4, c. 85. Most of
the later Acts, of which the 19 & 20
Viot. c. 119, and the 61 & 62 Vict.
0. 58, are the most important, are
collected in Chitty's Statutes. The
marriage of British subjects abroad
is now regulated by 55 & 56 Vict.
0. 23.

(o) See Beechey v. Brown, E. B. &

E. 769 : 29 L. J. Q. B. 105.

(p) See per Ld. Lyndhurst, 10
01. & F. 837 ; Davis v. Boniford, 6
H. & N. 245 : 30 L. J. Ex. 189 ;
Hall V. Wright, E. B. & E. 746,
765 : 27 L. J. Q. B. 345 : 29 Id. 43.

(2) See Coxhead v. Miillis, 3
0. P. D. 439 ; Northcotey. Doughty,
4 Id.. 385 ; Ditcham v. Woirall, 5
Id. 410.

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EULES RELATING TO MARRIAGE AND DESCENT. 391

If the contract be between an adult and an infant, the
former is bound, so as to be liable to an action for breaking
it ; but the latter may avoid it ; and this distinction rests
on the principle that the law does not hold an infant to
a contract which may be to his prejudice (r).

Not only may infants avoid their contracts to marry in infancy.
faturo, but further, if infants actually intermarry, while
under the age of discretion, which is fourteen years for a
boy and twelve for a girl, by our law the marriage is
voidable. Upon both parties attaining the age of discretion,
either may elect that the marriage shall be void, whereupon
it becomes a nullity without recourse to the courts ; but if
both then agree to the marriage, it becomes binding upon
them without any new ceremony. If a person above and
a person under the age of discretion intermarry, the former,
as well as the latter, may elect to avoid the marriage when
the latter reaches that age, for in contracts of matrimony
both parties must be bound or neither (s). Our law is based
herein upon the civil law ; wiereas the canon law, paying
more regard to physical constitution than age, holds a
marriage good, if the parties be hahiles ad matrimonium,
whatever be their respective ages.

At the common law, if the parties be of the age of Consent of
discretion, no consent but their own is necessary to make ^'^ persons.
their marriage valid ; and this is agreeable to the canon law.
Under the Marriage Acts the consent of a parent or guardian
is usually required for the marriage of an infant who is no*
a widower or widow (t) ; but though a person whose consent
is required can take steps to prevent the marriage {u), and
though, where the marriage is not by banns, it can seldom

(r) See Holt v. Ward, 2 Stra. 937 ; Litt. 146 a), here applies.
Warwick y. Bruce, 2 M. & S. 209 : (t) See i Geo. 4, c. 76, ss. 16, 17 ;

6 Taunt. 118; 14 B. R. 634. See 6 & 7 WiU. 4, o. 85, s. 10; 55 & 56

also 37 & 38 Vict. c. 62. Viot. c. 23, s. 4 (1).

(s) Co. Litt. 79 a. The maxim, («) See 4 Geo. 4, c. 78, ss. 8, 11,

quod semel plactiU in electionibus 22 ; 6 & 7 Will. 4, o. 85, ss. 13, 42 ;

amplius displicere non potest (Co. 55 & 56 Vict. o. 23, ss. 4 (2), 5.

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392

RULES EELATING TO MARRIAGE AND DESCENT.

Boyal

Mai-riage Act,
1772.

Insanity.

Duress.

be procured without such person's consent, except by
perjury (a;), yet, if the marriage takes place, the absence of
the consent does not invaUdate it (y).

To this rule, however, the absence of the sovereign's
consent when requked by the 12 Geo. 3, c. 11, forms an
exception. No descendant of George 11., except the issue
of princesses married into foreign families, can contract
matrimony without the previous consent of the sovereign
under the great seal, and the marriage if contracted without
that consent is void. A descendant, however, if above the
age of twenty-five, can, after a year's notice to the Privy
Council, marry without the sovereign's consent, unless both
Houses of Parliament within the year expressly declare
their disapproval of the intended marriage. This Act
extends to marriages contracted outside the realm (z).

The maxim, consensus facit matriinonium, prevents the
marriage of a person while labouring under mental
incapacity ; for consent is absolutely requisite to matrimony,
and persons noii compotes mentis are incapable of consenting
thereto (a). And, similarly, a marriage obtained by the
duress of one of the parties, so that there is no real consent
of that party, is void (h). But, though fraud which procures
the appearance without the reality of consent invalidates a
marriage, fraud which induces consent does not invalidate
it (c).

It is an important question how far the validity of a

(x) See i Geo. 4, c. 76, s. 14;
19 & 20 Vict. 0. 119, ss. 2, 18;

55 & 56 Vict. u. 23, ss. 7, 15.

(y) See Prowse v. Spurway, 46
L. J. P. 50; Holmes v. Simmons,
L. B. 1 P. & T), 523 ; B. v. Birming-
ham, 8 B. & C. 29; and 19 & 20
Vict. c. 119, s. 17 ; 55 & 56 Vict.
0. 23, s. 13 (1). As to the forfeiture
of property accruing by the mar-
riage, see 4 Geo. 4, c. 76, ss. 23 —
25 ; 19 & 20 Vict. c. 119, s. 19 ; 55 &

56 Vict. 0. 23, s. 14.

(«) Sussex Peerage case, 11 CI. &
F. 85.

{a) Turner v. Meyers, 1 Hagg.
Cons. 414 ; Hancock v. Peaty, L. B.
1 P. & D. 335; see Durham v.
Durham, 10 P. D. 80.

(6) Ford V. Stier, [1896] P. 1 :

65 L. J. P. 13 ; Cooper v. Crane,
[1891] P. 369 : 61 L. J. P. 35 ; Scott
V. Sebright, 12 P. D. 21.

(c) Moss V. Moss, [1897] P. 263 :

66 L. J. P. 154.

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RULES RELATING TO MARRIAGE AND DESCENT. 393

marriage depends, in our law, upon the law of the domicil Materiality
of the parties (lev loci domicilii) and how far on the law domicm.
of the place where the marriage is contracted {lex loci
contractus). As regards the degrees of consanguinity or
affinity within which persons may lawfully marry, it seems
to be well established that, at any rate where both parties
have the same domicil, the validity of the marriage is
governed by the law of the domicil, wherever the marriage
takes place. Thus a marriage of first cousins in this country
is invalid if the parties are domiciled in a country where
such marriages are not recognised (d) ; and conversely a
marriage of persons who are within the prohibited degrees is
invalid if the parties are domiciled in this country, although
the marriage is celebrated in a country according to the
laws of which the marriage would be lawful (e).

It is also established that when the marriage takes place
in this country, and one of the parties (whether male or
female) is domiciled in this country, the marriage if valid
according to our laws is not invalidated by reason of any
personal incapacity of the other party which would invalidate
the marriage according to the laws of his place of domicil,
but which is not recognised by our law, such as absence of
consent of parents ( /) or his belonging to a caste or religious
order which would prohibit the marriage in question (^).

On the other hand the question what ceremony is necessary
for duly effecting a marriage depends entirely on the law of
the country where the marriage takes place, regardless of
the domicil of the parties (h).

It may be added that whatever be the domicil of the

(d) Sottomayor v. De Bams, 3 94 : 49 L. J. P. 1.

P. D. 1 ; 47 L. J. P. 23. {h) See Sottomayor v. De Barros,

(e) De Wilton v. MonUfiore, [1902] 3 P. D., at p. 5 ; per Barnes, P., in
2 Ch. 481 : 69 L. J. Oh. 717 ; Brook Ogden v. Ogden, [1908] P. 46, 68 ;
V. Brooh, 9 H. L. Oas. 193 : 27 L. J. and tlie Foreign Marriages Act,
Ch. 401. 1892 (55 & 56 Viot. o. 23), and the

(/) Orjden v. Ogden, [1908] P. 46. Marriage with Foreigners Act, 1906
(g) Chetti v. Chetti, [1909] P. 67 ; (6 Edw. VII. o. 40).
Sottomayor v. De Barros, 5 P. D.

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394 RULES RELATING TO MARRIAGE AND DESCENT.

parties, our laws will not recognise a marriage, though valid
in the place where it is celebrated, if the lex loci celebrationis
violates the precepts of religion or of public morals or where
the marriages are such as are generally recognised as
incestuous (0. So a polygamous marriage, vaUd where
celebrated, is not recognised at all in this country (j).

Upon the general question upon what law does the
capacity to contract depend, reference may be made to
Lord Macnaghten's speech in Cooper v. Cooper {k), where
an ante-nuptial settlement made in Ireland by an infant
having an Irish domicil, with a view to marrying a
domiciled Scotchman, was avoided on the ground of her
infancy. " It has been doubted," said his lordship,
'' whether the personal competency or incompetency of
an individual to contract depends on the law of the place
where the contract is made, or on the law of the place
where the contracting party is domiciled. Perhaps in this
country the question is not finally settled, though the
preponderance of opinion, here as well as abroad, seems
to be in favour of the law of the domicil. It may be that
all cases are not to be governed by one and the same rule.
But when the contract is made in the place where the
person whose capacity is in question is domiciled there can
be no room for dispute.

H^RES LEGITIMUS EST QUEM NuPTIJS DEMONSTRANT. (Co.

Litt. 1 h.) — The common law takes him only to he
a son whom the marriage proves to he so (l).
The word " heir "(m), in legal understanding, signifies

(i) Per Barnes, P., in Ogden v. Fleta, lib. 6, k=. 1.

Ogden, [1908] P., at p. 59: 77 L. (to) As to the popular and techni-

3- ^-34:. cal meaning of the word " ancestor ,' '

(i) Hyde v. Hyde, L. E. 1 P. & see per Kindersley, V.-C, Be Don's

^- 130. Estate, 27 L. J. Ch. 104, 105 : 4

(k) 13 App. Cas. 88. Drew. 194.

{I) Mirror of Justices, p. 70 ;

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EULES KELATING TO MAEEIAGB AND DESCENT. 395

him to whom lands, tenements, or hereditaments, by the Legal mean-
act of God and right of blood, descend, of some estate of " heir."
inheritance, for Deus solns Jueredcm facere potest non homo,
and he only is heir who is ex justis nuptiis procreatus («)
It is, then, a rule or maxim of our law, with respect to the
descent of land in England from father to son, that the
son must be " luevfs legitimus."

An English marriage having taken place between two Shaw v.
English persons, the husband committed adultery, and
afterwards went to Scotland to found jurisdiction against
himself, because by the law of Scotland adultery without
cruelty is a ground of divorce. The Scotch court pro-
nounced a decree of divorce a vinculo matrimonii. It was
held that a Scotch marriage duly celebrated between the
divorced wife and an Englishman (who was thenceforth
domiciled in Scotland), did not give to their children the
character of " lawfully begotten," so as to enable them to
succeed to real property in England — the Scotch divorce
not having dissolved the English marriage (o).

Again, in order that land in England may descend from
father to son, the son must have been born after actual
marriage between his father and mother ; and this is a
rule juris 2)ositivi, as indeed are all the laws which regulate
succession to real property, this particular rule having
been framed for the direct purpose of excluding, in the
descent of land in England, the application of the rule of
the civil and canon law, pater est quern nuptice demon-
strant (p), by which the subsequent marriage between the
father and mother was held to make the son born before
marriage legitimate ; and this rule of descent, being a rule

(w) Co. Litt. 7 b. ; cited 5 B. & (o) Sham v. Oould, L. E. 3. H. L.

C 440, 454. Tlie rule respecting 55. See Birt v. Boutinez, L. B. 1

property in the young of animals is P. & D. 487 ; Sarvey v. Farnie, 8

in accordance with the BomanLaw, App. Gas. 43 : 52 L. J. P. & D. 33;

partus sequitur mntrem : I. 2, 1, 19 ; Le Mesurier v. Le Mesurier, [1895]

D. 6, 1, 5, § 2 ; per Byles, J., 6 O.B. A. 0. 517 : 64 L. J. P. 0. 97.
N. s'. 852. (2^) D- 2, 4, 5.

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396

RULES RELATING XO MARRIAGE AND DESCENT.

Doe V.
Vardill.

Heir to the
father is heir
to the son.

of positive law, annexed to the land itself, cannot be
broken in or disturbed by the law of the country where
the claimant was born. Therefore, in Doe v. Vardill (q),
it was held that a person born in Scotland of parents
domiciled there, but not married till after his birth, though
legitimate by the law of Scotland (r), could not take real
estate in England as heir to his father, who died intestate.
And in Be Don's Estate, Kindersley, V.-C, held that the
father of an ante natus born in Scotland, and legitimated
by the subsequent marriage of his parents, could not,
under 3 & 4 Will. 4, c. 106, succeed to real estate in
England whereof the son died seised (s).

If, moreover, the parent be incapable of inheriting land
himself, he has no heritable blood in him which he can
transmit to his child, according to the maxim and old
acknowledged rule of descent, qui doit inhciiter al pere doit
inheriter al fitz, — he who would have been heir to the
father shall be heir to the son ; and, therefore, if in
Doe V. Vardill the son had died, leaving a child, before
the intestate, such child could not, according to English
law, have inherited under the circumstances {t), and if in
Re Don's Estate there had been a son post natus, such son
could not have inherited to his ante natus brother.

Formerly also the rule was that attainder so entirely
corrupted the blood of a person attainted that not only
could no person inherit from him, but no person could
inherit through him : so that if there were grandfather,
father, and son — three generations, and the father was
attainted, and the grandfather died seised of lands in fee,
the attainted father being dead in the meantime, the

(?) 2 Cl. & Fin. 571; S. 0. 1
Scott, N. E. 828; 6 Bing. N. C.
385 ; 5 B. & C. 438 ; 37 E. E. 258 ;
explained by Ld. Brougham, Fenton
V. Livingstone, 3 Macq. So. App. Gas.
582 ; by Ld. Cranworth, Id. 5U. See
also Shedden v. Patrick, L. E. 1 Sc.

App. Gas. 470.

(r) See Countess of Dalhousie v.
M'Dowall, 7 01. & F. 817; Munro
V. Munroe, Id. 842; BirtvMstle v.
Yardill, Id. 895.

(s) 4 Drew. 194.

(t) 1 Soott, N. E. 842.

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RULES RELATING TO MARRIAGE AND DESCENT. 397

grandson could not have inherited to the grandfather (m).
Bj' 3 ife 4 Will. 4, c. 106, s. 10, however, when the person
from whom the descent of any land is to be traced shall
have any relation who, having been attainted, shall have
died before such descent shall have taken place, then such
attainder shall not prevent from inheriting such land any
person who would have been capable of inheriting the same
by tracing his descent through such relation if he had not
been attainted, unless such land shall have escheated in
consequence of such attainder before 1834. This Act,
however, by s. 11, does not extend to any descent taking
place on the death of any person dying before that
date.

There is likewise another rule of law immediately con- Nullius
neeted with, and similar in principle to, the preceding, •^*"''
which may be here properly mentioned : qui ex damnato
coitu nascuiitur inter liberos non computentur (v) — neither
a bastard (x) nor any person not born in lawful wedlock
can be, in the legal sense of the term, an heir (y) ; for a
bastard is reckoned by the law to be nullius filius, and,
being thus the son of nobody, he has no inheritable blood
in him {z), and cannot take land by succession ; and if
there be no other claimant than such illegitimate child,
the land shall escheat to the lord. Moreover, as a bastard
cannot be heir himself, so neither can he have any heirs
but those of his own body; for as all collateral kindred
consists in being derived from the same common ancestor,
and, as a bastard has no legal ancestors, he can have no
collateral kindred, and consequently, can have no legal

(m) Per Kindersley, V.-O., 27 L. J. of the term ' bastard ' is one who is

Oh. 102, 103; 4 Drew. 194. See not born in lawful wedlock ;" jjcr-

further as to attainder, Kynnaird Kindersley, V.-C, 27 L. J. Ch. 102.
V. Leslie, L. R. 1 0. P. 389. (y) Glanville, lib. 7, o. 13 ; Shaw

Attainder was abolished by the v. Oould, ante, p. 395, n. (o).
Forfeiture Act, 1870. (z) See the argument, Stevenson's

(v) Co. Litt. 8 a. Eeirs v. Sullivant, 5 Wheaton

(x) " The strictly technical sense (U.S.), E. 226, 227 : Id. 262, note.

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398 RULES RELATING TO MARRIAGE AND DESCENT.

heirs but such as claim by a lineal descent from himself ;
and, therefore, if a bastard purchases land, and dies seised
thereof without issue and intestate, the land shall escheat
to the lord of the fee (a).

Under 3 & 4 Will. 4, c. 106, s. 2, descent is now to be
traced from the purchaser, and under this section a son
claiming by descent from an illegitimate father who was the
purchaser, could not have transmitted the estate by descent,
upon failure of his own issue, to his heir ex parte maternd.
But this was remedied by a later statute (b), and in such a
case, instead of escheating, the land will descend, the descent
being traced from the person last entitled to it as if he had
purchased it.
Right of in- The right of inheritance does not follow the law of the
foiiownhe domicile of the parties, but that of the country where the
lex loci. land lies, yet, with respect to personal property, which has

no locality, and is of an ambulatory nature, it is part of the
law of England that this description of property should be
distributed according to the jtis domicilii (c). "It is a clear
proposition," observed Lord Loughborough, "not only of
the law of England, but of every country in the world where
law has the semblance of science, that personal property
has no locality. The meaning of that is, not that personal
property has no visible locality, but that it is subject to that
law which governs the person of the owner, both with respect
to the disposition of it, and with respect to the transmission
of it, either by succession, or by the act of the party; it
follows the law of the person. The owner in any country
may dispose of his personal property. If he dies, it is not
the law of the country in which the property is, but the law
of the country of which he was a subject, that will regulate

(a) Co. Litt. 3 b; Finch, Law, (c) Per Abbott, C.J., 5 B. & C.
117, 118. For a summary method 451, 452 ; per Holroyd and Bayley'
of proving the legitimacy of a JJ., Id. 454. See 17 Ch. D. 266
person, see 22 & 23 Vict. c. 93. 40 Id. 216. '

(b) 22 & 23 Viot. c. 35, ss. 19, 20.

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KTJLES RELATING TO MARRIAGE AND DESCENT.

399

the succession" (d). Mohilia sequuntcr personam (e), is the
maxim of our own as of the Roman Law. The personal
estate of a testator accompanies him wherever he may reside
and become domiciled, so that he acquires the right of
disposing of and dealing with it, according to the law of his
domicile (/). It is to be observed, however, that the maxim
Mohilia seqinnitur personam applies only to the succession
and distribution of property, not to the right of the crown
to the property of an intestate dying without next of kin.
The right to such property depends on the place where
the property is (c/) .

rule.

Nemo est Hjbrbs viventis. (Co. Litt. 22 b.) — No one
can he heir during the life of his ancestor.

By law, no inheritance can vest, nor can any person be Meaning of
the actual complete heir of another, till the ancestor is dead ;
before the happening of this event he is called heir-apparent,
or heir-presumptive (ft), and his claim, which can only be to
an estate remaining in the ancestor at the time of his death,
and of which he has made no testamentary disposition, may
be defeated by the superior title of an alienee in the ancestor's
lifetime, or of a devisee under his will. Therefore, if an
estate be made to A. for life, remainder to the heirs of B.

(d) Sill V. Worswick, 1 H. Bl.
690 ; 2 R. R. 816 ; cited in Freke v.
Carbery, L. R. 16 Eq. 466 ; per Ld.
Wensleydale, Fenton v. Livingstone,
3 Macq. So. App. Oas. 547 ; per Ld.
Brougham, Bwin v. Whitehaven &
Furness Junction R. Co., 3 H. L.
Gas. 19 ; Doglioni v. Crispin, L. R.
1 H. L. 301.

(e) Story, Conf. of Laws, 8tli ed.
534 et segi.

(/) DogUoni v. Crispin, supra;
Bremer v. Freeman, 10 Moo. P. C. C.
306 ; Hodgson v. Beauchesne, 12 Id.
285 ; Crookenden v. Fuller, 29 L. J.

P. M. & A. 1 : 1 Swab. & Tr. 441
Anderson v. Lanerwille, 9 Id. 325
See, however, De Nicols v. Curlier
[1900] A. C. 21, where the widow of
a Frenchman who had acquired an
English domicil since his marriage
in Prance was held to be entitled
on his death to the share of his
property which the French law con-
ferred on her upon her marriage.

(g) In re Barnett's Trusts, [1902]
1 Gh. 847 : 71 L. J. Ch. 408.

(h) 2 Bla. Gom. by Stewart, 231 ;
Co. Litt. 8 a.

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400

EULES EELATING TO MAEPJAGE AND DESCENT.

now, if A. dies before B., the remainder is at an end ; for,
during B.'s life, he has no heir; but, if B. dies first, the
remainder then immediately vests in his heir, who will be
entitled to the land on the death of A. (i).

So it has been said that " a wUl takes effect only on the
testator's death ; during his life it is subject to his control ;
and, until it was consummated by his death, no one had, in
a legal view, any interest in it: Nemo est hceres viventis " (j).
Belaxation The general rule being, that the law recognises no one

of the rule. ^^ j^gjj, ^jj^^j j^^ie death of his ancestor, it follows, that
though a party may be heir-apparent, or heir-presumptive,
yet he is not very heir, living the ancestor: and there-
fore, where an estate is limited to one as a purchaser under
the denomination of heir, heir of the body, heir male, or the
like, the party cannot take, as a purchaser, unless by the
death of the ancestor, he has, at the time when the estate is
to vest, become very heir. But this rule has been relaxed
in many instances, and an exception engrafted on it, that,
if there be sufficient on the will to show that by the word
"heir" the testator meant heir-apparent, it shall be so
construed ; and in such a case the popular sense shall prevail
against the technical (/c). In other words, the authorities
appear to establish this proposition, that, prima facie, the
word "heir" is to be taken in its strict legal sense; but
that, if there be a plain demonstration in the wUl, that the
testator used it in a different sense, such different sense may
be assigned to it. What will amount to such plain demonstra-
tion must in each case depend on the language used and
the circumstances under which it was used and is not a
question to be determined by reference to reported cases

(i) Per Patteson, J., Doe v. Per- 208, 229. See S. C, 7 Scott, N. R.

rati, 7 Scott, N. R. 23, 24; S. C, 45 et seq. ; Egertony. Earl Brown-

9 01. & Fin. 606; iierLittledale, J., low, 4 H. L. Gas. 103, 137- l

5 B. & C. 59. Fearne, Cont. Rem., 10th ed. 210

{j) Per Spencer, J., Marm v. and see further, as to the rule Id.'

Pearson, 2 Johnson (U.S.), R. 36. Index, tit. Maxims.

(k) Doe V. Perratt, 10 Bing. 207,

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EULES RELATING TO MARRIAGE AND DESCENT. 401

but by a careful consideration of that language and those
circumstances in the particular case under discussion (l).

Hence, if a devise be made to A. for life, remainder to the instances
heirs of the body of B, so long as B. shall live, an estate pur excluded.
autre vie being given, and the ancestor being cestui que vie,
the rule of law would plainly be excluded. So, a devise to
A. for life, remainder to the right heirs of B. now living,
vests the remainder in B.'s heir-apparent or presumptive ;
and a devise to A. for life, remainder to the right heir of B.,
he paying to B. an annuity upon coming into possession,
would clearly vest the remainder in B.'s heir-apparent (m).
In like manner, the familiar expressions, " heir to the
throne," " heir to a title or estate," " heir-apparent,"
" heir -presumptive," prove that the existence of a parent is
quite consistent with the popular idea of heirship in the
child. In all such cases the legal maxim has no place, nor
can it have in any in which the person speaking knows of
the existence of the parent, and intends that the devise to
the child shall take effect during the life of the parent. It
would appear that the question proper to be asked in each
such case would be, " Did the testator use the word ' heir '
in the strict legal sense, or in any other sense ? " and if the
answer should be that he used the term, not in the legal
and technical, but in some popular sense, the sense thus
ascertained should be carried out («).

Kespecting the subject here touched upon, detailed
information must be sought for in treatises more technical
than this.

H^EEDiTAS NUNQUAM AsCENDiT. {GUnvUle, lib. 7, c. 1.) — The
right of inheritance never lineally ascends.
The above was an express rule of the feudal law, and

(l) Per Patteson, J, , 7 Scott, N. B. N. E. 46, 50.
2g (ra) Per Ld. Oottenham, 7 Scott,

(to) Per Ld. Brougham, 7 Scott, N. B. 60, 61 ; S. C, 5 B. & 0. 48.

26

L.ll.

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402

RULES RELATING TO BLmRIAGB AND DESCENT.

Kule, how
applied.

The Inherit-
ance Act,
1833.

remained an invariable maxim (o) until the Inheritance Act,
1833 (oo), which effected so great a change in the law of
inheritance. The rule was thus stated and illustrated by
Littleton (p): If there be father and son, and the father
has a brother, who is, therefore, uncle to the son, and the
son purchase land in fee-simple, and die without issue,
living his father, the uncle shall have the land as heir to the
son, and not the father, although the latter is nearer in
blood, because it is a maxim in law that the inheritance may
lineally descend, but not ascend. Yet if the son in this
case die without issue, and his uncle enter into the land as
heir to the son, and afterwards the uncle die without issue,
living the father, the father shall have the land as heir to the
uncle, and not as heir to the son, for he should rather come
to the land by collateral descent than by lineal ascent.

It was, moreover, a necessary consequence of this rule
coupled with the maxim, seisina facit stipitem, that, if, in
the instance above put, the uncle did not enter into the land,
the father could not inherit it, because a man claiming as
heir in fee-simple by descent must make himself heir to him
who was last seised of the actual freehold and inheritance ;
and if the uncle, therefore, did not enter, he would have had
but a freehold in law, and no actual freehold, and the last
person seised of the actual freehold was the son, to whom the
father could not make himself heir (g) .

The maxim, hwreditas nunquainasceiulit, therefore, applied
only to exclude the ancestors in a direct line, for the inherit-
ance might ascend indirectly, as in the preceding example,
from the son to the uncle (;).

The above rule, however, was altered with respect to
descents on deaths occurring since 1833, it being enacted
by s. 6 of The Inheritance Act, 1833 (oo), that every lineal
ancestor shall be capable of being heir to any of his issue •

(o) 2 Com. by Broom & Hadley,
378 ; 3 Cruise, Dig., 4th ed. 331.
(oo) 3 & 4 WiU, 4, 0. 106.

(p) S.3.

(a) Co. Litt. 11 b.

(r) Braoton, lib. 2, c. 29.

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EULES EELATING TO MAEEIAGE AND DESCENT. 403

and in every case where there shall be no issue of the
purchaser, his nearest lineal ancestor shall be his heir in
preference to any person who would have been entitled to
inherit either by tracing his descent through such lineal
ancestor, or in consequence of there being no descendant of
such lineal ancestor, so that the father shall be preferred
to a brother or sister, and a more remote lineal ancestor to
any of his issue other than a nearer lineal ancestor or
his issue.

But by s. 7 it is provided, that none of the maternal
ancestors of the person from whom the descent is to be
traced, nor any of their descendants, shall be capable of
inheriting until all his paternal ancestors and their descen-
dants shall have failed ; and also that no female paternal
ancestor of such person, nor any of her descendants, shall
be capable of inheriting until all his male paternal ancestors
and their descendants shall have failed and that no female
maternal ancestor of such person, nor any of her descendants,
shall be capable of inheriting until all his male maternal
ancestors and their descendants shall have failed.

And here we may conveniently advert to a well-known Lineal
maxim of our law, which is thus expressed : Unea recta preferred.
semper prmfertur transversali (s) — the right line shall always
be preferred to the collateral. It is a rule of descent that
the hneal descendants in infinitum of any person deceased
shall represent their ancestor, that is, shall stand in the
same place as the person himself would have done had
he been living («).

Hence it is, that the son or grandchild, whether son or
daughter, of the eldest son succeeds before the younger son,
and the son or grandchild of the eldest brother before the
younger brother ; and so, through all the degrees of suc-
cession by the right of representation the right of proximity
is transferred from the root to the branches, and gives

(s) Co. Litt. 10 b ; Heta, lib. 6, u. 1. (t) 3 Cruise, Dig., 4th ed. 333.

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404

Exclusion of
the half
blood.

The Inherit-
ance Act,
1833.

RULES RELATING TO MARRIAGE AND DESCENT.

them the same preference as the next and worthiest of

blood (u).

Another rule immediately connected with the preceding,
was that which related to the exclusion of the half blood,
but which, originally, it would seem, extended only to exclude
a f rater utcrimis from inheriting land descended a patre :
frater fratri uterino non succeclet in lusreditate patern&ix).
This rule, however, although expressed with considerable
limitation in the maxim just cited, had this more extended
signification— that the heir, in order to take by descent,
need not be the nearest kinsman absolutely ; but, although
a distant kinsman of the whole blood, he should neverthe-
less be admitted to the total exclusion of a much nearer
kinsman of the half blood: and, further, that the estate
should escheat to the lord, rather than the half blood
should inherit {y) .

It has, however, been observed by Mr. Preston, that the
mere circumstance that a person was of the half blood to
the person last seised, would not have excluded him from
taking as heir, if he were of the whole blood to those ances-
tors through whom the descent was to be derived by
representation : thus, if two first cousins, D. and E., had
intermarried, and had issue a son, F., and D. had married
again, and had issue, G., and F. died seised, G. could not
have taken as half brother of F., but he might as maternal
cousin to him {z) ; for quando duo jura in imd persona
concurrunt cequum est ac si essent in diversis (a).

The law on this subject, however, was entirely altered and
materially improved by s. 9 of the Inheritance Act, 1833, which
enables the half blood to inherit next after any relation in
the same degree of the whole blood and his issue, where the

(u) Hale, Hist., 6th ed. 322, 323 ;
3 Cruise, Dig., 4th ed. 333.

{x) Port, de Laud. Leg. Ang., by
Amos, p. 15.

(y) Per Kindersley, V.-0. 27 L. J.

Ch. 102.

{z) 2 Prest. Abs. Tit. 4i7.

(a) Id. 449. The maxim su^-a is
exemplified by Jones v. Davies, 7
H. &N. 507; S. 0., 5 Id. 766.

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RULES EBLATINCt TO JIARTIIAGE AND DESCENT. 405

common ancestor is a male, and next after the common
ancestor where a female, so that the brother of the half
blood on the part of the father shall inherit next after the
sisters of the whole blood on the part of the father and their
issue, and the brother of the half blood on the part of the
mother shall inherit next after the mother.

We may add that the rule excluding the half blood did Descent of
not hold on the descent of the Crown. Therefore, if a king *^^ °''°'™'
had issue a son and a daughter by one wife, and a son by
another wife, and died; on the death of the eldest son
without issue, the younger son was entitled to the Crown, to
the exclusion of the daughter. For instance, the Crown
actually did descend from King Edward VI. to Queen Mary,
and from her to Queen Elizabeth, who were respectively
of the half blood to each other. Nor did the rule apply
to estates tail (b).

Peesona conjuncta ^quipaeatue intbeessb peopeio. {Bac.
Max., reg. 18.) — The interest of a personal connection
is sometimes regarded in laiu as that of the individual
himself.

In the words of the civil law, jura sanguinis nullo jure Eule laid
civili dirimi possunt (c) ; the law, according to Lord Bacon, Lord Bacon.
hath so much respect for nature and conjunction of blood,
that in divers cases it compares and matches nearness
of blood with consideration of profit and interest, and, in
some cases, allows of it more strongly. Therefore, if a
man covenant in consideration of blood, to stand seised to
the use of his brother or son, or near kinsman, a use
is well raised by his covenant without transmutation of
possession (d).

(b) 1 Com. by Broom & Hadley, England, vol. 4, pp. 242, 265.
228; Chit. Pre. Crown, 10; Litt. (c) D. 50, 17, 8; Bac. Max.,

ss. 14, 15 ; 3 Cruise, Dig., 4tli ed. reg. 11.
386. See also Hume's Hist, of {d) Bao. Max., reg. 18.

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of rule.

406 EULES helating to ^rAimiAGE and descent.

The above maxim, as to prrsona conjuncta, is likewise,
in some cases, applicable in determining the liability of
an infant on contracts, for what cannot strictly be con-
sidered as " necessaries " within the ordinary meaning of
that term(e). Thus, as observed by Lord Bacon, "if a
man under the years of twenty-one, contract for the
nursing of his lawful child, this contract is good, and
shall not be avoided by infancy, no more than if he had
contracted for his own aliments or erudition." The like
legal principle has been extended so as to render an infant
widow liable upon her contract for the funeral of her
husband, who had left no property to be administered (/).
Qualification The maxim under consideration does not, however,
apply so as to render a parent liable on the contract of
the infant child, even where such contract is for " neces-
saries," unless there be some evidence that the parent has
either sanctioned or ratified the contract. If, said Lord
Abinger, C.B. {cj), a father does any specific act from which
it may reasonably be inferred that he has authorised his
son to contract a debt, he may be liable in respect of the
debt so contracted ; but the mere moral obligation on the
father to maintain his child affords no inference of a legal
promise to pay his debts. " In order to bind a father
in point of law for a debt incurred by his son, you must
prove that he has contracted to be bound, just in the same
manner as you would prove such a contract against any
other person ; and it would bring the law into great uncer-
tainty if it were permitted to juries to impose a liability
in each particular case, according to their own feelings or

(c) As to which see Byder v. v. Beard, 12 C. B. N. S. 344) ; Read

Wombwell, L. E. 4 Ex. 32. v. Legard, 6 Exoh. 636, and Bice v.

(/) Chappie V. Cooper, 13 M. & Shepherd, 12 C. B. N. S. 332 ;

W. 259, 260. Bichardson v. Dubois, L. E. 5 Q. B.

{g) Mortimore v. Wright, 6 M. & 51. See Bazeley v. Forder, L. E. 3

W. 487 ; Shelton v. Springett, 11 C. Q. B. 559, as showing under peculiar

B. 452. See Ambrose v. Kerrison, circumstances the liability of the

10 C. B 776 (followed in Bradshaw husband in respect of his wife.

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RULES TiBLATING TO MARIIIAGE AND DESCENT. 407

prejudices." " It is," observed Parke, B., in the same case,
" a clear principle of law, that a father is not under any
legal obligation to pay his son's debts, except, indeed, by
proceedings under the 43 Eliz. (/i), by which he may,
under certain circumstances, be compelled to support
his children according to his ability ; but the mere
moral obligation to do so cannot impose upon him any
legal liability " (i).

Again, we read, " It hath been resolved by the justices Evidence of
that a wife cannot be produced either against or for her husbS.'&c.
husband, quia sunt cIucb animm in came una, and it might
be a cause of implacable discord and dissension between
the husband and the wife, and a means of great incon-
venience" (/i). At common law, however, the above rule
did not apply where a personal injury had been committed
by the husband against the wife, or vice versa (I). And
the rule in question has been in great part abrogated by
the legislature.

By the Evidence Amendment Act, 1853 (m), the husband
or wife became a competent and compellable witness for
or against the wife or husband, except in a criminal proceed-
ing or proceeding instituted in consequence of adultery.
By the Evidence Further Amendment Act, 1869 («), the
husband or wife of a party to a proceeding instituted in con-
sequence of adultery became a competent witness therein.
And by the Criminal Evidence Act, 1898 (o), the husband
or wife of a person charged with an offence became a
competent witness for the defence (p), and also in certain

(h) See Qrinnell v. Wells, 7 M. & criminal proceedings against her

Gr. 1033; Buttinger v. Temple, 4 husband for the security of her

B & S. 491. separate property as though she were

(i) For Courts of Law " are to a feme sole.

decide according to the legal obliga- {I) Lord Audley's ease, 3 How.

tions of parties ; " per Alderson, B., St. Tr. 402, 413.

Turner v. Mason, 14 M. & W. 117. (m) 16 & 17 Vict. c. 83.

(fe) Co. Litt. 6 b. Under 45 & 46 (n) 32 & 33 Vict. o. 68.

Vict. c. 75, s. 12, a married woman (o) 61 & 62 Vict. o. 36.

has the same remedies by way of (jp) S. 1.

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408 RULES RELATING TO MARRIAGE ANB DESCENT.

specific cases {q), may be called as witness for the prosecu-
tion without the consent of the person charged. But such
witness, if called under the above Act of 1853 or 1898,
cannot be compelled to disclose communications made to
him or her by the wife or husband during the marriage (r).
In the sense then above explained, and with the restric-
tions above suggested, must be understood the maxim
illustrated by Lord Bacon, and with which we conclude our
list of rules relative to marriage and descent : Persona
conjuncta cequiparatiir interesse jivoprio,

(g) S. 4, and schedule. See also (r) 16 & 17 Vict. c. 83, s. 3 ; 61 &

40 Vict. e. 14. 62 Vict. c. 36, s. 1 (d).

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409

CHAPTER VIII.

THE INTERPEETATION OF DEEDS AND WRITTEN
INSTRUMENTS.

In this chapter an attempt is made to give a general view
of such maxims as are of most practical utility in construing
deeds and written instruments ; and some remarks are
occasionally added, showing how these rules apply to wills
and statutes. As the decided cases on the subject are very
numerous, and as in a work like the present it would be
undesirable, and indeed impossible, to refer to any con-
siderable portion of them, only those cases are cited which
elucidate most clearly the meaning, extent, and qualifications
of the various maxims. The importance of fixed rules of
interpretation is manifest, and not less manifest is the
importance of a knowledge of those rules. In construing
deeds and wills, the language of which, owing to the use
of inaccurate terms, frequently falls short of, or altogether
misrepresents, the intentions of the parties, such rules are
necessary in order to insure just and uniform decisions ;
and they are equally so where it becomes the duty of a
Court of law to unravel those intricacies and ambiguities
which occur in statutes, and which result from ideas not
sufficiently precise, from views too little comprehensive, or
from the unavoidable imperfections of language (a). In
each case, where difficulty arises, peculiar principles and
methods of interpretation are applied, reference being
always had to the general scope and intention of the

(a) iSee Ld. Teignmouth's Life of Sir W. Jones, 261.

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410 INTBEPBBTATION OP DEEDS AND WRITTEN INSTRUMENTS.

instrument, the nature of the transaction, and the legal
rights and situation of the parties interested. The rules
of interpretation separately considered in this chapter
are:— 1, that an instrument shall be construed liberally
and according to the intention of the parties ; 2, that the
whole context shall be considered ; 3, that the meaning of
a word may often be known from the context ; 4, that no
man shall derogate from his own grant ; 5, that a latent
ambiguity may, but a patent ambiguity cannot, be explained
by extrinsic evidence ; 6, that where there is no ambiguity,
the natural construction shall prevail ; 7, that an instru-
ment or expression is sufficiently certain which can be made
so ; 8, that surplusage may be rejected ; 9, that a false
description is often immaterial; 10, that general words
may be restrained by reference to the subject-matter ;
11, that the special mention of one thing may be under-
stood as excluding another ; 12, that the expression of what
is implied is inoperative ; 13, that a clause referred to must
be understood as incorporated with that referring to it;
14, that relative words refer to the next antecedent ; 15, that
that mode of exposition is best which is founded on a
reference to contemporaneous facts and circumstances ;
16, that he who too minutely regards the form of expression
takes but a superficial and, therefore, probably an erroneous
view of the meaning of an instrument.

BbnignjB faciend^ sunt Intbrpebtationes propter

SiMPLICITATBM LaICORUM UT EeS MAGIS VALEAT QUAil

peebat; bt Verba Intentioni, non e contra, debent
INSEEVIEB. {Co. Litt. 36 a.) A liberal construction
should he put upon written instnnne^its, so as to uphold
them, if possible, and carry into effect the intention of
the parties.

The two rules of most general application in construing
a written instrument are— 1st, that it shall, if possible, be

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INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS, 411

SO interpreted ut res magis rakat quam peveat {h), and
2ndly, that such a meaning shall be given to it as may
carry out and effectuate to the fullest extent the intention
of the parties. These maxims are, indeed, in some cases
restricted by the operation of technical rules, which, for
the sake of uniformity, ascribe definite meanings to par-
ticular expressions ; and, in other cases, they receive,
when applied to particular instruments, certain qualifica-
tions, which are imposed for wise and beneficial purposes ;
but, notwithstanding these restrictions and qualifications,
the above maxims are undoubtedly the most important and
comprehensive which can be. used for determining the true
construction of written instruments.

It is then laid down repeatedly by the old reporters and General
legal writers, that in construing a deed, every part of it conatruotion
must be made, if possible, to take effect, and every word ° ^^ ^'
must be made to operate in some shape or other (c) . The
construction, likewise, must be such as will preserve rather
than destroy (d) ; it must be reasonable, and agreeable to
common understanding (e) ; it must also be favourable, and
as near the minds and apparent intents of the parties as
the rules of law will admit (/), and, as observed by Lord
Hale, the judges ought to be curious and subtle to invent

(b) See per Erie, C.J., Cheney v. B. N. S. 364, 370. See Blackwellv.

Courtois, 13 C. B. N. S. 640 ; Broom England, 8 E. & B. 541, 549.

V. Batchelor, 1 H. & N. 255; cited " If a plea admits of two construo-

in Seffield v. Meadows, L. R. 4 C. P. tions, one of whicli gives a sensible

600; Steele v. Soe, 14 Q. B. 431, effect to the whole, and the other

445; Ford v. Beech, 11 Q. B. 852, makes a portion of it idle and insen-

866, 868, 870; Oldershaw v. King, sible, the Court is bound to adopt

2 H. & N. 517 ; Mare v. Charles, the former construction ; " per

5 E. & B. 978 ; approved in Penrose Williams, J., Peter v. Daniel, 5 0. B.

V. Martyr, E. B. & E. 503. 579.

" All contracts should, if possible, (o) Shep. Touch. 84 ; Plowd. 156.

he constraed. ut res magisvaleatguam (d) PerliA. Biongham., Langston

pereat ; " per Byles, J., Shoreditch v. Langston, 2 CI. & F. 243 ; cited

Vestry v. Hughes, 17 0. B. N. S. arg., Baker v. Tucker, 3 H. L. Gas.

162. The maxim was applied in 116.

Beg. V. Broadhempston, 1 E. & E. (e) 1 Bulst. 175 ; Hob. 304.

154, 163; Pugh v. Stringfield, 4 C. {/) 1 And. 60; Jenk. Cent. 260.

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412

INTBEPRBTATION OP DEEDS AND WRITTEN INSTRUMENTS.

Deeds shall
be made
operative, if
possible.

reasons and means to make acts effectual according to the
just intent of the parties (g) ; they will not, therefore,
cavil about the propriety of words when the intent of the
parties appears, but will rather apply the words to fulfil
the intent, than destroy the intent by reason of the
insufficiency of the words (h).

It may, indeed, chance that, on executing an agreement
under seal, the parties failed to contemplate the happening
of some particular event or the existence of some particular
state of facts at a future period (i) ; and all the Court can
do in such a case is to ascertain the meaning of the words
actually used ; and, in construing the deed, they will adopt
the established rule of construction, " to read the words in
their ordinary and grammatical sense, and to give them
effect, unless such a construction would lead to some
absurdity or inconvenience (k), or would be plainly repug-
nant to the intention of the parties to be collected from
other parts of the deed"©. For "the golden rule of
construction," to which we shall presently revert, " is that
words are to be construed according to their natural
meaning, unless such a construction would either render
them senseless or would be opposed to the general scope
and intent of the instrument, or unless there be some very
cogent reason of convenience in favour of a different
interpretation " (m).

Deeds, then, shall be so construed as to operate accord-
ing to the intention of the parties, if by law they may;
and if they cannot in one form, they shall operate in that
which by law will effectuate the intention : quando res non

(g) Crossing v. Scudamore, 2 Lev.

9 ; per Ld. Hobart, Hob. 277, cited
Willes, R. 682 ; Moseley v. Motteux,

10 M. & W. 533.

(h) 1 Plowd. 159, 160, 162.
(i) See Judgm., Lloyd v. Ouibert,
L. R. 1 Q. B. 120.

(k) The element of inconvenience

is not to be considered if the con-
struction of the document is clear.
Bottomley's case, 16 Ch. D. 681,
686 ; 50 L. J. Ch. 167.

(I) Per Parke, B., Bland v. Crow-
ley, 6 Exch. 529.

(m) Per Bramwell, B., Powell v.
Tranter, 3 H. & C. 461.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 413

valet lit ago, valeat quantum valere potest (n). For in these
later times, the judges have gone further than formerly, and
have had more consideration for the substance, to wit, the
passing of the estate according to the intent of the parties,
than the shadow, to wit, the manner of passing it (o).

Thus, where A., in consideration of natural love and of Boe v. Tran-
1001., by deeds of lease and release, granted, released, and
confirmed his lands after his own death, to his brother B.
in tail, with remainder to C, the son of another brother of
A., in fee ; and he covenanted and granted that the lands
should, after his death, be held by B. and the heirs of his
body, or by C. and his heirs, according to the true intent
of the deed ; it was held, that, although the deed could not
operate as a release, because it attempted to convey a
freehold in futuro, yet it was good as a covenant to stand
seised (p). So, if the King's charter will bear a double con-
struction, one which will carry the grant into effect, the other
which will make it inoperative, the former is to be adopted (q).
And generally, " if words have a double intendment, and
the one standeth with law, and the other is against law, they
are to be taken in the sense which is agreeable to law " (r).

(n) Per Ld. Mansfield, Ooodtitle Saund. 96 a, n. (1) ; 1 Prest. Abstr.

V. Bailey, Oowp. 600 ; cited Boe v. Tit. 313 ; 1 Kep. 76 ; Perry v.

Archbp. of York, 6 East, 105 : 8 Watts, i Scott, N. E. 366 ; Doe v.

B, B. 413 ; 1 Ventr. 216. See also Woodroffe, 10 M. & W. 608 ; 15 Id.

the instances mentioned in Oihson v. 769 ; 2 H. L. Gas. 811.

Minet, 1 H. Bl. 614, 620 ; 1 B. B. 754. " The general rule," also, " is that

(o) Osmcn v. Sheaf, 3 Lev. 370 ; a covenant not to sue when it does

cited Doe v. Davies, 2 M. & W. 516 ; not affect other parties, and is so

perYfines.G J., Smithy. Packhurst, intended, may he pleaded as a

3 Atk 136; cited, Marg,. of Owl- release." Per Byles, J., Bay v.

mondely v. Ld. Clintm, 2 B. & Jones, 19 0. B. N. S. 423. A deed

Aid. 637; 21 E. B. 419; Tarletonw. of bargain and sale void for want

Stamforth, 5 T. E. 695; 4 E. E. of inrolment will operate as a grant

845 ■ ver Maule, J., Borradaile v. of the reversion ; Haggerston v.

Hunter, 5 Scott, N. E. 431, 432; Banbury, 5 B. & 0. 101; 29 E. E.

2 Wms Saund. 96 a, n. (1) ; 3 Prest. 176 ; Adams v. Steer, Oro. Jac. 210.

Abstr. Tit. 21, 22; 1 Id. 313. (2) Per Tindal, O.J., Butter v.

(p) Boe V. Trcmmarr, Willes, Chapman, 8 U. &^. 102.

682. See the oases collected 2 Wms. (r) Shep. Touch, 80, adopted by

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414 INTBEPEETATION OF DEEDS AND WRITTEN INSTRUMENTS.

In accordance with the same principle of construction,
where divers persons join in a deed, and some are able to
make such deed, and some are not able, this shall be said
to be his deed alone that is able (s) ; and if a deed be made
to one that is incapable and another that is capable, it shall
enure only to the latter (<). So, if mortgagor and mortgagee
join in a lease, this enures as the lease of the mortgagee,
and the confirmation of the mortgagor (x) ; and a joint lease
by tenant for life and remainderman operates during the
former's life as his demise, confirmed by the remainderman,
and afterwards as the demise of the remainderman (y) .
Euie as to The preceding examples suffice to show that where a deed

consfdered'^'^ Cannot Operate in the precise manner or to the full extent
intended by the parties, it shall, nevertheless, be made as
far as" possible to effectuate their intention. Acting, more-
over, on a kindred principle, the Court will endeavour to
affix such a meaning to words of obscure or doubtful import
occurring in a deed, as may best carry out the plain and
manifest intention of the parties, as collected from the four
corners of the instrument, — with these qualifications, how-
ever, that the intent of the parties shall never be carried
into effect contrary to the rules of law, and that, as a
general rule, the Court will not introduce into a deed words
which are not to be found there (z), nor strike out of a deed
words which are there, in order to make the sense different (a) .
The following illustrations of the above propositions may
advantageously be noticed, and many others of equal
importance will, doubtless, occur to the reader.

Martin, B., Fussell v. Daniel, 10 Conveyancing Act, 1881, s. 18.

Exch. 597 ; Co. Litt. 42 a, 183 ; (y) Treport's case, 6 Rep. 15.

Noy, Max., 9th ed. 211. (a) See^ej- WiUes, G.J., Parkhurst

(s) Shep. Touch. 81 : Pinch, L. 60. v. Smith, Willes, 332 ; cited by

(t) Shep. Touch. 82. Alexander, C.B., Colmcn-e v. Tyndall,

(x) Doe V Adams, 2 Or. & J. 232 ; 2 Y. & J. 618 ; 31 R. R, 637 ; per

per Ld. Lyndhurst, C.B., 8m,ith v. Ld. Brougham, Langston v. Laiig-

Pocklington, 1 Cr. & J. 446; 35 stm, 2 01. &.P. 243; 37 R. R. 57;

R. R. 756. But a mortgagor may Pannell v. Mill, 3 0. B. 625, 637.

now have leasing powers under the („) WMte y. Burnhy, 16 L.* J.

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INTEKPEETATION OF DEEDS AND WRITTEN INSTRUMENTS. 415

In cases excluded from the operation of s. 3 of the Eeal instrument
Property Act, 1845 (h), the question whether a particular
instrument should be construed as a lease or as an agree-
ment for a lease must be answered by considering the
intention of the parties, as collected from the instrument
itself ; and any words which suffice to explain the intent of
the parties, that the one should divest himself of the posses-
sion, and the other come into it for such a determinate time,
whether they run in the form of a licence, covenant, or
agreement, will of themselves be held, in construction of
law, to amount to a lease for years as effectually as if the
most proper and pertinent words had been used for that
purpose (c).

The rules appHcable and cases decided with reference to Construction
the construction of covenants will also be found to furnish
strong instances of the anxiety which our Courts evince to
effectuate the real intention {d) of the parties to a deed or
agreement (e) ; for it is not necessary, in order to charge a
party with a covenant, that there should be express words
of covenant or agreement, but it is enough if the intention
of the parties to create a covenant be apparent! (/). Where,

Q. B. 156; sectis as to mere sur- reasoning or argument, but is a fixed

plusage, see post. establislied i-ule to be acted upon,

(6) 8 & 9 Vict. c. 106. See and only discussed as regards its

Rollason v. Leon, 7 H. & N. 73 ; applioation-in truth is the law."

Tidey v. Mollett, 16 C. B. H. S. Such a rule is that where a deed

298. See also Burton v. Beevel, 16 is made inter partes— no one who

M. & W. 307 ; Bond v. Bosling, 1 is not expressed to be a party can

"R ' & S 371 ^^^ upon a covenant contained in

(c) Bac Abr. " Leases " (K.) ; and it ; Chesterfield Oo, v. Hawkins, 3

2 Shep. Touch., by Preston, 272; H. & C. 677, 691, cited in Gurrin v.

cited Judgm., Doe v. Day, 2 Q. B. J^opera, Id. 699.
152 et sea. ; Alderman v. Neate, i (^) See Doe v. Price, 8 0. B. 894.

M & W 704 (/) -P'"' '^^^^'^' O-J-. Courtney v.

'(d) Such intention may however Taylor, 7 Scott, N. B. 765 ; Wood v.
be frustrated by the operation of a Copper-miners' Co., 7 0. B. 906 ;

positive and technical rule of law. per Parke, B., Bigby v. G. W. B.
" A technical rule is one which is Co., 14 M. & W. 815 ; and James v.
established by authority and prece- Cochrane, 7 Bxoh. 177 ; S. 0., 8 Id.
dent, which does not depend upon 556 ; Farrall v. Hilditch, 5 0. B.

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416 INTBBPKBXATION OF DEEDS AND WBITTEN INSTKUilBNTS.

therefore, words of recital (gf) or reference manifest a clear
intention that the parties shall do certain acts, the Courts
will, from these words, infer a covenant to do such acts, and
will sustain actions of covenant for their non-performance
as effectually as if the instruments had contained expressed
covenants to perform them (/i). In brief, "no particular
form of words is necessary to form a covenant ; but wher-
ever the Court can collect from the instrument an engage-
ment on the one side to do or not to do something, it
amounts to a covenant, whether it is in the recital or in
any other part of the instrument " (i).

Joint or In hke manner, where the language of a covenant is such

several

covenant that the Covenant may be construed either as joint or as

°^ ■ several, it shall be taken, at common law, to be joint or

several, according to the interest of the covenantees.

Where, however, the covenant is in its terms expressly

and positively joint, it must be construed as a joint

covenant in compliance with the declared intention of the

parties (k).

Dependent or In hke manner, the rule has been estabhshed by a long

independent .... . ^ o

covenants. series of decisions, that the question, whether covenants are

N. S. 840. See Bealetj v. Stuart, N. 10, 11.

7 H. & N. 753, 759 ; Be Haden, (k) Bradbume v. Botfield, 14 M.

[1898] 2 Oh. 220: 67 L. J. Ch. 428. & W. 564, 572, SorsUe v. Park, 12

{g) See Lay v. Mottram, 19 0. B. M. & W. 146 ; White v. Tyndall, 13

N. S. 479. A. 0. 263 ; Palmers. MalUtt, 36 Oh.

(h) Judgm., As^din v. Austin, 5 D. 411. See also Haddon v. Ayres,

Q. B. 683 ; cited Du7m v. Sayles, 1 E. & E. 118 ; Pugh v. Stringfield,

Id. 692; and Churchward v. Beg., 3 0. B. N. S. 2; per Maule, J., Beer

L. B. 1 Q. B. 191, 208, and Bust v. v. Beer, 12 0. B. 78 ; citing Wetherell

Nottidge, 1 E. & B. 104 ; Williams v. Langston, 1 Exch. 634 ; Hopkin-

V. Burrell, 1 0. B. 429, where the son v. Lee, 6 Q. B. 964 ; Foley v.

distinction betvifeen express cove- Addenbrooke, 4 Q. B. 207 ; foUowed

nants and covenants in law is in Thompson v. Hakewill, 19 0 B

pointed out ; Per Grompton, J., 2 N. S. 713, 728 ; Mills v. Ladbroke

^- * ^- ^^^- 7 Scott, N. R. 1005, 1023 ; per

(^) Per Parke, B., (?. N. B. Co. v. Parke, B., Wootton v. Steffenoni, 12

Harrison, 12 0. B. 609; Judgm., M. & W.134; HarroU^,. Whitaker

BashleighY. 8. E. B. Co., 10 0. B. 11 Q. B. 147, 163; WakefieU v'

632, as to which case see Knight v. Broioii, 9 Q. B. 209, followed in

(h-avesend Waterioorks Co., 2 H. & Magnay v. Edwards, 13 0. B. 479.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 417

dependent or independent of each other, is to be determined
by the intention of the parties as it appears on the face of
the instrument, and by the application of common sense to
each particular case: to the intention, when once dis-
covered, all technical forms of expression must give away (Z).
Where, therefore, a question arose whether certain covenants
in marriage articles were dependent or not, Lord Cottenham
observed: "If the provisions are clearly expressed, and
there is nothing to enable the Court to put upon them a
construction different from that which the words import, no
doubt the words must prevail : but if the provisions and
expressions be contradictory, and if there be grounds
appearing upon the face of the instrument, affording proof
of the real intention of the parties, then that intention will
prevail against the obvious and ordinary meaning of the
words. If the parties have themselves furnished a key to
the meaning of the words used, it is not material by what
expression they convey their intention " (m).

The notes to Pordaf/r v. Cole (n) may usefully be referred
to when construing a particular clause in a contract for
the purpose of ascertaining whether the breach of that part
of the contract entitles the other contracting party to put an
end to it, or whether it only entitles him to damages. If
the clause or stipulation goes to the root of the contract

{I) Judgm., Stavers v. Curling, 3 Breit, 11 H. L. Caa. 337, 354.

Bing. N. 0. 368 ; Baylis v. Le Gros, (m) Lloyd v. Lloyd, 2 My. & Cr.

4 G. B. N. S. 537 ; London Gas 202.

Light Co. v. Chelsea Vestry, 8 Id. (w) 1 Wms. Saund. 548; Jonas-

215 ; SiUhorp v. Brunei, 3 Exoh. sohn v. Young, 4 B. & S. 296. In

826, 828 ; Hemans v. Picciotto, 1 the notes to Pordage v. Cole are

C. B. N. S. 646. See Mackintosh v. specified various oases in which

Midi. Counties B. Co., 14 M. & W. Courts have done great violence to

g^g the strict letter of covenants for the

The answer to the question, what purpose of carrying into effect what

is or what is not a condition prece- was considered to be the real inten-

dent, depends not on merely techni- tion of the parties. See Marsdenv.

cal words but on the plain intention Moore, 4 H. & N. 504, where Por-

of the parties to be deduced from dage v. Cole is cited and distin-

the whole instrument; Roberts v. guished.

L.M. 27

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418

INTBRPKBTATION OF DEEDS AND WRITTEN INSTRUMENTS.

General rule
as to con-
struing an
agreement.

between the parties, the contract may be determined ; if it
goes only to part of the consideration on both sides, the sole
remedy is by way of damages.

The same sense, we may in the next place observe, is to
be put upon the words of a contract in an instrument under
seal as would be put upon the same words in an instrument
not under seal : that is to say, the same intention must be
collected from the same words, whether the particular
contract in which they occur be special or not (o).

In the case, then, of a contract or agreement, whether by
deed or parol, the Courts are bound so to construe it, itt res
viagis valeat quam pereat — that it may be made to operate
rather than be inefficient ; and, in order to effect this, the
words used shall have a reasonable intendment and con-
struction (p). Thus, where A. guaranteed to B. the payment
of all bills of exchange drawn by B. on 0. and accepted by
C, and the payment of any balance that might be due from
C. to B., the Court decided that the guarantee extended to
future as well as past transactions, for if the words " might
be due " were to be limited to past transactions the guarantee
would be void for want of consideration, but every document
ought to be construed, if possible, so as to make it operative.
It should be noticed with reference to this case that
Bramwell, B., differed from the majority of the Court
upon the ground that the words prima facie referred to past
transactions, and that the maxim is inapplicable where
there are extrinsic circumstances in relation to which the
words used are in their primary sense intelligible (g) .
Words of art, which, in the understanding of conveyancers,
have a pecuHar technical meaning, shall not be scanned
and construed with a conveyancer's acuteness, if, by so
doing, one part of the instrument is made inconsistent with

(o) Per Ld. EUenborough, 13 Max., 9th ed., p. 50.

^J*"; '^^- (2) Broom v. Batclvelm; 1 H. & N.

(p) Com. Dig. " Pleader " (C. 25) ; 255.
Bac, Works, vol. 4, p. 25; Noy,

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 419

another, and the whole is incongruous and unintelhgible ;
but the Court will understand the words used in their
popular sense, and will interpret the language of the
parties secundum subjectam materiem, referring particular
expressions to the particular subject-matter of the agree-
ment, so that full and complete force may be given to
the whole (»•).

Whether, for example, a particular clause in a charter- Oharterparty.
party shall be held tobe a condition, upon the non-performance
of which by the one party the other is at liberty to abandon
the contract, and consider it at an end, — or whether it
amounts to an agreement only, the breach whereof is to be
recompensed by an action for damages, — must depend, in
each particular case, upon the intention of the parties to be
collected from the terms of the agreement itself, and from
the subject-matter to which it relates ; it cannot depend on
any formal arrangement of the words, but on the reason and
sense of the thing, as it is to be collected from the whole
contract (s). In such a case, therefore, the rule applies, in
conventionibus contrahentiiim voluntas potius quam verba
spectari placuit (t) : in contracts and agreements the intention
of the parties, rather than the words actually used, should
be considered {u) .

(r) Ballewall v. Morrell, 1 Soott, v. Burness, 32 L. J. Q. B. 204, 3 B.

N. E. 309 ; per Cur., Sill v. Grange, & S. 751 ; and see Olaholm v. Says,

Plowd. 164, 170; cited Arg., 2 Q. B. 2 Soott, N. K. 482 ; Ollive v. Booker,

509 ; per Willes, O.J., Willes, 332 ; 1 Exch. 416, 423 ; Seeger v. Duthie,

Seseltine v. Siggers, 1 Exoh. 856. 8 0. B. N. S. 45 ; Oliver v. Fielden,

If an instrument is capable of two 4 Exch. 135, 138 ; and Crookewit v.

constructions, that one shall be pre- Fletcher, 1 H. & N. 911 ; Qattorno

ferred which will make the inatru- v. Adams, 12 C. B. N. S. 560 ; per

ment operate rightfully ; Faussett Ld. Ellenborough, Ritchie v. Atkin-

V. Carpenter, 2 Dow. & 01. 232 ; 35 son, 10 East, 306 ; Judgm., Fume v.

j^ j{,_ 17, Sharwood, 2 Q. B. 415. See WMte

As to construing an award, see v. Beeton, 7 H. & N. 42.
Law V. Blackburrow, 14 C. B. 77 ; (i) 17 Johns. (U.S.) B. 150, and

Mays V. Cannell, 15 C. B. 107, and cases there cited,
cases there cited. («) Dimech v. Corlett, 12 Moo. P,

(s) Bentsen v. Taylor, [1893] 2 0. 199, 228,
Q. B. 274 : 63 L. J. Q. B. 15 ; Behn

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INTEKrRETATION OP DEEDS AND WRITTEN INSTRUMENTS.

Meaning of
words.

Patents, con-
struction of.

Subject, however, to the preceding remarks, Courts will
apply the ordinary rules of construction in interpreting
instruments, and will construe words according to their
strict and primary acceptation, unless, from the immediate
context or from the intention of the parties apparent on the
face of the instrument, the words appear to have been used
in a different sense, or unless, in their strict sense, they are
incapable of being carried into effect. It must, moreover,
be observed that the meaning of a particular word may be
shown by parol evidence to be different in some specified
place, trade, or business, from its proper and ordinary
acceptation (x).

With respect to patents, it was long ago observed by Lord
Eldon, that they are to be considered as bargains between
the inventor and the public, to be judged of on the principles
of good faith, by making a fair disclosure of the invention,
and to be construed as other bargains ((/). Moreover,
although formerly there seems to have been a practice, with
both judges and juries, to destroy the patent right even of
beneficial patents, by exercising great astuteness in taking
objections as to the title of the patent, and particularly as
to the specification, whereby many valuable patent rights
were destroyed ; yet, more recently, the Courts have not
been so strict in taking objections to the specification, but
have rather endeavoured to deal fairly both with the
patentee and the public, willing to give to the patentee, on
his part, the reward of a valuable patent, but taking care
to secure to the public, on the other hand, the benefit of
the proviso, requiring a specification, which is introduced
into the patent for their advantage, so that the right to
the patent may be fairly and properly expressed in the

(a;) See per -Bdaook, G.B., Mallan (y) Per Alderson, B., Neilson v.

V. May, 13 M. & W. 511 ; LewiB v. Harford, Webs. Pat. Cas. 341 •

Marshall, 8 Soott, N. E. 477, 494 : Nornaan on Patents, 78, 79. The

per PaAe, B., Glift v. Schwabe, 3 mode of construing' a patent as

C. B. 469, 470 ; per Ld. Cranworth, between the patentee and the Crown

C, 6 H. L. Cas. 78 ; post, Chap. X, will be stated hereafter.

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INIERPRBTAXION OP DEEDS AND WRITTEN INSTRUMENTS 421

specification (z). Accordingly, in construing a specification,

the whole instrument must be taken together, and a fair

and reasonable interpretation be given to the words used (a) :

the words being construed according to their ordinary and

proper meaning, unless there be something in the context

to give them a different meaning, or unless the facts properly

in evidence, and with reference to which the patent must be

construed, show that a different interpretation ought to be

made (5). It has been laid down that the test of the

sufficiency of a specification is whether it would enable an

ordinary workman, exercising the actual knowledge common

to the trade, to make the machine (c). Where evidence was Extrinsic

tendered of the various patents in existence at the time exp'iarn^'°

when the patent in question was granted, for the purpose of specification.

so construing the specification as to exclude from its operation

prior patents, and thereby to make it valid : it was held that

such evidence could not be used for that purpose, although

it was admissible to explain words of art to be found in the

specification, and that words used in a patent must be

construed, like the words of any other instrument, in their

natural sense, regard being had to the fact that the document

is not addressed to the world at large, but to a particular

class possessing a certain amount of knowledge on the

subject (d) .

The following remarks of Lord Ellenborough, with Policy of

insurance.

(2) PerBa.ike,'B.,Neilson's Patent, ventionmaybe carried into effect."

Webs. Pat. Oas. 310 ; per Alderson, (a) Beard v. Egerton, 8 C. B. 165.

B.jMorganw. Seaward, 1A.VI3, who (b) Judgm., Elliott v. Turner, 2

observed : " It is the duty of a party 0. B. 446, 461. As to construing

who takes out a patent to specify a specification which contains terms

what his invention really is ; and of art, see Betts v. Mensies, 10 H. L.

although it is the bounden duty of a Cas. 117.

jury to protect him in the fair exer- (c) PUm/pton v. Malcolmson, 3 Ch.

oise of his patent right, it is of great T). 531 ; 45 L. J. Ch. 505 ; Mm-gan

importance to the public, and by v. Seaward, 1 Webs. P. R. 174 ; see

law it is absolutely necessary, that also Wegmami v. Corcoran, 13 Ch.

the patentee should state in his D. 65.

specification, not only the nature (d) Clark v. Adie, 2 App. Cas.

of his invention, but how that in- 423 ; 46 L. J. Ch. 585, 598.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

Rules to
observed in
construing a
will.

reference to a policy of insurance, here also occur to mmcl
as generally applicable. " The same rule of construction,"
said that learned Judge, "which applies to all other
instruments, applies equally to this instrument of a pohcy
of insurance, viz., that it is to be construed according to
its gense and meaning, as collected, in the first place, from
the terms used in it, which terms are themselves to be
understood in their plain, ordinary, and popular sense,
unless they have generally in respect to the subject-matter,
— as by the known usage of trade, or the like, — acquired a
peculiar sense distinct from the popular sense of the same
words, or unless the context evidently points out that they
must, in the particular instance, and in order to effectuate
the immediate intention of the parties to that contract, be
understood in some other special and peculiar sense" (e).
And again, " the contract of insurance," it has been said,
" though a mercantile instrument, is to be construed
according to the same rules as all other written contracts,
namely, the intention of the parties, which is to be gathered
from the words of the instrument, interpreted together
with the surrounding circumstances. If the words of the
instrument are clear in themselves, the instrument must
be construed accordingly, but if they are susceptible of
more meanings than one, then the judge must inform
himself by the aid of the jury and the surrounding
circumstances which bear on the contract " (/).

In construing a will, it has been said, that the intention
of the testator is the polar star by which the Court should
be guided, provided no rule of law is thereby infringed (g).

(e) Bobertson v. French, i East,
135, 136 ; 7 R. B. 535 ; cited by Ld.
Tenterden, Hunter v. Leathley, 10
B. & G. 871 ; by Bowen, L.J., Sart
V. Standard Mar. Ins. Co., 22 Q.
B. T>. 501.

(/) Per Erie, C.J., Carr v. Mon-
tefiore, 5 B. & S. 428.

{g) Per Ld. Kenyon, Watson v.
Foxon, 2 East, 42 ; per WiUes, C.J.,
Doe V. XInderdown, Willes, 296 ; pei'
Buller, J"., Smith V. Coffin, 2 H. Bla.
450 ; 8 R. R. 435 ; cases cited, Arg.,
Ley V. Ley, 3 Scott, N. R. 168 ; Doe
V. Davics, 4 M. & W. 599, 607 ; Doe
V. Perineioen, 11 A. & E. 131 ; per

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INTBRPBETATION OF BEEDS AND WRITTEN INSTRUMENTS. 423

" It is the duty of those who have to expound a will, if
they can, ex fumo dare hicem " (h). In other words, the
first thing for consideration always is, what was the
testator's intention at the time he made the will ; and
then the law carries that intention into effect as nearly as
it can, according to certain settled technical rules {i).

" Touching the general rules to be observed for the true
construction of wills," said Dodderidge, J., — ■" in testamentis
plenius testatoris intentionem scrittamur. But yet this is to
be observed with these two limitations : 1st, his intent
ought to be agreeable to the rules of law : 2ndly, his intent
ought to be collected out of the words of the will. As
to this it may be demanded, how shall this be known?
To this it may be thus answered : first, to search out
what was the scope of his will ; secondly, to make such a
construction, so that all the words of the will may stand ;
for to add anything to the words of the will, or, in the
construction made, to relinquish and leave out any of the
words, is maledicta cjlossa. But every string ought to give
its sound" {k).

In a case involving important interests {I), the following
were laid down as the leading and fundamental rules for
construing a will. In the first place, " while the intention
of the testator ought to be our only guide to the interpre-
tation of his will ; yet it must be his intention as collected
from the words employed by himself in his will (m) ; no

Parke, B., Orover v. Burningham, 5 a will and oodioil is that the whole

Exoh. 191 ; Martin v. Lee, 14 Moo. of the wiU takes effect, except in so

P. C. 142. far as it is inconsistent with the

(h) De Beauvoir v. De Beauvoir, codicil; " Bobertson v. Powell, 2 H.

15 L. J. Oh. 308 ; S. C, 15 Sim. & 0. 766—767 ; citing Doe v. Hicks,

163 ; 3 H. L. Gas. 524. 1 01. & F. 20 ; 36 E. B. 1 ; Bichard-

(i) Judgm., Doe v. Boach, 5 M. & son v. Power, 19 0. B. N. S. 799.
S. 490 ; Hodgson v. Amhrose, Dougl. (Jc) Blamford v. Blamford, 3

341 ; Festmg v. Allen, 12 M. & W. Bulst. 103. See Parker v. Tootal,

279; Alexander v. Alexander, 16 0. 11 H. L. Oas. 143.
B. 59 ; Doe v. Hopkinson, 5 Q. B. (l) Earl of Scarborough v. Doe, 3

223 ; Doe v. Glover, 1 0. B. 459. A. & E. 962 ; cited 8 M. & W. 200.

" The general rule in interpreting (m) In Doe v. Oarlich, 14 M. & W.

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424 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

surmise or conjecture of any object which the testator
may be supposed to have had in view can be allowed to
have any weight in the construction of his will, unless such
object can be collected from the plain language of the will
itself."

With the rule thus stated, we may compare the language
of Lord Cottenham, in Earl of Hardiricke v. Douglas (n).
"It is not, according to my impression of the rule upon
which the Courts have acted, consistent with the principles
of construction to set aside the effect of clear and unam-
biguous words because there is reason to suppose that they
do not produce the effect which the testator intended
they should produce. If there be any ambiguity, then of
course it is the duty of all Courts to put that construction
upon the words which seems best to carry the intention
into effect ; but if there be no ambiguity, however un-
fortunate it may be that the intention of the testator
shall fail, there is no right in any Court of justice to say
those words shall not have their plain and unambiguous
meaning."

In the second place, it is a necessary rule, in investigating
the intention of a testator, not only that the words of the
will alone should be regarded in order to determine the effect
of the devise, but that the legal consequences which may
follow from the nature and qualities of the estate, when
once collected from the words of the will itself, should be
altogether disregarded (o). Thus, in determining whether

701, Parke, B., observed that diffi- voluit sed quod dixit, or rather we

oulties have arisen from confound- are to ascertain quod voluit by in-

ing the testator's intention with his terpreting guod dixit." And see,

meaning. "Intention may mean i)e?' Ld. Wensleydale, Gj-ey v. P(?a)--

what the testator intended to have son, 6 H. L. Cas. 106 ; Slingsby v.

done, whereas the only qnestion in Orainger, 7 Id. 284.

the construction of wJUs is on the («) 7 Clark & P. 795, 815. See

meaning of the words." In Qrover also Quiche v. Leach, 13 M. & W.

V. Burningham, 5 Bxch. 194, Rolfe, 218.

B,, also observed, "We are to ascer- (o) 3 A. & E. 968. At the same

tain by construing the will iwn qvxid time the circumstance, that the

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INTEEPKBTATION OF DEEDS AND WRITTEN INSTKITMENTS. 425

the testator's intention was to devise an estate tail or only
an estate for life, it is not a sound mode of reasoning to
import into the consideration of the question, that, if the
estate is held to be an estate tail, the devisee will have
power to defeat the testator's intention by barring the
entail ; for the Court will not assume that the testator was
ignorant of the legal consequence of the disposition which
he has made (p). A person ought to direct his meaning
according to the law, and not seek to mould the law
according to his meaning ; for, if a man were assured, that,
whatever words he used, his meaning only would be
considered, he would be very careless about his choice of
words, and the attempt to explain his meaning in each case
would give rise to infinite confusion (q).

Hence, although it is the duty of the Court to ascertain
and carry into effect the intention of the party, yet there
are, in many cases, fixed and settled rules by which that
intention is determined; and to such rules wise judges
have thought proper to adhere, in opposition to their own
private opinions as to the party's probable intention (;•).
The object, indeed, of all such technical rules is to create
certainty, and to prevent litigation, by enabling persons
who are conversant with these subjects to give correct
advice, which would be impossible if the law were
uncertain and Uable to fluctuation in each particular

case (s).

In accordance with the above remarks, Parke, B., in an ^"^^ip^^^^s^^^^*
important case respecting the rule against perpetuities,
said :— " We must first ascertain the intention of the testator,

language if strictly construed wUl Parke, B., Morrice v. Langham, 8

lead to a consequence inconsistent M. & W. 207.

with the presumahle intention, is (q) Plowd. 162.

not to be left out of view, especiaUy (r) See per Alexander, G.B., 6

if other considerations lead to the Bing. 478 ; Judgm., 2 PhiU. 68.

same result; Quicke v. Leach, 13 (s) Per PoUock, O.B., Doe y.

M. & W. 228. Garlick, 14 M. & W. 707.
(p) 3 A. & E. 963, 964 ; per

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426 INTBRPriETATION OF DEEDS AND WIUTTEN INSTRUMENTS.

or more properly the meaning of his words, in the clause
under consideration, and then endeavour to give effect to
them so far as the rules of law will permit. Our first duty-
is to construe the will, and this we must do exactly in the
same way as if the rule against perpetuity had never been
established, or were repealed when the will was made, not
varying the construction in order to avoid the effect of that
rule, but interpreting the words of the testator wholly
Rule in without reference to it " (t). The rule in Shelley's case (m) —

Shelley's case. ^^ ^i^ich, where an estate of freehold is limited to a person,
and the same instrument contains a limitation, either
mediate or immediate, to his heirs in fee or in tail, the word
" heirs " is construed as a word of limitation— is a familiar
instance of an arbitrary and technical rule of construction,
the authority of which is acknowledged by the Courts,
although its application may tend to defeat the intention of
the testator.
OoDstruction ^^> ™ construing a power to lease contained in a will, it
of power. " becomes necessary to look to the language of the testator
in the creation of the power itself, and to ascertain his
intention by considering the true meaning of the language
which he has used, giving to it its natural signification
according to the ordinary rules of interpretation ; giving
effect, if possible, to every part of the clause ; and if any
part of it be ambiguous, interpreting it by reference to the
context, to the general intent of the will, and, if necessary,
to the surrounding circumstances " (x).

Not only are there fixed and established rules by which

(t) Per Parke, B., Ld. Dungannon 427 ; L. B. 3 H. L. 285.

V. Smith, 12 01. & P. 599 (diatin- " Facts extrinsic to the will must

guished in Christie v. Oosling, L. K. be ascertained for the Court in the

1 H. L. 279) ; per Ld. Maonaghten, usual manner, either by admission

Edwards v. Edwards, [1909] A. C. of the parties or by a jury. When

275 : 78 L. J. Oh. 504. they have been ascertained, the

(u) 1 Rep. 104 a ; see Van Orutten operation of construction is to be

V. Foxwell, [1897] A. 0. 658 ; 66 performed by the Court." Webber

L. J. Q. B. 745. V, Stanley, 16 0. B. N. S. 752.

(x) Jegon v. Vivian, L. R. 2 0. P,

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 427

the Courts will, in certain cases, be guided in determining Teohnicai
the legal effect of a will, but there are likewise certain ®^P'^®^"°'^^-
technical expressions, the established legal interpretation of
which differs from the meaning attributed to them in popular
language ; and, consequently, a wUl in which such expressions
occur may, in some cases, be made to operate in a manner
different from that contemplated by the testator (y) : the
duty of the Court being to give effect to all the words of the
will, if that can be done without violating any part of it,
and also to construe technical words in their proper sense,
where they can be so understood consistently with the
context (0).

The following observations of V.-C. Knight Bruce, although
they refer to the particular circumstances of the case
immediately under his consideration, show clearly the
general principles which guide the Court in assigning a
meaning to technical expressions. " Both reason and
authority, I apprehend," said the learned Judge, " support
the proposition that the defendants are entitled to ask the
Court to read and consider the whole of the instrument in
which the clause stands ; and, in reading and considering
it, to bear in mind the state of the testator's family, as at
the time when he made the codicil he knew it to be ; and if

(2/) See 2 Powell on Devises, by Where the testator appears to

Jarman, 3rd. ed. 564 et seg. ; Doe v. have been very illiterate, " the rules

Simpson, 3 Scott, N. B. 774 ; cited of grammar and the usual meaning

by Byles, J., Bicha/rds v. Davies, 13 of technical language may be dis-

C. B. N. S. 87, and distinguished in regarded in construing his wUl; "

Hardcastle v. Dennison, 10 Id. 606. per Ld. Campbell, Hall v. Warren,

(z) Doe V. Walker, 2 Scott, N. B. 9 H. L. Gas. 427.

334 ; Towns v. Wentworth, 11 Moo. Generally, as to the duty of the

P. C. 526, 543 ; per Martin, B., Court in construing a will contain-

Biddulph V. Lees, E. B. & E. 317 ; ing teohnicai words, see, further,

per Alderson, B., Lees v. Mosley, per Ld. Westbury, Young v. Bobert-

1 y. & Coll. 589 ; cited Arg., Oreen- son, i Macq. So. A. C. 325 ; distin-

wood V. Bothwell, 6 Scott, N. B. 672. guished in Bichardson v. Power, 19

See, also, Arg., Festi/ng v. Allen, G. B. N. S. 798 ; Balston v. Hamil-

12 M. & W. 286 ; Jack v. M'Intyre, ton, 4 Macq. Sc. A. G. 397 ; Jenkins

12 01. & F. 158 ; Jenkins v. Hughes, v. Hughes, 8 H. L. Gas, 571.
8 H. L. Cas. 571.

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428 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

the result of so reading and considering the whole document
with that recollection is to convince the Court, from its
contents, that the testator intended to use the words in their
ordinary and popular sense, and not in their legal and
technical sense, as distinguishable from their ordinary and
popular sense, to give effect to that conviction by deciding
accordingly" (a).
" Children." The following instance may serve to illustrate the above
remarks (b) : — The term " children " in a will prima facie
means, in accordance with its strict technical sense in law,
legitimate children, and, if there is nothing more in the will,
the fact that the person whose children are referred to has
illegitimate children does not entitle the illegitimate children
to take. But there are two classes of cases in which the above
interpretation is departed from. One is where it is impossible,
from the circumstances of the parties, that any legitimate
children could take under the bequest ; for instance, if the
bequest be to the children of a deceased person who has left
none but illegitimate children, the maxim utres macjis valcat
is applied. The other is where upon the face of the will
itself, and upon a just construction of the words used in it,
there is an expression of the testator's intention to use the
term " children " according to a meaning which will apply
to and include illegitimate children (c).

In like manner, where a bequest is made to the " children "
or " issue " of A., the whole context of the will must be
considered, in order to ascertain the proper effect to be
attributed to the word " children " or " issue." It may be,
that the word " children " must be enlarged and construed
to mean " issue " generally, or the word " issue " restricted
so as to mean " children," and each case must depend on
the peculiar expressions used, and the structure of the

(a) Early v. Benbow, 2 Coll. 353. Ld. Bendlesham, 7 Id. 429.

(6) As to the meaning of " un- (c) Per Ld. Cairns, Hill v. Crook,

married," see Clarke v. Colls, 9 L. R. 6 H. L. 265, 282; see oases

H. L. Cas. 601,— of " eldest male oolleoted in Re Deakin, [1894] 3 Ch.

lineal descendant," Thellusson v. 565 ; 63 L. J. Ch. 779.

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sentences ((/). When, however, the context is doubtful, the
Court, so far as it can, will prefer that construction which
will most benefit the testator's family generally, on the
supposition that such a construction must most nearly
correspond with his intention (e).

Lastly, in determining whether an estate-tail or only
a life estate passes under the words of a will, the same
general rule of interpretation above considered is applicable,
and has thus been forcibly stated by Lord Brougham : "I
take the principle of construction, as consonant to reason
and established by authority, to be this — that, where by
plain words, in themselves liable to no doubt, an estate-
tail is given, you are not to allow such estate to be altered
and cut down to a life estate, unless there are other words
which plainly show the testator to have used the former
as words of purchase contrary to their natural and ordinary
sense, or unless in the rest of the provisions there be some
plain indication of a general intent inconsistent with an
estate-tail being given by the words in question, and
which general intent can only be fulfilled by sacrificing
the particular provisions, and regarding the expressions as
words of purchase. Thus, if there is a gift first to A. and
the heirs of his body, and then, in continuation, the
testator, referring to what he had said, plainly tells us,
that he used the words, ' heirs of the body ' to denote A.'s
first and other sons, then, clearly, the first taker would
only take a life estate. ... So, again, if a limitation is made
afterwards, and is clearly the main object of the will,
which never can take effect unless an estate for life be given

(d) Where in a devise there Is v. Gartwright, L. E,. 2 C. P. 511 ;

a gift over on general failure of Eastwood v. Avison, L. R. 4 Ex.

"issue,." the word "issue" means 141; per Ld. Chelmsford, Williams

"heirs of the body," unless from v. icwis, 6 H. L. Oas. 1021.
the context it clearly appear that (e) Per Ld. Langdale, Farrant v.

the testator intended to give it a Nichols, 9 Beav. 329, 330 ; Slater

different meaning ; Roddy v. Fits- v. Dangerfield, 15 M. & W. 263 ;

gerald, 6 H. L. Gas. 823 ; Bowen v. Richards v. Davies, 13 C. B. N. S.

Lewis, 9 App. Gas. 890. See Bradley 69.

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430 INTEEPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

instead of an estate-tail : here, again, the first words become
qualified, and bend to the general intent of the testator,
and are no longer regarded as words of limitation, which,
if standing by themselves, they would have been " (/).

To the general maxims of construction applicable to
wills, viz., Bcnigne facienda sunt interpretationes et verba
iiitentioni debent insert-ire, the doctrine of cy-pres is refer-
able ((/). According to this doctrine (which proceeds upon
the principle of carrying into effect as far and as nearly
as possible the intention of the testator), if there be a
general and also a particular intention apparent on the
will, and the particular intention cannot take effect, the
words shall be so construed as to give effect to the general
intention (h). Thus, where lands were devised to the
second son of W. (who at the testator's death had no son),
for such son's life, and after his death, or in case he should
inherit his paternal estate by the death of his elder brother,
then to his second son and his heirs male ; with remainder to
the third and other sons of W. successively in tail male :
it was held, that the lands vested in the second son of W.
(when born) by executory devise for an estate in tail male,
determinable on the accession of the paternal estate (i).
So, in the case of a condition precedent annexed to a legacy,
with which a literal compliance becomes impossible from
unavoidable circumstances, and without any default of the
legatee ; or where a bequest is made for charitable pur-
poses, with which a literal compliance becomes inexpedient
or impracticable ; in such cases a court of equity will apply
the doctrine of cy-pres, and will endeavour substantially,

(/) Fetherstonv. Fetherston, 3 Cl. as to oy-pr^s is stated by Ld. St.

& F. 75, 76 ; per Ld. Broughaxa, Leonards, Monypenny v. Bering, 2

ThornUll v. Hall, 2 Id. 36 ; 37 De G. M. & G. 173. See, per Ld.

R. B. 1. Kenyon, Bnulenellv. Elwes, 1 East,

(g) See^erLd. St. Leonards, East 451 ; 6 B. R. 310.

V. Twyford, i H. L. Gas. 556. (i) Nicholl v. Nicholl, 2 W. Bl.

(h) Per Buller, J., Robinson v. 1159. See, however, Monypenny v.

Hardcastle, 2 T. B. 254; 1 B. B. Bering, 16 M. & W. 418; 2 M. &

467 ; Shep. Touch. 87. The rule Gr. 145.

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INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS. 431

and as nearly as possible, to carry into effect the intention
of the testator (k).

It is to be observed that the doctrine of cy-pres does Cy-pr^s when
not apply to limitations of personal estate, nor of a mixed ^^'^^^ ^°*
fund (Q. It is also inapplicable where an attempt is
made to limit a succession of life estates to the issue of
an unborn person either for a definite or indefinite series of
generations ; and also where the limitation to the children of
the unborn person gives them an estate in fee simple (m).

The remarks above made, and authorities referred to. Summary
serve to give a general view of the mode of applying to the remarkl '°°
interpretation of wills those comprehensive maxims which
we have been endeavouring to illustrate and explain, and
which are, indeed, comprised in the well-known saying :
nltima voluntas testatoris est perhnplenda secundum reram
intentio7ie7n suam (n).

We shall, therefore, sum up this part of our subject with
observing that the only safe course to pursue in construing
a will is to look carefully for the testator's intention as it is
to be derived from the words used by him within the whole
of the wUl, regardless alike of any general surmise or con-
jecture from without the will, as of any legal consequences
annexed to the estate itself, when such estate is discovered
within the will (o) ; bearing in mind, however, that where
technical rules have become established, such rules must
be followed, although opposed to the testator's presumable
and probable intention — that where technical expressions
occur they must receive their legal meaning, unless, from
a perusal of the entire instrument, it be evident that the

{k) 1 story, Eq. Jurisp., 12th ed. words, will occur to the reader as

1169 — 1180, where this doctrine is fraught with illustrations of the

considered ; 1 Jarm. Wills, 5th ed. maxims commented on in the text.
204; Ironmongers Co. v. A.-O., 10 (l) Boughton y. James, 1 Coll. 44;

01. & P. 908 ; Mills v. Farmer, 19 1 H. L. Oas. 406.
Ves. 483; 13 E. E. 247; Be WUte, (to) 1 Jarman on Wills, 5th ed.,

[1893] 2 Oh. 41. The entire doctrine 271.
of equity with regard to trusts, and (n) Co. Litt. 322 b.

especially trusts raised by precatory (o) Judgm., 3 A. & E. 964,

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•i32 INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS.

testator employed them in their popular signification —
that words which have no technical meaning shall be
understood in their usual and ordinary sense, if the con-
text do not manifestly point to any other (p) — ^that where
the particular intention of the testator cannot literally be
performed, effect may, in some cases, be given to the
general intention, in order that his wishes may be carried
out as nearly as possible, and ut res magis valeat quam
pereat ; and lastly, that where, by acting on one interpreta-
tion of the words used, it would make the testator act
capriciously without any intelligible motive, contrary to the
ordinary mode in which men generally act in similar cases,
then, if the language admits of two constructions, that
construction may properly be adopted which avoids those
anomalies, even though that construction be not the most
obvious or the most grammatically accurate. But if the
words used are unambiguous, they cannot be departed
from merely because they lead to consequences which
may be considered capricious or even harsh and
unreasonable (g).
Analogous It may not be uninteresting further to remark, that the

thsTRoman I'^iles laid dowu in the Eoman law upon the subject under
^^^'- consideration, are almost identical with those above stated,

as recognised by our own jurists at the present day.
Where, for instance, ambiguous expressions occurred, the
rule was, that the intention of him who used them should
especially be regarded : in ambiguis orationibus maxime
sentcntia spectanda est ejus qui eas protuUsset (r), a rule
which we learn was confined to the interpretation of wills
wherein one person only speaks, and was not applicable to
agreements generally, in Avhich the intention of both the

(p) The question as to what will (g) Abbott v. Middleton, 7 H. L.

pass under the word " portrait " in Gas. 89 ; Bathurst v. Errington, 4

a will is elaborately discussed, Duke Oh. D. 251 ; 2 App. Gas. 698 ; 46

of Leeds v. Earl Amherst, 9 Jur. L. J. Oh. 748.
.359 ; S. C, 13 Sira. 459. (?■) D. 50, 17, 96.

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INTBEPEETATION OP DEEDS AND WEITTEN INSTRUMENTS. 433

contracting parties was necessarily to be considered (s), and
accordingly in another passage in the Digest, we find the
same rule so expressly qualified : cum in testamento amhuiue
aut etiam perperam scriptum est hem(jne interpretari et secun-
dmn id quod credihile est cogitatum cre.dendum est {t) : where
an ambiguous, or even an erroneous expression occurs in
a will, it should be construed liberally, and in accordance
with the testator's probable meaning. In like manner we
find it stated that a departure from the literal meaning of
the words used is not justifiable, unless it be clear that the
testator himself intended something different therefrom :
)ion alitur a significatione verborum recedi oportet quavi cum
manifestum est aliud sensisse testatorem {u) ; and, lastly, we
find the general principle of interpretation to which we have
already adverted thus concisely worded : hi testamentis plenius
vobintates testantium interpretantm- (x), that is to say, a will
shall receive a more liberal construction than its strict
meaning, if alone considered, would permit (tj) .

The construction of a statute, like the operation of a Construction
devise, depends upon the apparent intention of the maker, ° ^ ^ ^ '^^•
to be collected either from the particular provision or the
general context, though not from any general inferences
drawn merely from the nature of the objects dealt with
by the statute (z) . Acts of Parliament and wills alike ought
to be construed according to the intention of the parties
who made them (a) ; and the preceding remarks as to the

(s) Wood, Inst. 107. Oas. 1. Where a casus omissus oo-

(i) D. 34, 5, 24 ; see Brisson. ad. curred in a statute, the doctrine of

verb. " Perperam " ; Pothier ad cy-pr^s was applied, Smith v. Wed-

Pand. (ed. 1819), vol. 3, p. 46, derburne, 16 M. & W. 104. See

where examples of this rule are Salkeldv. Johnson, 2 0. B. 757.

collected. [a) It is said, that a will is to be

(u) D. 32, 69 pr. ; applied by favourably construed, because the

Knight Bruce, L.J., 2 De G. M. & testator is inops consilii: "This,"

G. 313. observed Ld. Tenterden, " we cannot

(x) D. 50, 17, 12. say of the legislature, but we may

(y) Gujao. ad he, cited 3 Pothier say that it is magnas inter opes

ad Pand. 46. imops." 9 B. & 0. 752, 753.

{z) Fordrjce v. Bridges, 1 H. L. See the remarks of Wood, V.-C,

L.M. 28

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434 INTEEPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

construction of deeds and wills will, therefore, generally
hold good with reference to the construction of statutes,
the great object being to discover the true intention of the
legislature ; and where that intention can be indubitably
ascertained, the Courts are bound to give it effect, whatever
may be their opinion of its wisdom or folly (b) ; " acting
upon the rule as to giving effect to all the words of the
statute, a rule universally applicable to all writings, and
which ought not to be departed from, except upon very clear
and strong grounds "(c).

" The general rule," as observed by Byles, J. (d), " for
the construction of Acts of Parliament is, that the words
are to be read in their popular, natural, and ordinary
sense, giving them a meaning to their full extent and
capacity, unless there is reason upon their face to believe
that they were not intended to bear that construction
because of some inconvenience which could not have been
absent from the mind of the framers of the Act, which
must arise from the giving them such large sense."

And again — "In construing an Act of Parliament, when
the intention of the legislature is not clear, we must adhere
to the natural import of the words ; but when it is clear
what the legislature intended, we are bound to give effect
to it notwithstanding some apparent deficiency in the
language used "(e).

Hence, although the general proposition be undisputed

as to determining whether a manda- per Vaughan, J., 9 A. & E. 980 ;

tory enactment is to be considered Judgm., Fellowes v. Clay, 4 Q. B.

directory only, or obligatory with 349 ; pe7- Alexander, C.B., 2 Yo. &

an implied nullification for dis- J. 215.
obedience, Liverpool Borough Bank (c) Judgm., 8 Exch. 860.

V. Turner, 29 L. J. Oh. 827 ; S. C, {d) BirJcs v. Allison, 13 0. B. N. S.

30 Id. 379, approved in Ward v. 23.

Beck, 18 C. B. N. S. 675-676. (c) Per Pollock, C.B., Huxham v.

(b) See the analogous remarks of Wheeler, 3 H. & 0. 80. See also

Ld. Brougham, with reference more Bothes v. Kirkcaldy Commrs., 7 App.

particularly to the common law, in Cas. 702.
Beg. V. Millis, 10 CI. & P. 749 ; also,

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INTERiniETATION OF DEEDS AND WIUTTEN INSTKUJIENTH. 4dy

that " an affirmative statute giving a new right, does not
of itself and of necessity destroy a previously existing right,"
it will nevertheless have such effect, " if the apparent
intention of the legislature is that the two rights should
not exist together" (/).

A remedial statute, therefore, shall be liberally construed, Construction
so as to include cases which are within the mischief which statutes.
the statute was intended to remedy (g) ; whilst, on the
other hand, whei-e the intention of the legislature is doubt-
ful, the inclination of the Court will always be against that
construction which imposes a burthen (h), tax (i), or duty (/c),
on the subject. It has been designated as a " great rule "
in the construction of fiscal law, " that they are not to be
extended by any laboured construction, but that you must
adhere to the strict rule of interpretation ; and if a person
who is subjected to a duty in a particular character or
by virtue of a particular description no longer fills that
character, or answers that description, the duty no longer

(/) Perlid.Gv3.nYroTi,h,0' Flaherty
V. M'Dowell, 6 H. L. Gas. 157. See
Ex p. Warrington, 3 De G. M. & G.
159 ; New Windsor Corp. v. Taylor,
[1899] A. 0. 41 : 68 L. J. Q. B. 87.

{g) See Twyne's case, 3 Kep. 80.

(h) Per Ld. Brougham, Stockton
& Darlington B. Co. v, Barrett, 11
CI. & P. 607; per Parke, B., Byder.
V. Mills, 3 Exoh. 869, and Wrough-
tonr.Turtle,llM..&W.567. "All
acts which restrain the common
law ought themselves to be re-
strained by Qxposition : " Ash v.
Abdy, 3 Swanst. 664. Mere permis-
sive words shall not abridge a com-
mon law right; Ex p. Clayton, 1
Buss. & My. 372; per Erie, O.J.,
Caswell V. Gooh, 11 0. B. N. S. 652.

(t) Per Parke, B., Be Miekle-
thwait, 11 Exoh. 456, and A.-Q. v.
Bradbury, 7 Id. 116, citing Denn v.
Diamond, 4 B. & C. 243 ; 28 B. B,

237 ; Mayor of London -v. Parkinson,
10 G. B. 228; Judgm., Vauxhall
Bridge Co. v. Saioyer, 6 Exoh. S09.

(7c) Judgm., Marq. of Chandos v.
Inl. Bev. Commrs., 6 Exoh. 479;
per Wilde, O.J., 5 0. B. 135. See
per Bramwell, B., Eoley v. Fletcher,
3 H. & N. 781-782.

" Acts of Parliament, however,
imposing stamp duties ought to be
construed according to the plain
and ordinary meaning of the words
used:" Judgm., Ld. Foley v. Inl.
Bev. Commrs., L. B. 3 Ex. 268.

If a statute imposing a toll con-
tain also exemptions from it in
favour of the crown and of the
public, any clause so exempting
from toll is "to have a fair, reason-
able, and not strict construction ; "
per Byles, J,, Toomer v. Beeves,
L. R. 3 0. P. 66.

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436 INTEEPKETATION OF DEEDS AND WRITTEN INSTRUMENTS.

attaches upon him, and cannot be levied "(/) . A penalty,
moreover, must be imposed by clear words (m). The
words of a penal statute {n) shall be restrained for the
benefit of him against whom the penalty is inflicted, and
the language of the statute must be strictly looked at in
order to see Avhether the person against whom the penalty
is sought to b6 enforced has committed an offence within
it"(o).

" The principle," remarked Lord Abinger, " adopted by
Lord Tenterden (p), that a penal law ought to be construed
strictly, is not only a sound one, but the only one consistent
with our free institutions. The interpretation of statutes
has always in modern times been highly favourable to the
personal liberty of the subject, and I hope will always
remain so" (q).

This rule, however, which is founded on the tenderness
of the law for the rights of individuals, and on the plain
principle that the power of punishment is vested in the
legislative and not in the judicial department, must not be
so applied as to narrow the words of the statute to the
exclusion of cases which those words in their ordinary

(1) Per Ld. Westbury, Dickson v. posed mischief intended to be prc-

Beg., 11 H. L. Oas. 184. vented, nor must we refuse to apply

(in) Per Alderson, B., Woolley v. it to what is within that natural

Kay, 1 H. & N. 309; Juigm., Ryder meaning, because not, or supposed

V. Mills, 3 Exch. 869 et seq. ; Coe v. not to be, within the mischief : "

Laiorance, IE. & B, 516, 520 ; see also per Pollock, O.B., Id, 509.

Archer v. James, 2 B. & S. 61, 103. "I suppose 'within the equity'

(n) In A.-G. v. Sillem, 2 H. & C. means the same thing as ' within

431, the method of construing a the mischief ' of the statute : " per

penal statute was much considered, Byles, J., Shuttleworth v. Le Flem-

and there (Id. 630) BramweU, B., ing, 19 C. B. N. S. 703.

said, "The law that governs this (o) Per Field, J., Graff y. Evans,

case is a written law, an Act of 8 Q. B. D. 373 ; 51 L. J. M. C. 25.

Parliament, which we must apply j(p) See Proctor v. Mainwaring,

according to the true meaning of 3 B. & Aid. 145.

the words used in it. We must not (g) Henderson v. Sherhorn, 2 M.

extend it to anything not within & W. 236; Judgm., Fletcher v.

the natural meaning of those words Calthrop, 6 Q. B. 887 ; cited and

but within the mischief or sup- adopted, A/w?vni/ v. i?eo., 7 Q. B. 707.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 437

acceptation, or in that sense in which the legislature has
obviously used them, would comprehend (r).

We may add, in connection with this part of the subject, Preamble,
that although the enacting words of a statute are not
necessarily to be limited or controlled by the words of the
preamble, but in many instances go beyond it, yet, on a
sound construction of every Act of Parliament, the words
in the enacting part must be confined to that which is the
plain object and general intention of the legislature in
passing the Act ; and the preamble affords a good clue to
discover what that object was (.s). "The only rule," it has
been said, "for the construction of Acts of Parliament
is, that they should be construed according to the intent
of the Parliament which passed the Act. If the words of
the statute are in themselves precise and unambiguous,
then no more can be necessary than to expound the words
in their natural and ordinary sense. The words them-
selves alone do, in such case, best declare the intention of
the lawgiver. But if any doubt arises from the terms
employed by the legislature, it has always been held a
safe means of collecting the intention, to call in aid the
ground and cause for making the statute, and to have
recourse to the preamble, which, according to Chief Justice
Dyer {t), is a ' key to open the minds of the makers
of the Act, and the mischiefs which they intended to
redress'" (it)-

(r) See Judgm., United States v. citingCqp«»a»v. GaHaw.*, IP. Wms.

Wiltberger, 5 Wheaton (U.S.), E. 314; per Coleridge, J., Pococh v.

95 ; per Pollock, G.B., 3 H. & N. Pickering, 18 Q. B. 797, 798 ; Co.

812. Litt. 79 a. ; per BuUer, J., Crespigny

(s) Per Ld. Tenterden, Halton v. v. Wittenoom, i T. B. 793 ; and

Cave, 1 B. & Ad. 538 ; E5 K. R. 378 ; cases cited in Whiimm-e v. Bobertson,

Judgm. Salkeld v. Johnson, 2 Bxch. 8 M. & W. 472 ; Stockton & D. B.

283, and cases there cited ; per Kelly, Co. v. Barrett, 11 CI. & F. 590.
C.B., Winn v, Mossman, L. R. 4 Ex. (t) Plowd. 369.

BOO; Carr v. Boyal Exchange Ass. {u) Per Tindal, C.J., delivering

Co., 1 B. & S. 956; per Maule, J., the opinion of the Judges in The

Edwards v. Hodges, 15 C. B. 484, Sussex Peerage, 11 CI. & P. 143. See

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438 INTEKPEETATION OF DEEDS AND WRITTEN INSTRUMENTS.

Headings and The heading of a portion of a statute may, it seems, be
Recitals.

referred to to determine the sense of any doubtful expression

in a section ranged under it {x) ; and a recital of an

Act of Parliament, stating its object, has been held to

limit general words in the enacting part to the object as

declared in the recital [y).

The " golden . The golden rule for construing wills, statutes, and, in

rule." o ' ' '

fact, all written instruments has been thus stated : " The
grammatical and ordinary sense of the words is to be
adhered to unless that would lead to some absurdity or
some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary
sense of the words may be modified, so as to avoid that
absurdity and inconsistency, but no further" {z). The
later part of " golden rule " must, however, be applied with
much caution. " If," remarked Jervis, C.J., " the precise
words used are plain and unambiguous in our judgment,
we are bound to construe them in their ordinary sense,
even though it lead, in our view of the case, to an absurdity
or manifest injustice. Words may be modified or varied,
where their import is doubtful or obscure. But we assume
the functions of legislators when we depart from the
ordinary meaning of the precise words used, merely because

also as to the office of the preamble, printer forms no part of the statute

]^er Buller, J., iJ. v. Robinson, 2 East, itself, and does not bind as explain-

P. G. 1113, cited B. v. Johnson, 29 ing or construing the section ; Clay-

St. Tr. 303. don v. Ch-een, L. B. 3 C. P. 511,

Formerly the i!i«e of a statute was 522; followed in Sutton v SuUon,
"no part of the law, and in strict- 22 Oh. T>. 521 : 52 L. J. Oh. 334.
ness ought not to be taken into (x) Hammersmith B. Co. v.
consideration at all; " Salkeld v. Brand, L. R. i H. L. Gas. 171.
Johnson, 2 Bxoh. 283. See per See E. Counties R. Co. v. Marriage,
Willes, J"., Glatjdon v. Gi-een, L. R. 9 H. L. Gas. 32.
3 C. P. 522. But it seems that it (y) Howard v. Earl of Shrews-
is now part of the Act ; Fielding v. bury, L. R. 17 Eq. 378 : 34 L. J.
Morley, [1899] 1 Ch. 1 : 67 L. J. Ch. Oh. 495.
<511. (z) Grey v. Pearson, 6 H. L. Gas.

The marginal note to a section 61, 106; Caledonian R. Co. v. N.

in the copy printed by the King's British R. Co., 6 App. Gas. 114, 131.

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INTEKPBETATION OF DEEDS AND WEITTBN INSTRUMENTS. 439

we see, or fancy we see, au absurdity or manifest injustice
from an adherence to their literal meaning " (a).

It may then safely be stated as an established rule of Meaning of

words

construction, that an Act of Parliament should be read
according to the ordinary and grammatical sense of the
words (b), unless, being so read, it would be absurd or
inconsistent with the declared intention of the legislature,
to be collected from the rest of the Act (c), or unless a
uniform series of decisions has already established a par-
ticular construction {d), or unless terms of art are used
which have a fixed technical signification : as, for instance,
the expression " heirs of the body," which conveys to
lawyers a precise idea, as comprising in a legal sense only
certain lineal descendants ; and this expression shall, there-
fore, be construed according to its known meaning (c).

It is also a rule of the civil law adopted by Lord Bacon,
which was evidently dictated by common sense, and is in
accordance with the spirit of the maxim which we have
been considering, that, where obscurities, ambiguities, or
faults of expression render the meaning of an enactment
doubtful, that interpretation shall be preferred which is
most consonant to equity, especially where it is in con-
formity with the general design of the legislature. In

{a) 11 C. B. 391 ; per Pollock, 12 M. & W. 541 ; United States v.

C.B., 9 Exoh. 475. See Woodward Fisher, 2 Cranoh. (U.S.), B. 286;

V. Watts, 2 E. & B. 457. cited 7 Wheaton (U.S.), E. 169.

(6) " It is a good rule, in the con- (c) Judgm., Smith v. Bell, 10 M.

struction of Acts of Parliament, that & W. 389; Turner v. Sheffield B.

the Judges are not to make the law Co., Id. 434 ; Steward v. Oreaves, Id.

what they may think reasonable, 719 ; per Alderson, B., A.-G. v,

but to expound it according to the Loekwood, 9 M. & W. 398 ; Judgm.,

common sense of its words : " per Hyde v. Johnson, 2 Bing. N. 0. 780.

Cresswell, J., Biffin v. Yorhe, 6 (d) Per Parke, B., Doe v. Owens,

Scott, N. K. 235 ; Richards v. 10 M. & W. 521 ; per Ld. Brougham,

M'Bride, 8 Q. B. D. 119 ; 51 L. J. C, Earl of Waterford's Peerage, 6

M. C. 15. See also, Judgm., B. v. 01. & F. 172.

Hall, 1 B. & C. 128 ; 25 B. B. 321 ; (e) 2 Dwarr. Stats. 702 ; Poole v.

cited 2 0. B. 66 ; and The Lion, Poole, 3 B. & P. 620.
L. K. 2 P. G. 530 ; Stracey v. Nelson,

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440 INTEEPKETATION OF DEEDS AND WRITTEN INSTRUMENTS.

amhyinu race legis ea potiits accijmnda est significatio qiice
ritia caret, prmsertim cum etiam volmitas lei/is ea.: hoc cullif/i
possit (f). And if the Act is ambiguous, and upon one
construction the balance of hardship or inconvenience
seems to be strongly against the public, the balance of
inconvenience may be considered in determining the
question of construction (f/).

Ex ANTECEDENTIBUS ET CONSEQUENTIBUS FIT OPTIMA InTBR-

PRETATio. (2 Inst. 173.) — A passage is best interpreted
by reference to what precedes andfolloivs it.

i^"ic. It ig an important rule of construction, that the meaning

of the parties to any particular instrument should be
collected ex antccedentibits ct conseqtientibus ; that is to say,
every part of it should be brought into action, in order to
collect from the whole one uniform and consistent sense,
if that may be done (h) ; or, in other words, the construc-
tion must be made upon the enth'e instrument, and not
merely upon disjointed parts of it (i) ; the whole context
must be considered, in endeavouring to collect the intention
of the parties, although the immediate object of inquiry be
the meaning of an isolated clause (k). In short, the law
Avill judge of a deed, or other instrument, consisting of
divers parts or clauses, by looking at the whole; and wUl
give to each part its proper office, so as to ascertain and
carry out the intention of the parties (0.

(/) D. 1, 3, 19 ; Bao. Max., reg. 3. 1 Bulst. 101 ; and Judgm., Doe v.

(g) Dixon v. Caledonian Co., 5 Meyrick,2 Cr. & J. 230; 37 R. R.

App. Gas. 827. 687 ; Maitland v. MacUnnon, 1 H.

(7s) Per Ld. EUenborough, Barton & C. 607.

V. Fitzgerald, 15 East, 541 ; 18 R. R. {k) Coles v. Hulme, 8 B. & C. 568 ;

519 ; Shep, Touch. 87 ; per Hobart, 32 E. R. 486 ; Hobart, 275 ; cited

C.J., Winob. 93. See MichlethwaAt Gale v. Beed, 8 East, 79; 9 R. R.

V. Micklethiuait, i C. B, N. S. 790, 376.

862. (I) See Hobart, 275 ; Doe v. Guest,

(i) Ld. North v. Bp, of Ely, cited 15 M. & W. 160.

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INTEEPEBTATION OF DEEDS AND WRITTEN INSTRUMENTS.

441

Thus, in the case of a bond with a condition, the latter Examples.
may be read and taken into consideration, in order to
explain the obligatory part of the instrument («i). So, in
construing an agreement in the form of a bond in which a
surety becomes liable for the fulfilment of an agent's duties
therein particularly enumerated, a general clause in the
obligatory part of the bond must be interpreted strictly,
and controlled by reference to the prior clauses specifying
the extent of the agency (n). On the same principle, the
recital in a deed or agreement may be looked at in order to
ascertain the meaning of the parties, and is often highly
important for that purpose (o) : and the general words of
a subsequent distinct clause or stipulation may often be
explained or qualified by the matter recited (p). Where,
indeed, "the words in the operative part of a deed of
conveyance are clear and unambiguous, they cannot be
controlled by the recitals or other parts of the deed." But
where, on the other hand, "those words are of doubtful
meaning, the recitals and other parts of the deed may be
used as a test to discover the intention of the parties, and
to fix the true meaning of those words " (q). So, covenants
are to be construed according to the obvious intention of
the parties, as collected from the whole context of the
instrument containing them, and according to the reason-
able sense of the words ; and, in conformity with the rule
above laid down, a covenant in large and general terms

(m) Coles V. Bulme, 8 B. & C. B. & Ad. 180 ; 37 K. E. 377 ; Boyes

568 ; 32 B. E. 486 ; and cases cited, v. Bluck, 18 0. B. 652 ; Solly v.

8 B. & 0. 574, 11. (a). Forbes, 2 B. & B. 38 ; 22 E. E. 641 ;

(tc) Napier v. Bruce, 8 CI. & F. Charleton v. Spencer, 3 Q. B. 693 ;

470. Sampson v. Easterby, 9 B. & G.

(o) Shep. Touch. 75 ; Marq. of 505 : affirmed in 1 Or. & J. 105 ;

CholmondeUy v. Ld. Clinton, 2 B. & Price v. Barker, 4 E. & B. 760, 777 ;

Aid. 625 : 4 Bligh, 1 : 21 E. E. 419. Henderson v. Stobart, 5 Exci. 99.

{p) Payler v. Homersham, 4 M. & (g) Judgm., Walsh v. Trevanion,

S. 423; 16 E. E. 416; cited in 15 Q. B. 751. See Ex p. Daioes, 11

Hanison v. Blackburn, 17 C. B. Q. B. D. 286.
N. S. 691 ; Simons v. Johnson, 3

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442 INTBEPBBTATION OF DEEDS AND WRITTEN INSTRUMENTS.

has frequently been narrowed and restrained (r), where
there has appeared something to connect it with a restric-
tive covenant, or where there have been words in the
covenant itself amounting to a qualification (s) : and it has,
indeed, been said, in accordance with the above rule, that,
" however general the words of a covenant may be, if
standing alone, yet, if from other covenants in the same
deed, it is plainly and irresistibly to be inferred that the
party could not have intended to use the words in the
general sense which they import, the Court will admit
the operation of the general words " {t).

It is, moreover, as a general proposition, immaterial in
what part of a deed any particular covenant is inserted (u) ;
for the construction of a deed does not depend on the order
of the covenants, or upon the precise terms of them ; but
regard must be had to the object, and the whole scope of the
instrument (v). For instance, in the lease of a colliery, two
lessees covenanted " jointly and severally in manner follow-
ing ; " and then followed various covenants as to working
the colliery ; after which was a covenant, that the moneys
appearing to be due should be accounted for and paid by the
lessees, not saying, " and each of them : " it was held, that
the general words at the beginning of the covenants by the
lessees extended to all the subsequent covenants throughout
the deed on the part of the lessees, there not being any-
thing in the nature of the subject to restrain the operation
of those words to the former part only of the lease {.v).

(r) Per Ld. Ellenborough, Iggul- (s) Judgm., Smith v. Compton, 3

den V. May, 7 Bast, 241 ; 8 R. E, B. & Ad. 200; 37 B. R. 387.

628 ; Plowd. 829 ; Cage v. Paxton, (t) Judgm., Hesse v. Stevenson, 3

1 Leon. 116 ; Broughton v. Conway, B. & P. 574. See the maxim as to

Moor, 58 ; Qale v. Beed, 8 East, 89 ; verba generaUa, below.

9 R. R. 376; Sicklemore v. Thisle- {u) Per BuUer, J., 5 T. R. 526;

ton, 6 M. & S. 9; 18 R. E. 280; 1 Wms. Saund. 60, n. (Z).

cited Jowett v. Spencer, 15 M. & (v) Per Wilde, O.J., Bichards v.

W. 662 ; Hesse v. Stevenson, 3 B. & Bluck, 6 G. B. 441.

P. 365. See Doe v. Godwin, 4 M. (x) Duke of Northumberland v.

& S. 265 ; 16 R. E. 463. Errington, 5 T. R. 522 ; 2 R. R.

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INTEEPEETATION OF DEEDS AND WRITTEN INSTRUMENTS. 443

Upon the same principle it is a sound rule of construction
that where a word has a clear and definite meaning when
used in one part of a deed, will or other document, but has
not when used in another, the presumption is that the word
is intended to have the same meaning in the latter as in
the former part (y).

Again, words may be transposed, if it be necessary to
do so in order to give effect to the evident intent of the
parties (z); as, if a lease for years be made in February,
rendering a yearly rent payable at Michaelmas and
Lady-day during the term, the law will make a trans-
position of the feasts, and read it thus, " at Lady-day and
Michaelmas," in order that the rent may be paid yearly
during the term. And so it is in the ease of an annuity (a).
And, although courts of law have no power to alter the
words, or to insert words which are not in the deed, yet
they ought to construe the words in a manner most agreeable
to the meaning of the grantor, and may reject any words
that are merely insensible (b). Likewise, if there be two
clauses or parts of a deed (c) repugnant the one to the other,
the former shall be received, and the latter rejected, unless
there be some special reason to the contrary (d) ; for instance,
in a grant, if words of restriction are added which are repug-
nant to the grant, the restrictive words must be rejected (e).

It seems, however, to be a true rule, that this rejection of
repugnant matter can be made only in those cases where
there is a full and intelligible contract left to operate after
the repugnant matter is excluded ; otherwise, the whole con-
tract, or such parts of it as are defective, will be pronounced

266 ; Copland v. Laporte, 3 A. & E. S. C, WiUes, 332 ; Savile, 71.

517. (c) Seeus of a will, see p. 445.

(y) In re Birhs, Kenyan v. Bvrks, (d) Shep. Touch. 88 ; Hardr. 94

[1900] 1 Oh. 417 : 69 L. J. Oh. 124. Walker v. OiUs, 6 0. B. 662, cited

(z) Pairkhurst v. Smith, Willes, Be Boyal Liver Soe., li.B,. 5 Bx. 80

332 ; S. 0., 8 Atk. 135. (e) Hobart, 172 ; Mills v. Wright

{a) Co. Litt. 217 b. 1 Preem. 247.

(6) Per Willes, C.J., 3 Atk. 136;

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444

INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

void for uncertainty (_/). And as already observed, " if a
deed can operate two ways, one consistent with the intent,
and the other repugnant to it, the Courts will be ever astute
so to construe it, as to give effect to the intent," and the
construction must be made on the entire deed (g).

A marriage settlement recited that it was the intention of
the parties to settle an annuity of £1,000 per annum on the
intended wife, in case she should survive her husband. In the
body of the deed the words used were " £1,000 sterling lawful
money of Ireland." It was held that the words " of Ireland "
must be excluded, for the expression could have no meaning,
unless some of the words were rejected, and it is a rule of law,
that, if the first words used would give a meaning, the latter
words must be excluded (/<). So, we read that, if one makes
a lease for ten years " at the will of the lessor," this is a
good lease for ten years certain, and the last words are void
for the repugnancy (i). And without multiplying examples
to a like effect, the result of the authorities seems to be that
" when a court of law can clearly collect from the language
within the four corners of a deed or instrument in writing
the real intention of the parties, they are bound to give effect
to it by supplying anything necessarily to be inferred from
the terms used, and by rejecting as superfluous whatever is
repugnant to the intention so discerned " (/c).
intorpreta- ^Yhere, however, two clauses or gifts in a will are irre-

concilable, so that they cannot possibly stand together, that

(/) 2 Anderson, 103. In Doe v. 811, various authorities having

Carew, 2 Q. B. 317, a proviso in a reference to repugnant stipulations

lease was held to be insensible. In in contracts are cited.

Youde v. Jcmes, 13 M. & W. 584, an (?) Per Turner, V.-C, Squire v.

exception introduced into a deed of Ford, 8 Hare, 57.

appointment under a power was (A) Cope v. Cope, 15 Sim. 118.

held to be repugnant and void. See, (i) Bac. Abr., Leases and Terms

also, Furnivall v. Coombes, 6 Scott, for Years, L. 3, cited and distin-

N. R. 522 ; cited in Kelner v. guished in Morton, v. Woods, L. E.

Baxter, L. R. 2 C. P. 186 ; White v. 4 Q. B. 305.

Hancock, 2 C. B. 830. In Scott v. (/c) Per Kelly, C.B., Giu!/n v.

Avery, 8 Exch. 487, 5 H. L. Cas. Neath Canal Co., L. E. 3 Ex. 215.

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tiou of wills.

INTEKPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 445

■which is posterior in position prevails, the subsequent words
being considered to denote a subsequent intention : cum duo
inter se pugnantia rcperiuntur in testamcnto ultimum ratuin
est{t). It is well settled that where there are two repugnant
clauses in a will, the last prevails, as being most indicative of
the intent (m), and this results from the general rule of
construction; for, unless the principle were recognised of
adopting one clause and rejecting the other, both would be
necessarily void, each having the effect of neutralising and
frustrating the other (n). Therefore, if a testator, in one
part of his will, gives to a person an estate of inheritance in
land, or an absolute interest in personalty, and in subsequent
passages unequivocally shows that he means that person
to take a life-interest only, the prior gift is restricted
accordingly (o) . The maxim last mentioned must, however,
in its apphcation, be restricted by, and made subservient
to, that general principle, which requires that the testator's
intention shall, if possible, be ascertained and carried into
effect (p) .

Lastly, it is an established rule, in construing a statute interpreta-
that the intention of the law-giver and the meaning of the Statutes.
law are to be ascertained by viewing the whole and every
part of the Act (q). One part of a statute must be so
construed by another, that the whole may, if possible,
stand (r) ; and that, if it can be prevented, no clause,

(l) Co. Litt. 112 b. 5 Ex. 33, Pigott, B., referring to

(to) 16 Johns. (U.S.), R. 546. 15 & 16 Vict. o. 57, said, " We must

(n) 1 Jarm., Wills, 5th ed. 436. deal with the Act in the ordinary

Words and passages in a will, which way, that is, put on it a reasonable

cannot be reconciled with the general construction; and if the words are

context, may be rejected ; Id. 444. ambiguous we must interpret it tit

(o) Id. 437. See,i also, Doe v. res magis valeat g^uam pereat."

Ma/rchant, 7 Scott, N. E. 644. Where the proviso of an Act of

(p) Morrall v. Sutton, 1 Phill. Parliament is directly repugnant to

545, 546. See Oreenwood v. Sut- the purview, the proviso shall stand

cliffe, 14 0. B. 226, 235 (a) ; Plenty and be a repeal of the purview, as

V. West, 6 C. B. 201, 219. it speaks the last intention of the

(g) See ^ler Ld. HerscheU, 14 App. makers: A.-O. v. Chelsea Water-
Can. 506. works Co., Pitzgib. 195.

()■) Thus in Fitzgerald's case, L. R.

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446 INTERPKETATION OF DEEDS AND WRITTEN INSTRUMENTS.

Every word Sentence, or word shall be superfluous, void, or insignifi-

effeot* **''® cant ; and it is a sound general principle, in the exposition

of statutes, that less regard is to be paid to the words

used than to the policy which dictated the Act ; as, if land

be vested in the King and his heirs by Act of Parliament,

saving the right of A., and A. has at that time a lease of

it for three years, in this case A. shall hold it for his term

of three years, and afterwards it shall go to the King :

for this interpretation furnishes matter for every clause to

work and operate upon (s).

Also, if any section be intricate, obscure, or doubtful the

proper mode of discovering its true meaning is by comparing

it with the other sections, and finding out the sense of one

clause by the words or obvious intent of another (t). This,

as Sir E. Coke observed, is the most natural and genuine

method of expounding a statute (u) ; and it is, therefore, a

true principle, that verba posteriora propter certitudinein

adJita ad priora qua certitudine indigent sunt referenda {x)

— reference should be made to a subsequent section in

order to explain a previous clause of which the meaning is

doubtful.

We may add, too, that, " where an Act has received a

judicial construction putting a certain meaning on its

words, and the legislature in a subsequent Act in pari

materia uses the same words, there is a presumption that

the legislature used those words intending to express the

meaning which it knew had been put upon the same words

before ; and unless there is something to rebut that

presumption, the Act should be so construed, even if the

words were such that they might originally have been

construed otherwise " (z/) . For instance, in Greaves v.

(s) 1 Bl. Com. 89; Bao. Abr., (?t) Co. Litt. 381 a.

"Statute" (I. 2); Arg. Hine v. [x] Wing. Max., p. 167; 8 Rep.

Reynolds, 2 Soott, N. R. 419. 236. See 4 Leou. 248.

{t) Stowell V. Ld. Zouch, Plowd. (y) 11 H. L. Gas. 480—481. B.v.

365 ; Doe v. Brandling, 7 B. & 0. Poor Law Gommrs. {St. Pancras), 6

643. A. & E. 7. See, also, per Parke, B.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 447

Tofield (z), a landowner by deed charged his land with a
life annuity which was never registered under the 18 & 19
Vict. c. 15, s. 12 ; he subsequently mortgaged the property
to a third person, who took with notice of the annuity :
it was held that, as that section was in terms similar to
the clauses in the Eegistry Acts which had been decided
not to make an unregistered conveyance void as against a
subsequent purchaser who had notice, the legislature must
be taken to have used the words in the later Act in the
sense given to them by those decisions, and that the
annuities, therefore, were valid as against the mortgagee.

rules.

NosciTUR A Sociis. (3 T. R. 87.) — The meaning of a doubt-
ful word may he ascertained by reference to the meaning
of words associated with it (a).

It is a rule laid down by Lord Bacon, that copulatio Grammatical
verboruin indicat acceptatioiiem in eodum sensu (b) — the
coupling of words together shows that they are to be
understood in the same sense. And, where the meaning of a
particular word is doubtful or obscure, or where a particular
expression when taken singly is inoperative, the intention
of the party who used it may frequently be ascertained by
looking at adjoining words, or at expressions occurring in
other parts of the same instrument, for quce nan raleant
singula jiincta juvant (c) — words which are ineffective when
taken singly operate when taken conjointly : one provision

2 M. & W. 476 ; per Ld. Selborne, forrtied his judgments. See 3 T. B,

9 App. Gas. 269. 87 ; 1 B. & C. 644 ; Arg. 13 East,

(z) 14 Oil. D. 563 ; 50 L. J. Ch. 531. See, also, Bishop v. Elliott, 11

119. Bxoh. 113 : 10 Id. 496, 519 ; which

(a) This, it was observed, in refer- offers an apt illustration of the

ence to King -v. MelUng, 1 Vent. 225, above maxim; Burt v. Haslett, 18

was a rule adopted by Ld. Hale, and 0. B. 162, 893.

was no pedantic or inconsiderate (6) Bac. Works, vol. 4, p. 26 ;

expression when falling from him, cited 9 App. Gas. 569.

but was intended to convey, in short (c) 2 Bulstr. 132.
terms, the grounds upon which he

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448 INTBKPRETATION OP DEEDS AND WRITTEN INSTRUMENTS.

of a deed, or other instrument, must be construed by the
bearing it will have upon another (d).

It is not proposed to give many examples of the applica-
tion of the maxim noscitur a sociis, nor to enter at length
into a consideration of the numerous cases which might be
cited to illustrate it : it may, in truth, be said to be comprised
in those principles which universally obtain, that courts of
law and equity will, in construing a written instrument,
endeavour to discover and give effect to the intention of the
party, and, with a view to so doing, will examine carefully
every portion of the instrument. The maxim is, moreover,
appHcable, like other rules of grammar, whenever a construc-
tion has to be put upon a will, statute, or agreement : and
although difficulty frequently arises in applying it, yet this
results from the particular words used, and from the
particular facts existing in each individual case ; so that one
decision, as to the inference of a person's meaning and
intention, can be considered as an express authority to guide
a subsequent decision only where the circumstances are
similar and the words are wholly or nearly identical.
Policy of The following instance of the application of the maxim,

noscitur a sociis, to a mercantile instrument may be mentioned
on account of its importance, and will suffice to show how
the principle which it expresses has been employed for
the benefit of commerce. The general words inserted in a
maritime policy of insurance after the enumeration of
particular perils are as follow : — " and of all perils, losses,
and misfortunes, that have or shall come to the hurt,
detriment, or damage of the said goods and merchandises,
and ship, &c., or any part thereof." These words, it has
been observed, must be considered as introduced into the
policy in furtherance of the objects of marine insurance,
and may have the effect of extending a reasonable indemnity
to many cases not distinctly covered by the special words :

{d) Arg. Galley v. Barrington, 2 Kenyon, i T. B. 227.
Bing. 391 : 27 R. B. 663 ; per Ld.

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insurance.

INTBEPEETATION OF DEEDS AND WRITTEN INSTRUMENTS. 449

they are entitled to be considered as material and operative
words, and to have the due effect assigned to them in the
construction of the instrument ; and this will be done by
allowing them to comprehend and cover other cases of
marine damage of the like kind with those which are
specially enumerated, and occasioned by similar causes ;
that is to say, the meaning of the general words may be
ascertained by referring to the preceding special words (e).

In applying this rule, however, it must be remembered
that general words following particular expressions may be
so used as to exclude the strict application of the maxim.
Where by a charterparty the parties exempted each other
from all liability arising from " frosts, floods, strikes . . .
and any other unavoidable accidents or hindrances of what
kind soever beyond their control, delaying the lading of the
cargo," it was held that the use of the words " of what kind
soever " excluded the rule of cjusclem generis, and that
the charterers were not liable for delay in loading caused by
a block of other ships at the loading port (/).

That the exposition of every will must be founded on Maxim ap-
the whole instrument, and be made ex antecedentibus et exposition^
consequentibns, is, observed Lord Ellenborough, one of the °^ ^i^^^-
most prominent canons of testamentary construction ; and
therefore, in this department of legal investigation, the
maxim noscitiir a sociis is necessarily of frequent practical
application : yet where between the parts there is no connec-
tion by grammatical construction, or by some reference,
express or implied, and where there is nothing in the will
declarative of some common purpose, from which it may be

(e) See Judgm., CuUen v. Butler, the rest of the Court), to explain a

5 M. & S. 495 : 17 E. B. 400 ; proviso in a policy of life insurance.

Thames d- Mersey M. I. Co. v. In Clift v. Schwabe, 3 0. B. 437,

Hamilton, 12 App. Oas. 484, 495: the same maxim was likewise ap-

55 L. J. Q. B. 626. The Knight St. plied in similar circumstances ; see

Michael, [1898] P. at p. 35 : 67 L. J. Dormay v. BorradaAU, 5 C. B. 380.

P. 19. In BorradaMe v. Hunter, 5 (/) Larsen v. Sylvester & Co.,

M. & Gr. 639, 667, this maxim was [1908] A. C. 295 : 77 L. J. K. B. 993.
applied by Tindal, C.J. (diss, from

L.M. 29

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450

INTEBPBBTATION OF DEEDS AND WRITTEN INSTRUMENTS.

Distinction
between the
conjunctive
and disjunc-
tive illus-
trated.

inferred that the testator meant a similar disposition by-
such different parts, though he may have varied his phrase
or expressed himself imperfestly, the Court cannot go into
one part of a will to determine the meaning of another,
perfect in itself, and without ambiguity, and not militating
with any other provision respecting the same subject-
matter, notwithstanding that a more probable disposition
for the testator to have made may be collected from such
assisted construction. For instance, if a man devise his
lands generally, after payment of his debts and legacies,
his trust (g) estates will not pass ; for, in such case noscitur
a sociis what the lands are which he intended to pass by
such devise : it is clear he could only mean lands which he
could pass subject to the payment of his debts and legacies.
But, from a testator having given to persons standing in
a certain degree of kinship to him a fee-simple in certain
lands, no conclusion which can be relied on can be drawn,
that his intention was to give to other persons standing in
the same rank of proximity the same interest in other
lands ; and where, moreover, the words of the two devises
are different, the more natural conclusion is, that, as the
testator's expressions varied, they were altered because his
intention in both cases was not the same (h).

In addition to the preceding remarks, a few instances may
here be referred to, illustrating the distinction between the
conjunctive and the disjunctive which it is so essential to
observe in construing a will.

A leasehold estate was devised after the death of A., to B.
for life, remainder to his child or children by any woman
whom he should marry, upon condition that, in case B.

(gj Boe V. Beade, 8 T. R. 188.
'■ (h) Judgm., Bight v. Compton, 9
East, 272, 273 : 11 East, 223 ; Hay
V. Earl of Coventry, 3 T. R. 83 : 1
R. R. 652 ; per Coltman, J., Knight
V. Selby, 3 Scott, N. R. 409, 417 ;
Arg. 1 M. & S. 333. See Sanderson

V. Dobson, 1 Exoh. 141 ; and per
Byles, J., Jegon v. Vivian, L. R. 1
0. P. 24 ; S. C, 2 Id. 422', L. R. 3
H. L. 289 ; Doe v. Earles, 15 M. &
W. 450. See also, VajideUur v.
Vandeleur, 3 CI. & P. 98, where the
maxim is differently applied.

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INTEEPKBTATION OF DEEDS AND WRITTEN INSTRUMENTS.

should die, " an infant, unmarried, and without issue," the
premises should go over to other persons. It was held that
the devise over depended upon one contingency, viz., B.'s
dying an infant, attended with two qualifications, viz., his
dying without leaving a wife surviving him, and his dying
childless ; and that the devise over could take effect only in
case B. died in his minority, leaving neither wife nor child ;
and it was observed by Lord Ellenborough that, if the
condition had been, "if he dies an infant, or unmarried, or
without issue," that is to say, in the disjunctive throughout,
the rule would have applied, in disjunctivis svfficit alteram
partem esse veravi (i) ; and, consequently, that if B. had died
in his infancy, leaving children, the estate would have gone
over to B.'s father and his children, to the prejudice of B.'s
own issue (j). According to the same rule of grammar, also,
where a condition inserted in a deed consists of two parts in
the conjunctive, both must be performed, but otherwise
where the condition is in the disjunctive ; and where a
condition or limitation is both in the conjunctive and
disjunctive, the latter shall be taken to refer to the whole ;
as, if a lease be made to husband and wife for the term of
twenty-one years, "if the husband and wife or any child
between them shall so long live," and the wife dies without
issue, the lease shall, nevertheless, continue during the life
of the husband, because the above condition shall be con-
strued throughout in the disjunctive {k).

The disjunctive is also read as conjunctive, except in
devises which create an estate tail, where an estate is
limited to A. and his heirs, but if A. should die under the
age of twenty-one or without issue then over. The principle

(i) Co. liitt. 225 a : 10 Kep. 58 : 1 Jarman on Wills, 5tli ed. 470 et

Wing. Max., p. 13 : D. 50, 17, 110, seg. ; Mortimer v. Hartley, 6 Exoh.

§3. 47; 6 C. B. 819: 3 De G. & S.

(j) Doe V. Cooke, 7 East, 272; 316.
Johnson v. Svmcock, 7 H. & N. 344 ; (&) Co. Litt. 225 a ; Shep. Touch.

S. C, 6 Id. 6. As to changing the 138, 139. See, also, Burgess v.

copulative into the disjunctive, see Bracher, 2 Ld. Eaym. 1366.

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452

INTBEPRETATION OF DEEDS AND WEITTEN INSTRUMENTS.

Statutes.

General
words in a
statute, how
controlled.

is stated to be that where the dying under twenty-one is
associated with the event of the devisee leaving an object
who would take an interest derivatively through him, the
copulative (or conjunctive) construction is to prevail (l).
Therefore if A. dies under twenty- one leaving issue the gift
over fails ; and also if A. attains the age of twenty-one, but
dies without issue, the gift over fails since both events must
happen, i.e., A. dying under twenty-one and leaving no issue,
before the gift over can take effect.

In the construction of statutes, likewise, the rule noscitur
a sociis is frequently applied, the meaning of a word, and,
consequently, the intention of the legislature, being ascer-
tained by reference to the context, and by considering
whether the word in question and the surrounding words
are, in fact, ejusdem generis, and referable to the same
subject-matter {m). Especially must it be remembered that
" the sages of the law have been used to collect the sense and
meaning of the law by comparing one part with another
and by viewing all the parts together as one whole, and not
of one part only by itself — nemo enim aliquam partem
recte intelligere possit antequam totum iterum atque itenim
perlegerit " (n).

The following illustrations will show how general words
in a statute may be more or less limited by the particular
words which precede them. By the 7 & 8 Geo. 4, c. 75, s. 37,
a penalty was imposed upon any person not being a freeman
of the Watermen's Company, who should navigate any
wherry, lighter, or other craft upon the Thames within
certain limits. It was held upon the principle of the maxim

(I) 1 Jarman on Wills, 5tli ed.
474.

(to) Per Coleridge, J., Cooper v.
Harding, 7 Q. B. 941 ; Judgm.,
Stephens v. Twprell, 2 Curt. 465;
per Channell, B., Pearson v. Hull
L. B. of Health, 3 H. & 0. 944. The
maxim was applied to construe a

statute in Hardy v. Tingey, 5 Exch.
294, 298 — to ascertain the meaning
of libellous words in Wakley v.
Cooke, 4 Exch. 511, 519.

(») Arg. 7 Howard (U.S.), R. 637,
citing Lincoln College case, 3 Rep.
596.

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INTEEPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

noscituv a sociis, that a steam tug of eighty-seven tons
burden engaged in moving another vessel was not a craft
within the meaning of the statute (o).

Again, by 5 Geo. 4, c. 83, s. 4, it is an offence to use any
subtle craft, means, or device by palmistry, or otherwise, to
deceive and impose on any of His Majesty's subjects. The
defendant having attempted to impose upon persons by
falsely pretending to have the supernatural faculty of
obtaining answers and raps from the spirits of the dead,
was held properly convicted of the offence specified in the
statute, the words " or otherwise " not being limited to any
precise class or genus of deception, but simply limited to
such deceptions as were similar in character to palmistry {p) .
Here the general words were not limited to things ejusdcm
generis with the specified offence, but to things like in their
nature to that offence (q).

We shall conclude these remarks with observing, that the
three rules or canons of construction with which we have
commenced this chapter are intimately connected together, —
that they must always be kept in view collectively when
the practitioner applies himself to the interpretation of a
doubtful instrument.

453

Verba Chartaeum fortius accipiuntur contra proferentem.
(Co. Litt. 36 a.) — The tvords of an instrwment shall, be
taken most strongly against the party employing them.

This maxim ought to be applied only where other rules of
construction fail (;■) ; and, indeed, in Taylor v. St. Helen's

(o) Beed v. Ingham, 3 B. & B. 457. See also Powell v. Kempton

889. Park Co., [1897] 2 Q. B. 242, 257,

(p) Mojiek V. Bilton, 2 Ex. D. 261, 266 ; S. C, [1899] A. C. 143 :

268 ; 46 L. J. M. G. 163. 68 L. J. Q. B. 392 ; Be Stockport

(q) For some important observa- Schools, [1898] 2 Oh. 687.

tiona on the doctrine of ejusdem (r) Judgm., Lindtcs v. Melrose,

generis, see Anderson v. Anderson, 3 H. & N. 182.
[1895] 1 Q. B. 749 : 64 L. J. Q. B.

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INTBRPBETATION OF DEEDS AND WRITTEN INSTEXJMBNTS.

Corporation (s), Jessel, M.E., is reported to have said : " I
do not see how, according to the now estabUshed rules of
construction as settled by the House of Lords in the well-
known case of Grey v. Pearson (t), followed by Roddy v.
Fitzgerald (u) and Abbott v. Middlcton (.i), the maxim can be
considered as having any force at the present day. The
rule is to find out the meaning of the instument according
to the ordinary and proper rules of construction. If we
can thus find out its meaning, we do not want the maxim.
If, on the other hand, we cannot find out its meaning, then
the instrument is void for uncertainty, and in that case it
may be said that the instrument is construed in favour of
the grantor, for the grant is annulled." The maxim, how-
ever, has been judicially recognised (y) since the above
observations were made upon it; and perhaps it may be
paraphrased thus — that, as between the grantor and
grantee, or between the maker of an instrument and the
holder, if the words of the grant or instrument are
of doubtful import, that construction shall be placed
upon them which is most favourable to the grantee or
holder.

Deed-poll. The rule has been held to apply more strongly to a deed-

poll (z) than to an indenture, because in the former case the
words are those of the grantor only (a). But though a
deed-poll is to be construed against the grantor, the Court
will not add words to it, nor give it a meaning contradictory
to its language (b).

Grant, &o. If, then, a tenant in fee simple grants to anyone an estate

for life generally, this shall be construed to mean an estate for
the life of the grantee, because an estate for a man's own Ufe

(s) 6 Oh. D. 264, 280 : 46 L. J. see also 9 App. Gas. 350.

Oh. 857. (z) See 8 & 9 Vict. o. 106, s. 5 ;

(t) 6 H. L. Gas. 61. 7 & 8 Viot. c. 76, s. 11.

(m) 6 H. L. Gas. 823. (a) Plowd. 134; Shep. Touch., b ;

(x) 7 H. L. Gas. 68. Preston, 88, n. (81).

{ij) E.g., in Burton v. English, 12 (6) Per Williams, J., Doe v. St.

Q. B. D. 218, 220, per Brett, M.E. ; Helens B. Co., 2 Q. B. 373.

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INTEKPEETATION OF DEEDS AND WRITTEN INSTRUMENTS. 455

is higher than for the life of another (c). But if tenant
for hfe leases to another for life, without specifying for
whose life, this shall be taken to be a lease for the lessor's
own life ; for this is the greatest estate which it is in his
power to grant (rf). And, as a general rule, it appears clear,
that, if a doubt arise as to the construction of a lease
between the lessor and lessee, the lease must be construed
most beneficially for the lessee (e).

In like manner, if two tenants in common grant a rent of
10s., this is several, and the grantee shall have 10s., from
each ; but if they make a lease, and reserve 10s., they shall
have only 10s. between them (/). So it is a true canon of
construction, that where there is any reasonable degree of
doubt as to the meaning of an exception in a lease, the
words of the exception, being the words of the lessor, are to
be taken most favourably for the lessee, and against the
lessor (g) ; and where a deed may enure to divers purposes,
he to whom the deed is made shall have election which way
to take it, and he shall take it in that way which shall be
most to his advantage (/;.). But it seems that in such a
case the instrument, if pleaded, should be stated according
to its legal effect, in that way in which it is intended to
have it operate (i).

According to the principle above laid down, it was held
that leasehold lands passed by the conveyance of the free-
hold, " and all lands or meadows to the said messuage or
mill belonging, or usedj occupied, and enjoyed, or deemed,
taken, or accepted as part thereof." This, said Lord
Loughborough, being a case arising on a deed, is to be

(c) Co. Litt. 42 a; Plowd. 156; {/) 5 Bep. 7; Plowd. 140; Co.
Finch, Law, 63 ; Shep. Touch. 88. Litt. 197 a, 267 b.

(d) Pinch, Law, 55, 56. See also, (g) Per Bayley, J., Bullen v. Den-
Id. 60. ning, 5 B. & 0. 847 ; 29 R. B. 431.

(e) Durni V. Spurrier, 3 B. & P. (h) Shep. Touch. 83; cited 8
399, 403, where various authorities Bing. 106.

are cited. See also Judgm., 1 Cr. & (i) 2 Smith, L. C, 11th ed. 519.

M. 657.

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456 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

distinguished from cases of a like nature which have arisen
on wills. In general, where there is a question on the con-
struction of a will, neither party has done anything to
preclude himself from the favour of the Court. But, in the
present instance, the legal maxim applies, that a deed shall
be construed most strongly against the grantor (k).

The rule of law, moreover, that a man's own acts shall be
taken most strongly against himself, not only obtains in
grants, but extends, in principle, to other engagements and
undertakings (Q. Thus, the return of a writ of f-fa. shall,
if the meaning be doubtful, be construed against the
sheriff; and, if sued for a false return, he shall not be
allowed to defend himself by putting a construction on his
own return which would make it bad in law, when it admits
of another construction which will make it good (vi).
Simple con- In like manner, with respect to contracts not under seal,
the generally received doctrine of law undoubtedly is that
the party who makes any instrument should take care so
to express the amount of his own liability, as that he may
not be bound further than it was his intention that he
should be bound ; and, on the other hand, that the party
who receives the instrument, and parts with his goods on
the faith of it, should rather have a construction put upon
it in his favour, because the words of the instrument are
not his, but those of the other party (n). This principle
applies to a condition in a policy of insurance which " being

(k) Doe V. Williams, 1 H. Bl. 25, J., Webb v. Plummer, 2 B. & Aid.

27 ; 2 ». B. 703. 752 ; 21 R. B. 479. See W. London

(1) 1 H. Bl. 586. A release in B. Co. v. L. & N. W. B. Co., 11

deed, being the act of the party, 0. B. 254, 309, 339.

shall be taken most strongly against (m) See Beynolds v. Barford, 7

himself ; Co. Litt. 264 b ; cited Ford M. & Gr. 449, 456 ; cf. ante, p. 288.

V. Beech, 11 Q. B. D. 869. (n) Per Alderson, B., Mayer v.

"Although the words of a covenant Isaac, 6 M. & W. 612 ; commenting

are to be construed according to the on observations of Bayley, B., in

intent of the parties, yet they are to Nicliolson v. Paget, 1 Or. & M. 48.

be taken most strongly against the See Alder v. Boyle, 4 C. B. 635.
party who stipulates : " jjer Holroyd,

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INTEBPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 457

the language of the company must, if there be any
ambiguity in it, be taken most strongly against them" (o),
and to an exception to the shipowner's liability in a bill of
lading, which is the language of the shipowner (p).

A remarkable illustration of the maxim is to be found in
a case arising out of the failure of the Glasgow Bank. By
the Articles of that Bank any person who became the
holder of a share became subject to all the liabilities of an
original partner. Certain shares were transferred into the
names of persons who were entered in the stock ledger as
"trustees." The bank failed, with large liabilities, and the
trustees were placed on the list of contributories liable to
calls in their own right. On a petition to rectify the list it
was decided that they were personally liable as partners
to the creditors of the Bank, the House of Lords being of
opinion that the expression, "as trustees," was ambiguous
and must be construed /oj-fiws contra proferentes, so as to
carry out the main object of the contract {q).

If the party giving a guarantee leaves anything ambiguous
in his expressions, it has been said that such ambiguity must
be taken most strongly against him (r) ; though it would
rather seem that the document in question is to be construed
according to the intention of the parties to it as expressed
by the language which they have employed, understood
fairly in the sense in which it is used, the intention being,
if needful, ascertained by looking to the relative position

(o) Per Cookbum, O.J., Notman [1908] 2 K. B. 863, 890 : 77 L. J.

V. Anchor Ass. Co., i C. B. N. S. K. B. 1108.

481 ; Fitton v. Accidental Death ( p) Per Lord Loreburn, Nelson

Ins. Co., 17 Id. 134, 135 ; Fowkes v. Line v. Nelson, [1908] A. 0. 16, 19 :

Marwh. d L. Life Ass. Co., 32 L. J. 77 L. J. K. B. 82.

Q. B. 153, 157, 159 : 3 B. & S. 917 ; (2) Muirv. City of Glasgow Bank,

per Ld. St. Leonards, Anderson v. 4 App. Gas. 337 : 40 L. J. 339.

Fitzgerald, 4 H. L. Gas. 484 ; per (r) Eargreave v. Smee, 6 Bing.

Blackburn, J., Brawnstein v. Acci- 244, 248 ; 31 B. R. 407 ; Stephens v.

dental Death Ins. Co., 1 B. & S. 799 ; Pell, 2 Gr. & M. 710. See Cumpston

per Fletcher Moulton, L.J., Joel v. v, Haigh, 2 Bing. N. G. 449, 454.
Law Union S Crown Insurance Co.,

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458 INTBKPEBTATION OF DEEDS AND WKITTEN INSTRUMENTS.

of the parties at the time when the instrument was
written (s).

If a carrier give two different notices, Hmiting his
responsibility in case of loss, he will be bound by that
which is least beneficial to himself (*). In like manner,
where a party made a contract of sale as agent for A., and,
on the face of such agreement, stated that he made the
purchase, paid the deposit, and agreed to comply with the
conditions of sale, for A., and in the mere character of
agent, it was held, that this act of the contracting party
must be taken fortissime contra proferentem ; and that he
could not, therefore, sue as principal on the agreement,
without notice to the defendant before action brought, that
he was the party really interested («). So, if an instrument
be couched in terms so ambiguous as to make it doubtful
Avhether it be a bill of exchange or a promissory note, the
holder may, as against the party who made the instrument,
treat it as either {v). If documents are drawn and accepted
by the same parties (which in strictness would make them
promissory notes and not bills of exchange), yet if the
intention to give and receive such documents as bills of
exchange be clear, both the parties to the documents and the
holders may treat them as such («).

In the Eoman law, the rule under consideration for the
construction of contracts may be said, in substance, to have
existed, although its meaning differed considerably from that
which attaches to it in our own : the rule there was, fere

(s) Per Bovill, C.J., Coles v. Pack, v. Jackson, 7 Exoh. 382.

L. R. 5 C. P. 70 ; Wood v. Priestner, (v) Edis v. Bury, 6 B. & C. 433 ;

L. B. 2 Ex. 66, 282. 30 K. R. 389 ; Block v. Bell, 1 M. &

(t) Munn V. Baker, 2 Stark. 255 ; Bob. 149 ; Lloyd v. Oliver, 18 Q. B.

17 B. B. 686, n. See PhilUps v. 471; Forbes v. Marshall, 11 Exoh.

Edwards, 3 H. & N. 813, 820. 166. In M'Oall v. Taylor, 19 0. B.

(u) Bickerton v. Burrell, 5 M. & N. S. 301, the mstrument in ques-

S. 883, 886, as to which case, see tion was held to be neither a biU of

V. Chvte, 15 M. & W. 359. exchange nor a promissory note.
See also, Boulton v. Jones, 2 H. & (x) Williams v. Ayers, 3 App. Gas.

N. 564, and cases there cited ; CaiJr 133. See 45 & 4G Vict.c. 61,s. 5 (2).

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INTEEPEBTATION OF DEEDS AND WKITTEN INSTRUMENTS. 459

secundum promissorem interpretamur (y), vfheve promissor, in
fact, signified the person who contracted the obhgation (z),
that is, who repHed to the stipulatio proposed by the other
contracting party. In case of doubt, then, the clause in the
contract thus offered and accepted, was interpreted against
the stipulator, and in favour of the promissor ,- in stipulationi-
bus cum qiiceritar quid actum sit verba contra stipidatorem
intcrpretanda sunt (a) ; and the reason given for this mode of
construction is, quia stipulatori liberumfuit verba late con-
cipere (b) : the person stipulating should take care fully to
express that which he proposes shall be done for his own
benefit. But, as remarked by Mr. Chancellor Kent, the true
principle appears to be " to give the contract the sense in
which the person making the promise believed the other
party to have accepted it, if he in fact did so understand
and accept it "(c); though this remark must necessarily be
understood as applicable only where an ambiguity exists
after applying those various and stringent rules of interpre-
tation by which the meaning of a passage must, in very
many cases, be determined. When dealing with a mercantile
instrument, moreover, " the Courts are not restrained to
such nicety of construction as is the case with regard to
conveyances, pleadings, and the like," and in reference to
a charter-party, it has been observed (cZ), that "generally
speaking where there are several ways in which the contract
might be performed, that mode is adopted which is the
least profitable to the plaintiff and the least burthensome to
the defendant." Further, in reference to the same instru-
ment, it has been remarked that the merchant " is in most
cases the party best acquainted with the trade for which the

(y) v. 45, 1, 99, pr. 557 : 20 Day (U.S.), B. 281 ; Paley,

(n) Biisson. ad verb. "Promissor," Moral Phil., 4tli ed., 125, 127; 1

" SUpulatio ; " 1 Pothier, by Evans, Duer, Insur. 159, 160.

58. {d) Per Maule, J., Cockburn v.

(a) D. 45, 1, 38, § 18. Alexamder, 6 C. B. 814, and Gether

(b) T>. 45, 1, 19, pr. ; D. 2, 14, 39. v. Capper, 15 Id. 707 ; S. C, 18 Id.

(c) 2 Kent, Com., 12th ed. vol. 2, 866.

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INTBKPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

When the
general rule
should be
applied.

ship is taken up, and with the difficulties which may impede
the performance by him of his contract ; words, therefore,
in a charter-party, relaxing in his favour a clause by which
an allowance to him of time for a specified object is in the
interest of the ship precisely limited, must be read as
inserted on his requirement, and construed at the least with
this degree of strictness against him that they shall not
have put upon them an addition to their obvious meaning ; "
though that meaning, where it is ambiguous, must be
gathered from the surrounding circumstances to which the
charter-party was intended to apply (e).

It must further be observed, that the general rule in
question, being one of some strictness and rigour, is the last
to be resorted to, and is never to be relied upon but when
all other rules of exposition fail (/). In some cases, indeed,
it is possible that any construction which the Court may
adopt will be contrary to the real meaning of the parties ;
and, if parties make use of such uncertain terms in thek
contracts, the safest way is to go by the grammatical con-
struction, and if the sense of the words be in equilibrio, then
the rule of law will apply, vei'ha chartarum fortius accipiuntur
contra proferentem (g).
Exception to Moreover, the principle under consideration does not seem
it^wouid w^ork ^0 ^^^^ when a harsh construction would work a wrong to a

a wrong to a t]jij.(j person, it being a maxim that constructio leqis non
third person. t- > o

facit injuriam (h). Therefore if tenant m tail make a lease
for life generally, this shall be taken to mean a lease for the
life of the lessor (i), for this stands well with the law; and
not for the life of the lessee, which it is beyond the power of
a tenant in tail to grant (k).

{e) Hudson v. Ede, L. B. 2 Q. B.
578 ; S. 0., 3 Id. 412.

(/) Bac. Max., reg. 3; 1 Duer.
Insur. 210.

{g) Per Bayley, J., Love v. Pares,
13 East, 86.

(7i) Co. Litt. 183 a ; Shepp. Touch.

88 ; Judgm., Bodger v. Comptoir
d'Escompte de Paris, L. E. 2 P. C.
406.

(i) Per Bayley, J., Smith v. Doe,
2 B. & B. 551 ; 22 B. E. 19 ; Pinch,
Law, 60.

{/<:) 2 Bl. Com. 380.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 461

Acts of Parliament are not, in general, within the reason Wiiia and
of the rule under consideration, because they are not the
words of parties, but of the legislature; neither does this
rule apply to wills (l). Where, however, an Act is passed
for the benefit of a canal, railway, or other company, it has Public oom-
been observed, that this is a bargain between a company of P^"^^®^'
adventurers and the public, the terms of which are expressed
and set forth in the Act, and the rule of construction {m) in
such cases is now fully established to be, that any ambiguity
in the terms of the contract must operate against the
adventurers, and in favour of the public, the former being
entitled to claim nothing which is not clearly given to them
by the Act {n). Where, therefore, by such an Act, rates are
imposed upon the pubhc and for the benefit of the company,
such rates must be considered as a tax upon the subject ;
and it is a sound general rule, that a tax shall not be con-
sidered to be imposed (or at least not for the benefit of
a subject) without a plain declaration of the intent of the
legislature to impose it (o).

In a well-known case, which is usually cited as an
authority upon the construction of Acts for the formation of
companies to carry out works of a public nature, the law

(I) 2 Dwarr. Stats. 688; Bac. 370; S. C. afarmed, 3 Id. 803, and

Max., reg. 3. 8 Id. 641 ; cited Bibble Nav. Co. v.

(to) The rule that » private Act Hargreaves, 17 C. B. 385, 402; per

" is to be construed as a contract Maiile, J., Portsmouth Floating

or a conveyance, is a mere rule of Bridge Co. v. Nance, 6 Scott, N. R.

construction ; " per Byles, J., 6 831 ; Blakemore v. Glamorganshire

0. B. N. S. 218—219. Of. per Ld. Canal Nav., 1 My. & K. 165 (as to

Macnaghten, [1895] A. C. 559. As the remarks of Ld. Eldon in which

to the recitals in a private Act, see case, see per Alderson, B., Lee v.

Shrewshwry Peerage, 7 H. L. Gas. 1. Milner, 2 Yo. & 0. 618 ; per Ld.

(n) Per Ld. Tenterden, Stour- Chelmsford, Ware v. Regent's Canal

bridge Canal Co. v. Wheeley, 2 B. & Co., 28 L. J. Oh. 157 ; per Erie,

Ad. 793 : 36 E. B. 746; recognised C.J., Baxendaley. Q. W. B. Co., 16

Priestley v. Foulds, 2 Scott, N. R. G. B. N. S. 137).
228; per Coltman, J., Id. 226; (p) 3ud.gm., Kingston -upon -Hull

Judgm., Gilda/rt v. Gladstone, 11 Dock Co. v. Browne, 2 B. & Ad. 58,

East, 685 ; recognised Barrett v. 59 ; 36 R. R. 459 ; Grantham Canal

Stockton ct D. B. Co., 2 Scott, N. B. Nav. Co. v. Sail, 14 M. & W. 880.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

Eemarks of was thus laid down by Lord Eldon : — " When I look upon
™" fhese Acts of Parliament, I regard them all in the light of
contracts made by the legislature on behalf of every person
interested in anything to be done under them ; and I have
no hesitation in asserting, that, unless that principle is
applied in construing statutes of this description, they
become instruments of greater oppression than anything in
the whole system of administration under our constitution.
Such Acts have now become extremely numerous, and from
their number and operation, they so much affect individuals,
that I apprehend those who come for them to Parliament do
in effect undertake that they shall do and submit to whatever
the legislature empowers and compels them to do, and that
they shall do nothing else ; that they shall do and shall
forbear all that they are thereby required to do and to
forbear as well with reference to the interests of the public
as with reference to the interests of individuals " (p). Acts,
such as here referred to {q), have been called Parliamentary
bargains made with each of the landowners. Perhaps more
correctly they ought to be treated as conditional powers
given by Parliament to take the lands of the different
proprietors, through whose estates the works are to proceed.
Each landowner, therefore, has a right to have the powers
strictly and literally carried into effect as regards his own
land, and has a right also to require that no variation shall
be made to his prejudice in the carrying into effect the
bargain between the undertakers and any one else (?•).
Railway Acts. So, with respect to Eailway Acts, it has been repeatedly
laid down, that the language of these Acts is to be treated
as the language of their promoters; they ask the legis-
lature to confer privileges upon them, and profess to give

(p) Blakemwe v. OlamorgamsMre
Canal Nav., 1 My. & K. 162; 36
B. R. 289; cited Judgm., 1 E. & B.
868, 869.

(g) See also supra, n. (m) and (o).

(»■) Per Alderson, B., Lee v.
Milner, 2 Yo. & C. 611, 618 ; adopted
Judgm., York S N. Midland B. Co.
V. Reg., 1 E. & B. 869.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

463

the public certain advantages in return. Acts passed
under such circumstances should be construed strictly
against the parties obtaining them, but liberally in favour
of the public (s). "The statute," said Alderson, B. (t),
speaking of such an Act, " gives this company power to
take a man's land without any conveyance at all; for if
they cannot find out who can make a conveyance to them,
or if he refuses to convey, or if he fail to make out a title,
they may pay their money into Chancery, and the land is
at once vested in them by a parliamentary title. But in
order to enable them to exercise this power, they must
follow the icords of the Act strictly." And it is clear that
the words of a statute will not be strained beyond their
reasonable import to impose a burthen upon, or to restrict
the operation of, a public company {u). It will, of course,
be borne in mind that the principle of construing contra
proferentem an Act of the kind above alluded to can only
be appHed where a doubt presents itself as to the meaning ;
for such an Act, and every part of it, must be read according
to the ordinary and grammatical sense of the words used,
and with reference to those established rules of construction
which we have already stated.

Lastly, with reference to the maxim fortius contra pro- Grant from
ferentem, — where a question arises on the construction of a ^^^ Crown,
grant of the Crown, the rule under consideration is reversed ;
for such grant is construed most strictly against the grantee,

(s) Judgm., Parker v. G. W. B. Manchester <B Leeds R. Co., 1 Railw.

Co., 7 Scott, N. R. 870. As to the Cas. 576, 599 ; per Ld. Langdale,

construction of a contract scheduled Gray v. Liverpool & Bury B. Co.

to a private Act of Parliament, 4 Id. 240; per Ld. Macnaghten,

see Corhett v. S. E. B., [1906] Herron v. Bathmines Commrs.,

2 Oh. 12 : 75 L. J. Oh. 489 ; [1892] A. 0. 523.
Joseph Crosfield d Sons v. Man- (u) Smith v. Bell, 2 Railw. Cas.

Chester Ship Canal Co., [1904] 2 Oh. 877 ; Parrett Nav. Co. v. Robins, 3

123, [1905] A. 0. 421 : 73 L. J. Oh. Id. 383 ; with which ace. Cracknell

637. V. Mayor of Thetford, L. R. 4 0. P.

(t) Doe V. Manchester, Bury, & B. 684, 637.
R. Co., 14 M. & W. 694 ; Webb v.

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464

INTEKPEBTATION OP DEEDS AND WEITTEN INSTRUMENTS.

and most beneficially for the Crown, so that nothing will
pass to the grantee but by clear and express words (x) ; the
method of construction just stated seeming, as judicially
remarked (y), " to exclude the application of either of these
two phrases (z), expressuvi facit cessare taciturn, or expressio
unius est exdusio alterius. That which the Crown has not
granted by express, clear and unambiguous terms, the
subject has no right to claim under a grant or charter " (a).

Ambigtjitas Veebortjm latens Veeificatione suppletue;

NAM QUOD EX FaCTO OEITUE AMBIGUUM VbEIFICATIONE

Facti tollitue. {Bae. Max., reg. 23.) — Latent
amhiguity may he supplied by evidence ; for an ambiguity
which arises by proof of an extrinsic fact may, in the
same manner, be removed.

Definition of Two kinds of ambiguity occur in written instruments :

patent the One is called ambiguitas latens (b), i.e., where the writing

ambiguity. appears on the face of it certain and free from ambiguity ;

but the ambiguity is introduced by evidence of something

[x) Arg., B. V. Mayor of London,
1 Cr. M. & B., 12, 15, and oases
there cited ; Chit. Pre. of the Crown,
391 ; Finch, Law, 101.

(y) Per Pollock, G.B., E. Archi-
pelago Co. V. Beg., 2 E. & B. 906,
907; S. C, Id. 310.

(2) Post, p. 504.

(o) It is established on the best
authority, that in construing grants
from the Crown, a, different rule of
construction prevails from that by
which grants from one subject to
another are to be construed. In a
grant from one subject to another,
every intendment is to be made
against the grantor, and in favour of
the grantee, in order to give full
effect to the grant ; hut in grants
from the Crown an opposite rule

of construction prevails. Nothing
passes except that which is ex-
pressed, or which is matter of
necessary and unavoidable intend-
ment, in order to give effect to the
plain and undoubted intention of
the grant. And in no species of
grant does this rule of construction
more especially obtain than in
grants which emanate from, and
operate in derogation of, the pre-
rogative of the Crown : ex. gr. where
a monopoly is granted. Judgm.,
Feather v. Beg., 5 B. & S. 283—
284; citing, per Ld. Stowell, The
Bebeckah, 1 Bob. 227, 230.

(6) Of which see an example,
Baffles V. Wichelhaus, 2 H. & C.
906.

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INTERPRETATION OF DEEDS AND WEITTEN INSTBUMBNTS.

465

extrinsic, or by some collateral matter outside the instru-
ment : the other species is called ambiguitas patens, i.e., an
ambiguity apparent on the face of the instrument itself (c).

Amhigidtas patens, said Lord Bacon, cannot be holpen by Euie as to
averment, and the reason is, because the law will not ambrguity.
couple and mingle matter of specialty, which is of the
higher account, with matter of averment, which is of the
lower account in law, for that were to make all deeds
hollow, and subject to averment ; and so, in effect, to make
that pass without deed which the law appoints shall not
pass but by deed (rf) ; and this rule, as above stated and
explained, applies not only to deeds, but to written contracts
in general (e) ; and especially, as will be seen by the examples
to be given, to wills.

On this principle, a devise to " one of the sons of J. S."
(who has several sons), cannot be explained by parol
proof (/) ; and if there be a blank in the will for the

(c) Bac. Max., reg. 23. The re-
marks respecting ambiguity here
offered should be taken in connec-
tion with those appended to the five
maxims which follow next. The
subject of latent and patent am-
biguities and likewise of misde-
scription, is very briefly treated in
the text, since ample information
thereupon may be found in the
masterly treatise of Sir James Wig-
ram, upon the " Admission of the
Extrinsic Evidence in Aid of the
Interpretation of Wills."

(d) Bac. Max., reg. 23 ; Doe v.
Lyfford, i M. & S. 550; 16 B. B.
537 ; Ld. Cholmondeley v. Ld.
Clinton, 2 Mer. 343 ; 16 B. E. 167 ;
Judgm., Doe v. Needs, 2 M. & W.
139 ; Stead v. Barrier, Sir T. Eaym.
411.

(e) See HolUer v. Eyre, 9 01. &
¥. 1.

A contract, said PoUock, O.B.,
in Nichol v. Godts, 10 Exoh. 194,

L.M.

" must be read according to what is
written by the parties, for it is a
well-known principle of law, that a
written contract cannot be altered
by parol. If A. and B. make a con-
tract in writing, evidence is not
admissible to show that A. meant
something difierent from what is
stated in the contract itself, and
that B. at the time assented to it.
If that sort of evidence were ad-
mitted, every written document
would be at the mercy of witnesses
who might be called to swear any-
thing." See Besant v. Cross, 10
C. B. 895 ; Martin v. Pycroft, 2 De
G. M. & G. 785; post, Chap. X.

(/) Strode v. Bii,ssel, 2 Vern. 624 ;
Cheyney's case, 5 Bep. 68. See
CastUdmi v. Turner, 3 Atk. 257 ;
Harris v. Bp. of Lincoln, 2 P. Wms.
136, 137 ; per Tindal, O.J., Doe v,
Perratt, 7 Scott, N. E. 36. See,
also, per Littledale, J., and Parke,
J., Shortrede v. Clieek, 1 A. & B. 57.
30

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466 INTBRPKETATION OF DEEDS AND WRITTEN INSTRUMENTS.

devisee's name, parol evidence cannot be admitted to show
what person's name the testator intended to insert (g) ; it
being an important rule, that, in expounding a will, the
Court is to ascertain, not what the testator actually intended
as distinguished from what his words express, but what is
the meaning of the words he has used (h).

If, as Sir James Wigram observed, the statutes relating
to wiUs had merely required that a nuncupative will should
not be set up in opposition to a written will, parol evidence
might, in many cases, be admissible to explain the intention
of the testator, where the person or thing intended by him
is not adequately described in the will ; but if the true
meaning of those statutes be, that the writing which they
require shall itself express the intention of the testator, it is
difficult to understand how the statutes can be satisfied
merely by a writing, if the description it contains has
nothing in common with that of the person intended to take
under it, or not enough to determine his identity. To
define that which is indefinite is to make a material addition
to the will («'). In accordance with these observations,

where a testator devised property " first to K., then to ,

then to L.," and the will referred to a card as showing the
parties designated by these letters, but it did not appear
that this Card existed at the time of the execution of the
will, it was held that the card was clearly inadmissible in
evidence ; the Court observing, that this was a case of a
patent ambiguity ; and that according to all the authorities,
parol evidence to explain the meaning of the will could not
legally be admitted (k).

If, then, as further observed in the treatise already cited,
a testator's words, aided by the light derived from the

(<;) BayUs v. A.-G., 2 Atk. 239; (i) See Wigram, Extrin. Evid.,

Hunt V. Hort, 3 Bro. 0. C. 311 ; 4th ed. 127, 128.

cited 8 Bing. 254. (&) Clayton v. Ld. Nugent, 13

{h) Per Parke, J., Doe v. Givillwi, M. & W. 200.
5 B. & Ad. 129.

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INXEKPEETATION OF DEEDS AND WEITTEN INSTRUMENTS. 467

circumstances with reference to which they were used, do
not express the intention ascribed to him, evidence to prove
the sense in which he intended to use the words is, as a
general proposition, inadmissible; in other words, the
judgment of a Court in expounding a will must be simply
declaratory of what is in the will (I) ; and to construe a
wUl, where the intent of the testator cannot be known, has
been designated as intentio cceca et sicca (m). The devise,
therefore, in cases falling within the scope of this obser-
vation, will, since the will is insensible, and not really
expressive of any intention, be void for uncertainty (n).

The rule as to patent ambiguities which we have been
considering is not confined in its operation to the interpreta-
tion of wills. Where a bill of exchange was expressed in
figures to be drawn for £245, and in words for two hundred
pounds, value received, with a stamp applicable to the
higher amount, evidence to show that the words " and
forty-five " had been omitted by mistake, was held inadmis-
sible (o) ; for, the doubt being on the face of the instrument,
extrinsic evidence could not be received to explain it. The
instrument, however, was held to be a good bill for the
smaller amount, it being a rule that, where there is a
discrepancy between the figures and the words of a bill,
the words prevail (p). But, although a patent ambiguity
cannot be explained by extrinsic evidence, it may, in some
cases, be helped by construction, or a comparison of other
parts of the instrument with that particular part in which
the ambiguity arises ; and in others, it may be helped by
a right of election vested in the grantee or devisee (g), the

(I) Wigram, Extrin. Evid., 4tli Osborn, 1 H. L. Cas. 272, legacies

ed. pp. 98 et sec[., where maay In- failed for uncertainty of purpose,

stances of tHa rule are given. See (o) Saunderson v. Piper, 5 Bing.

also Goblet v. Beechey, Id. p. 185 ; 3 N. 0. 425.

Sim. 24. Op) Id. ^31, 434 ; 45 & 46 Vict. v.

(m) Per Bolle, C.J., Taylor v. 61, s. 9 (2).

Web Styles, 319. (2) See Duckmanton v. Duckman-

(») In Mayor of Oloucester v. ton, 5 H. & N. 219,

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468 INTEEPEBTATION OF DEEDS AND WEITTEN INSTRUMENTS.

power being given to him of rendering certain that which
was before altogether uncertain and undetermined. For
instance, where a general grant is made of ten acres of
ground adjoining or surrounding a particular house, part
of a larger quantity of ground, the choice of such ten acres
is in the grantee, and a devise to the like effect is to be
considered as a grant (r) ; and if I grant ten acres of wood
where I have one hundred, the grantee may elect which
ten he will take ; for, in such a case, the law presumes that
the grantor was indifferent on the subject (s). So, if a
testator leaves a number of articles of one kind to a legatee,
and dies possessed of a greater number, the legatee and not
the executor has the right of selection (t).

On the whole, then, we may observe, in the language of
Lord Bacon, that all ambiguity of words withini the deed,
and not out of the deed, may be helped by construction,
or, in some cases, by election, but never by averment, but
rather shall make the deed void for uncertainty (u).
^uallfied^ The general rule, however, as to patent ambiguity must

be received with this qualification, viz., that extrinsic
evidence is unquestionably admissible for the purpose of
showing that the uncertainty which appears on the face of
the instrument does not, in point of fact; exist ; and that
the intent of the party, though uncertainly and ambigu-
ously expressed, may yet be ascertained, by proof of facts,
to such a degree of certainty as to allow of the intent
being carried into effect (x). In cases falling within the
scope of this remark, the evidence is received, not for the
purpose of proving the testator's intention, but of explain-
ing the words which he has used. Suppose, for instance,
a legacy, " to one of the children of A. by her late husband

(r) Hohson v. Blackburn, 1 My. & {t) Jacques v. Chambers, 2 Colly.

K. 571, 575 ; 36 R. R. 381. 435.

(s) Bao. Max., reg. 23. See also, («) Bac. Max., reg. 23; perTindal,

per Our., Richardson v. Watson, i O.J"., 7 Scott, N. B. 36; Wlgram,

B. & Ad. 787 : Vin. Abr. " Grants," Extriu. Evid., 3rd ed. 88, 101.
(H. 5). (cc) 2 Phill. Evid., lOth ed. 389.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 4G9

B. ; " suppose, further, that A. had only one son by B.,
and that this fact was known to the testator ; the necessary
consequence, in such a case, of bringing the words of the
will into contact with the circumstances to which they
refer must be to determine the identity of the person
intended, it being the form of expression only, and not
the intention, which is ambiguous ; and evidence of facts
requisite to reduce the testator's meaning to certainty
would not, it seems, in the instance above put, be excluded ;
though it would be quite another question if A. had more
sons than one, or if her husband were living {y).

With respect to ambiguitas latens, the rule is, that, Latent
inasmuch as the ambiguity is raised by extrinsic evidence,
so it may be removed in the same manner (z). Therefore,
if a person grant his manor of S. to A. and his heirs, and
the truth is, he hath the manors both of North S. and
South S., this ambiguity shall be helped by averment as
to the grantor's intention (a). So, if one devise to his son
John, when he has two sons of that name (&), or to the
eldest son of J. S., and two persons, as in the case of a
second "marriage, meet that designation (c), evidence is
admissible to explain which of the two was intended.
Wherever, in short, the words of the will in themselves

{y) Wigram, Ex. Evid., 4tli ed. 80. N. S. 263.

(z) 2PliiU. Evid., 10th ed. 392; (a) Bao. Max., reg. 23; Plowd.

Wigram, Extrin. Evid., 4th ed. 109 ; 85 b; Miller v Travers, 8 Bing.

p^ Williams, J., Way v. Beam, 13 248 ; 34 E. R. 703.

G. B. N. S. 305; 3nAgm., Bradley v. (6) Oounden/v. Clarke, Hob. 32;

WasMngton St. Packet Co., 13 Peters Fleming v. Fleming, 1 H. & 0. 242 ;

(U.S.) R. 9T. " A latent ambiguity Jones v. Newman, 1 W. Bl. 60 ;

is raised by evidence; " ^Jer Coleridge, Ckeyney's case, 5"Eep. 68 ; per Tin-

J., 11 Q. B. 25. Where parol evi- dal, O.J., Doe v. Perratt, 7 Scott,

denoe has been improperly received N. B. 36.

to explain a supposed latent am- (c) Per Erskine, J., 5 Bing. N. C.

biguity, the Court in ba/nco will 433 ; Doe v. Needs, 2 M. & W. 129 ;

decide upon the construction of the Richardson v. Watson, 4 B. & Ad.

instrument without regard to the 792 : 38 B. R. 366. And see the

findmg of the jury upon such evi- cases cited 2 PhiU. Evid., lOth ed.

denoe ; Bruffy. Conyheare, 13 C. B. 393 et seg.

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470 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

are plain and unambiguous, but they become ambiguous
by the circumstance that there are two persons, to each
of whom the description appHes, then parol evidence may
be admitted to remove the ambiguity so created (d).

A like rule applies also where the subject-matter of a
devise or bequest is called by divers names, " as if I give
lands to Christchurch in Oxford, and the name of the
corporation is Ecdesia Christi in Universitate, Oxford, this
shall be holpen by averment, because there appears no
ambiguity in the words " (e).

In all cases, indeed, in which a difficulty arises in
applying the M'ords of a will to the thing which is the
subject-matter of the devise, or to the person of the
devisee, the difficulty or ambiguity which is introduced by
the admission of extrinsic evidence may be rebutted and
removed by the production of further evidence upon the
same subject, calculated to explain what was the estate or
subject-matter really intended to be devised, or who was
the person really intended to take under the will ; and this
appears to be the extent of the maxim as to ambiguitas
latens(f). The characteristic of these cases is, that the
words of the will do describe the object or subject intended,
and the evidence of the declarations of the testator has not
the effect of varying the instrument in any way whatever ;
it only enables the Court to reject one of the subjects or
objects to which the description in the will applies, and to
determine which of the two the devisor understood to be
signified by the description which he used in the will (g).

A deA-ise was made of land to M. B., for life, remainder

(d) Per Alderson, B., 13 M. & W. guished in Fleming v. Fleming, 1
206, and 15 Id. 561 ; Duke of Dorset H. & C. 242, 247. See also Be
V. Ld. Hawarden, 3 Curt. 80. Stephenson, [1897] 1 Oh. 75 : 66

(e) Bao. Max., reg. 23. L. J. Ch. 93.

(/) Judgm., Miller v. Travers, 8 {g) Judgm., Doe v. Needs, 2 M.

Bing. 247, 248 ; 34 E. E. 703 ; per & W. 140 ; Ld. Walpole v. Earl of

Abbott, O.J., Doe v. Westlake, i B. Cliolmondeley , 7 T, R. 138.
& Aid. 58: 22 R. R. 621; distiu-

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INTERPEETATION OF DEEDS AND WRITTEN INSTRUMENTS. 471

to "her three daughters, Mary, Elizabeth, and Ann," in
fee, as tenants in common. At the date of the will, M. B.
had two legitimate daughters, Mary and Ann, living, and
one illegitimate, Elizabeth. Extrinsic evidence was held
admissible to rebut the claim of the last-mentioned, by
showing that M. B. formerly had a legitimate daughter
named EUzabeth, who died before the date of the will, and
that the testator did not know of her death, or of the birth
of the illegitimate daughter (h).

Similarly, where a testator appointed his " nephew Joseph
Grant " to be the executor of his will, evidence was admitted
to show that the testator meant by that description, not
his own brother's son who bore that name, but his wife's
brother's son, who also bore that name and whom the
testator had constantly spoken of as his nephew (i).

" The rule as to the reception of parol evidence to explain
a will," remarked Eomilly, M.E., in Stringer v. Gardiner (k),
"is perfectly clear. In every case of ambiguity, whether
latent or patent, parol evidence is admissible to show the
state of the testator's family or property ; but the cases
in which parol evidence is admissible to show the person
intended to be designated by the testator, are those cases
of latent ambiguity, mentioned by Sir J. Wigram, where
there are two or more persons who answer the descriptions
in the will, each of whom standing alone, would be entitled
to take."

It is true, moreover, that parol evidence must be admis- Extrinsio
sible to some extent to determine the application of every necessarily
written instrument. It must, for instance, be received to forTome^^
show what it is that corresponds with the description (Z) ; purposes.
and the admissibility of such evidence for this purpose
being conceded, it is only going one step further to give

(h) Doe V. Benyon, 12 A. & E. {k) 28 L. J. Ch. 758. See also,

431 ; Doe v. Allen, Id. 451. Be Taylor, 34 Oh. D. 258.

(i) Orant v. Grant, L. E. 2 P. & (l) Macdonald v. Longbottom, 1

D. 8 : 5 C. P. 727 ; see 17 Oh. D. E. & E. 977.
265.

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472 INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS.

parol evidence, as in the above instances, of other extrinsic
facts, which determine the application of the instrument
to one subject, rather than to others, to which, on the face
of it, it might appear equally applicable (m).

" Speaking philosophically," said Eolfe, B., " you must
always look beyond the instrument itself to some extent,
in order to ascertain who is meant ; for instance, you must
look to names and places " (n) ; and " in every specific
devise or bequest it is clearly competent and necessary to
inquire as to the thing specifically devised or bequeathed "(o).
Thus, " parol evidence is always necessary to show that the
party sued is the person making the contract, and bound
by it " (p). So, if the word Blackacre be used in a will,
there must be evidence to show that the field in question
is Blackacre (g). Where there is a devise of an estate
purchased of A., or of a farm in the occupation of B., it
must be shown by extrinsic evidence, what estate was pur>-
chased of A., or what farm was occupied by B., before it
can be known what is devised (r). So, whether parcel or
not of the thing demised is always matter of evidence (s).
In these and similar cases, the instrument appears on the
face of it to be perfectly intelligible, and free from ambiguity,
yet extrinsic evidence must, nevertheless, be received, for
the purpose of showing to what the instrument refers (t).

(m) 2 PhiU. Ev., lOtli ed. 333. v. FradUy, 1 Cr. & J. 90 ; Doe v.

(n) 13 M. & Vy. 207. Earl of Jersey, 8 B. & C. 870 : 19

(o) Per Ld. Cottenham, Shuttle- R. R. 880 ; Lyle v. Richards, L. R.

worth V. Greaves, i My. & Gr. 88. 1 H. L. 222.

(p) Judgm., Trueman v. Loder, (t) Per Patteson, J., and Cole-

11 A. & E. 594. See StebUng v. ridge, J., 4 A. & E. 81, 82. See

Spicer, 8 C. B. 827. Doe v. Webster, 12 A. & E. 442.

(g) Doe V. Helton, 4 A. & E. 82 ; Evidence of co-existing circum-

reoognised, Doe v. Webster, 12 A. & stances admitted to explain the

E. 450 ; cited, per Williams, J., Doe condition of a bond, Montefiore v.

V. Willetts, 1 C. B. 715 ; per Bovill, Lloyd, 15 0. B. N. S. 203. Evi-

C.J., Horsey v. Qraham, L. R. 5 denoe admitted to identify pauper

C. P. 14. with person described in indenture

(r) Per Grant, M.R., 1 Mer. 653. of apprenticeship, Reg. v. Wooldale,

(s) Per Buller, J., Doe v. Burt, 1 6 Q. B. 549.
T. R. 701, 704 ; 1 R. R. 367 ; Paddock

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INTEEPEETATION OF DEEDS AND WEITTEN INSTRUMENTS. 473

The rule as to amhiguitas latens, above briefly stated,
may likewise be applied to mercantile instruments with
a view to ascertain the intention, though not to vary
the contract of the parties (u). Therefore, where the plain-
tiffs, the patentees of an invention for the manufacture of
rifles, had granted a licence to the defendants to use the
patent, the latter covenanting to pay a royalty for every
rifle manufactured "under the powers hereby granted,"
it being thought at that time (but erroneously) that all
persons manufacturing for the government were entitled
to the free use of a patent, the Court admitted extrinsic
evidence to show that the licence was not intended to
apply to rifles manufactured by the defendants for the
government, on the ground that the words "under the
powers hereby granted " contained a latent ambiguity,
and might be explained by extraneous evidence (x). And
although, generally speaking, the construction of a written
contract is for the Court, when it is shown by extrinsic
evidence that the terms of the contract are ambiguous,
evidence is admissible to explain the ambiguity, and to
show what the parties really meant. " Where there is an
election between two meanings, it is, properly, a question
for the jury " (y). And in a case (z), where the defendants
under an agreement signed by them as three of the directors
of a company had agreed to repay to the plaintiff iGSOO
advanced by him to the company, the learned judges,
referring to Macdonald v. Longhottom (a), and Acebal v.
Levy (b), admitted parol evidence to show that the defen-
dants were liable as principals on the agreement, and
ultimately gave judgment accordingly.

(m) Smith V. Jeffryes, 15 M. & W. [1900] A. 0. 182. As to ambiguous

ggl_ contracts, see also, Boden v. French,

(x) Boden v. London Small Arms 10 C. B. 886, 889.

Co., 46 L. J. Q. B. 213. («) McColUn v. Gilpin, 6 Q. B. D.

(y) Per Maule, J., Smith v. 516 : 49 L. J. 558.

Thompson, 8 0. B. 59 ; see, however, (a) 1 E. & B. 977 : 28 L. J. Q. B.

Bowes V. Shand, 2 App. Oas. 462 ; 293 : 29 Id. 256.

Bank of N. Zealand v. Simpson, (b) 10 Bing. 376.

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474 INTBRPEBTATION OF DEEDS AND WEITTEN INSTRUMENTS.

Where, as we shall hereafter see, a contract is entered
into with reference to a known and recognised use of par-
ticular terms employed by the contracting parties, or with
reference to a known and established usage, evidence may
be given to show the meaning of those terms, or the nature
of that usage, amongst persons conversant with the par-
ticular branch of commerce or business to which they
relate. But cases of this latter class more properly fall
within a branch of the law of evidence which we shall
separately consider, viz., the applicability of usage and
custom to the explanation of written instruments (c).

Eule where
there is not
ambiguity.

QuoTiEs IN Verbis nulla est Ambiguitas, ibi nulla
ExposiTio contra Verba fienda est. (Wing. Max.
p. 24.) — In the absence of ambiguity, no ex'position shall
be made which is opposed to the express words of the
instrument.

It seems desirable, before proceeding to consider some
additional maxims relative to the subject of ambiguity in
written instruments, to observe that, according to the
above maxim, it is not allowable to interpret what has no
need of interpretation, and that the law will not make an
exposition against the express words and intent of the
parties (d). Hence, if I grant to you that you and your
heirs, or the heirs of your body, shall distrain for a rent of
forty shillings within my manor of S., this, by construction
of law, «i res magis valeat, amounts to a grant of rent out
of my manor of S., in fee-simple, or fee-tail; for the grant
would be of little effect if the grantee had but a bare
distress and no rent. But if a rent of forty shillings be
granted out of the manor of D., with a right to distrain if

(c) See the maxim, optimus inter-
pres rerum usus, Chap. X.

{d] Co. Litt. 147 a ; 7 Bep. 103 ;

per Kelynge, C.J., Lanyon v. Carne,
2 Saunds. 167. See Jesse v. Boy, 1
Or., M. & R. 316 ; 40 R. R. 580.

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INTERPRBTATIOK OF DEEDS AND WRITTEN INSTRUMENTS. 475

such rent be in arrear in the manor of S., this does not
amount to a grant of rent out of the manor of S., for the
rent is granted to be issuing out of the manor of D., and
the parties have expressly Umited out of what land the
rent shall issue, and upon what land the distress shall be
taken (e).

It may, however, be laid down as a general rule,
applicable as well to cases in which a written instrument
is required by law, as to cases in which it is not, that
where such instrument appears on the face of it to be
complete, parol evidence is inadmissible to vary or
contradict the agreement: e.g., to show that the word
" and " was inserted by mistake (/) ; in such cases the
Court will look to the written contract, in order to ascer-
tain the meaning of the parties, and will not admit parol
e\idence, to show that the agreement was in reality
different from that which it purports to be (g). And,
therefore, where a charter-party provided that the vessel
was to proceed to a named port or so near thereto as
she could safely get always afloat, evidence of a custom of
the port for vessels to be lightened in the roads before
proceeding into the harbour was held inadmissible in an
action by the charterer against the shipowner for not
hghtening the vessel, but proceeding instead to the nearest
safe port to that named in the charter-party, on the ground
that such a custom would vary the express terms of the
charter [h).

Although, moreover, it has been said that a somewhat
strained interpretation of an instrument may be admis-
sible where an absurdity would otherwise ensue, yet, if
the intention of the parties is not clear and plain, but

(e) Oo. Litt. 147 a. 10 0. B. 212.

(/) mtcUn V. Groom, 5 G. B. 515. (h) The Alhambra, 6 P. D. 68 ;

(g) Per Bayley and Holroyd, JJ., 50 L. J. P. D. 36; see The Nifa,

WilUams v. Jones, 5 B. & C. 108 ; [1892] P. 411 : 62 L. J. Adm. 12.
29 R. E. 181 ; Spartali v. Benecke,

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476 INTEEPEETATION OF DEEDS AND WRITTEN INSTRXJIIENTS.

in rquilihrio, the words shall receive their more natural and
proper construction (i).
Eemarks in The general rule, observes a learned judge, I take to be,
Wilson.' that where the words of any written instrument are free

from ambiguity in themselves, and where external circum-
stances do not create any doubt or difficulty as to the
proper application of those words to claimants under the
instrument, or the subject-matter to which the instrument
relates, such instrument is always to be construed accord-
ing to the strict plain common meaning of the words
themselves ; and that, in such case, evidence dehors the
instrument, for the purpose of explaining it according to
the surmised or alleged intention of the parties to the
instrument, is utterly inadmissible (/c) ; therefore words
deleted from a document and initialed cannot be looked
at for the purpose of arriving at the intention of the
parties (Z). The true interpretation, however, of every
instrument being manifestly that which will make the
instrument speak the intention of the party at the time it
was made, it has always been considered as an exception
from — or, perhaps, to speak more precisely, not so much
an exception from, as a corollary to — the general rule
above stated, that, where any doubt arises upon the true
sense and meaning of the words themselves, or any
difficulty as to their application under the surroundkig
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 (m) ; and

(i) Earl of Bath's case, Cart. 108, Chichester, 3 Taunt. 147 ; S. C, i

109, adopted 1 Fonbl. Eq., 5th ed. Dow. 65; 16 E. R. 32; explained,

445, n. Wigram, Extrin. Evid., 4th ed. 89.

(k) Per Tindal, C.J., Shore v. {I) Inglis y. Buttery, 3 A-pT^. Oas.

Wilson, 5 Scott, N. R. 1037. Eor 552; see Campbell v. Campbell, 5

an instance of the application of Id. 814.
this rule to a will, see Doe v. (m) Per Tindal, C.J., 5 Scott,

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 477

although parol evidence cannot be used to add to or
detract from the description in a deed, or to alter it in
any respect, such evidence is always admissible to show
the condition of every part of the property and all other
circumstances necessary to place the Court, when it
construes an instrument, in the position of the parties to
it, so as to enable the Court to judge of the meaning of the
instrument (k). "You may," observed Coleridge, J. (o),
with reference to a guarantee under the old law (p), " explain
the meaning of the words used by any legal means. Of
such legal means, one is to look at the situation of the
parties. Till you have done that, it is a fallacy to say that
the language is ambiguous : that which ends in certainty
is not ambiguous."

The following cases may be mentioned as falling within cases in
the scope of the preceding remarks : 1st, where the in- illustration
strument is in a foreign language, in which case the jury
must ascertain the meaning of the terms upon the evidence
of persons skilled in the particular language (q) ; 2ndly,
ancient words may be explained by contemporaneous
usage ; 3rdly, if the instrument be a mercantile contract,
the meaning of the terms must be ascertained by the jury
according to the acceptation amongst merchants ; 4thly,
if the terms are technical terms of art, their meaning
must, in like manner, be ascertained by the evidence of
persons skilled in the art to which they refer. In such
cases, the Court may at once determine, upon the inspection

N. R. 1037, 1038 ; Montefiore v. (ra) Baird v. Fortune, 4 Maoq.

Lhyd,15 G.B.Vi.S. 203 ; LeathUy H. L. 127 at p. 149; Magee v.

V. Spyer, L. B. 5 0. P. 595 ; and see Lovell, L. R. 9 C. P. 107, 112.

Be Grainger, Dawson v. Biggins, (o) Bainbridge v. Wade, 16 Q. B.

[1900] 2 Oil. 756 : 69 L. J. Oh. 789 ; 100 ; see Morrellv. Cowan, 7 Oh. D.

Be Eve, Edwards v. Burns, [1909] 151.

1 Oh. 796 : 78 L. J. Oh. 388 ; In re (p) See, now, 19 & 20 Vict. c. 97,

Jameson, King v. Winn, [1908] 2 Oh. B. 3.

Ill: 77 L. J. Oh. 729 (oases on (g) As to this proposition, see 2

admissibility of evidence for purpose Phill. Ev., 10th ed. 366.

of construing wills).

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478 INTEBPBETATION OF DEEDS AND WRITTEN INSTRUMENTS.

of the instrument, that it belongs to the province of the
jury to ascertain the meaning of the words, and, therefore,
that, in the inquiry, extrinsic evidence to some extent must
be admissible (r) .

It may be scarcely necessary to observe, that the maxim
under consideration applies equally to the interpretation of
an Act of Parliament ; the general rule being that a verbis
legis non est recedendum (s). A court of law will not
make any interpretation contrary to the express letter of a
statute ; for nothing can so well explain the meaning of the
makers of the Act as their own direct words, since index
animi sermo, and maledicta expositio qua corrumpit tecetum (t) ;
it would be dangerous to give scope for making a construc-
tion in any case against the express words, where the mean-
ing of the makers is not opposed to them, and when no
inconvenience will follow from a literal interpretation (■!().
" Nothing," observed Lord Denman, " is more unfortunate
than a disturbance of the plain language of the legislature,
by the attempt to use equivalent terms " (x).

Cbrtum est quod certum reddi potest. — Noy, Max., 9th
ed. 265.) — That is sufficiently certain ichich can be made
certain.

General This maxim, which sets forth a rule of logic as well as of

of rule. ^ l^-'w, is peculiarly applicable in construing a written instru-

ment. For instance, although every estate for years must
have a certain beginning and a certain end, " albeit there
appear no certainty of years in the lease, yet, if by reference

(r) Per Erakine, J., 5 Scott, N. B. Max., p. 25.

988 ; per Parke, B., Clift v. Schwabe, (t) i Eep. 35 ; 2 Eep. 24 ; 11 Eep.

3 C. B. 469, 470. As to the con- 34 ; Wing. Max., p. 26.

struotion of a settlement in equity, (u) Eldrich's case, 5 Eep. 119.

see, per Ld. Campbell, Evans v. (x) Everard v. Poppleton, 5 Q. B.

Scott, 1 H. L. Gas. 66. 184 ; per Coltman, J., Oadsby v.

(s) 5 Eep. 119 ; cited. Wing. Barrow, 8 Scott, N. E. 804.

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INTEEPKETATION OF DEEDS AND WRITTEN INSTRUMENTS. 479

to a certainty it may be made certain, it sufficeth"(^). Lease.
Therefore, if a man make a lease for so many years as
J. shall name, this is a good lease for years ; for though
it is at present uncertain, yet when J. hath named the
years, it is reduced to a certainty. So, if a parson make
a lease for twenty years, if he shall so long live and con-
tinue parson, it is good, for there is a certain period fixed,
beyond which it cannot last, though it may determine sooner
on the lessor's death or his ceasing to be parson {z).

" It is true," said Lord Kenyon, " that there must be
a certainty in the lease as to the commencement and dura-
tion of the term ; but that certainty need not be ascertained
at the time ; for if, in the fluxion of time, a day will arrive
which will make it certain, that is sufficient. As, if a lease
be granted for twenty-one years, after three lives in being :
though it is uncertain at first when that term will com-
mence, because those lives are in being, yet when they die
it is reduced to a certainty, and id certum est quod certum
reddi potest " (a). But where an executory agreement for a
lease did not mention the date from which the lease was to
commence, it was held that it was not to be inferred that it
was to commence from the date of the agreement, in the
absence of language pointing to that conclusion (&).

Again, it is a rule of law, that, " no distress can be taken
for any services that are not put into certainty nor can be
reduced to any certainty, for id certum est quod certum reddi
■potest " (c) ; and, accordingly, where land is demised at a
rent which is capable of being reduced to a certainty, the
lessor will be entitled to distrain for the same (d).

The office of the habendum in a deed is to limit, explain,

(y) Co. Litt. 45 b. (c) Co. Litt. 96 a, 142 a ; Parke v.

{z) 2 Bla. Com. 143 : 6 Rep. 33 : Harris, 1 Salk. 262.

Co. Litt. 45 b. (^) Daniel v. Grade, 6 Q. B. 145 ;

(a) Ooodright v. Richardson, 3 Pollitt v. S'orrest, 11 Q. B. 949. As

rp g 4g3_ to a feofiment of lands, see Co. Litt.

(6)' Marshall v. Berridge, 19 Cb. 6a; and Maughan v. Sharpe, 17

D. 233. 0. B, N. S. 443.

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480

INTEBPKETATION OF DEEDS AND WRITTEN INSTEUJIBNTS.

Agreement.

Habendum, or qualify the words in the premises ; but if the words of
the habendum are manifestly contradictory and repugnant
to those in the premises, they must be disregarded (e). A
Uncertainty, deed shall be void if it be totally uncertain; but if the
King's grant refers to another thing which is certain, it is
sufficient ; as, if he grant to a city all liberties which London
has, without saying what liberties London has (/).

An agreement in writing for the sale of a house did not
describe the particular house, but it stated that the deeds
were in the possession of A. The Court held the agreement
sufficiently certain, since it appeared upon the face of the
agreement that the house referred to was the house of which
the deeds were in the possession of A., and, consequently,
the house might easily be ascertained, and id ccrtum est
quod certum reddi potest (g).

Again, the word " certain " must, in a variety of cases,
where a contract is entered into for the sale of goods, refer
to an indefinite quantity at the time of the contract made,
and must mean a quantity which is to be ascertained
according to the above maxim (h).

And where the law requires a particular thing to be done,
but does not limit any period within which it must be done,
the act required must be done within a reasonable time ;
and a reasonable time is capable of being ascertained by
evidence, and, when ascertained, is as fixed and certain as if
specified by Act of Parliament (i).

Where it was awarded that the costs of certain actions
should be paid by the plaintiff and defendant in specified
proportions, the award was held to be sufficiently certain,
since it would become so upon taxation of costs by the
proper officer (k). By the 3 & 4 Wm. IV., c. 42, s. 28,

Additional
Instances.

(e) Doe V. Steele, 4 Q. B. 663.

(/) Com. Dig., "Grant" (E. 14)
(G. 5) ; Mnch, L., 49.

(g) Owen v. Thomas, 3 My. & K.
353 ; Plant v. Bourne, [1897] 2 Oh.
281, 288 ; 64 L. J. Ch. 643.

(h) Per Ld. Ellenborough, Wild-
man V. Glossop, 1 B. & Aid. 12.

(i) See per Ld. Ellenborough,
Palmar v. Moxon, 2 M. & S. 50.

(k) Cargeij v. Aitcheson, 2 B. & C.
170 ; 26 R. K. 298. See Pedley v.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 481

interest may be given by the jury upon all debts payable at
a certain time. The plaintiff agreed to supply the defendant
with furniture upon the terms that payment was to be
made, one-third in cash, as soon as the goods and invoices
were delivered, and the balance in bills at six and twelve
months. An action being brought for the one-third cash
which the defendant had failed to pay, interest was claimed
from the date when the goods were delivered. The Court
allowed interest, considering the statute satisfied, if an event
be named on which payment is to be made, and that the
time of payment was fixed as being the time when the
goods and invoices were delivered (l).

Utile per inutile non vitiatur. (3 Eep. 10.) — Surplusage
does not vitiate that which in other respects is good
and valid.

It is a rule of extensive application with reference to
the construction of written instruments, and in the science
of pleading, that matter which is mere surplusage may be
rejected, and does not vitiate the instrument or pleading
in which it is ioimA—Su'iplusagiuvi non meet {m) is the
maxim of our law.

Goddard, 7 T. B. 73 ; Wood v. Wil- Co., L. E. 10 Q. B. S71 : ii L. J.

son, 2 Or. M. & B. 241 ; Waddle v. Q. B. 216 ; Orath v. Boss, ii L. J.

Doummcm, 12 M. & W. 562 ; Smith v. 0. P. 315. See, however, Merchant

HartUy, 10 0. B. 800, 805; Graham Shipping Co. v. Armitage, L. E. 9

V Da/rcey, 6 0. B. 539 ; HoUsworth Q. B, 99, 114 ; L. O. £ D. B. Co. v.

v. Barsham, 2 B. & S. 480. S. E. B. Co., [1898] A. C. 429 : 68

The maxim was applied to a L. J. Ch. 93.

valuation in Gordon v. WUUhouse, (m) Branch, Max., 5th ed. 216.

18 0. B. 747, 753— to an indenture Non solent gucB dbwndant vitiare

of apprenticeship in B«3. v. WooldaU, scrvpturas, D. 50, 17, 94.

6 Q. B. 549, 566. It may also be " Surplusage (in pleading) la

applioahle in determining whether something that is altogether foreign

an action of debt will lie under and inapplicable : "i)er Maule, J.,

given circumstanoes ; see Barher v. Aldis v. Mason, 11 0. B 189^ See

ButoUr, 8 Q. B. 863, 870. also, as to surplusage, Shep Touch.

(I) Buncombe v. Brighton Club 236; cited, per Williams, J„ Janes

L.M.

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482

INTBEPKBTATION OP DEEDS AND WRITTEN INSTRUMENTS.

Examples. Accordingly, where words of known signification are so

Deed. placed in the context of a deed that they make it repug-

nant and senseless, they are to be rejected equally with
words of no known signification (n). It is also a rule in
conveyancing, that, if an estate be granted in any premises,
and that grant is express and certain, the habendum,
although repugnant to the deed, shall not vitiate it. If,
however, the estate granted in the premises be not express,
but arise by implication of law, then a void habendum, or
one differing materially from the grant, may defeat it (o).
Award. A cause and all matters of difference were referred to

the arbitration of three persons, the award of the three, or
of any two of them, to be final. The award purported on
the face of it to be made by all three, but was executed
by two only of the arbitrators, the third having refused to
sign it. This award was held to be good as the award
of the two, for the statement that the third party had
concurred, might, it was observed, be treated as mere
surplusage, the substance of the averment being that two
of the arbitrators had made the award {p).

So where the directors of an unincorporated and un-
registered joint-stock company issued promissory notes
which purported to bind the shareholders severally, as
well as jointly, it was held that it was beyond the power
of the directors to make the shareholders severally liable

V. Whithrcad, 11 C. B. 412. Maclae
V. Sutherlwnd, 3 E. & B. 1, 33, illus-
trates the maxim.

(n) Vaugh. R. 176. See Whittome
V. Lamb, 12 M. & W. 813.

(o) Arg., GoodtUley. Qibbs,5 B. &
0. 712, 713; 29 B. B. 366; and
cases there cited ; Shep. Touch. 112,
113 ; Hobart, 171. See also, in-
stances of the application of this
rule to an order of removal, Beg. v.
Botherham, 3 Q. B. 776, 782 ; Beg.
V. Silkstone, 2 Q. B. 422; to an
order under 2 & 3 Vict. c. 85, s. 1,

Beg. V. Goodall, 2 Dowl. P. C,
N. S., 382 ; Beg. v. Oxley, 6 Q. B.
256 ; to a conviction, Chaney v.
Payne, 1 Q. B. 722 ; to a notice of
objection under 6 & 7 Vict. c. 18,
Allen V. Souse, 8 Scott, N. B. 987 ;
cited, Arg., 2 0. B. 9 ; to an infor-
mation, A.-G. V. CUrc, 12 M. & W.
640.

(fl White V. Sharp, 12 M. & W.
712. See also, per Alderson, B.,
Wynne v. Edwards, 12 M. & W.
712 ; Harlow v. Bead, 1 0. B. 733.

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INTEBPEETATION OF DEEDS AND WRITTEN INSTKUMBNTS. 483

upon the notes, but that the expression in the notes, by
which a separate liability was sought to be created, might
easily be detached in construing it and be taken pro 71011
scripta {q).

The above maxim, however, applies peculiarly to plead- Application
ing ; in which it is a rule, that matter immaterial cannot pjeadin™
operate to make a pleading double, and that mere sur-
plusage does not vitiate a plea, and may be rejected (r).

Lastly, with respect to an indictment, it is laid down, indictment,
that an averment, which is altogether superfluous, may
here be rejected as surplusage (s). Accordingly, where a
criminal information was laid against a member of the
legislative Assembly of New South Wales, for an assault
on a member, committed within the precints of the House,
while the Assembly was sitting, which information averred
that such assault was in contempt of the Assembly (that
being in itself no offence), it was held that the information
was good, as the alleged contempt could be treated as sur-
plusage, and the information sustainable for an assault (t).
If, however, an averment be part of the description of the
offence, or be embodied by reference in such description,
it cannot be so rejected, and its introduction may, unless
an amendment be permitted, be fatal («).

Falsa Demonstbatio non nocbt cum de Coepobb constat.
(6 T. B. 676.) — Mere false description does not vitiate,
if there he sufficient certainty as to the object.
Falsa demonstratio means an erroneous description of Meaning

01 rule,

a person or a thing in a written instrument ; and the above

(2) Maclae v. Sutherland, 3 E. & rejection of surplusage in a deolara-

B. 1. tion.

(r) Co. Litt. 303 b. ; Steph. PI., (s) iJegr. v. Parfer, L.E.I 0.0. 225.

6tli ed. 810, 341. {t) A.-G. of N. S. Wales v.

Bmg V. Boxburgh, 2 Or. & J. 418 Macpherson, L. B. 3 P. 0. 268.

(cited by Bolfe, B., Duke v. Forbes, {u) Dickins. Quart. Sess., 5th ed.,

1 Exch. 356], is an instance of the by Mr. Serjt. Talfourd, 175.

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484 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

rule respecting it signifies that where the description is made
up of more than one part, and one part is true, but the other
false, there, if the part which is true describes the subject
with sufficient legal certainty, the untrue part will be rejected
and will not vitiat-e the devise (x) : the characteristic of cases
within the rule being, that the description, so far as it is
false, applies to no subject at all, and, so far as it is true,
applies to one only {jj). Thus, where a testator devised
" all his freehold houses in Aldersgate Street, London,"
having in fact only leasehold houses there, it was held that
the word " freehold " should rather be rejected than the will
be wholly void, and that the leasehold houses should pass (z) ;
and again, where a testator devised " his freehold farm
situate at E. and now in the occupation of J. B.," it was
held that the whole farm passed under the devise, although
a part of it was copyhold (a). In the latter case weight
was given to the fact that there was no residuary devise,
for a will should be read, if possible, so as to lead to a testacy,
not an intestacy (6) ; and the devise in question was construed
according to the principle, that " if the words of description
when examined do not fit with accuracy, and if there must
be some modification of some part of them in order to place
a sensible construction on the will, then the whole thing
must be looked at fairly in order to see what are the leading
words of description and what is the subordinate matter,
and for this purpose evidence of extrinsic facts may be
regarded "(c).
Erroneous The rule as to falsa demonstratio has sometimes been

stated to be that " if there be an adequate and sufficient
description, with convenient certainty of what was meant

(») Per Lindley, M.B., Cowen v. cited [1899] 2 Oh. 312.
TruefiU, [1899] 2 Ch. 309, 311 : 68 (a) Be Bright-Smith, 31 Oh. D.

L. J. Oh. 563, citing Jarman on 3U : 55 L. J. Oh. 365.
Wills, 5th ed. 7i2. (6) Be Harrison, 30 Oh. D. 390,

(J/) Id. ; and per Alderson, B., 394 : 55 L. J. Ch. 799.
Morrell v. Fisher, 4 Exch. 591, 604. (c) Per Ld. Selborne, BardwicJcY.

(2) Day V. Trig, 1 P. Wms. 286 ; Sardtoiok, L. B. 16 Eq. 168, 175.

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addition.

INTERPEBTATION OP DEEDS AND WRITTEN INSTRUMENTS. 485

to pass, a subsequent erroneous addition will not vitiate
it" (d): quicquid demonstraice rei additur satis demonstrato'
frustra est (e). But in applying the doctrine oi falsa demon-
stratio it is not material in what part of the description the
falsa demonstratio is found : to limit the doctrine to cases
in which the misdescription occurs at the end of the sentence
would be to reduce a very useful rule, which is founded on
good sense, to a mere technicality (/). Incirile est nisi tota
sententia perspecta de aliqud parte judicare (g). The rule,
however, is well illustrated by the case of a gift of an entire
thing which is sufficiently described, followed by an insuffi-
cient enumeration of the particulars of which that entirety
consists : for the latter may be treated as a falsa descriptio
qu(B non nocet, unless, indeed, the context and surrounding
circumstances show that what happens to be a blundering
enumeration of particulars was a designed limitation of the
gift itself (h). " Where some subject-matter is devised as
a whole under a denomination, which is applicable to the
entire land, and then the words of description that include
and denote the entire subject-matter are followed by words
which are added on the principle of enumeration, but do
not completely enumerate and exhaust all the particulars
which are comprehended and included within the antecedent
universal or generic denomination : then the ordinary prin-
ciple and rule of law which is perfectly consistent with
common sense and reason is this : that the entirety which
has been expressly and definitely given, shall not be
prejudiced by an imperfect and inaccurate enumeration of
the particulars of the specific gift " (i).

(d) PCT-AlderBon,B.,4Exch.604; N. S. 45i ; Com. Dig., "Fait"
seeaiso, per FsbrkeiB., Llewellyn V. (E. i) ; Cambridge v. Bous, 8 Ves.
Earl of Jersey, 11 M. & W. 189. 12 ; 6 B. E, 199 ; EnoUn v. Wylie,

(e) D. 33, 4, 1, § 8. 10 H. L. Cas. 1.

(/) See Cowen v. Tnoefitt, supra. (i) Per Ld. Westbury, West v.

(g) Hob. 171. Lawday, 11 H. L. Cas. 884. See

(h) Travers v. Blundell, 6 Oh. D. also, per Lefroy, C.J., Roe v. Lid-

436, 445. See Harriscm v. Syde, 4 ivell, 11 Ir. 0. L. R. 326, cited arg.

H. & N. 805 ; Josh v. Josh, 5 C. B. Skull v. Glemster, 16 0. B. N. S.

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486

INTEBPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

The maxim is often cited . without the addition of the
Cumde words, cum de corpore constat (k), but these words seem to

C07'1!)0yC

constat. l>e of some importance ; for it has been said that the maxim

applies only — as expressed by Lord Kenyon in Thomas v.
Thomas {I) — to cases " in which the false demonstration is
superadded to that which was sufficiently certain before " (rn).
The doctrine, falsa demonstratio non nocet, applies " only
where the words of the devise, exclusive of the falsa
domonstratio, are sufficient of themselves to describe the
property intended to be devised, reference being had, if
necessary, to the situation of the premises, to the names
by which they have been known, or to other circumstances
properly pointing to the meaning of the description " («).

The foregoing observations are, in the main, applicable
not only to wills, but to other instruments (o) ; so that
the characteristic of. cases strictly within the above rule
is this, that the description, so far as it is false, applies to
no subject, and, so far as it is true, applies only to one
subject; and the Court, in these cases, rejects no words
save words shown to have no application to any subject {p).
The following case shows the anxiety of the Court to give
effect to a testator's intention, where the subject-matter of
the bequest is inaccurately described, but is capable of
explanation by extrinsic evidence. A testator by his will

89 ; In re Brochett, Dawes v. Miller, (m) Per Wigttman, J., Doe v.

[1908] 1 Oh. 185 : 77 L. J. Ch. 245. Hubbard, 15 Q. B. 240.

{k) Or" cum de persond constat J " (to) Per Patteson, J,, 15 Q. B.

see 6 T. K. 676. The maxim is 241.

cited in full in the judgment, 6 Oh. (o) Lond. Or. Junction B. Co. v.

D. 444. Freeman, 2 Scott, N. E. 705, 748.

(I) 6 T. B. 671, 676. See Mosley See Beg. v. Wileock, 7 Q. B. 317 ;

V. Massey, 8 East, 149 ; p^r Parke, Jack v. M'Intyre, 12 01. & P. 151 ;

J., Doe V. Galloway, 5 B. & Ad. 51 ; Ormerod v. Chadwick, 16 M. & W.

39 B. R. 381; Dyne v. Nutley, 14 367; followed by Wightman, J.,

C. B. 122 ; per Littledale, J., Doe v. Beg. v. Stretfield, 32 L. J. M. C. 236.

Bower, 3 B. & Ad. 549; 37 R. R. (p) See Wigram, Ex. Ev., 4th

466 ; Gynes v. Kemsley, 1 Freem. ed., 145, 165 ; Judgm., Morrell v.

293; Hob. 32, 65, 171: Vin. Abr., Ksfee?-, 4 Exch. 604 ; Manny. Mann,

" Devise " (T. b.), pi. 4. 14 Johns. (U.S.), R. 1.

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gave an annuity of £21 per annum, which " I purchased
of " G. He had no annuity of that amount, but he
had an annuity of £46 which he had purchased from
G., and he had insured G-.'s life for the amount of the
purchase-money, at the yearly premium of £25, leaving
£21 as his beneficial interest in the annuity. It was held
that the entire annuity of £46 per annum passed by the
bequest (q).

Where accordingly a question involving the legal doctrine
now before us arises upon a will, we must inquire whether
there is a devise of a thing certain; if there be, the
addition of an untrue circumstance will not vitiate the
devise (r).

In Sehcood v. Mildmai/ (s), the testator devised to his Selwoodv.
wife part of his stock in the £4 per cent. Annuities of
the Bank of England, and it was shown, by parol evidence,
that at the time he made his will he had no stock in the
£4 per cent. Annuities, but that he had had some, which
he had sold out, and the proceeds of which he had
invested in Long Annuities. It was held that the bequest
was, in substance, a bequest of stock, using the words
as a denomination, not as the identical corpus of the stock ;
and as none could be found to answer the description but
the Long Annuities, it was decided that such stock should
pass, rather than the will be altogether inoperative.
Again, a testatrix, by her will, bequeathed several legacies
of £3 per cent. Consols standing in her name in the
books of the Bank of England; but, at the date of her
will, as well as of her death, she possessed no such stock,
nor stock of any kind whatever. It was held that, the
ambiguity in this case being latent, evidence was admissible

(3) Pwchase v. ShalUs, 14 Jur. Fisher, i Exoh. 599. And, as illus-

403 ; cf. Be Bowe, [1898] 1 Ch. 153 : trating the passage above cited, of.

67 L. J. Oh. 87. Doe v. Bubbard, 15 Q. B. 227, with

(r) Plowd. 191 ; cited and adopted Doe v. Carpenter, 16 Id. 181.

in Nightingall v. Smith, 1 Exch. (s) 3 Yes. 806; cf. Be Weeding,

886 ; and, per Parke, B., Morrell v. [1896] 2 Ch. 364.

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488 INTERPEETATION OF DEEDS AND WRITTEN INSTRUMENTS.

to show how the mistake of the testatrix arose, and to dis-
cover her intention (t).

But where a testatrix died possessed of property in
Consols, Eeduced Annuities, and Bank Stock, and by her
will bequeathed " the whole of my fortune now standing in
the Funds to E. S." it was held that the Bank Stock did
not pass («).

On the same principle, in the case of a lease of part of
a park, described as being in the occupation of S., and as
lying within specified abuttals, with all houses belonging
thereto, and " which are now in the occupation of S." : it
was held that a house, situate within the abuttals, but not
in the occupation of S., would pass (x). So, where an
estate is devised, called A., and described as in the occupa-
tion of B., and it is found that, though there is an estate
Rule appii- called A., yet the whole is not in B.'s occupation (y) ; or,

catle to win. , ,,•■,■■,, -i

where an estate is devised to a person whose surname
or Christian name is mistaken, or whose description is
imperfect or inaccurate : in these cases parol evidence is
admissible to show what estate was intended to pass, or
who was the devisee intended to take, provided there is
sufficient indication of intention appearing on the face of
the will to justify the application of the evidence (z). Thus,
a devise of all the testator's freehold houses in Alder sgate
Street, where, in fact, he had no freehold, but had lease-
hold houses, was held to pass the latter, the word " free-
hold " being rejected (a) ; the rule being, that, where any

(t) Lindgren v. Lindgren, 9 Beav. v. Pamj, 13 M. & W. 356.

358 ; citing Selwood v. Mildway, 3 (y) Ooodtitle v, Southern, 1 M. &

Ves. 306 ; 4 R. R. 1 ; Miller v. S. 299 ; 14 R. R. 435.

Travers, 8 Bing. 244 ; 34 R. B. 703 ; («) Judgm., Miller v. Travers, 8

and Doe v. Miscocks, 5 M. & W. 363. Bing. 248 ; 84 R. R. 703 ; Doe v.

(m) SUngsby v. Grainger, 7 H. L. Hiscocks, 5 M. & W. 363 ; Bishton

Cas. 273. V. Cobb, 5 My. & Or. 145 ; see Be

{x) Doe V. Oalloway, 5 B. & Ad. Boddington, 25 Ch. D. 685 ; Be

43 ; 39 R. R. 381 ; Beaumont v. Waller, 68 L. J. Oh. 526.

MeU, 1 B. & Aid. 247 ; 19 B. R. (a) Day v. Trig, 1 P. Wms. 286 ;

308 ; 3 Preston Abstr. Tit. 206 ; Doe Doe v. Cranstoun, 7 M. & W. See

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INTBEPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 489

property described in a will is sufficiently ascertained by
the description, it passes under the devise, although all
the particulars stated in the will with reference to it may
not be true (6). In other words, nil facit error nominis
cum de coi-pore rcl persona constat (c). " It is fit, and there-
fore required," observed Mr. Preston {d), " that things
should be described by their proper names ; but, though
this be the general rule, it admits of many exceptions, for
things may pass under any denomination by which they
have been usually distinguished."

In a case (e), where property was devised to the second Blundell\.
son of Edward W., of L., this devise was held, upon the
context of the will, and upon extrinsic evidence as to the
state of the W. family, and the degree of the testator's
acquaintance with the different members of it, to mean a
devise to the second son of Joseph W., of L., although it
appeared that there was in fact a person named Edward
Joseph W., the eldest son of Joseph W., who resided at L.,
and who usually went by the name of Edward only ; and
it was remarked that, according to the general rule of law
and of construction, if there had been two persons, each
fuUy and accurately answering the whole description, evidence
might be received, or arguments from the language of the
win, and from circumstances, be adduced, to show to which
of those persons the will applied; but that where one
person, and only one, fully and accurately answers the
whole description, the Court is bound to apply the will
to that person. It was, however, further observed that an
exception would occur in applying the above rule, where

Parker v. Marchant, 6 Scott, N. E. (c) See Janes v. Whitbread, 11 C.

485 ; Goodman v. Edwards, 2 My. & B. 406 ; and Stanley v. Stanley, 2

K 759 ; 39 E. R. 348 ; Hobson v. J. & H. 491.

Blackburn, 1 My. & K. 571: 36 (d) 3 Prest. Abst. Tit. 206; 6

B. E. 881. Eep. 66.

(6) Per Parke, B,, Doe v. Cran- (e) Blundell v. Gladstone, 1 Phil.

stoun, 7 M. & W. 10 ; Newton v. 279 ; S. 0. nom. Ld. Camoys v.

Lucas, 1 My. & Or. 391. Blwndell, 1 H. L. Gas. 778.

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INTBRPKETATION OF DEEDS AND WRITTEN INSTRUMENTS.

Bestriotion
of rule.

Miller v.
Travcrs.

it would lead to a construction of a devise manifestly
contrary to what was the intention of the testator, as
expressed by his will, and that the rule must be rejected
as inapplicable to a case in which it would defeat instead of
promoting the object for which all rules of construction
have been framed (/).

Although an averment to take away surplusage is good,
yet it is not so to increase that which is defective in the
will of the testator (h) ; and, it has been observed (i), that
there "is a diversity where a certainty is added to a thing
which is uncertain, and where to a thing certain." In a
leading case on this subject (A.), testator devised all his
freehold and real estates in the county of L. and city of
L. It appeared that he had no estates in the county of L.,
a small estate in the city of L., inadequate to meet the
charges in the will, and estates in the county of C, not
mentioned in the will. It was held that parol evidence
was inadmissible to show the testator's intention that his
real estates in the county of C. should pass by his will.
For it was observed that this would be not merely calling
in the aid of extrinsic evidence to apply the intention of
the testator, as it was to be collected from the will itself,
to the existing state of his property : it would be calling in
aid extrinsic evidence to introduce into the will an intention
not apparent upon the face of it. It would be not simply
removing a difficulty arising from a defective or mistaken
description, it would be making the will speak upon a
subject on which it was altogether silent, and would be the

(/) For later cases on false de-
scription of beneficiaries in a will,
see Anderson v. Berkley, [1902] 1
Oh. 936 : 71 L. J. Ch. 444 ; Blake's
Trusts, In re, [1904] 1 Ir. B. 98 ;
Sharp, In re : Maddison v. Gill,
[1908] 2 Ch. 190 : 77 L. J. Ch. 724.

(h) Per Anderson, O.J., Godb.
131, recognised 8 Bing. 253 ; per IjA.
Eldon, 6 Ves. jun. 397.

(i) See, per Ld. EUenborough,
Doe V. Greathed, 8 East, 103 : Hob.
E., 172; Doe v. Ashley, 10 Q. B.
663.

(k) Miller v. Travers, 8 Bing. 244 ;
34 B. B. 708. See the observations
on this decision by Sir J. Wigram,
in the treatise already referred to,
and, per Ld. Brougham, Mostyn v.
Mostyn, 5 H. L. Gas. 168.

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INTERPEETATION OF DEEDS AND WRITTEN INSTRUMENTS. 491

same thing in effect as the filling up a blank which the
testator might have left in his will : it would amount, in
short, by the admission of parol evidence, to the making of
a new devise for the testator, which he was supposed to
have omitted (l).

If, then, with all the light which can be thrown upon
the instrument by evidence as to the meaning of the
description, there appears to be no person or thing
answering in any respect thereto, it seems, that, to admit
evidence of a different description being intended to be
used by the writer, would be to admit evidence for the
substitution of one person or thing for another, in violation
of the rule, that an averment is not good to increase that
which is defective in a written instrument (m) . Accordingly
where a testator by his will appointed Francis Courtenay
Thorpe, gentleman, as one of his executors, and there was
living a youth of twelve years of age who alone answered
the description, evidence to show that the testator referred
to the father of the youth was not admitted (n).

Included in the maxim as to falsa demonstratio, is the Prasentia

, ^ T _ ■ .1 T .• corporis tollit

rule laid down by Lord Bacon m these words : prcesentia errorem
coi-poris tollit errorem nominis, et Veritas nominis tollit errorem '»<»'""»«•
demonstrationis (o) ; which he thus illustrated : " If I give a
horse to J. D., when present, and to say to him, ' J. S. take

(Z) 8 Bing. 249, 250. 155 ; S. C, 3 De G. M. & G. 140.

(to) 2 Phil. Evid., 10th ed. 345. In Drake v. Drake, 8 H. L. Cas.

(n) B. V. Peel, L. R. 2 P. & D. 46. 179, Ld. Campbell observed, " There

(o) Bac. Max., reg. 24; 6 Eep. is a maxim that the name shall
66 ; 1 Ld. Eaym. 303 ; 6 T. B. 675 ; prevail against an error of demon-
Doe V. Huthwmte, 3 B. & Aid. 640 ; stration ; but then you must first
22 E. E. 508 ; per Gibbs, O.J., S. C, show that there is an error of demon-
8 Taunt. 318 ; NicoU v. Chambers, stration, and until you have shown
11 C. B. 996, and Hopkins v. Hitch- that, the rule Veritas nominis tollit
cock, 14 C. B. N. S. 65, 73, where errorem demonstrationis does not
there was a misdescription of pro- apply. I think that there is no pre-
perty in a contract of sale. As to sumption in favour of the^ name
the maxim supra, see the remarks more than of the demonstration."
of Ld. Brougham in Ld. Camoys v. The maxim was applied by Byles,
Blundell, 1 H. L. Cas. 792, 793; J., Way v. Hearn, 13 C. B. N. S.
Mostyn v. Mostyn, 5 H. L. Cas. 307.

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this,' it is a good gift, notwithstanding I call him by a
wrong name. So, if I say to a man, ' Here, I give you my
ring with the ruby,' and deliver it, and the ring is set with
a diamond, and not a ruby, yet this is a good gift. In like
manner, if I grant my close, called ' Dale,' in the parish of
Hurst, in the county of Southampton, and the parish extends
also into the county of Berks, and the whole close of Dale
lies, in fact, in the last-mentioned county, yet this false
addition will not invalidate the grant (p). Moreover, where
things are particularly described, as, ' My box of ivory lying
in my study, sealed up with my seal of arms,' ' My suit of
arras, with the story of the Nativity and Passion ; ' inas-
much as of such things there can only be a detailed and
circumstantial description, so the precise truth of all the
recited circumstances is not required ; but, in these cases,
the rule is, ex multitudine sir/nontm colligitur identitas vera;
therefore, though my box were not sealed, and though the
arras had the story of the Nativity, and not of the Passion
embroidered upon it, yet, if I had no other box and no
other suit, the gifts would be valid, for there is certainty
sufficient, and the law does not expect a precise description
of such things as have no certain denomination. Where,
however, the description applies accurately to some portion
only of the subject-matter of the grant, but is false as to
the residue, the former part only will pass ; as, if I grant
all my land in D., held by J. S., which I purchased of
J. N., specified in a demise to J. D., and I have land in D.,
to a part of which the above description applies, and have
also other lands in D., to which it is in some respects
inapplicable, this grant will not pass all my land in D., but
the former portion only" (q). So, if a man grant all his
estate in his own occupation in the town of W., no estate

(p) See Anstee v. NeUns, 1 H. & 77, 78 ; Bao. Abr., " Grants " (H. 1) ;

N. 225 ; p^rByles, 3., Band Y.Green, Toml. Law Diet. "Gift;" Noy,

9 C. B. N. S. 477. Max , 9tli ed., p. 50.

(2) Bao. Works, vol. 4, pp. 73, 75,

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 493

can pass except what is in his own occupation and is also
situate in that town (?•).

In an important case (s) connected with criminal pro-
cedure, the maxim prcesentia coiyoris tollit crrorem nominis
was judicially applied, the facts being these : Preparatory
to a trial for mm-der, the name of A., a juror on the panel,
was called, and B., another juror, on the same panel,
appeared, and by mistake answered to the name of A.,
and was sworn as a juror. A conviction ensued, which a
majority of the Court for Crown Cases Reserved held ought
not to be set aside, one of the learned Judges thus founding
his opinion upon the maxim cited : — " This mistake is not
a mistake of the man, but only of his name. The very
man who, having been duly summoned, and being duly
qualified, looked upon the prisoner, and was corporeally
presented and shown to the prisoner for challenge, was
sworn and acted as a juryman. At bottom the objection
is but this, that the officer of the Court, the juryman being
present, called and addressed him by a wrong name. Now,
it is an old and rational maxim of law, that where the party
to a transaction, or the subject of a transaction, are either
of them actually and corporeally present, the calhng of
either by a wrong name is immaterial. Prcesentia corporis
tollit errorcm nominis. Lord Bacon, in his maxims (t), fully
explains and copiously illustrates this rule of law and good
sense, and shows how it applies, not only to persons, but to
things. In this case, as soon as the prisoner omitted the
challenge, and thereby in effect said, ' I do not object to the
juryman there standing,' there arose a compact between the
Crown and the prisoner that the individual juryman there
standing corporeally present should try the case. It matters
not, therefore, that some of the accidents of that individual,
such as his name, his address, his occupation, should have
been mistaken. Constat de corpore."

(r) 7 Johns. (U.S.), R. 224. M. C. 121.

(s) Beg. V. Mellor, 27 L. J., (0 Ubi supra.

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INTEKPKBTATION OF DEEDS AND WBITTBN INSTRUMENTS.

Rules as to
oonstruotion
of grants.

The rules, it has been remarked (m), which govern the
construction of grants have been settled with the greatest
wisdom and accuracy. Such effect is to be given to the
instrument as will effectuate the intention of the parties, if
the words which they employ will admit of it, itt res magis
valeat quam pcreat. Again, if there are certain particulars
once sufficiently ascertained which designate the thing in-
tended to be granted, the addition of a circumstance, false
or mistaken, will not frustate the grant {x). But when the
description of the estate intended to be conveyed includes
several particulars, all of which are necessary to ascertain
the estate to be conveyed, no estate will pass except such as
will agree with the description in every particular (y).

In Doe V. Rouse {z), Lord Bacon's maxim above cited was
felicitously applied. There the testator — having a wife
Mary, who survived him — went through the ceremony of
marriage with a woman named Caroline, who continued to
reside with him as his wife to the time of his death. Shortly
before his death he devised property to " my dear -wife Caro-
line.'" It was held that Caroline took under this devise.
" The testator," observed Maule, J., " devises the premises
in question to his dear wife Caroline. That is a devise to a
person by name, and one which appears to be that of the
lessor of the plaintiff. There is no competition with any
one else of the same name, to whom it can be suggested
that the will intended to refer. The only question is,
whether the lessor of the plaintiff, not being the lawful
wife of the testator, properly fills the description of his
' dear wife Caroline.' Formerly the name was held to be
the important thing. This is shown by the 25th maxim

(u) Jackson v. Clark, 7 Johns.
(U.S.) E. 223, 224; recognised 18
Id. 84.

(x) BloAjne v. Qold, Oro. Oar. 447,
473, where the rule was applied to a
devise.

(y) 3 Atk. 9 ; Dyer, 50.

(z) 5 0. B. 422. The distinction
must be noticed between a mere
false description and a description
amounting to a condition which
must be fulfilled ; see Be Boddmg-
ton, 25 Oh. D. 685.

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INTERPBBTATIOK OP DEEDS AND WRITTEN INSTBUMENTS. 495

of Lord Bacon, to which I have before adverted : — ' Veritas
nominis tollit crrorem demonstrationis. So, if I grant land
rpiscopo nunc Londinensi qui me erudirit in pucritid : this is
a good grant, although he never instructed me.' That rule
has no doubt been relaxed in modern times, and has given
place to another, that the construction of the devise is to be
governed by the evident intention of the testator. There
are cases in which the Courts have gone some length in
opposition to the actual words of the will ; but always with
a view to favouring the apparent or presumed intention of
the testator. Here, however, the struggle against the old
rule is not that the intention of the testator may be best
effectuated by a departure from it, but to get rid of a devise
to the person who was really intended to take. Here is a
person fitly named, and there can be no reasonable doubt
that she was the person intended. It being conceded that it
was the testator's intention that Caroline should have the
property, and he having mentioned her by an apt descrip-
tion, I see no ground for holding that because the words
' my dear wife ' are not strictly applicable to her, the in-
tention of the testator should fail and the property go to
some one to whom he did not mean to give it. Caroline
was de facto the testator's wife ; and she lived with him as
such down to the time of his death. It is possible that the
Jirst marriage may not have been a valid one. At all events,
if Mary was his lawful wife, all that can be said is that the
testator had been guilty of bigamy. It is not the case of a
description that is altogether inapplicable to the party, but
of a description that is in a popular sense applicable. The
competition is between one whom the testator clearly did
mean, and another whom it is equally clear that he did not
mean. Interpreting the language he has used in its proper
and legitimate manner, and regard being had to the circum-
stances existing at the time of the execution of the will,
there can be no doubt that the intention of the testator is
best effectuated by holding that the lessor of the plaintiff is

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'196 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

the person designated, and that apt words have been used

to convey the property in question to her."

Legal Lastly, the maxim, non accipi clehent verba in demonstra-

mtendment. .

ttonem falsam qua competent in limitationem veram (a),

embodies a rule which sets an important limit to the
application of the maxim, falsa demonstratio non nocet ; and
this rule means that if it stand doubtful upon the words,
whether they import a false reference or demonstration, or
whether they be words of restraint that limit the generality
of the former words, the law will never intend error or
falsehood. If therefore there is some land wherein all the
demonstrations are true, and some wherein part are true
and part false, they shall be intended words of true limita-
tion, to pass only those lands wherein all those circumstances
are true (b). The doctrine relating to the rejection of falsa
demonstratio never can be properly applied where there is a
property which every part of the description fits and on
which every word thereof has full effect (c). Where terms
can be applied so as to operate on a subject-matter and
limit the other terms employed in its description — or, in
other words, where there is a subject-matter to which they
all apply — it is not possible to reject any of those terms as
2. falsa demonstratio (d). If all the terms of the description
fit some particular property, you cannot enlarge them by
extrinsic evidence so as to include anything which any part
of those terms does not accurately fit (e). If a man pass
lands, describing them by particular references, all of which
references are true, the Court cannot reject any one of
them(/).

(a) Bac. Max., reg. 13. C. B. N. S. 698, 752 ; see also Be

(b) Bac. Max., reg. 13, adfinem; Seal, [1894] 1 Cli. 316: 68 L. J.
per Parke, J., Doe v. Bower, 3 B. & Oh. 275.

Ad. 459, 460: 37 B. B. 466; Doe {d) Judgm., Smith v. Bidgway,

V. Oxenden, 3 Taunt. 147 : 12 B. B. L. E. 1 Ex. 332, 333.

619 ; Judgm., Morrell v. Msher, i (e) Per Ld. Selborne, Hardmck v.

Exoh. 604 ; per Willes, J., Josh v. Hardwick, L. E. 16 Bq. 175.

Josh, 5 0. B. N. S. 463. (/) Per Le Blanc, J., Doe v.

(c) Judgm., Webber v. Stanley, 16 Lyford, 4 M. & S. 557 : 16 E. E. 537.

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INTEBPEETATION OP DEEDS AND WRITTEN INSTRUMENTS. 497

Before concluding these remarks, it may be well to state Buies as to
shortly the rules respecting ambiguity and falsa demonstrafio,
in connection with the exposition of wills, which seem to be
applicable to four classes of cases : —

1. Where the description of the thing devised, or of the
de\isee, is clear upon the face of the will, but, upon the
death of the testator, it is found that there is more than
one estate or subject-matter of devise, or more than one
person whose description follows out and fills the words
used in the will : in this case parol evidence is admissible
to show what thing was intended to pass, or who was
intended to take (</).

2. Where the description contained in the will of the
thing intended to be devised, or of the person who is intended
to take, is true in part, but not true in every particular : in
this class of cases parol evidence is admissible to show what
estate was intended to pass, and who was the devisee
intended to take, provided there is a sufficient indication of
intention appearing on the face of the will to justify the
application of the evidence (g).

3. A third class of cases may arise, in which a judge, if
he knew aliunde for whom or for what an imperfect descrip-
tion was intended, would discover a sufficient certainty to
act upon ; although, if ignorant of the intention, he would
be far from finding judicial certainty in the words of the
devise ; and here it would seem that evidence of intention
would not be admissible, the description being, as it stands,
so imperfect as to be useless, unless aided thereby (li).

4. It may be laid down as a true proposition, which is
indeed included within that secondly above given, that, if
the description of the person or thing be wholly inapplicable
to the subject intended or said to be intended by it, evidence
is inadmissible to prove whom or what the testator really
intended to describe (i).

(g) 8 Bing. 248. ed. 167.

(h) See Wigram, Extrin. Ev., 4th (i) Id. 163.

L.M. 32

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

Lastly, we may observe that the raaxira, falsa demonstratio
non nocct, which we have been considering, obtained in the
Koman law (k) ; for we find it laid down in the Institutes,
that an error in the proper name or in the surname of the
legatee should not make the legacy void, provided it could
be understood from the will what person was intended to
be benefited thereby. Si quidem in nomine, cognominc,
prcenomine legatarii testator erraverit, cum de persona constat,
nihilominus valet legatum (I). So, it was a rule akin to the
preceding, th&t falsa demonstratione legatum non perimi(m),
as if the testator bequeathed his bondman, Stichus, whom
he bought of Titius, whereas Stichus had been given to him
or purchased by him of some other person ; in such a case
the misdescription would not avoid the bequest («).

It is evident that the maxims above cited, and others to
a similar purport which occur both in the civil law and in
our own reports, are, in fact, deducible from those very
general principles with the consideration of which we com-
menced this chapter — Benigne faciendce sunt interpretationes,
et rerha intentioni non c contra debent inservire (o).

(k) See Phllllm., Eoman L., 35.

(I) I. 2, 20, 29; compare D. 30,
1, 4; also, 2 Domat. Bk. 2, tit. 1,
s. 6, § 10, 19 ; s. 8, § 11.

(m) I. 2, 20, 30. See Whitfield v.
CUment, 1 Mer. 402 ; 15 E. E. 143.

(n) I. 2, 20, 30; Wood, Inst.,
3rd ed. 165.

(o) It may probably be unneces-
sary to remind tbe reader that tbe

cases decided with reference to the
rule of construction considered in
the preceding pages are exceedingly
numerous, and that such only have
been noticed as seemed peculiarly
adapted to the purposes of illustra-
tion. A similar remark is equally
applicable to the other maxims
commented on in this chapter.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 499

Verba generalia restringuntur ad Haeilitatbm Eei vel
PERSON.E. (Bac. Max. reg. 10.) — General tvords may
be aptly restrained according to the matter or person to
which they relate (p).

" It is a rule," observed Lord Bacon (q), " that the king's Rule as laid
grant shall not be taken or construed to a special intent, fuustoted
It is not so with the grants of a common person, for they ^ ^°^^
shall be extended as well to a foreign intent as to a common
intent, but yet with this exception, that they shall never be
taken to an impertinent or repugnant intent ; for all words,
whether they be in deeds or statutes, or otherwise, if they be
general, and not express and precise, shall be restrained unto
the fitness of the matter and the person " (r).

Thus, if I grant common " in all my lands " in D., if I
have in D. both open grounds and several, it shall not be
stretched to common in my several grounds, much less in
my garden or orchard. So, if I grant to J. S. an annuity of
£10 a year, "pro concillo impenso et impendendo " (for past
and future council), if J. S. be a physician, this shall be
understood of his advice in physic, and, if he be a lawyer,
of his council in legal matters (s). And in accordance with
the same principle a right of common of turbary claimed by

(p) Per WiUes, J., Moore v. Baio- demised to them — the covenant

Kras, 6 C. B. N. S.320; citing Payler being construed "with a reference

V. Homersham, 4 M. & S. 423 r 16 to the subject-matter and the oha-

R.'R, 516; and in Chorltonv. Lings, raeter of the defendants." West L.

L. E. 4 0. P. 387. B. Co. v. L. S N. W. B. Co., 11

General words may be controlled 0. B. 254, 356.

by the recital in an instrument. See Though a release be general in its

Bank of British N. America v. terms, its operation will, at law, in

Cavillier, 14 Moo. P. C. 0. 187, and conformity with the doctrine recog-

oases there cited. nised in courts of equity, be limited

(g) Bac. Max., reg. 10; 6 Eep. to matters contemplated by the par-

62. ties at the time of its execution ;

(?•) The maxim was accordingly Lyall v. Edwards, 6 H. & N. 337.

applied to restrain the words of a (s) Bac. Works, vol. 4, p. 46. See

general covenant by a railway com- Com. Dig., " Condition " (K. 4).
pany to "work efficiently" a line

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500

INTBEPKETATION OP DEEDS AND WRITTEN INSTRUMENTS.

Additional
illustrations.

Principles of
construction.

Rules upon
this subject.

prescription and user has been held to be restrained to those
parts of the hats in quo in which it could be used (t).

In accordance, likewise, with the above maxim, the subject-
matter of an agreement is to be considered in construing
its terms, and they are to be understood in the sense most
agreeable to the nature of the agreement (w). If a deed
relates only to a particular subject, general words in it shall
be confined to that subject, otherwise they must be taken in
their general sense (x). The words of the condition of a
bond " cannot be taken at large, but must be tied up to the
particular matters of the recital " (y), unless, indeed, the
condition itself is manifestly designed to be extended beyond
the recital (z) ; and, further, it is a rule, that what is generally
spoken shall be generally understood, generalia verba sunt
gcner alitor intelligcnda{a), unless it be qualified by some
special subsequent words, as it may be {b) ; ex. gr., the
operative words of a bill of sale may be restricted by
what follows (c).

In construing the words of any instrument, then, it is
proper to consider, 1st, what is their meaning in the largest

(c) Wood V. Bmocliffe, 6 Bxch.
407. See, also, with reference to a
release, the authority cited, ante, p.
499, n. (r).

Where the words in the operative
part of a deed of conveyance are of
doubtful meaning, the recitals and
other parts of the deed may be used
as a test to discover the intention of
the parties, and to fix the true mean-
ing of those words : Judgm., Welsh
V. Trevanion, 15 Q. B. 751. See,
also, Young v. Baincock, 7 0. B.
310.

As to the mode of construing a
deed containing restrictive cove-
nants, see, per Dallas, O.J., Nind v.
Marshall, 1 B. & B. 348, 349 : 21
B. B. 610; cited arg., Crossfield v.
Morrison, 7 0. B. 302.

(t) Peardon v. Underhill, 16 Q. B.
120.

(m) 1 T. B. 703.

(x) Thorpe v. Thorpe, 1 Ld.
Eaym. 235 ; S. C, Id. 662.

{y) Per Eyre, J., Gilb., Cas. 240.
See Seller v. Jones, 16 M. & W. 112,
118 ; Stoughton v. Day, Aleyn, 10 ;
Ld. Arlington v. Merrick, 2 Saund.
414 ; as to which, see Mayor of
Berwick v. Oswald, 3 E. & B. 653 ;
S. C, 5 H. L. Cas. 856 ; Kitson v.
Julian, 4 E. & B. 854, 858 ; Napier
V. Bruce, 8 01. & i\ 470 ; N. W. B.
Co. V. Whinray, 10 Exch. 77.

(«) Sansom v. Bell, 2 Camp. 39 ;
Com. Dig., " Parols " (A. 19) ; Evans
V. Earle, 10 Exch. 1.

(a) 3 Inst. 76.

(6) Shep. Touch. 88 ; Co. Litt.
42 a; Com. Dig. "Parols " (A. 7),

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INTEBPBETATION OF DEEDS AND WRITTEN INSTRUMENTS. 501

sense which, according to the common use of language,
belongs to them {d) ; and, if it should appear that that sense
is larger than the sense in which they must be understood
in the instrument in question, then, 2ndly, what is the
object for which they are used. They ought not to be
extended beyond their ordinary sense in order to comprehend
a case within their object, for that would be to give effect to
an intention not expressed ; nor can they be so restricted as
to exclude a case both within their object and within their
ordinary sense, without violating the fundamental rule,
which requires that effect should be given to such intention
of the parties as they have used fit words to express (e).
Thus, in a settlement, the preamble usually recites what it
is which the grantor intends to do, and this, like the pre-
amble to an Act of Parliament, is the key to what comes
afterwards. It is very common, moreover, to put in a
sweeping clause, the object of which is to guard against any
accidental omission ; but in such cases it is meant to refer
to estates or things of the same nature and description as
those which have been already mentioned, and such general
words are not allowed to extend further than was clearly
intended by the parties (/).

In construing a deed of grant clear words of conveyance Deed recital
cannot be controlled by words of recital (^). But if the words of
words of conveyance are general and not specific, they may ^^oJiveyanoe.
be controlled by a specific recital. The lord of the manor of
E., which was situate in the parish of K. in the county of
M., being also entitled to other real estate in K., not parcel
of the manor, mortgaged to A. this real estate, not including
the manor. Afterwards, by a deed reciting that he was
seised of or entitled to the messuages, lands, hereditaments,

(d) 3 Inst. 76. f/) Per Ld. Mansfield, Moore v.

(e) Per Maule, J., Borradaile v. iWagrrai/s, 1 Oowp. 12 ; Shep. Touch.,
Hunter, 5 Scott, N. E., 431, 432. by Atherly, 79, u.

See Moseley v. Motteux, 10 M. & W. (g) Mackemie v. Duke of Devon-

533. shire, [1896] A. C. 400.

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502 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

and premises thereinafter intended to be conveyed, subject
to the mortgage to A., he conveyed to B., by way of mortgage,
all the property comprised in the mortgage to A., and " all
other the lands, tenements, and hereditaments in the county
of M., whereof or whereto the mortgagor is seised or entitled
for any estate of inheritance." It was held that the manor
of K. was not included in the mortgage to B. (Ii).
Ruieappii- So, in Construing a will, a court of justice is not by

conjecture to take out of the effect of general words property
which those words are always considered as comprehending
the best rule of construction being that which takes the
words to comprehend a subject which falls within their
usual sense, unless there is something hke declaration plain
to the contrary (i). Thus, it is a certain rule, that rever-
sions are held to be included in the general words of a
devise, unless a manifest intention to the contrary appears
on the face of the will (k).

Again, it is a well-known rule that a devise of an indefinite
estate by wUl before 1838, without words of limitation, is
prima facie a devise for life only ; but this rule will give
way to a different intention, if such can be collected from the
instrument, and the estate may be accordingly enlarged (/).
So, words which would prima facie give an estate tail may
be cut down to a life estate, if it plainly appear that they
were used as words of purchase only, or if the other pro-
visions of the will show a general intent inconsistent with
the particular gift (??!).

(Ji) Booke V. Ld. Kensington, 2 (1) Doe v. Oarlick, 14 M. & W.

K. & J. 753 ; see further Jenner v. 698 ; Doe v. Fawcett, 3 0. B. 274 ;

Jenner, L. K. 1 Eq. 361 ; Crompton Lewis v. Puxley, 16 M. & W. 733.

V. Jarratt, 30 Gh. D. 298. See 1 Viot. o. 26, s. 28.

(i) Per Ld. Eldon, Church v. In Hogan v. Jackson, 1 Oowp. 299

Mundij, 15 Ves. 396; adopted by (affirmed 8 Bro. P. C, 2nd ed. 388),

Tindal, O.J., Doe v. Thomas, 1 the effect of general words in a will

Scott, N. E.. 371 ; and by Ld. Esher, was much considered.

Anderson v. Anderson, [1895] 1 Q. B. (to) Fetherston v. Fetherston, 3 01.

749, 753 ; 64 L. J. Q. B. 457. & E. 75, 76.

(k) 1 Scott, N. B. 371.

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INXERPKBTATION OF DEEDS AND WRITTEN INSTRUMENTS. 503

The doctrine, however, that the general intent must over- With what
rule the particular intent, observed Lord Denman, has,
when applied to the construction of wills, been much and
justly objected to of late, as being, as a general proposition,
incorrect and vague, and likely to lead in its application to
erroneous results. In its origin it was merely descriptive
of the operation of the rule in Shellct/'s case (n) ; and it has
since been laid down in other cases where technical words
of limitation have been used, and other words, showing the
intention of the testator that the objects of his bounty
should take in a different way from that which the law
allows, have been rejected ; but in the latter cases the more
correct mode of stating the rule of construction is, that
technical words, or words of known legal import, must have
their legal effect, even though the testator uses inconsistent
words, unless those inconsistent words are of such a nature
as to make it perfectly clear that the testator did not mean
to use the technical words in their proper sense (o). The
doctrine of general and particular intent, thus explained,
should be applied to all wills (p), in conjunction with the
rule already considered, viz., that every part of that which
the testator meant by the words he has used should be
carried into effect as far as the law will permit, but no
further; and that no part should be rejected, except what
the law makes it necessary to reject (q).

Lastly, it is said to be a good rule of construction, that, Statute— a

... rule to be

"where an Act of Parliament begms with words which observed in
describe things or persons of an inferior degree and con- construing.
eludes with general words, the general words shall not be

(n) See Van Qrutten v. Foxwell, Jesson v. Wright, 2 Bligh, 57 ; 21

[1897] A. C. 658, 668 ; 66 L. J. Q. B. B. B. 1 ; Boddy v. Fitzgerald, 6 H.

745. L. Oas. 828 ; Jordan v. Adams, 9

(o) See Judgm., Toller v. Wright, C. B. N. S. 483 ; Jenkins v. Hughes,

15 Q. B. 954, and cases there 8 H. L. Gas. 571.

cited. (2) Judgm,, 5 B. & Ad. 641 ; 39

{p) Judgm., Doe v. Gallimi, 5 B. B. B. 580.
& Ad. 621, 640; 39 E. B. 580;

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504

INTEEPKETATION OF DEEDS AND WBITTEN INSTRUMENTS.

extended to any thing or person of a higher degree " (r) ;
that is to say, "where a particular class (of persons or
things) is spoken of, and general words follow, the class
first mentioned is to be taken as the most comprehensive,
and the general words treated as referring to matters
ejusdem generis with such class" (s), the effect of general
words when they follow particular words being thus
restricted (t).

Rule stated
and illus-
trated.

EXPBBSSIO UNIUS EST ExCLUSIO ALTEEIUS. (Co. Litt. 210 Ct.)

— 2Vic express mention of one thing implies the exclusion
of anotlwr.

This rule, or, as it is otherwise worded, expression facit
cessare taciturn (u), enunciates one of the first principles
applicable to the construction of written instruments (x) ;
for instance, it seems plainly to exclude any increase of an
estate by implication, where there is an estate expressly
limited by will (y) ; and an implied covenant is to be con-
trolled within the limits of an express covenant (z). Where
a lease contains an express covenant by the tenant to repair,

()■) Archb. of Canterbury's case, 2
Rep. 46 a ; see 1 Bing. 373 : 2 B.
& Ad. 594 : 7 Exch. 772 : L. E. 7
C. P. 403.

(s) Per Pollock, C.B., Lyndon v.
Stanbridge, 2 H. & N. 51 ; per Ld.
Campbell, Beg. v. Edmundson, 2
B. & E. 83 ; Gibhs v. Lawrence, 30
L. J. Oh. 170.

" Where a. general enactment is
followed by a special enactment on
the same subject, the later enact-
ment overrides and controls the
earlier one ; " per Erie, C.J., 14 C. B.
N. S. 438.

The rule stated in the text applies
also to deeds and agreements; see,
for instance, Agar v. Atlienceum Life

Ass. Soc, 3 C. B. N. S. 725.

(0 See Beg. v. Cleworth, 4 B. & S.
927, 934.

(m) Co. Litt. 210 a, 183 b.

(x) See per Ld. Deninan, 5 Bing.
N. C. 185.

{y) Per Crompton, J., Boddy v.
Fitzgerald, 6 H. L. Cas. 856.

(«) Nokes' case, 4 Rep. 80; S. C,
Cro. Eliz. 674; Merrill v. Frame,
i Taunt. 329 ; 13 R. R. 612 ; Gains-
ford V. Griffith, 1 Saund. R. 58;
Vaugh. R. 126 ; Veering v. Farring-
ton, 1 Ld. Raym. 14, 19; Mathew
V. Blackmore, 1 H. & N. 762. See
Bower v. Hodges, 13 C. B. 765;
Bashleigh v. S. E. B. Co., 10 C. B.
612 ; and post, p. 610.

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INTEEPEETATION OF DEEDS AND WRITTEN INSTRUMENTS.

505

there can be no implied contract to repair arising from the
relation of landlord and tenant (a). So, although the word
" demise " in a lease implies a covenant for title and a
covenant for quiet enjoyment, yet both branches of such
impUed covenant are restrained by an express covenant for
quiet enjoyment (b). And, where parties have entered into
written engagements with express stipulations, it is mani-
festly not desirable to extend them by implications ; the
presumption is, that having expressed soine, they have
expressed all the conditions by which they intend to be
bound under that instrument (c).

It is an ordinary rule that " if authority is given expressly,
though by affirmative words, upon a defined condition, the
expression of that condition excludes the doing of the act
authorised, under other cu'cumstances than those so defined :
expressio unius est exclusio alterms " (d). In the Queen v.
Eastern Archipelago Co. (e), a company had been incor-
porated under Koyal charter, which contained a proviso

(a) Standen v. Chrismas, 10 Q. B.
135, 141 ; as to which see per Bram-
well, B., Churchward v. Ford, 2 H.
& N. 446 ; and see Gott v. Gandy,
2 E. & B. 847.

"The authorities cited in the
text-hooks establish these rules, that
where there is a general covenant to
repair and keep and leave in repair,
the inference is that the lessee
undertakes to repair newly erected
buildings. On the other hand,
where the covenant is to repair,
and keep and leave in repair the
demised bwildmgs, no such liabUity
arises : " per ChanneU, B., Cornish
V. CUiff, 3 H. & 0. 451.

(6) Line v. Stephenson, 5 Bing.
N. C. 183; Merrill v. Frame, 4
Taunt. 329 ; 13 E. E. 612 ; per Ld.
St. Leonards, Monypenny v. Mony-
penny, 9 H. L. Cas. 139. See
Messent v. Beynolds, 3 C. B. 194 ;
Baynes v. Lloyd, [1895] 2 Q. B.

610. By 8 & 9 Vict. c. 106, s. 4,
the word "give" or "grant" in a
deed executed after 1st Oct. 1845,
does not imply any covenant in law
in respect of any hereditament,
except by force of some Act of
Parliament. A covenant for quiet
enjoyment, however, is implied by
the word "demise" in a lease for
years ; and this implication was not
taken away by 7 & 8 Vict. c. 76, or
8 & 9 Vict. 0. 106.

(c) Judgm., Aspdin v. Austin, 5
Q. B. 683, 684 ; Dunn v. Sayles, Id.
685 ; Emmens v. Elderton, 4 H. L.
Gas. 624 ; M'Guire v. Scully, Beatt.
370. As to Aspdin v. Austin, see
per Crompton, J., Worthington v.
Ludlow, 2 B. & S. 516.

(i) Per Vermes, J., N. Stafford
Steel Co. V. Ward, L. E. 3 Ex. 177.

(c) 1 E. & B. 310; S. C, 2 Id.
856.

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INTBBPEBTATION OF DEEDS AND WRITTEN INSTEUMENTS.

Caution
requisite in
applying rule.

that it should be lawful for the Queen, by any writing
under the Great Seal or sign manual, to revoke the charter,
under circumstances which subsequently happened. The
charter was not revoked in the manner mentioned in the
proviso, but proceedings were taken under a scire facias to
repeal it. It was objected that the only mode of getting
rid of the charter was the one given by the proviso. The
Judges were equally divided in opinion, and consequently
a rule to arrest judgment, on the ground that the declara-
tion did not show that the Queen had, by writing under
the Great Seal or sign manual, revoked the charter, was lost.
The following observations of Coleridge, J., in delivering
judgment, seem pertinent to the subject under considera-
tion : "Whatever might be the condition of grantees under
other charters, in this charter the law and mode of revocation
was specially laid down in this sentence (i.e., the proviso).
These grantees were to understand they held this charter
subject to this power of revocation and this only. Commonly
speaking, expi-essum facit cessare taciturn, and this would
seem a case in which the wholesome maxim eminently
applies "(/).

Great caution is necessary in dealing with the maxim
cxjivessio unius est exclusio altcrius (g), for, as Lord Campbell
observed in Saunders v. Evans (h), it is not of universal
application, but depends upon the intention of the party as
discoverable upon the face of the instrument or of the
transaction ; thus, where general words are used in a written
instrument, it is necessary, in the first instance, to determine
whether those general words are intended to include other
matters besides such as are specifically mentioned, or to be

(/) 1 E. & B. 342.

(g) To show the caution necessary
in applying the maxim may be cited
Price V. a. W. B. Co., 16 M. & W.
24i ; Attwood v. Small, 6 CI. & F.
482 ; London J. S. Bank v. Mayor
of London, 1 0. P. D. 17 ; Colguhoun

V. Brooks, 21 Q. B. D. 65, where the
maxim was described as "a valuable
servant, but a dangerous master."

{h) 8 H. L. Gas. 729 ; and see, per
Dr. Lushington, The Anuxlia, 32 L.
J., P. M. & A. 194.

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INTEBPKETATION OF DEEDS AND WEITTEN INSTRUMENTS. 507

referable exclusively to them, in which latter case only can
the above maxim be properly applied (i) . Where, moreover,
an expression, which is prima facie a word of qualification,
is introduced, the true meaning of the word can only be
ascertained by an exammation of the entire instrument,
reference being had to those ordinary rules of construction
to which we have already adverted (j) .

In illustration of the maxim under consideration, the Examples.
following cases (k) may be mentioned. An action of covenant
was brought upon a charter-party whereby the defendant
covenanted to pay freight for " goods delivered at A. ; " the
ship had been wrecked at B. while on her voyage to A. ; it
was held that freight could not be recovered ^JJ'o rata itineris,
although the defendant accepted the goods at B. ; for, the
action being on the original agreement, the defendant had a
right to say in answer to it, non hcec in foedera vcni (Z). In
order to recover freight pro rata itineris, the owner must, in
such a case, proceed on the new agreement implied by law
from the merchant's behaviour {m) . Again, where a mort-
gage deed contained a covenant by the mortgagor that he
would out of the monies to come to him from certain lands
pay to the mortgagee the principal and interest secured
by the mortgage deed, it was held that an action by the
mortgagee against the mortgagor for money lent would not
lie, on the ground that the parties had expressly stated the

(i) See Fetch v. Tutin, 15 M. & was held to exclude a reference by

W. 110. Of. per Bowen, L.J., implication to covenants contained

Skinner v. Shew, [1893] 1 Ch. 424 : in other deeds not mentioned).

62 L. J. Ch. 196. (Z) Cook v. Jennings, 7 T. E. 381 ;

(j) lnDoe\.Ingleby,15'M..&'W. i B. B. 468. See Vlierboom, v.

465, 472, the maxim was applied, by Chapman, 13 M. & W. 230.

Parke, B., diss., to a proviso for re- In Fowkes v. Manch. <& L. Life

entry in a lease, and this case will Ass. Co., 3 B. & S. 917, 930, the

serve to illustrate the above remark. principal maxim was applied to a

{k) See also Beid v. Bickerstaff, policy of insurance. See 8 E. & B.

[1909] 2 Ch. 305, 321 : 78 L. J. Oh. 301.

753 (where the express mention, in (to) Per Lawrence, J., 7 T. E.

a conveyance, of restrictive cove- 385 ; 4 E, E. 468 ; Mitchell v.

nants contained in certain deeds Darthes, 2 Bing. N. 0. 555, 571.

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508 INTERPEETATION OF DEEDS AND WKITTEN INSTRUMENTS.

mode of payment, and therefore the implied promise to pay
on demand as for money lent was excluded (n).

Again, on a mortgage of dwelhng-houses, foundries, and
other premises, " together with all grates, boilers, bells, and
other fixtures in and about the said two dwelling-houses
and the brewhouses thereunto belonging : " it was held that,
although, without these words, the fixtures in the foundries
would have passed, yet, by them, the fixtures intended to
pass were confined to those in the dwelling-houses and brew-
houses (o). So, where in an instrument there are general
words first, and an express exception afterwards, the ordinary
principle of law has been said to apply — cxpressio unius
cxdusio alterius (p).
Doe V. The case of Doe v. Burdett (q), furnishes a good illustration

of the maxim. In that case, lands were limited to such uses
as S. should appoint by her last will in writing, to be by her
signed, sealed, and published, in the presence of and attested
by three credible witnesses. S. (before the 1 Vict. c. 26 ()•))
signed and sealed an instrument, containing an appointment,
commencing thus : " 1, S., do publish and declare this to be
my last will ; " and concluding, " I declare this only to be my

(n) Mathew v. Blachmore, 1 H. & the general principle of construing

N. 762. an instrument ut res magis valeat

(o) Hare v. Hoi-ton, 5 B. & Ad. qit,am pereat. Doe v. Burdett is

715 ; 39 R. B. 633 ; cited Mather v. commented on by Wigram, V.-C,

Frazer, 2 K. & J. 536. See Ringer Vincent v. Bp. of Sodor and Man,

V. Cann, 3 M. & W. 343 ; Cooper v. 8 0. B.' 929 ; and was followed in

Walker, 4 B. & C. 36, 49. Newton v. Bicketts, 9 H. L. Gas. 262,

(p) Spry V. Flood, 2 Curt. 365. 269. See, also, Johns v. Dickinson,

(g) 7 Scott, N. B. 66, 79, 101, 8 0. B. 934; Roberts v. Phillips, i

104 ; S. 0., 9 A. & E. 936 ; 4 Id. 1. E. & B. 450, 453.
The decision of the H.L. in this case (r) Sect. 9 enacts that every will

went upon the principle, expressio shall be in writing, and signed by the

unius exclusio alterius (per Sir H. testator in the presence of two wit-

Jenner Fust, Barnes v. Vincent, 9 nesses at one time ; and sect. 10,

Jur. 261 ; S. C. (reversed in error), that appointments by will shall be

5 Moore, P. 0. 201), and the opinions executed like other wUls, and shall

delivered in it by the judges win also be valid, although other required

be found to illustrate the import- solemnities are not observed,
ance of adhering to precedents, and

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INTERPEETATION OP DEEDS AND WRITTEN INSTRUMENTS. 509

last will ; in witness whereof I have to this my last will set

my hand and seal, this 12th Dec. 1789." And then followed

the attestation, thus : " Witness, C. B., E. B., A. B." It was

decided by the House of Lords that the power was well

executed ; and this case was distinguished from several (s) , in

which the attestation clause, in terms, stated the performance

of one or more of the required formalities, but was silent as to

the others, and in which, consequently, the power was held to

have been badly exercised, on the ground, that legal reasoning

would necessarily infer the non-performance of such others

in the presence of the witnesses, but that a general attestation

clause imported an attesting of all the requisites.

It has been decided that a will expressly subjecting the Wills.

personal estate to certain charges to which it was before liable

does not by force of the maxim raise a necessary implication

that it is not to bear other charges, not so expressly directed

to be paid out of it, to which it is primarily liable {t).

The operation of the principle under consideration is the Simple

same, whether the contract be under seal or by parol. For

instance, in order to prevent a debt being barred by the

Statute of Limitations, a conditional promise to pay " as

soon as I can," is not sufficient, unless proof be given of the

defendant's ability to perform the condition ; and the reason

is, that upon a general acknowledgment, where nothing is

said to prevent it, a general promise to pay ought to be

implied ; but where the party guards his acknowledgment,

and accompanies it with an express declaration to prevent

any such implication, then the rule, expressum facit cessare

taciturn, applies (u). In like manner, when the drawer of a

(s) See, particularly, Wright v. (t) Srydges v. PhilUps, 6 Ves.

Wakeford, 17 Ves. 454; S. C, i 567; 2 Jarman on Wills, 5th ed.,

Taunt. 213 ; commented on by 1467.

Wigram, V.-C, 8 0. B. 928 et seq. ; (u) Judgm., Tanner v. Smart, 6

Doe V. Peach, 2 M. & S. 576 ; 15 R. B. & 0. 609 ; 30 E. R. 461 ; Edmunds

R. 361 ; Doe v. Pearse, 2 Marsh. 102 ; v. Dowries, 2 Or. & M. 459 ; 39 R. R.

S. 0., 6 Taunt. 402 ; 16 R. R. 634. 813. See Irving y. Veitch, 3 M. &W.

See, per Patteson, J., 7 Scott, N. R. 90.
120, 121 ; per Tindal, C J., Id. 126.

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510 INTERPRETATION OP tlEEDS AND WRITTEN INSTRUMENTS.

bill, when applied to for payment, does not state that he has
received no notice of dishonour, but merely sets up some
other matter in excuse of non-payment, from this conduct
the jury may infer an admission that the valid ground of
defence does not in fact exist (x).

The above cases sufficiently show the practical applica-
tion and utility of the maxim of construction, expressum
facit cessarc taciturn ,- and several of them likewise serve to
illustrate the general rule, which will be considered more in
detail hereafter (z), that parol evidence is, except in certain
cases, wholly inadmissible to show terms upon which a
written instrument is silent ; or, in other words, that, where
there is an express contract between parties, none can be
implied (a). The Court will not, by inference, insert in a
contract implied provisions with respect to a subject for
which the contract has expressly provided. If the seller of
a horse warrant it to be sound, and the horse though sound
be unfit for the purpose of carrying a lady, this is no breach
of that warranty: the maxim expressum facit cessarc
taciturn applies. " If this were not so, it would be neces-
sary for the parties to every agreement to provide in terms
that they are to be understood not to be bound by anything
which is not expressly set down, — which would be manifestly
inconvenient " (Z>).

(x) Camphdl v. Webster, 2 0. B. Powell, 6 T. R. 320 ; 3 R. R. 185 ;

258, 266. S. C, 2 Smith, L. 0., 11th ed. 1

(z) See the maxim, nihil tarn (with which of. Taylor v. Laird, 1

conveniens est natiirali cequitati H. & N. 266 ; Button v. Tlwmpson,

quam unibmquodque dissolvi eodem L. R. 4 C. P. 330) ; per Buller, J.,

ligcrniiiie quo ligatum est, post, Toussaint v. Martinnant, 2 T. R.

Chap. IX., and the maxim, optimus 105 ; per Parke, B., Bradbury v.

interpres rerum usus, post, Ghap. X. Anderton, 1 Or. M. & R. 190 ; Mit-

(a) Per Bayley, J., Grimman v. chellv. Darthez, 2 Bhig. N. 0. 555;

Legge, 8 B. & 0. 326 ; 32 R. R. 398 ; Lawrence v. Sydebotham, 6 East,

Moorsom v. Kymer, 2 M. & S. 316, 45, 52 ; 8 R. R. 385; ^e?- Blackburn,

320 ; 15 R. R. 261 ; Cook v. Jen- J , Fowkes v. Manch. £ London Life

nings, 7 T. R. 383, 385 ; 4 R. R. Ass. Co., 3 B. & S. 930.
468 ; i)e?- Ld. Keuyon, 7 T. R. 137 ; (b) Per Maule, J., Dickson v.

Gowley v. Dunlop, Id, 568 ; Cutter v. Zisinia, 10 0. B. 911.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 511

The follo^Ying cases may here properly be noticed m
further ilhistratioii of the maxim before us : — where the
rent of a house was specified in a written agreement, to
be £26 a year, and the landlord, in an action for use and
occupation, proposed to show, by parol evidence, that the
tenant had also agreed to pay the ground-rent, the Court
refused to admit the evidence (c).

By an agreement for the purchase of the manor of
S., it was agreed that, on the completion of the purchase,
the purchaser should be entitled to the " rents and profits
of such parts of the estate as were let " from the 24th day
of June, 1843 : it was held, that the purchaser was not, by
virtue of this agreement, entitled to the fine received by the
vendor on the admittance of a tenant of certain copyhold
premises, part of the manor, this admittance, after being
postponed from time to time, having taken place on the 1st
July, 1843, and the fine having been paid in the December
following; for the condition above mentioned was held
applicable only to such parts of the estate as might be
" let " in the ordinary sense of that word, and cxpressio
unius est exclusio alterius ; the lands in question not having
been let, it could not be said that the purchaser was entitled
to the money sought to be recovered, the agreement binding
the vendor to pay over the rents only, and not extending to
the casual profits (d).

On the same principle, where the conditions of sale of Sale of goods.

,. , ■,■-,,,, ,1 • , . 1 Warranty, &c.

growing timber did not state anything as to quantity, parol
evidence, that the auctioneer at the time of sale warranted a
certain quantity, was held inadmissible (e).

This distinction must, however, be taken, that, where the

(c) Preston v. Mereeau, 2 W. Bla. to the case of a tenancy between

1249 ; Bich v. Jackson, i Bro. C. G. mortgagor and mortgagee.

515. See Stoeetland v. Smith, 1 Or. (d) Earl of Sardwicke v. Ld.

& M. 585, 596 ; Doe v. Pullen, Sandys, 12 M. & W. 761.

2 Bing. N. C. 749, 753, where the (e) Powell v. Edmunds, 12 East,

maxim is applied by Tindal, C.J., 6; 11 B, B. 316.

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INTEEPEBTATION OF DEEDS AND WEITTEN INSTRUMENTS.

Evidence of
custom and
usage.

warranty is one which the law impHes (/), it is clearly
available, notwithstanding there is a written contract, if
such contract be entirely silent on the subject (f/) . More-
over, by the Sale of Goods Act, 1893, which codifies the
law relating to sales of goods, an express warranty or condition
does not negative a warranty or condition implied from
that Act, unless inconsistent therewith (/i). The reason of
this rule, which is borrowed from the common law, is that
" the doctrine that an express provision excludes implication
— expressum facit cessare taciturn — does not affect cases in
which the express provision appears, upon the true con-
struction of the contract, to have been superadded for the
benefit of the buyer " (r), and to have been inserted for the
purpose of adding to, and not of qualifying, the provision
which the law implies for his benefit (k).

Although the maxim, expressio nnius est exclusio alterius,
ordinarily operates to exclude evidence offered with the
view of annexing incidents to written contracts [1) in matters
with respect to which they are silent, yet it has long been
settled, that, in commercial transactions, extrinsic evidence
of custom or usage is admissible for this purpose (m). The
same rule has, moreover, been applied to contracts in other
transactions of life, especially to those between landlord and

( / ) As to implied warranties and
undertakings, see under the maxim
Caveat emptor, post.

{g) Shepherd v. Pybus, 4 Scott,
N. E. 434.

(h) 56 & 57 Viot. o. 71, s. 14 (4).

(i) Per Willes, J. , Mody v. Greg-
son, L. E. 4 Ex. 53 ; approved
Drummond v. Van Ingen, 12 App.
Gas. 284, 294.

(k) Bigge v. Parkinson, 7 H. & N.
961.

(l) See Cutter v. Powell, 6 T. E.
820 ; 3 E. E. 185 ; Fettitt v. Mit-
chell, 5 Scott, N. E. 721 ; Moon v.
Witney Union, 3 Bing. N. C. 814,
818; cited and distinguished in

Moffatt V. Laurie, 15 C. B. 588, 592 ;
and in Scrivener v. Pask, 18 C. B.
N. S. 785, 797; Reg. v. Stoke-upon-
Trent, 5 Q. B. 303. It is a general
rule, that, upon a mercantile in-
strument, evidence of usage may be
given in explanation of an ambiguou s
expression : Bowman v. Horsey, 2
M. & Eob. 85. Generally as to the
admissibility of evidence of usage to
explain mercantile instruments, see
Broom's Com. Law, 5th ed. 498.

(m) Syers v. Jonas, 2 Exch. Ill,
117 ; citei per Willes, J., Az&mar v.
CaseUa, L. E. 2 0. P. 439 ; and cases
collected under the maxim optimus
interpres rerum iisus, post. Chap. X.

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INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS. 513

tenant (n), in which known usages have been estabhshed ;
and this has been done upon the principle of presuming
that in such transactions the parties did not mean to express
in writing the whole of the contract by which they intended
to be bound, but a contract with reference to those known
usages (o). Whether such a relaxation of the strictness of
the common law was wisely applied where formal instru-
ments have been entered into, and particularly leases under
seal, may perhaps be doubted ; but this relaxation has been
estabhshed by such authority, and the relations of landlord
and tenant have been so long regulated upon the supposition
that all customary obligations, not altered by the contract,
are to remain in force, that it is too late to pursue a contrary
course, since it would be productive of much inconvenience
if the practice were now to be disturbed (p). As an instance
of the admissibility of evidence respecting a special custom,
may be mentioned the ordinary case in which an agreement
to farm according to the custom of the country is held to
apply to a tenancy where the contract to hold as tenant is
in writing, but is altogether silent as to the terms or mode of
farming (g).

Every demise, indeed, between landlord and tenant in
respect of matters as to which the parties are silent, may be
fairly open to explanation by the general usage and custom
of the country, or of the district where the land lies ; for all
persons, under such circumstances, are supposed to be
cognisant of the custom, and to contract with a tacit
reference to it (r).

It is, however, a settled rule, that, although in certain Evidence
cases evidence of custom or usage is admissible to annex ^^\^y^^
incidents to a written contract, it can in no case begiven in contract.

(n) Wigglesworth v. Dalison, 1 Dallison, 1 Smith's L. C, 11th ed.

Dougl. 201. 5*5, is the leading case upon this

(o) Per Parke, B., Smith v. Wil- subject.
sm, 3 B. & Ad. 728 ; 37 E. E. 536. (a) Judgm., 4 Scott, N. E. 446.

(p) Judgm,, Button v. Warren, 1 (r) Per Story, J., 2 Peters (U.S.), '

M & W. 475, 478. Wigglesworth v. E. 148.

33

L.M.

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514

INTEBPRBTATION OP DEEDS AND WRITTEN INSTRUMENTS.

Application
of maxim to
conatruotioii
of statute.

contravention thereof (s); and the principle of varying written
contracts by the custom of trade has been in many cases, of
which some few are cited below, distinctly repudiated (t).

A statute, it has been said (u), is to be so construed, if
possible, as to give sense and meaning to every part ; and
the maxim was never more applicable than when applied to
the interpretation of a statute, than expressio iiniiis est
exclusio alterms (x). The sages of the law, according to
Plowden, have ever been guided in the construction of
statutes by the intention of the legislature, which they have
always taken according to the necessity of the matter, and
according to that which is consonant to reason and sound
discretion (y).

(s) Yeats v. Pym, 6 Taunt. 446 ;
16 R. B. 653 ; Clarke v. Boystone,
13 M. & W. 752 ; Suse v. Pompe, 8
C. B. N. S. 538. See Palmer v.
Blachhurn, 1 Bing. 61 ; 25 R. R.
599 ; Aktieselkab Helios v. Ekman,
[1897] 2 Q. B. 83 : 66 L. J. Q. B. 538.

(t) Spartali v. Benecke, 10 C. B.
212, 223 ; Dickenson v. Jardine,
L. R. 3 C. P. 639; Johnstone v.
Usborne, 11 A. & E. 549, 557 ; True-
man V. Loder, Id. 589 (as to which
case see Dale v. Sumfrey, E. B. &
E. 1004 ; S. C, 7 E. & B. 266, 277
Brown v. Byrne, 3 E. & B. 703)
Jones V. Littledale, 6 A. & E. 486
Magee v. Atkinson, 2 M. & W. 440.
See Graves v. Legg, 2 H. & N. 210
S. 0., 11 Exch. 642: 9 Id. 709
Pym V. Campbell, 6 E. & B. 370
cited in Bogers v. Hadley, 2 H. & C
249 ; Stewart v. Aberdein, 4 M. & W,
211. The law applicable to this
subject will be stated more at length
when we consider the mode of dis-
solving con tracts, and the application
of evidence to their interpretation.

(u) Per Our., 9 Johns. (U.S.) R.
349.

(x) See Qregory v. Des Anges, 3

Bing. N. C. 85, 87 ; Atkinsmv. Fell,

5 M. & S. 240 ; Cates v. Knight, 3
T. R. 442, 444; cited, Arg., Albon
V. Pyke, 5 Scott, N. B. 245 ; B. v.
North Nibley, 5 T. B. 21 ; per Tindal,
G.3., Newton v. Solford (in error),

6 Q. B. 926; A.-Q. v. Sillem, 10
H. L. Gas. 704. The maxim was
applied to a statute in Beg. v. Cale-
donian B. Co., 16 0. B. 31, and
Edinburgh S Glasgow B. Co. v.
LinUthgow Mags., 3 Macq. So. App.
Gas. 717, 730. Watkins v. (?. N. B.
Co., 16 Q. B. 961, also proceeded on
the above maxim ; per Ld. Campbell,
Caledonian B. Co. v. Colt, 3 Macq.
Sc. App. Gas. 839. See Lawrence v.
O. N. B. Co., 16 Q. B. 643.

In Bostock V. N. Staffordshire B.
Co., 4 E. & B. 832, Ld. Campbell
said, with reference to statutes
relating to a canal company, "In
construing instruments so loosely
drawn as these local Acts, we can
hardly apply such maxims as that,
' the expression of one thing is the
exclusion of another,' or that, ' the
exception proves the rule.' " See
also [1897] 2 Q. B. 351.

{y) Plowd. 205 b.

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INTERPBBTATION OF DEEDS AND WRITTEN INSTRUMENTS. 515

Thus it sometimes happens that in a statute, the language
of which may fairly comprehend many different cases,
some only are expressly mentioned by way of example
merely, and not as excluding others of a similar nature.
So, where the words used by the legislature are general, and
the statute is only declaratory of the common law, it shall
extend to other persons and things besides those actually
named, and, consequently, in such cases, the ordinary rule
of construction cannot properly apply. Sometimes, on the
contrary, the expressions used are restrictive, and intended
to exclude all things which are not enumerated. Where,
for example, certain specific things are taxed, or subjected
to a charge, it seems probable that it was intended to
exclude everything else even of a similar nature, and a
fortiori, all things different in genus and description from
those which are enumerated. Accordingly, where the
43 Eliz. c. 2, s. 1, enacted that every occupier of lands,
houses, coal mines, or saleable underwood, should be rated
for the relief of the poor, it was decided by the House of
Lords, that as coal mines alone were mentioned in the Act
as rateable, iron mines were not (z).

There is a class of cases where evidence of custom is
admitted, which apparently contradicts the language of the
contract, namely, where an agent, who enters into a written
contract, expressing himself on the face of it to do so as
agent, may be held liable as a principal in the transaction,
upon proof of a custom to that effect. In Hutchinson v.
Tathavi (a), perhaps the strongest instance of this rule to be
found in the books, the defendant, acting as an agent, with
due authority to do so, effected a charter-party which was
expressed in the body of it to be made between the plaintiff,
who was a shipowner, and the defendant, as "agent to

(z) Morgan v. Crawshay, L. R. 5 0. P. 260 ; Humphrey v. Dale, 7

H. L. 334 ; Demson v. HolUday, E. & B. 266 : E. B. & E. 1004 ; and

1 H. & N. 631. Iron mines became see Imperial Bank y. L. £ St.

rateable by 37 & 38 Vict. o. 54. Eatha/rvne Docks Co., 5 Ch. D. 195 ;

(a) L. R. 8 C. P. 482 : 42 L. J. Pike v. Ongley, 18 Q. B. D. 708.

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516 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

merchants ; " and the charter-party was signed by the
defendant, as "agent to merchants." The Court, admitting
that, but for the custom, the defendant would not have been
personally liable on the charter-party, held that evidence
was admissible of a usage to make him so, if he did not
disclose his principal's name within a reasonable time. One
of the learned judges thought that evidence of the custom
would not have been admissible if it had made the agent
liable as a principal in the first instance, but that, as it only
made him liable as a principal if he failed to disclose his
principal's name within a reasonable time, that was not
inconsistent with the contract. This would seem, with
respsct, too subtle a refinement of the maxim, expressio
unius cxclusio alteriiis, and the writer ventures to suggest
that the true ground of the liability of an agent so signing
rests in a breach of an implied undertaking ; because where
an agent contracts for an undisclosed principal he impliedly
undertakes to disclose the principal's name within a reason-
able time, and, if he fail to do so, an action, it is submitted,
lies against him for the breach of this undertaking, to
recover damages for the loss of the contract. The agent in
this manner would be liable in respect of the contract he
had made, as an agent, without the need of introducing a
custom which, but for the decided cases, appears to contradict
the written document.

Lastly, where a general Act of Parliament confers immu-
nities which expressly exempt certain persons from the
operation of its provisions, it excludes all exemptions to
which the subject might have been before entitled at
common law; for the introduction of the exemption is
necessarily exclusive of all other independent extrinsic
exceptions (b).
Further The following remarks of an eminent legal authority,

to maxim. showing the importance of the maxim considered in the

(6) Dwarr. Stats., 2nd ed. 605 ; T. B. 442.
B. V. Cunningham, 5 Bast, 478 : 3

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INTBKPE15TATI0N OF DEEDS AND WRITTEN INSTEUMENTS. 517

preceding pages, when regarded as a rule of evidence rather
than of construction, are submitted as well deserving atten-
tion. "It is a sound rule of evidence, that you cannot
alter or substantially vary the effect of a written contract
by parol proof. This excellent rule is intended to guard
against fraud and perjuries ; and it cannot be too steadily
supported by Courts of justice. Expressum facit cessarc
taciturn : vox emissa volat, Utera soipta manet : are law
axioms in support of the rule ; and law axioms are nothing
more than the conclusions of common sense, which have
been formed and approved by the wisdom of ages. This
rule prevails equally in a Court of equity and a Court of
law ; for, generally speaking, the rules of evidence are the
same in both Courts. If the words of a contract be intel-
ligible, says Lord Chancellor Thurlow (c), there is no
instance where parol proof has been admitted to give them
a different sense. 'Where there is a deed in writing,' he
observes in another place (cl), 'it will admit of no contract
which is not part of the deed.' You can introduce nothing on
parol proof that adds to, or deducts from, the writing. If,
however, an agreement is hj fraud or mistake made to speak a
different language from what was intended, then, in those
cases, parol proof is admissible to show the fraud or mistake.
These are cases excepted from the general rule "(e).

We do not propose to dwell longer upon the maxim,
expressum facit cessare taciturn ; a cursory glance at the
contents of the preceding pages will show it to be of exten-
sive practical application, both in the construction of written
instruments and verbal contracts, as also in determining the
inferences which may fairly be drawn from expressions used
or declarations made with regard to particular circumstances.
It is, indeed, a principle of logic and of common sense, and
not merely a technical rule of construction, and might,

(c) Shelburnev.Inchiquin,! Bio. (e) Per Kent, C.J., 1 Johns.

C. 0. 341. (U.S.), B. 571, 572. See Pattle v.

{d) Ld. Irnham v. Child, Id. 93. Hornibrook, [1897] 1 Oh. 25, 30.

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518

INTBEPBBTATION OF DEEDS AND WEITTBN INSTKUMENTS.

Maxim is

Bometimes

inapplicable.

therefore, be illustrated by decided cases, having reference
to every branch of the legal science. It, moreover, has an
important bearing upon the doctrine of our law as to implied
obligations. An obligation should not be implied in a
written contract, unless, on considering the express terms
reasonably, an implication necessarily arises that both
parties must have intended that the obligation should
exist (/). A Court when called upon to imply an obUgation
which is not expressed must take care that it does not make
the contract speak where it was intentionally silent, and above
all that it does not make it speak entirely contrary to what,
as may be gathered from the whole terms and tenor of the
contract, was the intention of the parties (g).

The maxim above commented on, is, it has been said (/?),
"by no means of universal conclusive application. For
example : it is a familiar doctrine that, although where a
statute makes unlawful that which was lawful before, and
appoints a specific remedy, that remedy must be pursued,
and no other; yet where an offence was antecedently
punishable by a common law proceeding, as by indictment,
and a statute prescribes a particular remedy in case of
disobedience, such particular remedy is cumulative, and
proceedings may be had either at common law or under
the statute" (i).

(/) The Moorcock, 14 P. D. 68;
Hamlyn v. Wood, [1891] 2 Q. B.
491: 60 L. J. Q. B. 734; see also
per Bowen, L.J., in Lamb v. Evcms,
[1893] 1 Ch. 218, 229 : 62 L. J. Ch.
404; Oriental SS. Co. v. Tylor,
[1893] 2 Q. B. 518 : 63 L. J. Q. B.
128.

{g) Per Oookburn, C.J., Church-
ward V. Beg., L. R. 1 Q. B. 195 ; cf.
Beg. V. Demers, [1900] A. C. 103.

(h) Per Williams, J., 2 E. & B.
879.

(i) Beg. v. Gregory, 5 B. & Ad.
555. See 52 & 53 Viot. o. 63, s. 33.

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INTEEPEETATION OF DEEDS AND WRITTEN INSTRUMENTS. 519

EXPEBSSIO EOBUM QU^ TACITE INSUNT NIHIL OPEEATUB. (2 Inst.

365.) — The expression of what is tacitly implied is
inoperative.

" The expression of a clause which the law implies works Examples

of nils

nothing" (A;). For instance, if land be let to two persons
for the term of their lives, this creates a joint tenancy;
and the words "and the survivor of them," if added, are
mere surplusage, because, by law, the term would go to
the survivor (l). So, upon a lease reserving rent payable
quarterly, with a proviso that, if the rent were in arrear
twenty-one days next after the day of payment being law-
fully demanded, the lessor might re-enter, it was held that,
five years' rent being in arrear, and no sufficient distress on
the premises, the lessor might re-enter without a demand,
and that the above maxim applied ; for, before the 4 Geo. 2,
c. 28, s. 2 (m), a demand was necessary as a consequence
of law, whether the lease contained the words "lawfully
demanded " or not. Then the statute said that " in all
cases where half a year's rent shall be in arrear, and the
landlord has a right of entry," the remedy shall apply,
provided there be no sufficient distress ; that is, the statute
dispensed with the demand which was required at the
common law, whether expressly provided for by the
stipulation of the parties or not (?i).
Again, every interest which is limited to commence and

(k) i Eep. 73 ; 5 Rep. 11; Wing. {I) Co. Litt. 191 a, cited, Arg., i

Max., p. 235 ; Pinch, Law, 24 ; D. B. & Aid. 306 ; 2 Prest. Abst. Tit.

SO, 17, 81. In Hobart, R. 170, it is 63. See, also, per Ld. Langdale,

said that this rule " is to be under- Seifferth v. Badham, 9 Beav. 874.

stood having respect to itself only, The maxim is applied, per Martin,

and not having relation to other B., in Scott v. Avery, 5 H. L. Gas.

clauses." The rule was applied in 829.

Wroughton v. Turtle, 11 M. & W. (m) See, now, 15 & 16 Vict. o. 76,

570 ; and in Lawrance v. Boston, 7 s. 210.

Exoh. 28, 35, in reference to the (n) Doe v. Alexander, 2 M. & S.

Stamp Acts. See, also, Ogden v. 525; 15 B. K. 338 ; Doey.WiUon,5

Graham, 1 B. & S. 773. B. & Aid. 364, 384 ; 24 R. R. 428.

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520 INTBEPEETATION OF DEEDS AND WEITTEN INSTRUMENTS.

is capable of commencing on the regular determination of
the prior particular estate, at whatever time the particular
estate may determine, is, in point of law, a vested estate ;
and the universal criterion for distinguishing a contingent
interest from a vested estate is, that a contingent interest
cannot take effect immediately, even though the former
estate were determined, while a vested estate may take
effect immediately, whenever the particular estate shall
determine. Hence it often happens, that a limitation
expressed in words of contingency is treated in law as a
vested estate, according to the rule, cxprcssio corum qua
tacitc insuiit nihil operatuv. If, for instance, a limitation
be made to the use of A. for life, and if A. shall die in the
lifetime of B., to the use of B. for life, this limitation gives
to B. a vested estate, because the words expressive of a
contingency are necessarily implied by the law as being
in a limitation to A. for life and then to B. ; and
without those words a vested interest would clearly be
given (o).

In accordance with the same principle, where a person
makes a tender, he always means that the amount tendered,
though less than the plaintiff's demand, is all that he is
entitled to in respect of it. Where, therefore, the person
making the tender said to plaintiff, " I am come with the
amount of your bill," upon which plaintiff refused the
money, saying, " I shall not take that, it is not my bill,"
and nothing more passed, the tender was held sufficient;
and in answer to the argument, that a tender made in such
terms would give to its acceptance the effect of an admission,
and was consequently bad, it was observed that the plaintiff
could not preclude himself from recovering more by accepting
an offer of part, accompanied by expressions which are
implied in every tender [p).

(o) See, per Willes, C.J., 3 Atk. 409, 411; recognised in Bowen v.
138 ; 1 Prest. Abst. Tit. 108, 109. Owen, 11 Q. B. 130, 135.

(p) Henwood v. Oliver, 1 Q. B.

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INTEKPRBTATION OF DEEDS AND WRITTEN INSTRUMENTS. 521

The above instances, taken in connection with the remarks
appended to the maxim, cxpressio iinius est exclusio alteiius,
will serve to show that an expression, which merely embodies
that which would in its absence have been by law implied,
is altogether inoperative. Such an expression, when occur-
ring in a written instrument, is denominated by Lord Bacon,
clausula inutilis; and, according to him, clausula vel dispo- Clausula
sitio inutilis per prcesumptionem vel causam remotam ex post
facto non fulcitur ; a rule which he thus explains, — clausula
vel dispositio inutilis is " when the act or the words do work
or express no more than the law by intendment would have
suppUed ; " and such a clause or disposition is not sup-
ported by any subsequent matter " which may induce an
operation of those idle words or acts " (q).

It may be observed, however, that it is often desirable to
express what the law would imply, in order to remove all
doubt as to intention. Ahundans cautela non nocet (r).

Verba relata hoc maximb operantue per Eeferentiam
TJT IN Eis inesse videntur. (Co. Litt. 159 a.) — Words to
which reference is made in an instrument have the same
operation as if they were inserted in the clause referring
to them (s).

It is important to bear in mind, when reading any par-
ticular clause of a deed or written instrument, that regard
must be paid not only to the language of that clause, but
also to that of any other clause which may by reference be

(g) Bac. Max., reg. 21. FiUmaurice v. Bayley, 9 H. L. Oas.

(r) 11 Bep. 6. 99, where the question arose on

(s) The rule is that, " by referring b. i of the Statute of Frauds. As

in a document signed by the party to the general rule against multi-

to another document, the person so plication of charges under a trust

signing in efiect signs a document created by reference to other trusts,

containing the terms of the one see Trew v. Perp. Trustee Co.,

referred to : " per Crompton, J., [1895] A. 0. 26i.

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522

INTBKPEETATION OF DEEDS AND WRITTEN INSTRUMENTS.

Bzamples.

Eeferenoe to
schedule, in-
ventory, or
plan.

incorporated ^Yith it; and, since the application of this
rule, so simple in its terms, is occasionally attended with
difficulty (t), it has been thought desirable in this place
briefly to examine it (m).

Where, by articles under seal, a man bound himself to
deliver " the whole of his mechanical pieces as per schedule
annexed," the schedule was held to form part of the deed, for
the deed without it would be insensible and inoperative (v).
And if a contract of sale refer to an inventory, the entire con-
tents thereof become incorporated with the contract (x).

In like manner, if a contract, or an Act of Parliament,
refer to a plan, the plan forms a part of the contract or Act,
for the purpose for which the reference is made (y). And
a deed of conveyance, made under the authority of an Act,
and in the form prescribed thereby, must be read as if the
sections of the Act applicable to the subject-matter of the
grant and its incidents were inserted in it (z).

A deed recited a contract for the sale of a certain lands by
a description corresponding with that subsequently con-
tained in the deed, and then proceeded to convey them,
with a reference for that description to three schedules.
The portion of the schedule relating to the piece of land
in question stated, in one column, the number which this

(t) See Beg. v. Registrar of Mid-
dlesex, 15 Q. B. 976 ; Fishmongers'
Co. V. Dimsdale, 12 0. B. 557;
Betts V. Walker, 14 Q. B. 363;
Stewa/rt v. Anglo-Californian Oold-
Mining Co., 18 Q. B. 786.

(u) Boy dell v. Drummond, 11 East,
Ul, 153, 156, 157; 10 E. E. 450
(distinguished in Crane v. Powell,
L. E. 4 C. P. 123, 129), and WilUn-
son\. Evans, L. E. 1 0. P. 407, may
be consulted in connection with the
maxim. See, also, Ridgway v.
Wharton, 6 H. L. Gas. 238 ; cited
Barker v. Allan, 5 H. & N. 72 ; Sil-
lem V. Thornton, 3 E. & B. 868, 880.

(v) Weeks v. Maillardet, 14 East,
568, 574 ; cited and distinguished,
Dyer v. Qreen, 1 Exch. 71 ; and in
Daines v. Seath, 3 C. B. 988, 945.

(x) Taylor v. Bullen, 5 Exch. 779.
See Wood v. Rowcliffe, 6 Id. 407.

(y) N. British R. Co. v. Tod, 12
01. & P. 722, 731 ; Reg. v. Regent's
Canal Co., 28 L. J, Oh. 158. See
Oalway v. Baker, 5 CI. & P. 157;
Brain v. Harris, 10 Exch. 908 ; Reg.
V. Caledonian R. Co., 16 Q. B.
197.

(z) Eliot V. N. E. R. Co., 10 H. L.
Gas. 383, 358. See also 52 & 53
Vict. c. 63, s. 31.

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INTERPEETATION OF DEEDS AND WRITTEN INSTRUMENTS. 623

piece bore on a certain plan, and, in another column, under

the heading- " description of premises," it was stated to be

" a small piece, marked on the plan ; " and by applying

the maxim, verba illata inesse videntur, the Court considered

that it was the same thing as if the plan referred to in the

schedule had been actually inserted in the deed, since

it was, by operation of the above principle, incorporated

with it (a).

If A. writes to B. that he will give £1,000 for B.'s estate, Memoran-

and at the same time states the terms in detail, and B. ™^'

Statute of
simply writes back, " I accept your offer," it may be shown, Praudg.

by parol evidence of the circumstances under which B.'s

letter was written, that the word " offer " refers to A.'s

letter, and thereupon the two letters may be read as though

incorporated the one with the other, so as to constitute a

sufficient memorandum of the contract signed by B. to

satisfy the Statute of Frauds (b).

Where a question arose respecting the sufficiency of an Affidavit.
affidavit. Heath, J., observed, " the Court generally requires,
and it is a proper rule, that the affidavit shall be intituled
in the cause, that it may be sufficiently certain in what
cause it is to admit of an indictment for perjury ; but this
affidavit refers to the annexed plea, and the annexed plea
is in the cause, and verba relata inesse videntur; therefore
it amounts to the same thing as if the affidavit were
intituled ; and the plaintiff could prosecute for perjury on
this affidavit " (c).

So, with reference to an indictment, it has been observed, indictment.

(a) Llewellyn v. Earl of Jersey, 450 : 48 L. J. Q. B. 596 ; Gave v.

11 M. & W. 183, 188 ; Lyle v. HasHngs, 7 Q. B. D. 125 : 50 L. J.

iJic^kiris, L. E. 1 H. L. 222 ; Barton Q. B. 575; see Taylor v. Smith,

V. Daioes, 10 C. B. 261, 263, 266. [1893] 2 Q. B. 65: 61 L. J. Q. B.

See, also, as to tlie admissibility of 331.

parol evidence to identity a plan (c) Per Heath, J., Prince v.

referred to in an agreement for a Nicholson, 5 Taunt. 337 ; 15 E. K.

lease, Hodges v. Horsfall, 1 Euss. & 612. See, in connection with the

My. 116 ; 32 E. E. 157. maxim, Duke of Brunswick v. Slow-

(6) Long v. Millar, 4 0. P. D. man, 8 0. B. 617.

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524 INTBRPKBTATION OF DEEDS AND WRITTEN INSTRUMENTS.

that "there are many authorities to show that one count
thereof may refer to another, and that under such circum-
stances the maxim appHes, verba relata inesse videntur " (d).
Will. The rule is also applied to the interpretation of wills (e),

although the Courts will not construe a will with the same
critical precision which would be prescribed to a grammarian.
For instance, the words, " the said estates," occurring in
a will, seemed in strictness to refer to certain freehold
lands, on which construction the devisee would have taken
only an estate for life, according to the rule which existed
before the 1 Vict. c. 26 (/) ; but Lord Ellenborough observed
that, in cases of this sort, unless the testator uses expres-
sions of absolute restriction, it may generally be taken
for granted that he intends to dispose of the whole interest ;
and, in furtherance of this intention. Courts of justice have
laid hold of the word " estate " as passing a fee, wherever
it is not so connected with mere local description as to be
cut down to a more restrained signification (g).

Another important application of the maxim before us
occurs where reference is made in a will to an extrinsic
document, in order to explain the testator's intention, in
which case such document will be received as part of the
will, from the fact of its adoption thereby, provided it be
clearly identified as the instrument to which the will
points (h). But parol evidence is inadmissible to show an

(d) Judgm., Beg. v. Wavei'ton, 17 In Doe v. Woodall, 3 0. B. 349, the
Q. B. 570. question was as to tlie meaning of the

(e) See Doe y. Maxey, 12 East, words " in manner aforesaid " occur-
589 ; Wheatley v. Thomas, Sir T. ring in a will. And see the cases on
Baym. 54. this subject, cited 1 Jarman on Wills,

The maxim may apply where a 5th ed. 701 (g).
power of appointment by will is [h) Molineux v. Molineux, Oro.

exercised. See, for instance, Be Jac. 144 ; Dickinson v. Stidolph, 11

Barker, 7 H. & N. 109. G. B. N. S. 341 ; 1 Jarman on Wills,

(/) See Hill v. Brown, [1894] 5th ed. 98. As to incorporating in

A. G. 124 : 63 L. J- P. 0. 46. the probate of wills papers referred

{g) Boe V. Bacon, 4 M. & S. 366, to thereby, but not jper se testa-

368. See 1 Vict. c. 26, ss. 26, 28. mentary, see Sheldon v. Sheldon, 1

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INTEKPEBTATION OF DEEDS AND WRITTEN INSTRUMENTS. 525

intention to connect two instruments together, where there
is no reference to a foreign instrument, or where the
description of it is insufficient (i). A further illustration,
moreover, of the general principle presents itself, where the
question arises whether the execution of a will applies to
the several papers in which the will is contained, or is con-
fined to that with which it is more immediately associated, or
whether an attested codicil communicates the efficacy of its
attestation to an unattested will, so as to render effectual
a devise or bequest contained in such prior unattested
instrument (k).

Without adducing further instances of the application of Exceptions
the maxim, verba illata inesse videntur — it will be proper to visoes.
notice a difficulty which sometimes arises where an excep-
tion (J), or proviso (vi) either occurs in, or by reference is
imported into, a general clause in a written instrument;
the difficulty ();) being to determine whether the party who
relies upon the general clause should aver that the particular
case does not fall within the exceptive provision, or whether
he should leave it to the party who relies upon that provision
to avail himself of it.

Now the rule usually laid down upon this subject is, that
where matter is introduced by way of exception into a general

Bobert. 81 ; Allen v. Maddock, 11 (m) The office of a pi-oviso in an

Moo. P. C. 427 ; Re Balme, [1897] Act is either to except something

P 261 : 66 L. J. P. 161. from the enacting clause, or to

(i) See Glaytm v. Ld. Nugent, 13 qualify its generality, or to exclude

M & W. 200. ^^^ possibility of a misinterpretation

(fe) IJarmanonWiUs.Sthed. 103; extending it to cases not intended

Allen V. Maddock, 11 Moo. P. C. to be within its purview : ycr Story,

427- Be QUI, L. E. 2 P. & D. 6; ?•> 15 Peters (U.S.), E. 445. Cf.

SmgleUm v. Tcmlmscm, 3 App. Gas. per Ld. Herschell, [1897] A. C. 656.

.„. (n) An analogous difficulty may

(i)Logioallyspeaking,anea;cei)«ioM also arise with reference to the

ought to be of that which would repeal or modification of a prior by

otherwise beincludedin the category a subsequent statute (see Bowyer v.

from which it is excepted, but there Cook, 4 C B. 236) ; and with refer-

are a great many examples to the ence to the restriction of go;^eral by

i. ra romTiViHll Gurlv avecial^OT&B (eee Howell v. Bichards,

rrSia't-^^^ ^' ^-*. «3B- " B. B. 287).

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526 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

clause, the plaintiff must show that the particular case does
not fall within such exception, whereas a proviso need not
be noticed by the plaintiff, but must be pleaded by the
opposite party (o). " The difference is, that where an
exception is incorporated in the body of the clause, he who
pleads the clause ought also to plead the exception; but
where there is a clause for the benefit of the pleader, and
afterwards follows a proviso which is against him, he
shall plead the clause, and leave it to the adversary to
show the proviso " (p).

Hence, if an Act of Parliament or a private instrument
contain, first, a general clause, and afterwards a separate
and distinct clause, which has the effect of taking out of the
general clause something which would otherwise be included
in it, a party relying upon the general clause may, in
pleading, set out that clause alone, without noticing the
separate and distinct clause which operates as an exception.
But if the exception itself be incorporated in the general
clause, then the party relying upon the general clause must,
in pleading, state it with the exception, and if he state it as
containing an absolute unconditional stipulation, without
noticing the exception, it will be a variance (q).

In accordance with the first of these rules, where one
section of a penal statute creates an offence, and a subsequent
section specifies certain exceptions thereto, the exceptions
need not be negatived by the party prosecuting (r). So,
where the exception is created by a distinct subsequent Act

(o) Spieres v. Parker, 1 T. R. 141 : ster, 10 M. & W. 373 ; per Ld.

1 B. B. 165 ; B. v. Jukes, 8 T. E. Abinger, Ch: Junction B. Co. v.

542 : 5 B. B. 445 ; per Ld. Mansfield, White, 8 Id. 221 ; Thibault v. Gibson,

B. V. Jarvis, cited 1 East, 646, n. ; 12 Id. 94 ; cited per Ld. Denman,
Stevens v. Stevens, 5 Exoh. 806. Palk v. Force, 12 Q. B. 672. See

(j)) Per Treby, O.J., 1 Ld. Baym. Boe v. Bacon, 4 M. & S. 366, 368 ;

120 ; cited 7 T. B. 31 ; Bussell v. Paddock v. Forrester, 3 Scott, N. B.

Ledswm, 14 M. & W. 574. See Grow 715 ; 1 Wms. Saunds. 262 b (1) ; B.

V. Folk, 8 Q. B. 467. v. Jukes, 8 T. B. 542 ; 5 R. B. 445.

(g) Vavasour v. Ormrod, 6 B. & (r) Van Boven's case, 9 Q. B.

C, 430; cited, Arg., Tucker v. Web- 669. See 15 M. & W. 318,

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INTEEPRETATION OF DEEDS AND WKITTEN INSTBTJMENTS. 527

of Parliament, as well as where it occurs in a subsequent
section of the same Act, the above remark applies (s) ; and
this rule has likewise been held apphcable where an exception
was introduced by way of proviso in a subsequent part of a
section of a statute which imposed a penalty, and on a former
part of which section the plaintiff suing for the penalty
relied (t). "There is," remarked Alderson, B., "a manifest
distinction between a proviso and an exception. Therefore,
if an exception occurs in the description of the offence in the
statute, the burden of proof rests with the complainant to
show that the accused does not come within it (u) ; but, if
the exception comes by way of proviso, and does not alter the
offence, but merely states what persons are to take advantage
of it, then the defence must be specially pleaded, or may
be given in evidence under the general issue, according
to circumstances " (x).

The latter of the two rules above mentioned may be thus
illustrated. An exception was introduced into the reservation
of rent in a demise, not in express terms, but only by reference
to subsequent matter in the instrument, viz., by the words,
" except as hereinafter mentioned ; " the plaintiff in his
declaration stated the reservation without the exception; this
was held, according to the above rule, to be a variance (y).

(s) See per Ld. Abinger, Thibault {x) Per Alderson, B., Simpson v.

V. Gibson, 12 M. & W. 94. Beady, 12 M. & W. 740 : 11 Id.

(t) Simpson v. Beady, 12 M. & W. 344 ; per Ld. Mansfield, Spieres v.

736 (as to whioh case, see, per Parker, 1 T. R. 144 ; 1 B. E. 165,

Alderson, B., Mayor of Salfm-d v. and B. v. Jarvis, 1 East, 644 (d) ;

Ackers, 16 Id. 92) ; per Parke, B., Bousfield v. Wilson, 16 M. & W.

Thibault v. Gibson, 12 Id. 96. 185. See Tennant v. Cumberland,

(u) Davis V. Scrace, L. B. 4 C. P. 1 E. & E. 401.

172 : 38 L. J. M. C. 79 ; Taylor v. (y) Vavasour v. Ormrod, 6 B. &

Humphries, 17 0. B. N. S. 539 : 34 C. 430.
L. J. M. C. 1.

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528 interpretation of deeds and written instruments.

Ad proximum Antecedbns fiat Eelatio, nisi impediatur
Sententia. {Noy, Max., 9th ed. p. 4.) — Relative luords
refer to the next antecedent, unless by such construction
ike meaning of the sentence loould he impaired.

Eule admits Eelative words must ordinarily be referred to the last
of relaxation, antecedent, where the intent upon the whole deed or
instrument does not appear to the contrary {z), and where
the matter itself does not hinder it (a) : the " last antecedent "
being the last word which can be made an antecedent so as
to have a meaning (b).

But, although this general proposition is true in strict
grammatical construction, yet there are numerous examples
in the best writers to show that the context often requires a
deviation from the rule, and that the relative may refer to
nouns which go before the last antecedent, and either take
from it or give to it some qualification (c).

For instance, an order of magistrates was directed to
the parish of W., in the county of R., and also to the parish
of M., in the county of L., and the words " county of R."
were then written in the margin, and the magistrates were,
in a subsequent part of the order, described as justices of
the peace for the county aforesaid : it was held, that it

(2) Com. Dig., "Parols" (A. 14, (i) Per Tindal, C.J., 1 A. & E.

15) ; Jent. Cent. 180 ; Dyer, 46 b ; 445. See Esdaile v. MoAilean, 15

Wing. Max., p. 19. See Bryant v. M. & W. 277 ; Williams v. Newton,

Warden, 2 Exch. 479 ; Piatt v. 14 M. & W. 747 ; Peake v. Screech,

Ashley, 1 Exoh. 257 ; Electric Tele- 7 Q. B. 603 ; Beg. v. Inhabs. of St.

graph Co. v. Brett, 10 C. B. 838 ; Margaret, Westminster, Id. 569 ;

Reg. V. Brown, 17 Q. B. 833, with Ledsam v. Russell (in error), 16 M.

wMcli compare Re Jones, 7 E20I1. & W. 663 : S. C, 1 H. L. Oas. 687.
586 ; E. Counties R. Co. v. Marriage, (c) Staniland v. Hopkins, 9 M. &

9 H. L. Gas. 32; S. C, 2 H. & N. W. 192, where a difficulty arose upon

625; cited by GhanneU, B., Tetley the construction of a statute. See,

V. Wanless, L. B. 2 Ex. 29 ; S. C, also, A.-G. v. Shillibeer, 3 Exch. 71 ;

Id. 275; and in Latham v. Lafone, Beer v. Santer, 10 C. B. N. S. 435 ;

Id. 123 ; Bristol d: E. B. Co. v. Beckh v. Page, 7 Id. 861 ; Earl of

Carton, 8 H. L. Cas. 477. Kintore v. Ld. Tnverury, 4 Macq. So.

(a) Finch, Law, 8. App. Cas. 520.

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INTERPBETATION OF DEEDS AND WKITTEN INSTBUMBNT9. 529

thereby sufiBciently appeared that they were justices for the
county of R. (d).

The above rule of grammar is, of course, applicable Wiiia.
to wills as well as to other written instruments ; for
instance : — A testator devised all his property situate in P.,
and also his farm called S., to his adopted child M. He
then left to his nephew, W., all his other lands ; and the
will contained this subsequent clause : " And should M.
have lawful issue, the said property to be equally divided
between her lawful issue." It was held that these words,
" The said property " did not comprise the lands devised
to the nephew, although it was argued that they must,
according to the true grammatical construction of the will,
either comprise all the property before spoken of, or must
refer to the next antecedent (e).

CONTEMPOKANEA ExPOSITIO EST OPTIMA ET FORTISSIMA IN

Lege. (2 Inst, 11.) — The best and surest mode of
expounding an instrument is by referring to the time
when, and circwmstances under which, it was made (/).

There is no better way of interpreting ancient words, or Ancient
of construing ancient grants, deeds, and charters, than by 8'^*^*^' *°-
usage (g) ; and the uniform course of modern authorities
fully establishes the rule, that, however general the words

(d) B. V. St. Mary's, Leicester, 1 Bing. 387 ; 27 E. R. 663 ; Doe ^.

B. & Aid. 327 ; Beg. v. Casterton, Nail, 6 Exch. 102 ; Peacock v. Stock-

6 Q. B. 507 ; Ba/ring v. Christie, ford, 3 De G. M. & G. 73, 79.

5 East, 398; 7 B. K. 719; B. v. (/) The Courts, however, have

Chilverscoton, 8 T. B. 178. frequently repudiated the idea of

(«) Peppercorn v. Peacock, 3 Scott, being influenced in their inteipre-

N. B. 651 ; Hall v. Warren, 9 H. L. tation of a statute by knovrledge of

Cas. 420. See, also, Doe v. Langton, what occurred in Parliament during

2 B. & Ad. 680, 691 ; Cheyney's case, the passing of the bill ; see, for

5 Bep. 68; and cases collected in instance, per PoUock, C.B., 7 Exch.

B. V. Bichards, 1 M. & Bob. 177 ; 617 ; per Alderson, B., 5 Exch. 667.

Owen V. Smith, 2 H. Bla. 594; 3 (g) Per Ld. Hardwioke, A.-O. v.

E. E. 513 ; Oalley v. Barrington, 2 Parker, 3 Atk. 576 ; and 2 Inst.

L.M. 34

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530 INTBKPRETATION OF DEEDS AND WKITTEN INSTEUMBNTS.

of an ancient grant may be, it is to be construed by evidence
of the manner in which the thing granted has always been
possessed and used ; for so the parties thereto must be
supposed to have intended (h). Thus, if it be doubtful on
the face of an instrument whether a present demise or future
letting was meant, the intention of the parties may be eluci-
dated by the conduct they have pursued (i) ; and where the
words of an instrument are ambiguous, the Court may call
in aid acts done under it as a clue to the intention (k).
statutes. Upon the same principle, also, depends the great authority

which, in construing an old statute, is attributed to the
construction put upon it by judges who lived at or soon
after the time when the statute was made, as being best
able to determine the intention of the legislature from their
knowing the circumstances to which the statute related (l) ;
and where the words of an Act are obscure, and where the
sense of the legislature cannot, with certainty, be collected
by interpreting the language according to grammatical
correctness, considerable stress is laid upon the light in
which it was received and held by the contemporary lawyers
of repute. "Great regard," said Sir E. Coke, "ought, in
construing a statute, to be paid to the construction which
the sages of the law, who lived about the time or soon after
it was made, put upon it ; because they were best able to

282 ; cited 4 T. B. 819 ; per Parke, (k{ Per Tindal, C.J., Doe v. Eies,

B. , Glift V. Schwabe, 3 C. B. 469 ; and 8 Bing. 181.

Jewison v. Dyson, 9 M. & W. 556 ; {1} 2 Phill. Evid., 10th ed. 420 ;

B. V. Mashiter 6 A. & E. 153 ; B. v. Bank of England v. Anderson, 3

Davie, Id. 374 ; Senhouse v. Earle, Bing. N. G. 666. See the resolu-

Amb. 288 : Co. Litt. 8 b ; Lock-wood lions in Heydon's case, 3 Eep. 7 ;

V. Wood, 6 Q. B. 31 ; per Ld. Eldon, as to which see per Pollock, C.B.,

A.-G. V. Forster, 10 Yes. 388 ; A.-G. v. Sillem, 2 H. & C. 431 ; Ld.

Beg. V. Dulwich College, 17 Q. B. Camden's Judgment in Entick v.

600. Carrington, 19 How. St. Trials, 1043

(h) Weld V.Hornby, 7 East, 199; et seg^.; per Coleridge, 3., Bag. v.

8 B. R. 608 ; B. v. Osbourne, 4 East, Archb. of Canterbury, 11 Q. B. 595,

327. 596 ; per Crompton, J., Sharpley v.

(i) Chapman v. Bluoh, i Bing. Mablethorpe, 3 E. & B. 917 ; per

N. C. 187, 195. Byles, J., 6 G. B. N. S. 213.

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INTBEPEETATION OF DEEDS AND WEITTEN INSTBUMENTS. 531

judge of the intention of the makers at the time when the
law was made " (m). And, " it is by no means an incon-
venient mode of construing statutes to presume that the
legislature was aware of the state of the law at the time
they were passed " (»). Yet, an Act which purports to amend
the law is not conclusive evidence of what the earlier law
was (o) ; and even the use of the words " it is declared " does
not necessarily render an Act retrospective in operation (p).

Conformably to what has been said, stress was laid by
several of the judges in the Fennoy Peerage case (q), upon
the usage observed in the creation of Irish Peerages since the
passing of the Act of Union. And in Salkeld v. Johnson (r),
the Court of Exchequer, referring to the 2 & 3 Will. 4, c. 100,
observed, " We propose to construe the Act according to the
legal rules for the interpretation of statutes, principally by
the words of the statute itself: which we are to read in
their ordinary sense, and only modify or alter so far as it
may be necessary to avoid some manifest absurdity or
incongruity, but no further (s). It is proper also to con-
sider the state of the law which it proposes or purports
to alter, the mischiefs which existed and which it was
intended to remedy (t), and the nature of the remedy pro-
vided, and to look at the statutes in pari materia (u), as a
means of explaining this statute. These are the proper
modes of ascertaining the intention of the legislature."

Generally, however, usage does not aid interpretation Limits of
unless there be ambiguity (v). If there has been a long usage ^ ^ '

(m) 2 Inst. 11, 136, 181 ; per Holt, (q) 5 H. L. Cas. 747, 785.

C. J., Comb. B. 210 ; Newcastle (r) 2 Exoit. 273.

Corp. V. A.-G., 12 01. & F. 419 ; (s) Ante, pp. 434, et sec[.

Morgan v. Crawshay, L. B. 5 H. L. (t) Of. per Ld. Esher, Powell v.

315. Kempton Co., [1897] 2 Q. B. 242;

(n) Per PoUook, O.B., Jones v. S. 0. [1899] A. 0. 143: 68 L. J.

Brown, 2 Exoh. 332. Q. B. 392.

(o) Mollwo V. Court of Wards, (u) See Ex p. Copeland, 2 De Q.

L. B. 4 P. 0. 437. M. & G. 914.

(p) Harding v. Qtieensland (v) N. E. B, Co. v. Hastings,

Commrs., [1898] A. 0. 769 : 67 L. J. [1900] A. 0. 260.
P. 0. 144.

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532 INTEBPBBTATION OF DEEDS AND WKITTBN INSTRUMENTS.

to apply trust funds to purposes warranted by one possible
construction of a will, but not by another, the Courte lean
to that construction which upholds the usage ; but usage
does not justify deviation from terms which are plain (x) :
it is a strong ground for the interpretation of doubtful
expressions, but affords no sanction to manifest breaches of
trust (y). Similarly, against the clear words of a statute
no usage is of avail {z) ; and hence it has been said that
the maxim amounts to no more than this, that if an Act be
susceptible of the construction put upon it by long usage,
the Courts will not disturb that construction (a).

But where a statute is silent upon some points, usage,
especially if it be not inconsistent with the directions
actually given, may well supply the defect ; and where a
statute uses language of doubtful import, what has been
done under it for a long course of years may well give an
interpretation, reducing uncertainty to a fixed rule. In
such cases the maxim, hereafter illustrated (b), is applicable :
optimus legis interpres consuetudo (c).

In construing an ancient statute, such as the Act of
Uniformity, contemporaneous usage is of great value, and
to ascertain what that usage was the Courts may refer
to all such ancient works as a careful historian would
rely upon; for the law permits a reference to historical
works in order to ascertain ancient facts of a public
nature (d).

But in construing a modern statute contetnporanea cxpositio

(m) A.-G. V. Bochester, 5 Tie G. M. Bp. of Exeter, 15 Q. B. 73, 74.

& G. 822 ; A.-O. v. Sidney Sussex (6) See Chap. X., -where the

College, L. R. 4 H. L. 732. admissibility of usage to explain

{y) See 2 H. L. Oas. 861, 863. instruments is considered, and

(«) Per Ld. Brougham, Dunbar further authorities are cited.

V. Duchess of Boxburghe, 3 (c) See per Ld. Brougham, 3 CI. &

CI. & P. 354. F. 354 ; Be Mackenzie, [1899] 2 Q. B-

(a) Per Pollock, G.B., Pochin v. 566.

Duncombe, 1 H. & N. 856 ; of. Id. (d) Bead v. Bp. of Lincoln, [1892]

53 ; per Ld. Campbell, Qorham v. A. C. 644 : 62 L. J. P. C. 1.

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INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS. 533

is of no value ; and the Courts have refused to apply it to
statutes passed within the last hundred years (e).

Similar in effect to an unbroken usage is a long current Judicial
of judicial decisions (/) ; and where the authorities are con-
sistent a Court may feel bound by them even if it does not
wholly approve of the principles which have been acted
upon ig).

Qui HiERBT IN LiTERA H^RET IN CoRTICB. {Co. Litt. 283 b.)

— He who considers merely the letter of an instrument
goes but skin-deep into its meaning.

The law of England respects the effect and substance
of the matter, and not every nicety of form or circum-
stance (h). The reason and spirit of cases make law, and
not the letter of particular precedents (i). Hence it is, as
we have already seen, a general rule connected with the
interpretation of deeds and written instruments, that, where
the intention is clear, too minute a stress should not be
laid on the strict and precise signification of words (f). For
instance, by the grant of a remainder, a reversion may
pass, and e converso (k) ; and if a lessee covenant to leave
all the timber which was growing on the land when he
took it, the covenant will be broken, if, at the end of the
term, he cuts it down, but leaves it there ; for this, though
a literal performance of the covenant, would defeat its
intent (Z).

(e) Trustees of Clyde Navigation 241 ; 29 E. E. 541.

V. Laird, 8 A. 0. 658, 673 ; Assheton (h) Co. Litt. 283 ; Wing. Max.,

Smith V. Owen, [1906] 1 Ch. 179, p. 19. See per Ooltman, J., 2 Soott,

218 : 75 L. J. Oh. 181 ; but see N. E. 800.

Beg. V. Gormmssioners of Inland (i) Per Ld. Mansfield, 3 Burr.

Bevenue, [1891] 1 Q. B. 485, 489: 1364.

60 L. J. Q. B. 376. U) ^»*«. P- ^21.

(/) Windham v. Chetviynd, 1 (k) Hobart, 27.

Burr. 419. (l) Woodf., L. & T,, 16tli ed. 660.

{g) Newton v. Cowie, 4 Bing. 234, Of. L, R. 13 Eq. 523.

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534 INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

False In accordance with this principle, it is a further rule,

that viala (jrammatica non vitiat chartam (m) — the gram-
matical construction is not always, in judgment of law,
to be followed; and neither false English nor bad Latin
makes a deed void when its meaning is apparent (ra). Thus,
the word " and " has as already intimated, in certain cases,
been read " or," and vice versa, when this change was
rendered necessary by the context (o). Where, however,
a proviso in a lease was altogether ungrammatical and
insensible, the Court declared that they did not consider
themselves bound to find out a meaning for it (p).

In interpreting an Act of Parliament, likewise, it is not
always a true line of construction to decide according to
the strict letter of the Act; but, subject to the remarks
already made (q), the Courts may consider what is its fair
meaning (r), and expound it differently from the letter, in
order to preserve the intent (s). The meaning of particular
words, indeed, in statutes, as well as in other instruments,
is to be found not so much in a strict etymological propriety
of language, nor even in popular use, as in the subject or
occasion on which they are used, and the object that is
intended to be attained (i).

(m) 9 Rep. 48 ; 6 Rep. 40 ; Wing. (g) Ante, pp. 421 et seq.

Max., p. 18 ; Viu. Abr., " Oram- (r) Per Ld. Eenyon, 7 T. R. 196 ;

mar " (A.) ; Lofft, 441. " It may as Fowler v. Padget, Id. 509 ; 4 R. R.

properly be said in Sootcb as iu 511; 11 Rep. 73 ; Litt., s. 67, with

English law that falsa grammatica the commentary, cited 3 Bing. N. C.

non vitiat chartam:" per Ld. 525; Co. Litt. 381 b. See Vincent

Chelmsford, Gollan v. Gollan, 4 v. Slaymaker, 12 East, 372 ; 11 R. B.

Macq. Sc. App. Gas. 591. 413 ; Arg., Bignold v. Springfield,

in) Go. Litt. 223 b; Oslorn's 7 CI. & P. 109, and oases there

case, 10 Rep. 133; 2 Show. 884. cited.

See Reg. v. Wooldale, 6 Q. B. 565. (s) 8 Rep. 27. Semper in obscuris

(o) Chapman v. Dalton, Plowd. quod minimum est sequimur, D. 50,

289;i3omsv. Daws, 1 Coll. 416. See 17, 9; which is a safe maxim for

per Ld. Halsbury, 18 App. Cas. 603. guidance in our own law ; see pe^-

(p) Doe V. Carew, 2 Q. B. 317 ; Maule, J., Williams v. Crosling, 8

• Berdoe v. SpitOe, 1 Exch. 175. See G. B. 962.

Moverly v. Lee, 2 Ld. Raym. 1223, (t) Judgm., R. v. Hall, 1 B. & C.

1224. 123 ; cited 2 C. B. 66.

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INTERPRETATION OP DEEDS AND WRITTEN INSTRUMENTS. 535

Still more so is this the case in applying the words used
by a judge in giving his reasons for a judgment. The
effect of a judgment declaring the law cannot be avoided by
considering the exact words used by a judge and then
seeking " to evade the pressure of his words " by a colour-
able alteration of the subject-matter with reference to which
they are used — " qui lueret in litera, hcBret in cortice " (m)-

The maxim applies also to the interpretation of contracts Contracts.
so as to place the construer in the same position as the
party who made the contract, to view the circumstances as
he viewed them, and so judge of the meaning of the words,
and of the correct application of the language to the things
described (x), and extrinsic evidence for these purposes is
admissible (y).

(m) Per Ld. Halsbury in Wedder- ed., p. 44, and oases there cited.
burn V. Duke of Atholl, [1900] A. 0. (y) Hudson v. Stewart, L. R. 9

403,417. 0. P. 311: 43 L. J. C. P. 204;

(x) Addison on Contracts, dth Brown v. Fletcher, 35 L. T. 165.

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586

CHAPTER IX.

THE LAW OF CONTRACTS.

A cuESORY glance at the contents of the preceding pages
will show that we have frequently had occasion to refer to
the law of contracts, in illustration of maxims submitted to
the reader. Many, indeed, of our leading principles of law
have necessarily a direct bearing upon the law merchant,
and must, therefore, be constantly borne in mind when
attention is directed to that subject. The following pages
are devoted to a review of such maxims as are peculiarly,
though by no means exclusively, applicable to contracts;
and an attempt has been made, by the arrangement adopted,
to show, as far as practicable, the connection between these
maxims, and the relation in which they stand to each other.
The first of these maxims sets forth the general principle,
that parties may, by express agreement i7iter se, and sub-
ject to certain restrictions, acquire rights or incur liabilities
which the law of itself would not have conferred or imposed.
The maxims subsequently considered show that a man may
renounce a right which the law has given to him ; that one
who enjoys the benefit, must likewise bear the inconvenience
or loss resulting from his contract; that, where the right
or where the delinquency on each side is equal in degree,
the title of the party in actual possession prevails. Having
thus stated preliminary rules applicable to the conduct
and position of contracting parties, we proceed to examine
the nature of the consideration essential to a valid con-
tract : the liabilities attaching respectively to vendor and

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THE LAW OF CONTRACTS.

purchaser : the various modes of payment and receipt of
money: the effect of contracting, or, in general, of doing
any act, through the intervention of an agent : and the
legal consequences which flow from the subsequent ratifica-
tion of a prior act. Lastly, we state how a contract may
be revoked or dissolved, and how a vested right of action
may be affected by the Statute of Limitations, or by the
negligence or death of the party possessing it. It wUl be
evident, from this brief outline of the principles set forth
in this chapter, that some of them apply to actions of tort,
as well as to actions founded on contract ; and when such is
the case, the remarks appended are not confined to actions
of the latter description. The general object, however,
has been to exhibit the most important elementary rules
relative to contracts, and to show how the law may, through
their medium be applied to regulate the infinitely varied
transactions of a mercantile community.

537

Modus et Conventio vincunt Legem. (2 Eep. 73.) — The
form of agreement and the convention of ■parties overrule
the law.
This may be regarded as the most elementary principle General
of law relative to contracts (a), and may be thus stated in P""°'P ®^
a somewhat more comprehensive form : The conditions
annexed to a grant or devise, the covenants inserted in a
conveyance or lease, and the agreements whether written
or verbal, entered into between parties, have, when duly
executed and perfected, and subject to certain restrictions,
the force of law over those who are parties to such instru-
ments or agreements {h). "Parties to contracts," remarked

{a) In illuatration of it, see Walsh (6) A " oontraot " is defined to be

V. Sec. of State for India, 10 H. L. " Vne convention par laquelle les

Oas. 367; Savin v. Eoylake B. Co., deux parties, ou seulement I'une des

L. B. 1 Ex. 9 ; Barlow v. Teal, 15 deux, promettent et s'engagent envers

Q. B. D. 501. I'autre a ltd donner quelgue chose ou

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538 THE LAW OP CONTRACTS.

Erie, J., "are to be allowed to regulate their rights and
liabilities themselves " (c), and "the Court will only give
effect to the intention of the parties as it is expressed by
the contract" {d).

Where the tenant of a house covenanted in his lease to
pay a reasonable share of the expenses of supporting and
repairing all party-walls, and to pay all taxes, duties,
assessments, and impositions, parliamentary and parochial
— " it being the intention of the parties that the landlord
should receive the clear yearly rent of £60 in net money,
without any deduction whatever," — and during the lease
the owner of the next house built a party-wall between his
own house and the house demised, under the provisions of
the 14 Geo. 3, c. 78 : it was held that the tenant, and not
the landlord, was bound to pay the moiety of the expense
of the party -wall ; " for," observed Lord Kenyon, " the
covenants in the lease render it unnecessary to consider
which of the parties would have been liable under the Act ;
modus et conventio vincunt legem" (e).

So, in Rowhotham v. Wilson (/), Martin, B., observed,
" I think the owner of land may grant the surface, subject
to the quality or incident that he shall be at liberty to
work the mines underneath, and not be responsible for any
subsidence of the surface. If the law of itself, under certain
circumstances, protects from the consequences of an act,
I think a man may contract for such protection in a case

d faire ou a ne pas faire quelque (c) Gott v. Oandy, 23 L. J. Q. B.

c/iosc : " Pothier, Obllg., pt. 1, ohap. 1, 3 ; S. C, 2 E. & B. 8i7 ; per

1, art. 1, s. 1. Omne jus aut con- Erie, J., 4 H. & N. 343.

sensus fecit, aut necessitas constituit, (d) Judgm., Stadhard v. Lee, 3

aut firmavit consuetude : D. 1, 3, B. & S. 372 ; per Bramwell, B.,

40. " It is the essence of a contract Rogers y. JSadley, 2 H. & C. 249;

that there should be a concurrence and see Manchester, S. t£ L. B. Co.

of intention between the parties as v. Brown, 8 App. Cases, 703 : 52

to the terms. It is an agreement L. J. 132.

because they agree upon the terms, (e) Barrett v. Duke of Bedford, 8

upon the subject-matter, the con- T. R. 602, 605.

sideration, and the promise : " L. B. (/) 8 E. & B. 150 : 8 H. L. Gas.

4 Ex. 381. 348.

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transactions.

THE LAW OF CONTRACTS. 539

where the law of itself would not apply ; modus et conventio
vincunt legem."

In an action for not carrying away tithe corn, the plaintiff
alleged that it was " lawfully and in due manner " set out :
it was held that this allegation was satisfied by proof that
the tithe was set out according to an agreement between
the parties, although the agreed mode varied from that
prescribed by the common law, the tithe beiag set out in
shocks, and not in sheaves, as the law directed (g).

The same comprehensive principle applies, also, to Mercantile
agreements having immediate reference to mercantile trans-
actions : thus, the stipulations contained in articles of
partnership may be enforced, and must be acted on as far
as they go, their terms being explained, and their deficiencies
supplied, by reference to the general principles of law.
Although, therefore, a new partner cannot at law be intro-
duced without the consent of every individual member of
the firm, yet the executor of a deceased partner is entitled
to occupy his place, if there be an express stipulation to
that effect in the agreement of partnership. Again, the
lien which a factor has upon the goods of his principal (/t)
arises from a tacit agreement between the parties, which
the law implies ; but, where there is an express stipulation
to the contrary, it puts an end to the general rule of
law (i). The general lien of a banker, also, is part of the
law merchant, and will be upheld by the Courts, unless
there be some agreement between the banker and the
depositor, either express or implied, inconsistent with such
right (k).

{g) Facey v. Hurdom, 3 B. & 0. B. & S. 460, 486.
213. See HalUwell v. Trappes, 1 (k) Branddo v. Barnett, 12 01.

Taunt. 55. & F. 787 : 3 C. B. 519 ; Misa v.

{h) See Dixon v. Stansfeld, 10 Currie, 1 App. Gas. 554, 569.
C. B. 398. As to the lien of a shipowner on

(i) Per Ld. Kenyon, Walker v. the cargo for freight, see How v.

Birch, 6 T. E. 262. As to the general Kirchner, 11 Moo. P. 0. 0. 21 ;

lien of a wharfinger at common Kirchner v. Venus, 12 Id. 361.
law, see Dresser ■/. Bosa/nguet, 4

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540

THE LAW OP CONTBACTS.

Doctrine of
equity.

Specific
performance.

So, it has been remarked that, in the ordinary case of a
sale of chattels, time is not of the essence of the contract,
imless it be made so by express agreement, and this may
be effected with facUity by introducing conditional words
into the bargain; the sale of a specific chattel on credit,
therefore, although that credit be limited to a definite
term, transfers the property in the goods to the buyer,
giving the seller, when that term has expired, a right of
action for the price, and a lien upon the goods, if they be
still in his possession, till that price be paid (l).

The doctrine relative to specific performance may here
be mentioned, as showing that Courts of equity fully
acknowledge the efficacy of contracts, where bona fide entered
into in accordance with the formalities, if any, required by
law. Equity, indeed, from its peculiar jurisdiction, has
power for enforcing the fulfilment of contracts which the
common law does not possess (??i) ; and in exercising this
power, it acts upon the principle that express stipulations,
if valid, prescribe the law quoad the contracting parties.
For instance, money was devised to be laid out in land to
the use of B. in tail, remainder to the use of C. in fee. B.,
having no issue, agreed with C. to divide the money ; but
before the agreement was carried out B. died, whereupon
C. becoming, as he supposed, entitled to the whole fund,
refused to complete the agreement. The Court, however,
upon a bill filed by B.'s personal representatives, decreed a
specific performance (n) ; acting thereby in strict accordance
with the maxim, modus et conventio vincunt legem (o).

Without venturing further into the wide field which is

(I) Martindale v. Smith, 1 Q. B.
395, cited in Page v. Eduljee, L. E.
1 P. C. 145. In Spartaliy. Benecke,
10 0. B. 216, Wilde, O.J., observes,
" If a vendor agrees to sell for a de-
ferred payment, the property passes,
and the vendee is entitled to call for
a present delivery without payment."

See 56 & 57 Vict. o. 71, ss. 10(1),
18, 41 (1) (b).

(to) See Benson v. Paull, 6 E. &
B. 273.

(to) Carter v. Carter, Gas. temp.
Talb. 271.

(o) See, also, Frank v. Frank, 1
Chano. Gas. 84.

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THE LAW OF CONTRACTS. 541

here opening upon us, we may add that it does sometimes
happen, notwithstanding an express agreement between
parties, that peculiar circumstances present themselves
which afford grounds for the interference of a Court of
equity, in order that the contract entered into may be so
modified as to meet the justice of the case. For instance,
where an attorney, who died three weeks later, received,
whUst he lay ill, 120 guineas by way of apprentice fee with
a clerk who was placed with him, the Court decreed a
return of 100 guineas, although the articles provided that
if the attorney should die within the year £60 only should
be returned (p). With respect to this case, Lord Kenyon,
indeed, observed (g), that in it the jurisdiction of a Court
of equity had been carried "as far as could be; " but the
decision seems, from the facts stated in the pleadings (?•),
to be supportable upon a plain ground of equity, viz., that
of mutual mistake, misrepresentation, or unconscientious
advantage (s), and, consequently, not really opposed to the
spirit of the maxim, modus et conventio vincunt legem.

The rule under consideration, however, is subject to Limitation
limitation, and does not apply where the express provisions
of any law are violated by the contract, nor, in general,
where the interests of the public, or of third parties, would
be injuriously affected by its fulfilment. Pacta, quce contra
leges constitutionesque vel contra honos mores Jiunt, nullam
vim habere, indnbitati juris est (f) ; and privatoruvi conventio
juri publico non derogat (u). " If the thing stipulated for is
in itself contrary to law, the paction by which the execution
of the illegal act is stipulated must be held as intrinsically
null; pactis privatorum, juri publico non derogatur' (v).
Accordingly illegality may be pleaded as a defence to an

(p) Newton v. Bowse, 1 Vem., (s) 1 Story, Ect. Jurisp., 12th ed.

3rd ed. 460. See Be Thompson, 1 p. 460.
Exoh. 864 ; WUncup v. Hughes, (t) 0. 2, 3, 6.

L. K. 6 C. P. 83. M D. 50, 17, 45, § 1 ; D. 2, 14,

(g) Hale v. Webh, 2 Bro. Oh. 80. 38 ; 9 Eep. 141.
,{r) See 1 Vern., 3rd ed. 460 (2). (v) Arg., 4 CI. & P. 241.

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642 THE LAW OF CONTRACTS.

action on a deed. Thus, where the defendant and other
obligors on a bond had agreed to execute the bond in favour
of the plaintiff as security for money paid by him to another
person as a bribe not to prosecute the other obligors for
perjury, the defendant was permitted to set up the agree-
ment and thereby avoid the payment of the bond on the
ground of illegality (x).

Again, the jurisdiction of the Courts cannot be ousted by
mere agreement of the parties (ij). Contracts in writing
often contain an " arbitration clause." Such clause, in so
far as it provides for the reference of disputes, is valid (0) ;
but, being construed as collateral to the rest of the contract,
it is no defence in law to an action thereon (a), though it
may entitle the defendant to have the action stayed (&). A
clause which provides absolutely that a right under the
contract shall not be enforceable by action is void, as an
attempt to oust jurisdiction {y) ; but if it merely provides
that an award, fixing the debt or the damages, shall be a
condition precedent to the recovery thereof by action, it is
not only valid, but is a defence to the action if brought
before the award (c).

Not only is the consent or private agreement of indivi-
duals ineffectual in rendering valid any direct contravention
of the law (d), but it will altogether fail to make just,
sufficient, or effectual that which is unjust or deficient in
respect to any matter which the law declares to be indis-
pensable and not circumstantial merely (e). Therefore an

(x) Collins V. Blantern, 1 Smith's (c) Scott v. Avery, 5 H. L. Cas.

L. C, nth ed. 369, and authorities 811 : 25 L. J. Ex. 308 ; Viiiey v.

cited in the note thereto. Bignold, 20 Q. B. D. 172; Caledonian

(y) Gorton v. Sayer, 4 H. & N. Ins. Co. v. Gilmour, [1893] A. C. 85.

643 : 29 L. J. Ex. 28. {d) See British Wagon Co. v.

(0) Livingston v. Balli, 5 E. & B. Gray, [1896] 1 Q. B. 35 : 65 L. J.

132. Q. B. 75 : and of. Montgomery v.

(o) Collins V. Locke, 4 App. Cas. Liehenthal, [1898] 1 Q. B. 487 : 67

674 ; Dawson v. Fitzgerald, 1 Ex. L. J. Q. B. 313.

D. 257. (e) Bell, Diet, and Dig. of Scotch

(h) See 52 & 53 Vict. o. 49, ss. 4, 27. Law, 694.

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THE LAW OP CONTRACTS. 543

agreement by a married woman, that she will not avail
herself of her coverture as a ground of defence to an action
on a personal obligation which she has incurred, would not
be valid or effective in support of the plaintiff's claim and
by way of answer to a plea of coverture (/) ; for a married
woman is under a total disability, and her contract is
absolutely void, except where it can be viewed as a contract
by her husband through her agency, or is within the
Married Woman's Property Acts.

So, with reference to a provision in a foreign policy of
insurance against all perils of the sea, " nullis exceptis," it
was observed, that, although there was an express exclusion
of any exception by the terms of the policy, yet the reason
of the thing engrafts an implied exception even upon words
so general as these ; as, for example, in the case of damage
occasioned by the wilful fault of the assured ; it being a
general rule that insurers are not liable when loss or
damage happens by the fraud of the assured, from which
rule it is not permissible to derogate by any pact to the
contrary; for nulla pactione effici potest ut dolus prastetur (g)
— a man cannot validly contract that he shall be irre-
sponsible for his own fraud. Neither will the law permit a
person who enters into a binding contract, to say, by a
subsequent clause, that he will not be liable to be sued for
a breach of it (h).

It is equally clear that an agreement entered into between ^f^®Q™^g*gt
two persons cannot, in general, affect the rights of a third the rights
party, who is a stranger to it ; thus, an agreement between parties.
A. and B., that B. shall discharge a debt due from A.
to C, does not prejudice C.'s right to sue A. for the debt;

{/) See Liverpool AdeVphi Loan (g) Judgm., 5 M. & S. 466: D. 2,

Ass. V. Fairhurst, 9 Exch. 422 ; 14, 27, 3. See Trinder v. Thames,

Wright v. Leonard, 11 0. B. N. S. £c. Ins. Co., [1898] 2 Q. B. 114: 67

258 ; Gomnam, v. Farmer, 3 Exch. L. J. Q. B. 666 ; Shaw v. G. W. B.

698 ; Barthtt v. Wells, 1 B. & S. Co., [1894] 1 Q. B. 373, 382.

836; Batenum v. Faber, [1898] 1 (h) Per Martin, B., Kelsall v.

Ch. 145 : 67 L. J. Oh. 130. Tyler, 11 Exoh. 534.

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THE LAW OF CONTEACTS.

Surrender
by operation
of law.

debitoriim pactionibus creditorum petitio nee tolli nee minui
potest (i) ; and, according to the rule of the Eoman
law, privatis pactionibus nan dubium est non Icedi jus
cceterorum (k).

In the above and similar cases, then, as well as in some
others relative to the disposition of property, which have
been noticed in the preceding chapter (l), another maxim
emphatically applies : fortior et potentior est dispositio legis
quain hominis (in) — the law in some cases overrides the will
of the individual, and renders ineffective and futile his
expressed intention or contract {n) .

For instance, " surrender " is the term applied in law
to " an act done by or to the owner of a particular estate,
the validity of which he is estopped from disputing, and
which could not have been done if the particular estate
continued to exist;" as in the case of a lessee taking a
second lease from the lessor, or a tenant for life accepting
a feoffment from the party in remainder, or a lessee
accepting a rent-charge from his lessor. In such case
the surrender is not the result of intention ; for, if
there was no intention to surrender the particular estate,
or even if there was an express intention to keep it
unsurrendered, the surrender would be the act of the
law, and would prevail in spite of the intention of the

(i) 1 Pothier, Oblig., 108, 109.
See, however, Bcmse v. Bradford
Bank, [1894] A. 0. 586.

(k) D. 2, 15, 3, pr.

{I) See, also, per Ld. Kenyon, Doe
v. Carter, 8 T. E.. 61 : S. 0., Id. 300 ;
i R. B. 586 ; Arg., 15 East, 178.

(m) Co. Litt. 234 a, cited, 15
East, 178. The maxim is illustrated
by Williams, J., Hybart v. Parker, i
C. B. N. S. 213—214.

(n) For instance, a man cannot,
by bis own acts or words, render
that irrevocable, which, in its own

nature and according to established
rules of law, is revocable, as in the
case of a wiU, Similarly, it was
said that " the rule which prohibits
the assignment of a right to sue on
a covenant, is not one which can be
dispensed with by the agreement
of the parties, and it appUes to
covenants expressed to be with
assignees, as well as to others ; "
Judgm., 1 Exch. 645. And see
Judgm., Hibblewhite v. M'Morine, 6
M. & W. 216.

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THE LAW OF CONTRACTS.

545

parties (o) ; fortior et potentior est dispositio Iccj'is quam
hominis (»).

Subject to such and similar exceptions, however, the
general rule of the civil law holds equally in our own :
pacta convcnta qum neque contra leges neque dolo malo inita
sunt omnimoclo observanda sunt (g) — compacts which are not
illegal, and do not originate in fraud, must in all respects
be observed.

QUILIBET POTEST KBNXJNCIAEB JuKI PEO SB INTRODUCTO.

(Wing. Max., p. 483.) — Any one may, at his pleasure,
reno2Uice the benefit of a stipulation or other right
introduced entirely in his own favour (r).

According to the well-known principle expressed in this
maxim, a defendant may, as a rule, decline to avail himself
of a defence which would be at law a vaUd and sufficient
answer to the plaintiffs demand, and waive his right to
insist upon that defence (s) .

(o) Lyon v. Beed, 13 M. & W. 285,
306 ; commented on, Nickells v.
Atherstone, 10 Q. B. 944. As to a
surrender by operation of law, see
also the cases collected, 2 Smith,
L. C, nth ed. 887 et seq. ; Doe v.
Wood, 14 M. & W. 682; Morrison
V. ChadwicJc, T G. B. 266 ; Tanner v.
Hartley, 9 0. B. 634 ; Judgm., Doe
V. Poole, 11 Q. B. 716.

(p) Similarly applied in 8 Johns.
(U.S.), R. 401 ; Co. Litt. 388 a. It
may possibly happen, too, that the
direction of a particular legal tri-
bunal will have to be disregarded by
a judge, as opposed to the common
law ; see per Coleridge, J., 15 Q. B.
192. And see other instances, in
connection with illegal contracts,
post. Et videper Ld. Truro, Ellcock
V. Mapp, 3 H. L, Cas. 507 ; per

L.M.

\Vaiver of
defence.

Parke, B., Hallett v, Dowdall, 18
Q. B. 87.

(2) C. 2, 3, 29.

(r) Bell, Diet, and Dig. of Scotch
Law, 545 ; 1 Inst. 99 a ; 2 Inst. 183 ;
10 Rep. 101 ; Wilson v. Mcintosh,
[1894] A. 0. 183 : 63 L. J. P. 0. 49.

The words pro se were introduced
to show that no man can renounce a
right, of which the claims of society
forbid the renunciation : per Ld.
Westbury, Hunt v. Hunt, 31 L. J.
Gh. 175. For instance, if an action
be brought upon a contract which is
shown at the trial to be illegal, the
Gourts may apply the maxim, ex
turpicausanonoriiur actio, although
the defendant has not pleaded the
illegahty ; Scott v. Brown, [1892] 2
Q. B. 724 ; see post, p. 554.

(s) See per Bayley, J., 2 M. & S.

35

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THE LAW OP CONTRACTS.

Statute of
Limitations,

Infancy.

For instance, a defendant, who is sued for a debt barred
by the statute of limitations (t), may waive his right to rely
upon the defence which that statute confers (m) ; and the
benefit of the statute may also be waived by a debtor before
action brought to recover the debt (x), by his signing a
written (y) promise to pay the debt, either unconditionally
or subject to conditions afterwards fulfilled, or a written
acknowledgment of the debt from which a promise to pay
it may be inferred (2) ; or, again, by his making a part
payment on account of the whole debt under circumstances
which do not rebut the implication of a promise by him to
pay the balance (a) .

Similarly, where a person is sued after his coming of age
for a debt which he contracted during his infancy, and
Avhich, owing to his infancy, was either voidable by him, or
even absolutely void (&), it is, no doubt, generally open to
him to waive such ground of defence. The statute law (c)
has, indeed, affected the general rule of the common law (d),
that a person binds himself by his ratification after full age
to transactions which he entered into while an infant ; yet
there are still transactions to which that rule applies. For
instance, if an infant makes a settlement of property upon
his marriage, the settlement is generally voidable by him
upon his coming of age, but he may waive his right to

25; per Abbott, C.J., 5 B. & Aid.
686. Qraham v. Ingleby, 1 Exch.
651, 656, shows that a plaintiff
might waive the benefit of the 4
Ann. 0. 16, s. 11, which required
that a plea in abatement should be
verified by affidavit.

(t) 21 Jao. 1, i;. 16.

(u) See B. S. C. 1883, 0. 19, r. 15.

(k) See Bateman v. Pindar, 3
Q. B, 574.

(y) See 9 Geo. 4, c. 14, s. 1 ; 19 &
20 Vict. u. 97, s. 13.

(z) See Be Biver Steamer Co.,
L. B. 6 Ch. 822, 828; Green v.

Humphreys, 26 Ch. D. 474 : 53 L. J.
Ch. 625 ; Stamford Bank v. Smith,
[1892] 1 Q. B. 765 : 61 L. J. Q. B.
405.

(a) Morgan v. Bowlands, L. E. 7
Q. B. 493 ; Tanner v. Smart, 6 B. &
C. 603.

(6) 37 & 38 Vict. c. 62, s. 1 ; see
also 55 Vict. c. 4, s. 5.

(c) 37 & 38 Vict. c. 62, s. 2 ; see
Smith V. King, [1892] 2 Q. B.
543.

(d) See Hairis v. Wall, 1 Exch.
122.

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THE LAAV OF CONTRACTS. 547

avoid it by his then ratifying it, or, indeed, by his
not repudiating it within a reasonable time after his
majority (c).

A man may also not merely relinquish a particular line Renunciation
of defence, but he may also renounce a claim which might ° '^^°
have been substantiated, or release a debt which might
have been recovered by ordinary legal process ; or he may,
by his express contract or stipulation, exclude some more
extensive right, which the law would otherwise have
conferred upon him. In all these cases, the rule holds,
omncs liccntiam liabere Ins quce pro se indulta sunt
renunciare (/) — every man may renounce a benefit or
waive a privilege which the law has conferred upon
him(</). For instance, whoever contracts to purchase an
estate in fee-simple without any stipulation to vary the
general right, is entitled to call for a conveyance of the
fee, and to have a good title to the legal estate made out.
But a man may, by express stipulation, or by contract,
or even by consent testified by acquiescence or otherwise,
bind himself to accept a title merely equitable, or a title
subject to some incumbrance ; and whatever defect there
may be, which is covered by this stipulation, must be
disregarded by the conveyancer to whom the abstract of
title is submitted, as not affording a valid ground of
objection Qv). Again, the right to estovers is incident to
the estate of a tenant for life or years (though not to the
estate of a strict tenant at will), unless he be restrained by
special covenant to the contrary, which is usually the case ;

(e) Biwards V. Carter, [1893] A. 0. (g) Per Erie, CJ., Rumsey v.

360 : 63 L. J. Ch. 100 ; Be Hodson, N. E. B. Co., 14 C. B. N. S. 649 ;

[1894] 2 Ch. 421 : 63 L. J. Ch. 609. Caledonian B. Co. v. Lockhari, 3

(/) C. 1, 3, 51; C. 2, 3, 29; Macq. So. App. Cas. 808, 822; per

Invito beneficium non datur, D. 50, Martin, B., 8 E. & B. 151 ; per

17, 69. See, as an illustration, Pollock, O.B., and BramweU, B., 2

Markhamv. Stanford.liCB.N.S. H. & C. 308, 309. See Enohin v.

376, 383 ; distinguished in Morten WyUe, 10 H. L. Gas. 1, 15.

V. Marshall, 2 H. & C. 305. {h) 3 Prest. Abs. Tit. 221.

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548 THE LAW OF CONTRACTS.

SO that here the above maxim, or that relating to modus et
conventio, may be applied (i).
Waiver of Another familiar instance of the application of the same

notice of _ _ _

dishonour. principle occurs in connection with the law of bills of
exchange (k). The general rule is, that, in order to charge
the drawer or indorser of a bill, the holder must, on the day
the bill falls due, present it to the acceptor for payment (l),
and, if payment be refused, he must give to the drawer
or indorser notice of the dishonour within a reasonable
time thereafter (m). As regards the drawer, the reason of
this rule is that the acceptor is presumed to have in his
hands effects of the drawer for the purpose of discharging
the bill ; and, therefore, notice to the drawer is requisite,
in order that he may withdraw his effects as speedily as
possible from the acceptor's hands. Unless these previous
steps have been taken, generally the drawer cannot be
resorted to on non-payment of the bill ; and the want of
notice of the dishonour to a drawer, who has effects in the
hands of the acceptor, is considered as tantamount to pay-
ment by him. Again, where a bill has been indorsed, and
the holder intends to sue an indorser, it is incumbent on
him first to demand payment from the acceptor on the
day when the bill falls due, and, in case of refusal, to give
notice thereof within a reasonable time to the indorser;
the reason being, that the indorser is in the position of a
surety only, and his undertaking to pay the bill is not
an absolute, but a conditional undertaking, that is, in the
event of a demand made on the acceptor (who is primarily
liable) at the time when the bill becomes due, and of refusal
on his part to pay. As, however, the rule requiring pre-
sentment for payment and notice of dishonour was intro-
duced for the benefit of the party to whom such notice must
be given, it may, in accordance with the above maxim, be

(i) Co. Litt. 41 b. (Z) Ss. 45, 46.

(fc) Now codified by the 45 & 46 (m) 45 & 46 Vict. c. 61, ss. 47—50.

Vict. 0. 61.

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THE LAW OF CONTEAOTS. 549

waived by that party (n). But though a party may thus
waive the consequences of laches in respect of himself, he
cannot do so in respect of antecedent parties; for that
would violate another legal principal, which limits the
application of the maxim now under consideration to cases
in which no injury is inflicted, by the renunciation of a
legal right, upon a third party.
It will be seen from some of the preceding instances, Qualification

of rulo

that the rule which enables a man to renounce a right
which he might otherwise have enforced, must be applied
with this qualification, that, in general, a private compact
cannot be permitted to derogate from the rights of third
parties (o). In other words, although a party may renounce
a right or benefit pro se introductum, he cannot renounce that
which has been introduced for the benefit of another party ;
thus, the rule that a child within the age of nurture cannot
be separated from the mother by order of removal, was estab-
lished for the benefit and protection of the child, and there-
fore cannot be dispensed with by the mother's consent {jp).

One case may, however, be mentioned to which the rule Principal
applies, without qualification — that of a release by one of ™ ^^"^^ ^'
several joint creditors, which, in the absence of fraud and
collusion, operates as a release of the claim of the other
creditors, and may be pleaded accordingly. On the other
hand, the creditor's discharge of one joint or joint and several
debtor is a discharge of all {q) ; and a release of the principal
debtor discharges the sureties ; unless, indeed, there be an
express reservation of remedies as against them, enabling
the release to be construed as a mere covenant not to sue
the principal (r).

(n) Ss. 46 (2) (e), 50 (1) (b). Q. B. D. 175.

(o) 7 Eep. 23. See Brinsdon v. (g) Nicholson v. Bevill, 4 A. & E.

Allard, 2 E. & E. 19; Slater v. 675,683; Co. Litt. 232 a; Judgm.,

Mayor of Sunderland, 33 L. J. Price v. Barker, 4 E. & B. 777;

Q. B. 37. Clayton v. Kynaston, 2 Salk. 573 ; 2

(p) Beg. V. Birmingham, 5 Q. B, EoU. Abr. 410, D. 1 ; 412 Or., pi. 4.

210. See 5 E. & B. 892 : 10 (r) Kearsley v. Cole, 16 M. & W.

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THE LAW OF CONTRACTS.

It is also a well-known principal of law that, where a
creditor gives time to the principal debtor (s), there being
a surety to secure payment of the debt, and does so without
consent of or communication with the surety, he discharges
the surety from liability, as he thereby places him in a new
situation (t), and exposes him to a risk to which he would
not otherwise be liable (m) ; and this seems to afford a
further illustration of the remark already offered, that a
renunciation of a right cannot in general (x) be made to the
injury of a third party.

Where, however, a husband, whose wiie was entitled to
a fund in court, signed a memorandum after marriage,
agreeing to secure half her property on herself, it was held
that it was competent for the wife to waive this agreement,
while executory, and that any benefit which her children

128; Thompson v. Lack, 3 C. B.
540 ; Price v. Barher, 4 E. & B. 779 ;
Owen V. Homan, 4 H. L. Cas. 997,
1037. See Commercial Bank of
Tasmania v. Jones, [1893] A. C. 313 :
62 L. J. P. 0. 104.

(s) " The general rule of law
where a person is surety for the debt
of another is this — that though the
creditor may be entitled, after a cer-
tain period, to make a demand and
enforce payment of the debt, he is
noi bound to do so ; and provided he
does not preclude himself from pro-
ceeding against the principal, he may
abstain from enforcing any right
which he possesses. If the creditor
has voluntarily placed himself in
such a position that he cannot sue
the principal, he thereby discharges
the surety. But mere delay on the
part of the creditor, unaccompanied
by any valid contract with the
principal, will not discharge the
surety : " per Pollock, C.B., Price v.
Kirkham, 8 H. & C. 441.

(t) See Harrison v. Seymour,

L. R. 1 C. P. 518 ; XJnion Bank of
Manchester v. Beech, 3 H. & C. 672 ;
SUllett V. Fletcher, L. B. 2 C. P.
469, and oases there cited.

(u) Per Ld. Lyndhurst, Oakeley
V. PashelUr, 4 01. & F. 233. See
further as to the rule above stated,
per Ld. Brougham, Mactaggart v.
Watson, 3 CI. & F. 541 ; per Ld.
Eldon, Samuell v. Howorth, 3 Mer.
278 ; 17 B. B. 81, adopted by Ld.
Cottenham, Creighton v. Rankin, 7
CI. & P. 346 ; Manley v. Boycot, 2
TS. & B. 46 ; Pooley v. Harradine,
7 Id. 431; Lawrence v. Walmsley,
12 C. B. N. S. 799, 808. See also
Bonar v. Macdonald, 3 H. L. Cas.
226 ; Gen. St. Nav. Co. v. Bolt, 6
C. B. N. S. 550 ; Way v. Beam, 11
Id. 774: 13 Id. 292; Fraser v.
Jordan, 8 E. & B. 303 ; Tayhr v.
Burgess, 5 H. & N. 1 ; Bailey v.
Edwards, 4 B. & S. 761; Bouse v.
Bradford Bank, [18941 -^- C. 586 :
63 L. J. Oh. 890.

(x) See Langley v. Headland, 19
C. B. N. S. 42.

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651

might have taken under it, had it been executed, was

defeated by her waiver (y).

Lastly, it is clear that the maxim, quilibet potest renun- Provision

^osvtivi juris,
ciare juri pro se introducto, is inapplicable where an express

statutory direction enjoins compliance with the forms which

it prescribes ; for instance, a testator cannot dispense with

the observance of formalities essential to the validity of a

will; for the provisions of the Wills Act were introduced

for the benefit of the public, not of the individual, and must

be regarded as positive ordinances of the legislature, binding

upon all (z). Nor can an individual waive a matter in

which the public have an interest (a), or a public body,

entrusted with powers to be exercised for the benefit of the

public, waive their right to exercise any of those powers (b) ;

and the maxim seems also inapplicable where a defendant

enters into an agreement by which he is to be deprived of

that right to protection to which by law he is absolutely

entitled (c).

Qui sentit Commodum sentike debet et Onus. — (2 Inst.
489.) — He who derives the advantage ought to sustain the
burthen.

This rule (d) applies as well where an implied covenant Covenant
runs with the land, as where the present owner or occupier the^and.^^
of land is bound by the express covenant of a prior occu-
pant ; whenever, indeed, the ancient maxim, transit terra

{y) Fennej- v. Taylor, 2 Euas. & (b) Ayr Harbour Trustees v.

My. 190; 37 B. E. 300; Macij., H. Oswald, 8 App. Cas. 623; Spurling

& W. 85. V. Bantoft, [1891] 2 Q. B. 384 : 60

(z) See per Wilson, J., Habergham L. J. Q. B. 745: see also Yabbicom

V. Vincent, 2 Ves. jun. 227; cited v. King, [1899] 1 Q. B. 444: 68

Countess of Zichy Ferraris v. Marq. L. J. Q. B. 560.
of Hertford, 3 Curt. 493, 498 ; S. C, (c) Lee v. Bead, 5 Beav. 381.

af&rmed 4 Moore, P. 0. 339. (d) In exemplification whereof see

{a) Per Alderson, B., Graham v. Hayward v. Duff, 12 C. B. N. S.

Ingleby, 1 Exoh. 657. 364.

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cum oncre, holds true (p). The burthen of repairs has, we
may observe, always been thrown as much as possible, by
the spirit of the common law, upon the occupier or tenant,
not only in accordance with the principle contained in the
above maxim, but also because it would be contrary to
justice, that the expense of accumulated dilapidation should,
at the end of a tenancy, fall upon the landlord, when a
small outlay of money by the tenant in the first instance
would have prevented any necessity for such expense; to
which we may add that, generally, the tenant alone has
the opportunity of observing, from time to time, when
repairs become necessary. In a leading case on this subject,
the facts were that a man demised a house by indenture for
years, and the lessee, for himself and his executors, cove-
nanted with the lessor to repair the house at all times
necessary ; the lessee afterwards assigned it to another
party, who suffered it to decay ; it was adjudged that
covenant lay at suit of the lessor against the assignee,
although the lessee had not covenanted for him and his
assigns ; for the covenant to repair, which extends to the
support of the thing demised, is quodammoclo appurtenant
to it, and goes with it; and, inasmuch as the lessee had
taken upon himself to bear the charges of the reparations,
the yearly rent was the less, which was to the benefit of
the assignee, and qui sentit commodinn scntire debet et
onus (/).

The following case also serves to illustrate the same
principle. An action was brought by the devisee in fee
of premises against the executor of a devisee for life of
the same premises for permissive waste, the devise pro-
viding that the tenant for life should keep the premises
in repair. The Court pronounced judgment in favour of
the plaintiff on the ground that, however doubtful might

(e) Co. Litt. 231 a. See Moule v. (/) Dean and Chapter of Wind-

Garrett, L. E. 5 Ex. 13, and oases sm-'s case, 5 Eep. 25.
there cited.

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THE LUV OF CONTRACTS. 535

be the liability, in respect of permissive waste {ff), of a tenant
for life, upon whom no express duty to repair was imposed
by the instrument creating the estate, yet where such a
duty was imposed the liability passed with the enjoyment
of the thing thus demised {g).

The maxim under consideration affects a person who
accepts a bequest of leaseholds. For instance, a person
who enjoys leasehold property under a will, as legal or
equitable tenant for life, is generally bound, as between
himself and the testator's estate, to perform all the tenant's
obligations under the lease which arise during the course
of his life interest Qi).

A hability to repair a public highway may attach to Liability
corporations and to individuals by reason of the tenure tenurce.
of lands held by them ; and in former days it was common
for testators to leave portions of their estate charged with
this liability (i) ; and owners of premises fronting a new
street may now be called upon to contribute towards making
it good under the provisions of the Public Health Act (h).

It has been designated a principle of " universal appli- Principal
cation " that " where a contract has been entered into by
one man as agent for another, the person on whose behalf
it has been made cannot take the benefit of it without
bearing its burthen. The contract must be performed in
its integrity " (J). Accordingly, where a person adopts a
contract which was made on his behalf, but without his
authority, he must adopt it altogether. He cannot ratify
that part which is beneficial to himself, and reject the

(/) See Be Cartwright, 41 Ch. D. {k) 38 & 39 Vict. o. 55, s. 150.

532. (l) Per Ld. Cranworth and Ld.

(g) Woodhouse v. Walker, 5 Q. B. Kingsdown, Bristow v. Whitmore,

D. 404 : 49 L. 3. Q. B. 609 ; Aspden 9 H. L. Oas. 391, 404, 418 (where

V. Seddon, 1 Ex. D. 496 : 46 L. J. there was a difference of opinion as

Ex. 353. to the application of the principal

{h) Be Betty, [1899] 1 Ch. 821 : 68 maxim ; see per Ld. Wensleydale,

L. J. Oh. 435; Be Gjers, [1899] 2 Id. 406); cited in T/ie ^eronia, L. E.

Ch. 55 : 68 L. J. Ch. 442. 2 A. & E. 75, 77, 85.

(i) Glen on Highways, 107 et seq.

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THE LAW OF CONTRACTP.

Assignee.

Analogous
rule in equity,

remainder ; he must take the benefit to be derived from
the transaction cum onere (m). Moreover, where the owner
of goods entrusts them to an agent, and authorises him
to sell them as his own goods in his own name as prin-
cipal, and the goods are bought by a buyer in the belief
that the agent is the principal, the right of the owner of
the goods to recover the price from the buyer is subject
to any right of set-off as against the agent which accrued
to the buyer while he still believed that the agent was
principal (n) ; and it is a rule of general application that a
person who allows his agent to appear in the character of
principal, must take the consequences of the agent being
dealt with on the footing that he really is the principal (o).

Again, it is a very general and comprehensive rule, which
falls within the scope of the maxim under consideration, that
the assignee of a chose in action takes it subject to all the
equities to which it was liable in the hands of the assignor ;
and the reason and justice of this rule, it has been observed,
are obvious, since the holder of property can only transfer
to another that beneficial interest in it which he himself
possesses (^). If, moreover, a person accepts anything
which he knows to be subject to a duty or charge, it may
be rational to conclude that he means to take such duty or
charge upon himself, and the law may imply a promise to
perform what he has so taken upon himself (q).

In administering equity the maxim, qui scntit commodum
sentire debet et onus, may properly be said to merge in the
yet more comprehensive rule — equality is equity — upon the
consideration of which it is not within the scope of our plan

(m) Per Ld. EUenborough, 7 East,
166.

(m) Semenza v. Brinsley, 18 0. B.
N. S. 467, 477 ; Cooke v. Eshelby,
12 App. Gas. 271 : 56 L. J. Q. B.
505.

(o) Montague v, Forwood, [1893] 2
Q. B. 350, 356.

ip) 1 Johns. (U.S.), R. 552, 553 :
11 Id. 80 ; Brandon v. Brandon,
25 L. J. Ch. 896; Newfoundland
Oovernmentv. Newfoundland R. Co.,
13 App. Gas. 199, 212.

(2) See Lucas v. Nockells, 1 CI. &
F. 457, citing a passage in Abbott,
Shipp., 5th ed. 286.

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THE LAW OF CONTRACTS. 555

to enter. The following instances of the application in equity
of the maxim immediately under our notice must suffice.
The legatee of a house, held by the testator on lease at a
reserved rent, higher than it could be let for after his death,
cannot reject the gift of the lease and claim an annuity
under the will, but must take the benefit cum onere (r).
A testator gives a specific bequest to A., and directs that
in consideration of the bequest A. shall pay his debts : the
payment of the debts is, in this case, a condition annexed
to the specific bequest, and if A. accept the bequest, he is
bound to pay the debts, though they exceed the value of the
property bequeathed to him (s).

We may observe also, that the Scotch doctrine of " appro- !;"':^ '" ,

'' ^*^ Scotch law.

bate and reprobate " is strictly analogous to that of election
in our own law, and may, consequently, be properly referred
to the maxim now under consideration. The principle on
which this doctrine depends is, that a person shall not be
allowed at once to benefit by and to repudiate an instru-
ment, but that, if he choose to take the benefit which it
confers, he shall likewise discharge the obligation or bear
the onus which it imposes. " It is equally settled in the law
of Scotland as of England, that no person can accept and
reject the same instrument. If a testator give his estate to
A., and give A.'s estate to B., Courts of equity hold it to be
against conscience that A. should take the estate bequeathed
to him, and at the same time refuse to give effect to the
implied condition contained in the will of the testator.
The Court will not permit him to take that which cannot
be his but by virtue of the disposition of the will, and at
the same time to keep what, by the same will, is given or
intended to be given to another person. It is contrary
to the established principles of equity that he should
enjoy the benefit, while he rejects the condition of the

(r) Talhot v. Earl of Badnor, 3 478 : 28 B. E. 156 ; and see Arm-
My. & K. 252. strong v. Burnett, 20 Beav. 424.

(s) Messenger v. Andrews, 4 Kuss.

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556 THE LAW OF CONTRACTS.

gift " (t). Where, therefore, an express condition is annexed
to a bequest, the legatee cannot accept and reject, approbate
and reprobate the will containing it. If the testator, pos-
sessing a landed estate of small value, and a large personal
estate, bequeath the personal estate to the heir, who was
not otherwise entitled to it, upon condition that he shall
give the land to another, the heir must either comply with
the condition, or forego the benefit intended for him(w).
We may add that the above rule, as expressed by the maxim
quod approbo non reproho, likewise holds where the condition
is implied merely, provided there be clear evidence of an
intention to make the bequest conditional ; and in this
case, likewise, the heir will be required to perform the con-
dition, or to renounce the benefit {x) — Qui sentit commoclum
sentire debet et onus.
The converse The converse of the above maxim also holds, and is
maxim holds, occasionally cited and applied ; for instance, inasmuch as
the principal is bound by the acts of his authorised agent,
so he may take advantage of them (y) — Qui sentit onus
sentire debet et commodum (z).

In like manner, it has been observed (a), that wherever a
grant is made for a valuable consideration, which involves
public duties and charges, the grant shall be construed so
as to make the indemnity co-extensive with the burthen —
Grant of Qui sentit onus sentire debet et commodum. In the case, for

Miy, 0. instance, of a ferry, there is a public charge and duty. The
owner must keep the ferry in good repair, upon the peril of
an indictment ; he must keep sufficient accommodation for
all travellers, at all reasonable times ; he must content
himself with a reasonable toll — such is the jus pid}licum(b).
In return, he has an exclusive right of ferrying across the

(t) Kerr v. Wmichope, 1 Bligh, M. & W. 844.

21 ; 20 B. R. 1. («) 1 Eep. 99.

(m) Shaw on Obligations, s. 184, (a) PerStory, J.,11 Peters (U.S.),

(x) Id., s. 187. 630, 631.

{y) Seignior v. Wolmer, Godb. (b) Paine v. Patrick, 3 Mod. 289,

360 ; Judgm., Higgins v. Senior, 8 294.

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THE LAW OF CONTKACTS.

stream -which his ferry crosses within the area to which his
exclusive right extends (c).

Although, moreover, the maxim qui sentit commodum
sentire debet et onus, to which we have above mainly
adverted, applies to throw the burthen of partnership debts
upon the partnership estate (d), which is alone liable to
them in the first instance, yet the converse of this maxim
holds with regard to the partnership creditor (e).

557

Tn ^quali Jube mblioe est Conditio Possidentis. {Plowd.
296.) — Where the right is equal, the claim of the party in
actual possession shall prevail.

The general rule is, that possession constitutes a sufficient Melior est
title against every person not having a better title. " He '^eniTs.^°^'
that hath possession of lands, though it be by disseisin,
hath a right against all men but against him that hath
right (/) ; for, " till some act be done by the rightful owner
to divest this possession and assert his title, such actual
possession is prima facie evidence of a legal title in the
possessor, so that, speaking generally, the burthen of proof
of title is thrown upon any one who claims to oust him :

(c) See Newton v. Ctibitt, 12 C. B. (/) Doot. & Stud. 9. "I take it
N. S. 32 : 31 L. J. C. P. 246 ; to be a sound and unoontroverted
Hopkins v. O. N. B. Co., 2 Q. B. D. maxim of law, that every plaintiii
224 ; Dibdin v. Skirroiv, [1908] 1 or demandant in a court of justice
Ch. 41 : 77 L, J. Ch. 107. must recover upon the strength of

(d) " Perhaps the maxim that ' he his own title, and not because of the
who partakes the advantage ought to weakness of that of his adversary ;
bear the loss "... is only the con- that is, he shall not recover without
sequence not the cause why a man showing a ngfei, although the adverse
is made liable as a partner -."per party may be unable to show any.
Blackburn, J., Bullen v. Sharp, L. It is enough for the latter that he is
K. 1 C. P. 111. iu possession of the thing demanded

(e) The maxim qui sentit onus until the right owner calls for it.
sentire debet et commodum is applied This is a maxim of common justice
also in equity. See, for example, as well as of law:" per Parker,
Pitt V. Pitt, 1 T. & B. 180 : 24 R. R. O.J., Goodwin v. Hubbard, 15 Tyng.
15 ; Francis, Max. 5. (U.S.), R. 204.

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THE LAW OF CONTRACTS.

this possessory title, moreover, may, by length of time and
negligence of him who had the right, by degrees ripen into
a perfect and indefeasible title "((/).
Ejectmentt Hence, it is a familiar rule, that, in ejectment, the party

controverting my title must recover by his own strength,
and not by my weakness (li) ; and " when you will recover
anything from me, it is not enough for you to destroy my
title, but you must prove your own better than mine ; for
without a better right, melior est conditio possidentis " (i).
Trespass Similarly, mere possession will support trespass qti. d.fr.

i"-<^-P- against any one who cannot show a better title (k) ;
therefore he who commits a trespass upon the possession of
another, being himself a wrong-doer, has no right to put
the other party to proof of his title (I). And to the like
effect are the rules of the civil law : non jjossessoii mcumbit
necessitas 2^1'oliandi possessiones ad se pertiiwrc (in), and ire jiari
eaiisd possessor potior liaheri debet {n).
Chattels. The same rule as to the effect of possession holds

good with regard to chattels. For instance, if a person
finds a jewel and takes possession of it (o), he becomes
entitled to keep it as against any person who has no better
title, and he can maintain trover for a conversion thereof
by a mere wrong-doer {p). It must be noticed, however,
that the possessor of land is generally entitled, as against
the finder, to chattels found on the land ; for, as a rule, the
possession of land carries with it possession of everything

(g) 2 Blac. Com. 196.

(h) Hobart, 103, 104 ; Jenk. Cent.
118; per Lee, C.J., Martin v.
Strachan, 5 T. K. 110, n ; 2 E. R.
552. See Feret v. Hill, 15 0. B.
207 (explained by Maule, J. , Canham
V. Barry, Id. 611) ; Davison v. Oent,
1 H. & N. 744, 750.

(i) Vaughan, K., 58, 60 ; Hobart,
103. See Asher v. Whitlock, L. B.
1 Q. B. 1.

(k) Every v. Smith, 26 L. J. Ex.

344 ; Jones v. Chapmaji, 2 Exch.
833, and cases there cited.

(I) Addison on Torts, 5th ed. 572,
citing Asher v. Whitlock, L. E. 1
Q. B. 1 : 35 L. J. Q. B. 17.

(to) C. 4, 19, 2.

(n) D. 50, 17, 128, § 1.

(o) As to larceny of lost chattels,
see Beg. v. Olyde, L. E. 1 C. C. R.
139.

{p) Armory v. Delamirie, 1 Stra.
504: 1 Sm. L. C.

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THE LAAV OF CONTRACTS. 559

which is upon the land, and, therefore, as against a mere
finder, also the right to possess it (g).

It is a rule laid down in the Digest, that the condition of Melior est
the defendant shall be favoured rather than that of the defendentis.
plaintiff, favorahil'wrcs rcl potius qiiain actores hdbentur [r) ,
a maxim which admits of very simple illustration in the
ancient practice of our own Courts ; for, if, on moving in
arrest of judgment, it appeared from the whole record that
the plaintiff had no cause of action, the Court would never
give judgment for him, for melior est conditio defendentis (s).

If a loss must fall upon one or other of two innocent which of two
parties who are both free from blame, justice being thus in parties must
equilibria, the application of the maxim, melior est conditio ^^Ser.
possidentis, frequently turns the scale (0- It was, indeed,
laid down by Ashhurst, J., " as a broad general principle,
that whenever one of two innocent persons must suffer by
the acts of a third, he who has enabled such third person
to occasion the loss must sustain it " ((()• But, in the
light of later decisions, this proposition requires modifica-
tion (x). As a rule, A. is not liable to make good a loss
which has fallen upon B. by the act of C, unless the
proximate cause of the loss Avas the breach of a duty owed
by A. to B. {y). For example, A. innocently accepts a bill
of exchange drawn by C. for £500, but so drawn as to
facilitate the forgery which C. subsequently commits by
fraudulently altering the bill into a bill for ^93,500 ; after
the forgery B. becomes the holder of the bill in due
course {z) ; he cannot cast any loss he sustains through the
forgery upon A., for A. owed him no duty, either by law or

(g) S. Staffordshire Water Co. v. v. Tritton, 3 B. & 0. 289 ; 27 K. B,

Sharman, [1896] 2 Q. B. U: 65 353.
L. J. Q. B. 460 ; Elwes v. Brigg (u) 2 T. B. 70.

Gas Co., 33 Ch. D. 562. {x) See per Ld. Coleridge, 1 0. P.

(r) T>. 50, 17, 125. As to which D. 587, 588 ; per Ld. Meld, [1891]

maxim, see Arg., 8 Wheaton (U.S.), A. C. 169.
K. 196, 196. (y) Le Lievre v. Oould, [1893] 1

(s) See Hobart, 199. Q. B. 491 : 62 L. 3. Q. B. 353.

{t) Per Bayley, J., East India Co. (s) See 45 & 46 Vict. c. 61, s. 64.

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560 THE LAW OF CONTRACTS.

by contract, to take precautions against the alteration (a).
"It is not consistent with the general spirit of the law to
hold innocent persons responsible for not taking measures
to prevent the commission of a crime which they have no
reason to anticipate : although there may be an exception
in the case where one of the parties to the instrument has,
either by express agreement, or by implication established
in the law, become bound to use such precautions" (b).

Freedom from blame, however, by no means leads in all
cases to the application of the maxim, melior est conditio
possidentis. For instance, money which has been paid and
received without fault on either side is frequently recover-
able, either as paid under a mistake of fact (c), or on the
ground of failure of consideration (d), or in consequence of
the express or implied terms of some contract. Thus in
Cox V. Prentice (e), the plaintiffs bought from the defendant
a bar of silver at an agreed price per ounce, and paid the
price of four ounces which an assayer, acting as agent for
both parties, calculated that the bar contained; after the
delivery of the bar it was discovered that it in fact contained
only two ounces, and it was held that the plaintiffs, having
first offered to return the bar, were entitled to recover the
difference in value between its supposed and its true weight,
as money had and received to their use, for this was a case
of mutual innocence and equal error.
Rule in In courts of equity, where two persons, having an equal

equity, have been equally innocent and equally diligent,
the general rule applicable is, melior est conditio possidentis
or defendentis. Such courts frequently refuse to interfere
against a honafide purchaser for valuable consideration of
the legal estate who purchased without notice of any adverse

(a) Scholfield v. Londesborough, 324 : see ante, p. 214.

[1896] A. 0. 514 : 65 L. J. Q. B. (d) See Jones v. Eyde, 5 Taunt.

593. 488, 495 ; 15 R. R. 561 ; Devaux v.

(6) Per Ld. Halsbury, [1896] A. C. Conolly, 8 0. B. 640.

53T. (e) 3 M. & S. 344; see 8 C. B.

(c) Shand v. Grant, 15 0. B. N. S. 658—659.

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THE LAW OF CONTRACTS. 561

equitable title (/) : provided that the purchaser's legal title
is complete (gf).

Not only in aquali jure, but likewise in pari delicto, is Par delictum.
it true that potior est conditio possidentis ; where each party
is equally in fault, the law favours him who is actually
in possession ; a well-known rule, which is, in fact, included
in that more comprehensive maxim to which the present
remarks are appended. " If," said BuUer, J., " a party
come into a court of justice to enfore an illegal contract,
two answers may be given to his demand : the one, that he
must draw justice from a pure fountain, and the other, that
potior est conditio possidentis " (h). Agreeably to this rule,
where money is paid by one of two parties to such a contract
to the other, in a case where both may be considered as
participes criminis, an action will not lie after the contract
is executed to recover the money. If A. agree to give B.
money for doing an illegal act, B. cannot recover the money
by action, although he has done the act ; yet, if the money
be paid, A. cannot recover it back (i). So the premium
paid on an illegal insurance, to cover a trading with an
enemy, cannot be recovered back, though the underwriter
cannot be compelled to make good the loss (k). In these
and similar cases, the party actually in possession has
the advantage : cum par delictum est duorum semper oneratur
petitor et melior habetur possessoris causa (I).

(/) Thorndike-v. Hunt, 3 Be a.& L. E. 4 Q. B. 309: 38 L. J. Q. B.
J. 568 ; Taylor v. Blakelock, 32 Ch. 225 ; Harse v. Pearl Insurance Co.,
D. 560 : 56 L. J. Ch. 390. [1904] 1 K. B. 5£8 : 73 L. J. K. B.

(g) Powell V. L. db Provincial 373.
Bank, [1893] 1 Ch. 610: 2 Ch. 555: (k) Vandych v. Hewitt, 1 East,

62 L. J. Ch. 795. See also the 96 : 5 B. B. 516 ; Loiory v. Bomdieu,
maxim, qui prior est tempore, &o., Dougl. 468 ; Andrea v. Fletcher, 3
ante, p. 278. T. E. 266 : 1 B. B. 701 ; LiMock v.

(h) Munt V. Stokes, 4 T. B. 561, Po«s, 7 East, 449 ; PaZi/ari v. i«cMe,
564 : 2 E. B. 459 : 2 Inst. 391. 6 M. & S. 290 : 18 B. B. 381 ; Cowie

(i) Wehh V. Bishop, cited 1 Selw. v. Barber, 4 M. & S. 16 : 16 B. E.
N. P., 10th ed. 92, n (42) ; Browning 368. See Edgar v. Fowler, 3 East,
V. Morris, Cowp. 792; jper Park, J., 222 : 7 E. B. 433 ; Thistlewood v.
Richardson v. Mellish, 2 Bing. 250 ; Cracroft, 1 M. & S. 500.
27 B. B. 603 ; Taylor v. Chester, (I) D. 50, 17, 154.

L.M. 36

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562 THE LAW OF CONTRACTS.

In pari " The maxim, in pari delicto potior est conditio jwssidentis,

est conditio IS as thoroughly settled as any proposition of law can be.
It is a maxim of law, established, not for the benefit of
plaintiffs or defendants, but is founded on the principles of
public policy, which will not assist a plaintiff who has paid
over money, or handed over property, in pursuance of
an illegal or immoral contract, to recover it back; for
the Courts will not assist an illegal transaction in any
respect " (m). The maxim is, therefore, intimately connected
with the more comprehensive rule of our law, ex tutpi causa
non oritur actio (n), on account of which no Court will
" allow itself to be made the instrument of enforcing obliga-
tions alleged to arise out of a contract or transaction which
is illegal " (o) ; and the maxim may be said to be a branch
of that comprehensive rule : for the well-established test,
for determining whether money or property which has been
parted with in connection with an illegal transaction can be
recovered in a Court of justice, is to ascertain whether the
plaintiff, in support of his case, or as part of his cause of
action, necessarily relies upon the illegal transaction : if he
" requires aid from the illegal transaction to establish his
case," the Court will not entertain his claim (pi).

In connection with this test it must be observed that,
until the contrary be shown, there is a presumption that
when money is paid it is paid in discharge of an antecedent
debt or liability : upon the plaintiff who claims the repay-
ment of money lies the onus of proving circumstances
rendering the defendant liable to repay it (g). The applica-
tion of the test led to the defeat of an action to recover the

(m) Judgm., Taylor v. Chester, (p) Simpson v. Bloss, 7 Taunt.

L. B. i Q. B. 309, citing Edgar v. 246: 17B..E. 509 ; Pivazv. Nicholls,

Fowler, 3 East, 222: 7 B. B. 433 ; 2 C. B. 501 ; Scott v. Broton, [1892]

Collins V. Blantern, 2 Wils. 341 ; 2 Q. B. 724 : 61 L. J. Q. B. 738.

and Holman v. Johnson, Cowp. 343. (5) Welch v. Seaborn, 1 Stark.

(«) Post, p. 569. 474 ; Aubert v. Walsh, 4 Taunt. 293 :

(0) Per Lindley, M.R., [1892] 2 12 B. B. 651 ; Exp. Cooper, W. N.,

Q. B. 728. 1882, p. 96.

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563

half of a bank-note, pledged to secure payment of a debt
which was contracted for an illegal consideration, and of
which debt no payment or tender had been made (r).

In Taylor v. Bowers (s), the rule laid down, and acted Locus
upon, was that "where money has been paid, or goods whiiecontraot
delivered, under an unlawful agreement, but there has been ®^®°^ °'^^'
no further performance of it, the party paying the money,
or delivering the goods, may repudiate the transaction, and
recover back his money or goods " («) ; and it was said that
such action "is not founded upon the illegal agreement,
nor brought to enforce it, but, on the contrary, the plaintiff
has repudiated the agreement, and his action is founded on
that repudiation" (t). This doctrine was followed in a
later case (((). in which a lady gave money to a marriage
broker under an illegal contract by which part of the
money was to be returned if he did not procure her an
engagement of marriage within nine months. She repudi-
ated the agreement within the period and recovered the
whole of the money paid. In Kcarley v. Thomson (v),
however, some doubt was expressed by the Court as to
whether the above rule was sound, and it was held that
where money has been paid under an illegal agreement a
partial carrying into effect of the illegal purpose for which
it was paid is sufficient to prevent the recovery of the
money. A fortiori, the money cannot be recovered if the
illegal purpose has been fully completed (x). It is to be
observed that in Tappendcn v. Randall (y), where the
doctrine was applied, that there was a locus j^mnitentia,
enabling a person to recover money paid under an illegal

(r) Taylor Y. Chester, Li. HA Q.'B. (u) Herman v. Charlesworth,

309 : 38 L. J. Q. B. 225. [1905] 2 K. B. 123 : 74 L. J. K. B.

(s) 1 Q. B. D. 291 : 45 L. J. Q. B. 620.

163; seealflO/S2/mesv.irt((/7ies,L. B. (u) 24 Q. B. D. 742: 59 L. J.

9 Bq. 475. Q. B. 288.

(f) Per Oookburn, C.J., 1 Q. B. D. (x) Herman v. Jeiichner, 15 Q. B.

225 ; see also per MeUish, L.J., Id. D. 561 : 54 L. J. Q. B. 340.

300 : audi per Bayley and Littledale, {y) 2 B. & P. 467 : 5 R. B. 662.
JJ., 8 B. & 0. 224, 226.

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Assignees.

Impar
delictum

contract so long as the contract remained executory, it was
suggested (z) that such doctrine would not apply to a contract
" of a nature too grossly immoral for the Court to enter into
any discussion of it : as where one man has paid money
by way of hire to another to murder a third person."

The general rule undoubtedly is that "whoever is a
party to an unlawful contract, if he hath once paid the
money stipulated to be paid in pursuance thereof, he shall
not have the help of the Court to fetch it back again " (a) ;
and this rule, so far as it affects a party to an unlawful
contract, necessarily affects also all such assignees or
representatives of that party as stand in no better position
than the party himself (&). A trustee in bankruptcy,
however, can sometimes recover money paid by the bank-
rupt under an illegal contract, and not recoverable by the
bankrupt himself, on the ground that he claims the money,
not through the bankrupt, but by force of his own title
thereto under the bankruptcy law (c)

In certain circumstances parties to an illegal transaction
ought not to be regarded as in •pari delicto. "Where
contracts or transactions are prohibited by positive statutes
for the sake of protecting one set of men from another set
of men, the one from their situation and condition being
liable to be oppressed or imposed upon by the other : there
the parties are not in pari delicto, and in furtherance of
these statutes the person injured, after the transaction is
finished and completed, may bring his action and defeat
the contract " (c?) • And it may be said generally that

(2) By Heath, 3.

(a) Per Wilmot, C.J., Collins v.
Blantern, 2 Wils. 341.

(b) See Belcher v. Sambourne, 6
Q. B. 414 ; Be MaplebacJc, 4 Ch. D.
150.

(c) Re Campbell, 14 Q. B. D. 32,
where Be Maplebach, supra, was dis-
tinguished. See also Doe v. Lloyd,

5 Bing. N. 0. 741 ; Clarke v. Shee, 1
Oowp. 197.

(d) Per Ld. Mansfield, Browning
V. Morris, 2 Cowp. 790 ; see also per
Fry, L.J., 24 Q. B. D. 745, 746.
The provisions of a statute some-
times enable the one party to an
illegal contract to sue the other,
although both contracted with

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THE LAW OP CONTBACTS 565

the doctrine of par delictum is inapplicable " in cases of
oppressor and oppressed." For this reason a debtor was
allowed to recover money which he had secretly paid to
one of his creditors in order to induce him to agree to a
composition (e) ; both parties were in delicto, because the
act was a fraud upon the other creditors : but it was held
not to be par delictum, because the one had power to
dictate, the other no alternative but to submit.

It appears that equity will give relief to a person who has
been party to an illegal transaction, and paid money or
given securities under it, if he has acted under pressure or
undue influence (/) ; and it has been laid down generally,
that where the parties to an illegal contract are not in pari
delicto, and where public policy may be considered as
advanced by allowing the more excusable of the two to sue
for relief against the transaction, relief may be given to
him in equity ig).

In an action for money had and received to the use of the One party
two plaintiffs {h), the defendant relied on a receipt for the
money, signed by one of them. It was held that the receipt
did not estop the plaintiffs from proving, as they did, that
the money had not been paid (i) ; and upon proof that the
receipt was a fraudulent transaction, between the defendant
and the plaintiff who signed it, to which his co-plaintiff was
not privy, it was also held that neither the maxim, in pari

knowledge that the contract was (g) See Tper Knight-Bruce, L.J.,

illegal ; see Leiois v. Knight, 4 E. & Beynell v. Sprye, 1 D. M. & G. 660,

B. 917 ; Barclay v, Pearson, [1893] 679.

2 Ch. 154 : 62 L. J. Oh. 636 ; {h) Skaife v. Jackson, 3 B. & 0.

Bonnard v. Dott, [1906] 1 Oh. 740 : 421 ; Farrar v. Hutchinson, 9 A. &

75 L. J. Ch. 446. E. 641 ; see per Parke, B., Wallace

(e) Atkinson v. Denby, 7 H. & N. v. Jackson, 7 M. & W. 273.
934 : 6 Id. 778 ; and cases there (i) See Bowes v. Foster, 2 H. & N.
cited. 779 ; Lee v. L. & Y. B. Co., L. R.

(f) OshaUiston v, Simpson, 18 6 Oh. 527. Ct Bickerton-t. Walker,
Sim. 513 ; Williams v. Bayley, L. E. 31 Oh. D. 151 ; Lloyd's Bank v.
1 H. L. 200 ; JmesY. Merionethshire Bullock, [1896] 2 Ch. 192 : 65 L. J.
Soc, [1892] 1 Ch. 173, 183 ; 61 L. J. Ch. 680.
Oh. 138.

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566 THE LAW OF CONTRACTS.

delicto potior est conditio x>ossidcntis, nor the maxim, nemo
allegans turpitudincm suam est audicndus (k), was applicable
to defeat the action. One of the plaintiffs was not in delicto,
and as against him the defendant could not rely upon his
own fraud.
Agents. Thus far we have considered the effect of par delictum as

between the immediate parties to the illegal transaction, or
persons who claim under them ; we must add that, where
money, payable under an illegal contract, is paid by one
party thereto to a third person, who receives it as agent for
the other party, the maxim under consideration does not
generally apply to prevent such other party from recovering
the money from his agent, as money had and received to
the plaintiff's use (?). The obligation of an agent, who has
received money to the use of his principal, to pay it over to
him, rests upon the agent's own promise which the law
implies from his so receiving the money, and, since the
principal bases his claim to the money upon that promise,
and not upon the original contract in respect of which the
money was paid to the agent, it is generally immaterial
whether such original contract was legal or illegal {m). A
principal, however, cannot recover money received for him
by his agent, if such receipt itself was illegal and part of
an illegal transaction in which both principal and agent
were concerned («). The law will not lend its assistance to
adjust the profits of a partnership formed for the purpose
of deriving profit from an illegal adventure, or to settle the
mutual claims of the parties engaged in it (o). The maxim,
ex pacto illicito nan oritur actio, clearly applies (p).

(k) i Inst. 279. 999, 1016.

(I) Tenant y. Elliott, IB. & P. 3; (o) Judgm., M'Callam v. Morti-

4 B. E. 755 ; Farmer v. Bussell, Id. oner, 9 M. & W. 6i2, 643 ; see Everet

296; Bousfield v. Wilson, 16 M. & v. Williams, cited [1899] 1 Q. B.

W. 185. 826 ; and of. Thwaites v. Coulth-

(m) See 1 B. & P. 298, 299. Cf. loaite, [1896] 1 Ch. 496 : 65 L. J.

Bridger v. Savage, 15 Q. B. D. 363 : Ch. 238.

54 L. J. Q. B. 464. (p) See Stewart v. Gibson, 7 CI.

(m) Nicholson v. Gooch, 5 E. & B. & F. 707, 728.

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THE LAW OF CONTRACTS. 567

Again where a principal pays money to his own agent, Stakeholders.
authorising him to apply it to a particular purpose, it
is generally open to the principal, so long as the money
remains in the agent's hands unapplied, to revoke the
authority and demand the money back, and the agent
cannot resist this demand by saying that the purpose to
which he was originally authorised to apply the money was
illegal (q). And, similarly, if a party to an illegal wager
pays money thereunder, not to the other party, but to a
stakeholder, the stakeholder, so long as the money remains
in his hands, is bound to return the money to that party if
he demand it back before it has been paid to the winner or
the winner's agent : he is liable to the loser if he pay the
loser's money to the winner after notice from the loser not
to do so(r); though it is otherwise, if he pay it to the
winner without any such notice from the loser (s). This
rule, that the authority of the stakeholder to pay the money
may be revoked before it has been acted upon, tends to
prevent the illegal contract from being executed.

To the maxim respecting par delictum may be referred Contribution
the rule that one of two joint wrong-doers cannot enforce tort-feasors,
against the other any claim for contribution or indemnity,
although the former has borne, or is about to bear, the
entire burden of making compensation for the joint wrong (0.
This rule, however, is limited to cases in which the wrong-
doer Avho seeks such redress knew, or must be presumed

(3) Taylor v. Lendey, 9 East, 49 ; under 8 & 9 Viot. c. 109, but not

Bone V. Eckless, 5 H. & N. 925. iUegal.

{r) Cotton V. Thurland, 5 T. K. (s) Howson v. Hancock, 8 T. R.

405; Smith v. Bickmore, i Taunt. 575; Gatty v. Field, 9 Q. B. 431,

474 ; Hastelow v. Jackson, 8 B. & 440 ; see also Strachan v. Universal

C. 221 ; 32 R. E. 369 ; Barclay v. Stock Exchange (No. 2), [1895] 2

Pearson, [1893] 2 Ch. 154, 168 : 62 Q. B. 697, 705.
L. J. Oh. 636 ; see also Strachan v. (t) Merryweather v. Nixan, 8 T.

Universal Stock Exchange, [1895] 2 E. 186 : 16 E. R. 810 ; see The

Q. B. 329, 334 (affirmed, [1896] A. 0. Englishman, [1894] P. 239 : [1895]

167 : 65 L. J. Q. B. 428), and Burge P. 212 ; distinguished in The Mor-

V. AshUy, [1900] 1 Q. B. 744, 747, gengry, [1900] P. 1 ; 69 L. J. P. 3.
cases where the contract was void

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THE LAW OF CONTKACTS.

to have known, that he was doing an unlawful act (w). A
person, who has been employed or requested to do an act,
which in itself was not necessarily or apparently illegal,
and which he has done honestly and bond fide in compHance
with his employer's instructions or request, is therefore
generally entitled to be indemnified by his employer against
the consequences of such act proving to be an injury to
third persons {x) ; and the rule does not affect an action of
deceit, brought by a person who has been induced by a
fraudulent misrepresentation to do acts which were in fact
illegal, or even criminal, but which, in consequence of such
representation, he did in the belief that they were neither
illegal nor immoral acts {y). Again, one of two partners
who has discharged a liability of the firm, incurred through
the wrongful acts of his co-partner to which he himself was
not privy {z), or through negligent acts done, not by himself,
but by a servant of the firm (a), can generally claim
indemnity or contribution from his co-partner. Moreover,
it is well established that where money has been paid by a
trustee in breach of trust to persons who took it knowing
the payment to be a breach of trust, they and the trustee
are not joint tort-feasors within the above rule (5).

(u) Adamson v. Jarvis, 4 Bing.
66, 73 ; 29 E. K. 503 ; see per Ld.
Hersohell, Palmer v. Wick, d:c. Co.,
[1894] A. C. 318, 824.

(x) BettsY. OibUns, 2 A. & E. 57;
see ShacJcell v. Rosier, 2 Bing. N. C.
634, 637; Toplis v. Grane, 5 Bing.
N. 0. 636, 650 ; Dugdaley. Lovering,
L. E. 10 C. P. 196 : 44 L. J. C. P.
197.

{y) Burrows v. Bhodes, [1899] 1
Q. B. 816 : 68 L. J. Q. B. 545 ; Dix07i
V. Faucus, 30 L. J. Q. B. 137.

(s) Campbell v. Campbell, 7 CI. &
P. 181.

(a) Pearson v. Shelton, 1 M. & W.
504.

(b) Moxham v. Grant, [1900] 1
Q. B. 88, 93 : 69 L. J. Q. B. 97.

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THE LAW OF CONTRACTS. 569

Ex DoLO MALO NON ORITUR AcTio. {Coivp. 343.) — A right
of action cannot arise out of fraud.

It was thought convenient to place this maxim in Conneotion
immediate proximity to that which precedes it, because and the
these two important rules of law are intimately related to ^^°i^™^
each other, and the cases which have already been cited in
illustration of the rule as to 'par delictum may be referred to
generally as establishing the position, that an action cannot
be maintained which is founded in fraud, or which springs
ex turpi causa. The connection which exists between these
maxims may, indeed, be satisfactorily shown by reference
to a case already cited. In Fivaz v. Nicholls (c), an action
was brought to recover damages for an alleged conspiracy
between B., the defendant, and a third party, C, to obtain
payment of a bill of exchange accepted by the plaintiff in
consideration that B. would abstain from prosecuting C.
for embezzlement ; and it was held that the action would
not lie, inasmuch as it sprung out of an illegal transaction,
in which both plaintiff and defendant had been engaged,
and of which proof was essential in order to establish the
plaintiffs claim as stated upon the record. In this case,
therefore, the maxim, ex dolo malo non oritur actio, was
evidently applicable ; and not less so, with regard both to
the original corrupt agreement and to the subsequent alleged
conspiracy, was the general principal of law, in pari delicto
potior est conditio defendcntis (d). To the class of cases also
which estabHsh that contribution cannot be enforced amongst
wrong-doers (e), and that a person, who has knowingly
committed an act declared by the law to be criminal, will
not be permitted to recover compensation from others who
participated with him in the commission of the crime (/),

(c) 2 G. B. 501, 512, 515. {/) Per Ld. Lyndurst, Colhurn v.

\d) See, also, Stevens v. Gourley, Patmore, 1 Or. M. & E. 83 : 40 K. B.

7 C. B. N. S. 99, 108. 493 ; per Maule, J., 2 C. B. 509.
(e) See ante, p. 567.

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570 THE LAW OF CONTEACTS.

a similar remark seems equally to apply. Bearing in mind
then, this connection between the two kindred maxims, we
shall proceed to consider briefly the very comprehensive
principle, ex clolo malo, or, more generally, ex turpi causa,
noil oritur actio.

Dolus in the In the first place, then, we may observe, that the word
dolus, when used in its more comprehensive sense, was
understood by the Koman jurists to include " every inten-
tional misrepresentation of the truth made to induce
another to perform an act which he would not else have
undertaken " {g), and a marked distinction accordingly
existed in the civil law between dolus bonus and dolus malus :
the former signifying that degree of artifice or dexterity
which a person might lawfully employ to advance his own
interest, in self-defence against an enemy or for some other
justifiable purpose (/i) ; and the latter including every kind
of craft, guile, or machination, intentionally employed for
the purpose of deception, cheating, or circumvention (i).
As to the latter species of dolus (with which alone we are
now concerned), it was a fundamental rule, that dolo malo

Rule in pactum se non servaturum (j) ; and, in our own law, it is a

familiar principle, that an action brought upon a supposed
contract, which is shown to have arisen from fraud, may
be successfully resisted (k).

It is, moreover, a general proposition, that an agreement
to do an unlawful act cannot be supported at law, — that no
right of action can spring out of an illegal contract (I) ; and

(g) Mackeld. Civ. Law, 165. Evans v. Edmoiids, 13 0. B. 777 ;

(h) Mackeld. Civ. Law, 165 ; Bell, Canham v. Barry, 15 C. B. 597 ;

Diet, and Dig. of Scotch Law, 319 ; with which of. Feret v. Hill, Id.

D. 4, 3, 3 ; Brisaon, ad verb. "Dolus ; " 207 ; Beynell v. Sprye, 1 De G. M. &

Tayl. Civ. Law, 4th ed. 118. G. 660 ; Curson v. Belworthy, 3 H.

(i) D. 4, 3, 1, § 2 ; Id. 50, 17, 79 ; L. 0. 742. The efEeot of fraud upon

Id. 2, 14, 7, § 9. a contract, and the right to rescind

( j) D. 2, 14, 7, § 9. a contract on the ground of fraud,

(k) Per Patteson, J., 1 A. & E. are discussed under the maxim,

42 ; per Holroyd, J., 4 B. & Aid. 34 ; caveat emptor, post,
per Ld. Mansfield, 4 Burr. 2300 ; [I) Per Ld. Abinger, 4 M. & W.

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THE LAAV OF CONTRACTS. 571

this rule, which appUes not only where the contract is
especially illegal, but whenever it is opposed to public
policy, or founded on an immoral consideration (7)i), is
expressed by the well-known maxim, ex turpi causa non
oritur actio (n), and is in accordance with the doctrine of
the civil law, pacta quce turpcm causam continent non sunt
ohservanda (o) : " wherever the consideration, which is the
ground of the promise, or the promise which is the conse-
quence or effect of the consideration, is unlawful, the whole
contract is void " (p). A Court of law will not, then, lend
its aid to enforce the performance of a contract which
appears to have been entered into by both the contracting
parties for the express purpose of carrying into effect that
which is prohibited by the law of the land ; and this objec-
tion to the validity of a contract must, from authority and
reason, be allowed in all cases to prevail. No legal dis-
tinction can be supported between the application of this
objection to parol contracts and to contracts under seal ; for
" it would be inconsistent with reason and principle to hold,
that, by the mere ceremony of putting a seal to an instru-
ment, that is, by the voluntary act of the parties themselves,
a contract, which was void in itself, on the ground of its
being in violation of the law of the land, should be deemed
valid, and an action maintainable thereon, in a Court of
justice " (q).

In Collins v. Blantern (;•), which is a leading case to Collins v.
show that illegality may well be pleaded as a defence to an "
action on a bond, it was alleged that the bond had been
given to the obligee as an indemnity for a note entered into

657 ; per Ashurst, J., 8 T. E. 93. 226 ; Egerton v. Earl Brownlow, i

See Jones v. Waite, 5 Scott, N. K. H. L. Gas. 1.

951 : 5 Bing. N. 0. 341 : 1 Id. 656 ; {n) Judgm., Bank of United States

BitcUe V. Smith, 6 0. B. 462 ; Cun- v. Owens, 2 Peters (U. S.), B. 539.

dell V. Dawson, i Id. 376 ; Sargent (o) D. 2, 14, 27, § 4 ; I. 3, 20. 24.

V. Wedlake, 11 Id. 732. (jp) 1 Bulstr. 38 ; Hobart, 72 ;

(m) Allen v. Bescous, 2 Lev. 174 ; Dyer, 356.

Walker v., Perkins, 3 Burr. 1568 ; (g) Judgm., 5 Bing. N. C. 675.

Wetherell v. Jones, 3 B. & Ad. 225, (r) 2 Wils. 341 : 1 Sm. L. C.

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THE LAW OF CONTRACTS.

Interference
with course
of justice.

by him for the purpose of inducing the prosecutor of an
indictment for perjury to withhold his evidence. For the
plaintiff, it was contended that the bond was good and
lawful, the condition being singly for the payment of a sum
of money, and that no averment should be admitted that
the bond was given upon an unlawful consideration not
appearing upon the face of it ; but it was held, that the
bond was void ah initio, and that the facts might be specially
pleaded ; and it was observed by Wilmot, C.J., delivering
the judgment of the Court, that " the manner of the trans-
action was to gild over and conceal the truth ; and whenever
Courts of law see such attempts made to conceal such wicked
deeds, they will brush away the cobweb varnish and show
the transactions in their true light." And again, " this is
a contract to tempt a man to transgress the law, to do
that which is injurious to the community : it is void by the
common law; and the reason why the common law says
such contracts are void is for the public good : you shall not
stipulate for iniquity. All writers upon our law agree in
this — no polluted hand shall touch the pure fountains
of justice " (s).

It is obviously detrimental to the interests of the public
that the course of justice should be perverted; and upon
that ground, and in accordance with the decision in Collins
V. Blantern, it has been frequently ruled that agreements to
compromise pending criminal prosecutions are illegal and
void {t) ; and such an agreement cannot be enforced, even
though it was entered into with the sanction of the judge
at the trial of the proceedings to which it related (m). There

(s) See, also, Prole v. Wiggins, 3
Bing. N. C. 230 ; Paxton v. Popham,
9 East, 408 ; Pole v. HarroUn, Id.
417, n. ; Oas Light S Coke Co. v.
Turner, 5 Bing. N. 0. 666: 6 Id.
324; Cuthbert v. Haley, 8 T. B.
390.

(i) See Ex p. Critchley, 3 D. & L.
527 : 15 L. J. Q. B. 124 ; Re Camp-

bell, 14 Q. B. D. 32; Lound v.
Grimwade, 39 Oh. D. 605 : 57 L. J.
Oh. 725.

(u) Keir v. Leeman, 6 Q. B. 308
9 Id. 371 ; Windhill L. Bd. v. Vint,
45 Oh. D. 351: 59 L. J. Oh. 608.
See Beg. v. Blakemore, 14 Q. B.
544 ; Beg. v. Hardey, Id. 529 ; Beg.
V. Alletjne, 4 E. & B. 186.

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THE LAW OF CONTRACTS.

is authority for saying that a compromise is permissible in
the case of a misdemeanor, such as a common assault,
•which might have been made the subject of a civil action,
and which is not regarded for this purpose as an offence of
a public nature (x) ; but this exception to the general rule
clearly does not extend to the offence of obstructing a high-
way, for that is a matter which concerns the public (2/).
Similarly, agreements, whether express or implied, that no
prosecution shall be instituted for a supposed crime are
illegal, and no action can be maintained thereon (z) ; though
it appears that a mere threat of a prosecution, made by a
creditor to his debtor, does not invalidate a security for pay-
ment of the debt which the debtor subsequently gives to
the creditor, and which the creditor, though induced there-
by not to prosecute, yet takes without entering into any
agreement whatever that he will not prosecute (a). Other
agreements which are illegal, because they tend to interfere
improperly with the course of justice, are agreements to pay
money for the withdrawal of a petition to set aside a public
election on the ground of bribery (&), or of a motion to strike
a solicitor off the rolls for professional misconduct (c), or of
opposition to a bankrupt's application for his discharge (d) :
and also agreements, made with a surety for the appear-
ance or good conduct of a defendant to criminal proceedings,
to indemnify the surety against his liabilities as such (e).
None of these agreements will be enforced by the Courts (/).

(x) Keir v. Leeman, supra ; (a) Ward v. Lloyd, and Flower v.

Fisher d Co. v. ApoUinaris Co., Sadler, supra.

L. E. 10 Ch. 297 : U L. J. Oh. 500. (b) Coppock v. Botuer, i M. & W.

{y) WindMll L. Bd. v. Vint, 361.

supra. (c) Kirwan v. Qoodman, 9 Dowl.

(z) Ward v. Lloyd, 6 M. & Gr. 330.

785 ; Clulh v. Hutson, 18 C. B. (d) Kearley v. Thomson, 24 Q. B.

N. S. 414; Williams -v. BayUy, D. 742 : 59 L. J. Q. B. 288.

L. B. 1 H. L. 200 ; Be Mapleback, (e) Merman v. Jeuchner, 15 Q. B.

4 Oh. D. 150 ; Flower v. Sadler, 10 D. 561 : 54 L. J. Q. B. 561 ; Conso-

Q. B. D. 572 ; Jones v. Merioneth- Udated E. d F. Co. v. Musgrave,

shire Soc., [1892] 1 Oh. 173: 61 [1900] 1 Oh. 37; 69 L. J. Ch. 11.

L. J. Oh. 138. (/) As to the compromise o£

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574

THE LAW OF CONTRACTS.

Contract, As a general rule, then, a contract cannot be made the

wnen invalid.

subject of an action if it be impeachable on the ground of

dishonesty, or as being opposed to public policy, — if it be

either contra bonos mores, or forbidden by the law (g). In

answer to an action founded on such an agreement, the

maxim may be urged, ex malejicio non oritur contractus (h)

— a contract cannot arise out of an act radically vicious and

illegal ; " those who come into a court of justice to seek

redress must come with clean hands, and must disclose a

transaction warranted by law " (i) ; and "it is quite clear,

that a court of justice can give no assistance to the

enforcement of contracts which the law of the land has

interdicted " (k).

It does not fall within the plan of this work to enumerate,

much less to consider at length, all the different grounds on

which a contract may be invalidated for illegality (?). We

divorce suits, see Gipps v. Hume, 31
L. J. Ch. 37; and of. Brown v.
Brine, 1 Ex. D. 5.

ig) Per Ld. Kenyon, 6 T. B. 16 ;
Stevens v. Oourley, 7 C. B. N. S.
99; Cunard v. Hyde, 2 E. & E. 1.
See, per Holroyd, J., 2 B. & Aid.
103; per Martin, B., Horton v.
Westminster Impr. Coinmrs., 7
Exch. 791.

As to contracts void on the ground
of maintenance or champerty, see
Earle v. Hopwood, 9 G. B. N. S.
567; Simpson v. Lamb, 7 Id. 84;
Sprye v. Porter, 7 Id. 58 ; G-rell v.
Levy, 16 Id. 73 ; Anderson v. Bad-
cliffe, E. B. & E. 806; Alabaster v.
Harness, [1895] 1 Q. B. 339: 64
L. J. Q. B. 75 ; Bees v. De Bernardy,
[1896] 2 Ch. 437 : 65 L. J. Oh. 656.

(K) Judgm., 1 T. K. 734 ; Parsons
V. Thompson, 1 H. Bla. 322 : 2 E. R.
773 ; 8 Wheaton (U. S.), E. 152. See
Nicholson v. Gooch, 5 E. & B. 999,
1015, which forcibly illustrates the
maxim.

(i) Per Ld. Kenyon, Petrie v.
Bannay, 3 T. E. 422.

(fc) Per Ld. Eldon, 2 Eose, 351.

(I) The following oases, however,
may be referred to upon this sub-
ject, in addition to those already
cited : Simpsoti v. Ld. Howden, 9
CI. & P. 61 ; cited by Ld. Campbell,
Hall V. Dyson, 17 Q. B. 791 (as to
which see Hills v. Mitson, 8 Exch.
751) ; and by Ld. St. Leonards,
Hawkes v. E. Counties B. Co., 1 De
G. M. & G. 753 ; S. C, afarmed 5
H. L. Cas. 331 ; Preston v. Liver-
pool, dc., B. Co., 5 H. L. Cas. 605;
Jones V. Waite, 9 CI. & F. 101;
MittelhoUer v. Fullarton, 6 Q. B.
982, 1022 ; Santos v. Illidge, 8 C. B.
N. S. 861 : 6 Id. 841 ; Bousfield v.
Wilson, 16 M. & W. 185. In Att-
wood V. Small, 6 CI. & P. 232, the
efiect of fraud on a contract of sale
was much considered ; but this case
properly falls under the maxim,
caveat emptor, to which, therefore,
the reader is referred.

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THE LAW OP CONTRACTS. 575

shall merely cite some few cases iu illustration of the above Examples

of I*Ul6

remarks. In strict accordance with them, it has been held, Bond for
that no action could be maintained on a bond given to a purpose!
person in consideration of his doing, and inducing others to
do, something contrary to and prohibited by the valid terms
of letters patent ; and that the obligee was equally incapable
of recovering, whether he knew or did not know the terms
of the letters patent — the ignorance, if in fact it existed,
resulting from his own fault (m). "The question," said
Lord Tenterden, " comes to this : can a man have the
benefit of a bond by the condition of which he undertakes to
violate the law? It seems to me that it would not be
according to the principles of the law of England, which is
a law of reason and justice, to allow a man to maintain an
action under such circumstances ; it would be to hold out
an encouragement to any man to induce others to become
dupes, and to pay their money for that from which they
could derive no advantage."

In scire facias against the defendant as member of a Judgment
steam-packet company, the plea stated that the original ooiiu'siori. ^
action was for a demand in respect of which neither
defendant in the sci. fa., nor the packet company, nor the
defendant in the original action (the public officer of the
company), was by law liable, as the plaintiff at the com-
mencement of the action well knew ; and that, such regis-
tered officer and the plaintiff well knowing the premises, the
said officer fraudulently and deceitfully, and by connivance
with plaintiff, suffered the judgment in order to charge the
defendant in sci. fa. The Court held the plea to be good, and
further observed, that fraud no doubt vitiates everything (n) ;
and that, upon being satisfied of such fraud, they possessed
power to vacate, and would vacate, their own judgment (o).

(to) Duvergier v. Fellowes, 1 CI. & 38 L. J. C. P. 310 ; Leivis v. Clay,

F. 39 ; 34 K. E. 578. 67 L. J. Q. B. 224.

(n) See, for instance, Foster v. (o) Pkilipson v. Earl of Egre-

Mackinnon, L. B. 4 C. P. 704, 711 : mmt, 6 Q. B. 587, 605 ; Dodgson v.

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576 THE LAW OF CONTRACTS.

Fisher v. To take yet one other illustration of the maxim before us.

To a declaration in covenant for the payment of a certain
sum of money, the defendant pleaded that, before the
making of the covenant, it was unlawfully agreed between
the plaintiff and defendant that the plaintiff should sell and
the defendant purchase of him a conveyance of land for a
term of years, in consideration of a sum of money to be
paid by the defendant to the plaintiff, " to the intent and in
order and for the purpose, as the plaintiff at the time of the
making the said agreement well knew," that the land should
be sold by lottery, contrary to the statutes in such case
made and provided ; that afterwards, " in pursuance of the
said illegal agreement," the land was assigned for the term
and, a part of the purchase-money remaining unpaid, the
defendant, to secure the payment thereof to the plaintiff,
made the covenant in the declaration mentioned. Upon
these pleadings, the Court of Queen's Bench held, that
the covenant in question appeared to have been made after
the illegal transaction between the parties had terminated ;
that it formed no part of such transaction, and was conse-
quently unaffected by it. The judgment thus given was,
however, reversed in error upon grounds which seem
conclusive. The original agreement was clearly tainted
with illegality, inasmuch as all lotteries were prohibited
by the Lotteries Act, 1698 (p) ; and by the Gaming Act,
1738 iq), all sales of lands by lottery were declared to be
void to all intents and purposes. The agreement being
illegal, then, no action could have been brought to recover
the purchase-money of the land which was the subject-
matter thereof ; and the covenant accordingly, being
connected with an illegal agreement, could not be en-
forced ()•). And, further, even if the defendant's plea were

Scott, 2 Exoli. i57. See also per (g) 12 Geo. 2, c. 28, s. 4.

Pollock, G.B., Bogers v. HaMey, 32 (r) Paxton v. Popham, 9 East,

L. J. Ex. 248. 408 ; The Gas Light Co. v. Turner,

(p) 10 & 11 Wm. 3, 0, 23 (o. 17 6 Bing. N. C. 324 ; 5 Id. 666.
Bufi.).

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THE LAW OF CONTRACTS. 577

not to be understood as alleging that the covenant was
given in pursuance of an illegal agreement, it would,
remarked the Court of Exchequer Chamber, still show a
good defence to the action, for " the covenant was given for
the payment of the purchase-money. It springs from and
is the creature of that illegal agreement; and if the law
would not enforce the illegal contract, so neither will it
allow parties to enforce a security for purchase-money which
by the original bargain, was tainted with illegality " (s).

It is an indisputable proposition, that as against an Dantis et
innocent party, " no man shall set up his own iniquity as tuf^htdo^
a defence, any more than as a cause of action " (t). Where,
however, 'a7contract or deed is made for an illegal purpose,
a defendant against whom it is sought to be enforced may
show the turpitude of both himself and the plaintiff, and a
Court of justice will decline its aid to enforce a contract
thus wrongfully entered into. For instance, money cannot
be recovered which has been paid ex turpi causa, quum
dantis ceque et accipientis turpitudo versatur (u). An unlawful
agreement, it has been said, can convey no rights in any
Court to either party ; and will not be enforced at law or in
equity in favour of one against the other of two persons
equally culpable (x). A person who contributes to the per-
formance of an illegal act by supplying a thing with the
knowledge that it is to be used for that purpose is precluded
from recovering the price of the thing so supplied. " Nor
can any distinction be made between an illegal and an
immoral purpose ; the rule which is applicable to the matter
is, ex tuipi causa non oritur actio, and whether it is an
immoral or an illegal purpose in which the plaintiff has

(s) Fisher v. Bridges, 3 E. & B. by Abbott, C.J., 2 B. & Aid. 368.

642 (reversing judgment in S. C, It is a maxim, that jus ex injurid

2 E. & B. 118) ; followed in Qeere non oritur ; see Arg., 4 Bing. 639.
V. Mare, 2 H. & C. 339. See A.-O. (m) 1 Pothier, Traits de Vente,

V. HoUingworth, 2 H. & N. 416; 186.
O'Connor ■v.Bradshaw, 5 'E!j-K.oh..8S2. (x) Per Ld. Brougham, Arm-

(t) Per Ld. Mansfield, Montefiori strong v. Armstrong, 3 My. & K. 64.
V. Montefiori, 1 W. Bla. 364 ; cited

L.Ji. 37

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THE LAW OP CONTRACTS.

Principle of
rule.

Rule, how
qualified.

participated it comes equally -within the terms of that
maxim, and the effect is the same ; no cause of action can
arise out of either the one or the other" {y).

The principle on which the rule above laid down depends
is, as stated by Chief Justice Wilmot, the public good.
" The objection," said Lord Mansfield {z), " that a contract
is immoral or illegal as between plaintiff and defendant,
sounds at all times very ill in the mouth of the defendant.
It is not for his sake, however, that the objection is ever
allowed, but it is founded in general principles of policy,
which the defendant has the advantage of, contrary to the
real justice as between him and the plaintiff — by accident,
if I may so say. The principle of public policy is this : ex
dolo malo non oritur actio. No Court will lend its aid to a
man who founds his cause of action upon an immoral or an
illegal act. If, from the plaintiff's own stating or other-
wise, the cause of action appear to arise ex turpi causa or the
transgression of a positive law of this country, there the
Court says he has no right to be assisted. It is upon that
ground the Court goes, not for the sake of the defendant,
but because they will not lend their aid to such a plaintiff.
So, if the plaintiff and defendant were to change sides,
and the defendant were to bring his action against the
plaintiff, the latter would then have the advantage of
it, for where both are equally in fault, potior est conditio
defendentis " (a).

It may here be proper to notice, that, although a Court
will not assist in giving effect to a contract which is
" expressly or by implication forbidden by the statute or

(y) Pearce v. Brooks, L. E. 1 Ex.
213, 218 ; Cowan v. Milbourn, L. E.
2 Ex. 230.

(z) Holman v. Johnson, Cowp.
343 ; and Lightfoot v. Tenant, 1 B.
& P. 554 ; 4 E. E. 735 ; cited in
Hobbs V. Heimimg, 17 0. B. N. S.
819, as showing " the distinction
between a mere mental purpose that

an unlawful act should be done, and
a participation in the unlawful trans-
action itself." Jackson v. Duchaire,
3 T. E. 551, 558 ; cited, Spencer v.
Handley, 5 Scott, N. E. 558.

(a) See, also, Arg., 15 Peters
(U.S.), E. 471; per Tindal, C.J.,
2 C. B. 512; per Lindley, L.J.,
[1892] 2 Q. B. 728.

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THE LAW OF CONTRACTS.

579

common law," or which is " contrary to justice, morality,
and sound policy ; " yet where the consideration and the
matter to be performed are both legal, a plaintiff will not
be precluded from recovering by an infringement of the
law in the performance of something to be done on his
part ; such infringement not having been contemplated by
the contracting parties (b) .

In determining, moreover, the effect of a penal statute (c) Penal statute.
upon the validity of a contract entered into by one who has
failed in some respects to comply with its provisions, it is
necessary to consider whether the object of the statute was
merely to inflict a penalty on the offending party for the
benefit of the revenue, or whether the legislature intended
to prohibit the contract itself for the protection of the
public. In the former case, an action may lie upon the
contract ; but in the latter case the maxim under considera-
tion will apply, and even if the contract be prohibited for
revenue purposes only, it will be altogether illegal and void,
and no action will be maintainable upon it (d).

It must be observed that a contract, although illegal and

(6) Wetherall v. Jones, 3 B. & Ad.
225, 226. See Redmond v. Smith, 8
Soott, N. E. 250.

(c) With reference to a breach of
the Bevenue Laws, Ld. Stowell ob-
served, " It is sufficient if there is a
contravention of the law — if there
is a jraus in legem. Whether that
may have arisen from mistaken
apprehension, from carelessness, or
from any other cause, it is not
material to inquire. In these oases
it is not necessary to prove actual
and personal fraud." TTw Beward,
2 Dods. Adm. B. 271.

(d) D'Allex V. Jones (Bxeh.), 2
Jur. N. S. 972 ; Tan/lor v. Crowland
Gas and Coke Co., 10 Exch. 293,
296; Bailey v. Harris, 12 Q. B.
905 ; Smith v. Mawhood, 14 M. &
W. 452 ; Cope v. Bowlands, 2 M. &

W. 149 ; Cundellv. Dawson, 4 C. B,
376 ; Pidgeon v. BursUm, 3 Exch
465 ; Oulds v. Harrison, 10 Exoh
572 ; Jessopp v. Lutwyche, Id. 614
Bosewarjie v. Billing, 38 L. J. C. P,
55, 56 ; Johnson v. Hudson, 11 East,
180 : 10 E. B. 465. See, per Holt;
G.J., Bartlett v. Viner, Garth. 252
cited, Judgm., De Begnis v. Armi
stead, 10 Bing. 110 : 38 B. B. 406
and in Fergusson v. Norman, 5
Bing. N. C. 85. Upon the latter
case see 85 & 36 Vict. o. 98, s. 51.
For another instance illustrating the
text, see per Parke, B., Bodger v.
Arch, 10 Exch. 337 ; cited, Amos
V. Smith, 1 H. & 0. 241. And see
Jones V. Giles, 10 Exch. 119, 144 :
11 Exch. 393 ; Ritchie v. Smith, 6
0. B. 462.

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THE LAW OP CONTBAOTS.

Divisible
contract.

One illegal
consideration
taints whole
contract.

void as to part, is not necessarily void in toto. Thus, if a
bond be given, with condition to do several things, and
some are agreeable to law, and some against it, the bond
shall be good as to doing the former, and only void as to
doing the latter (e) ; and, if a deed, not founded upon an
illegal consideration, contain two severable and independent
covenants, of which the one is legal and the other not, the
illegality of the one does not usually prevent the enforce-
ment of the other (/). For " the general rule is that where
you cannot sever the illegal from the legal part of a covenant
the contract is altogether void, but where you can sever
them, whether the illegality be created by statute or by
the common law, you may reject the bad part and retain
the good "(g); and this rule applies not only to covenants,
but also to assignments (h), and to bye-laws (i).

If, however, a contract be made upon a consideration part
of which is illegal, or upon several considerations one of
which is illegal, the law clearly is that the whole promise,
or every one of the promises, dependent upon such con-
sideration or considerations, is also illegal (k) : for it is
induced and affected by the whole consideration, or every
one of the considerations, including what is illegal therein :
it is impossible to discriminate between the weight to be
given to the several parts of the consideration, or to the
several considerations, and there can be no severance of

(e) Chesman v. Nainby, 2 Ld.
Eaym. 1459.

(/) OasTcell v. King, 11 East,
164 : 10 R. E. 462 ; Mallan v. May,
11 M. & W. 653; see Baker v.
HedgecocTc, 39 Ch. D. 520 : 57 L. J.
Oh. 889 ; perLindley, M.R., Haynes
V. Doman, [1899] 2 Ch. 13, 24 : 68
L. 0". Oh. 419.

(g) Per Willes, J., Pickering v.
nfracombe B. Co., L. E. 3 0. P.
235, 250: 37 L. J. 0. P. 118;
Bobinson v. Ommaney, 23 Oh. D.
285 ; 52 L. J. Ch. 440.

(h) Be Isaacson, [1895] 1 Q. B.
333 : 69 L. J. Q. B. 191.

(i) See per Liudley, L.J"., Strick-
land V. Hayes, [1896] 1 Q. B. 292 ;
upon which case see Burnett v.
Berry, Id. 641 : 65 L. J. M. 0. 118.

(k) Featherston v. Hutchinson,
Cro. Eliz. 199 ; Scott v. Gillmore, 8
Taunt. 226 : 12 E. E. 641 ; Harring-
ton V. Victoria Dock Co., 3 Q. B. D.
549 : 47 L. J. Q. B. 594 ; with which
cf. Shipioay v. Broadwood, [1899]
1 Q. B. 369 : 68 L. J. Q. B. 360.

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THE LAW OF CONTRACTS. 681

that which is legal from that which is not : whereas, where
there is no illegality in the consideration, and some of
the promises are legal and others are illegal, the illegality
of those which are bad does not communicate itself to, or
contaminate, those which are good, unless, indeed, they are
inseparable from and dependent upon one another (I).

One of several considerations which is not illegal, but is Consideration

merely void.

merely void, does not have this effect : it is wholly nugatory,
and the contract is enforceable if the other considera-
tions are good (m). The distinction between considerations
which are illegal and those which are only void is often of
importance. For instance, where a cheque is given for an
illegal consideration, an indorsee for value who takes with
notice of the illegality cannot maintain an action upon the
cheque (n) ; but it is otherwise if the cheque be given for a
consideration which is merely void(o).

In connection with the question whether a particular Public policy,
contract is illegal on grounds of public policy, it has been
observed that " public policy is an unruly horse and
dangerous to ride " (p); and that, although certain kinds of
contracts have been held void at common law on the ground
of public policy, this branch of the law " certainly should
not be extended, as judges are more to be trusted as inter-
preters of the law than as expounders of what is called
public policy "(g).

(Z) Kearney v, Whitehaven Co., A. C. 45. For cases in which the

[1893] 1 Q. B. 700 : 62 L. J. M. C. rule of public policy has been re-

129. cently extended to new circum-

(771) Jones V. Waite, 5 Bing. N. 0. stances, see Wilson v. Carnley,

341, 351. [1908] 1 K. B. 729 : 77 L. J. K. B.

in) Woolf V. Hamiltcm, [1898] 729 (a promise of marriage by a

2 Q. B. 337 : 67 L. J. Q. B. 917. man who was married at the time) ;

(o) Lilly V. Bankin, 56 L. J. and In re Beard, Beard v. Hall,

Q. B. 248. [1908] 1 Gh. 383 : 77 L. J. Oh. 265

(p) Per Burrough, J., 2 Bing. (a condition in a will divesting the

252. interest of a legatee if he entered

(g) Per Cave, J., Be Mirams, the naval or military service of the

[1891] 1 Q. B. 594 : 60 L. J. Q. B. Crown).
397 ; see per Ld. Bramwell, [1892]

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THE LAW OF CONTKACTS.

Non-repudia-
tion of
fraudulent
contract.

Presumption

against

illegality.

The effect of fraud is not absolutely to avoid a contract
induced by it, but to render it voidable at the option of the
party defrauded ; and the contract continues vaUd until the
party defrauded has elected to avoid it (r). Thus if a party
be induced to buy an article by fraudulent misrepresenta-
tions of the seller respecting it, and, after discovering the
fraud, continue to deal with the article as his own, he
cannot recover back the price from the seller ; nor does there
seem any authority for saying that a party must, in such a
case, know all the incidents of a fraud before he deprives
himself of the right of rescinding : the proper and safe
course is to repudiate the whole transaction at the time
of discovering the fraud (s). " Where an agreement has
been procured by fraud," observed Maule, J. (t), " the party
defrauded may at his election treat it as void, but he must
make his election within a reasonable time. The party
guilty of the fraud has no such election." But the election
once made by the party defrauded cannot be retracted by
him: elect io semcl facta non patitur regressuvi (u).

Lastly, ubi quid generaliter conceditur inest haec exceptio
si non aliqtiid sit contra jus fasque (x), is a maxim of our
law ; and if an act which is the subject of a contract may,
according to the circumstances, be lawful or unlawful, it will
not be presumed that the contract was to do the unlawful
act : the contrary is the proper inference (y). If the act is
capable of being done legally, either party may enforce the

(?•) JReese Silver Mining Co. v.
Smith, L. E. i H. L. 64 : 39 L. J.
Ch. 8, 49.

(s) Campbell v. Fleming, 1 A. &
E. 40 ; Clarke v. Dickson, B. B. &
E. 148; White v. Garden, 10 0. B.
919; Harnor v. Oroves, 15 0. B.
667.

(«) E. Angliam B. Co. v. E.
Counties B. Co., 11 0. B. 803 ; citing
Campbell v. Fleming, supra ; Bwlch-
y-Plwm Lead Mining Co. v. Baynes,
L. E. 2 Ex. 326; Oakes v. Tur-

quand, L. E. 2 H. L. 325. In Pil-
brow V. Pilbrow's Atmospheric B.
Co., 5 C. B. 453, Maule, J., observed,
"It is not true that a deed that is
obtained by fraud is therefore void.
The rule is that the party defrauded
may, at his election, treat it as
void."

(u) Co. Litt. 146 a.

{x) 11 Eep. 78 b.

(y) Per Ld. Abinger, Lewis v.
Davison, 4 M. & W. 654.

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THE LAW OP CONTBAOTS. 68B

contract unless lie wickedly intended that the law should be
broken (2). It is "a universal principle that every trans-
action in the first instance is assumed to be valid, and the
proof of fraud lies upon the person by whom it is imputed" (a) ;
and where the omission to do an act would be " a criminal
neglect of duty," the burden of proving that it was not done,
that is, of proving a negative, usually falls upon the party
who alleges its omission (b).

Having in the preceding pages directed attention to
some leading points connected with the illegality of the con-
sideration for a promise or agreement, and having selected
from very many cases some only which seemed peculiarly
adapted to throw light upon the maxim, ex clolo malo non
oritur actio, we may further pray in aid of the above very
cursory remarks respecting it, the observations already made
upon the yet more general principle, that a man shall not he
permitted to take advantage of Ms own wrong (c),and shall at
once proceed to offer some remarks as to the rule that a
consideration is needed to support a promise, and as to
the sufficiency and essential requisites thereof.

Ex NUDO Pacto non oeitiie Actio. {Noy, Max. 24.) —
No cause of action arises from a hare promise.

The maxim, as used by writers on our law of contracts. Nudum
bears a meaning widely different from that which it bore in l^iian law.
Roman jurisprudence. Nudum ■pactum in defined by Ulpian,
uhi nulla suhest causa propter conventionem (d). By causa

(2) WaughY. Morris, Tj.R.SQ.B. East, 199; of. the maxim, omnia

202: 42 L. J. Q. B. 57 ; Thwaites y. presumuntur riU esse acta; post,

Coulthwaite, [1896] 1 Cit. 496 : 65 Chap. X.

L. J. Oh. 238. Upon the latter case, (c) Ante, p. 233.

see Powell v. Kempton Park Co., (d) D. 2, 14 7, § 4 ; Plowd. 309,

[1899] A. 0. 143 : 68 L. J. Q. B. 392. n. ; Vin. Abr., " Nudum Pactum"

(a) Per Parke, B., 8 Exoh. 400 ; (A.). See 1 Powell, Oontr. 880 et

per Ld. Kenyon, 2 T. B. 711. seq. As to the doctrine of nudum

(6) See per Ld. Ellenborough, 3 pactum in the civil law, see Pillans

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THE LAW OP CONTRACTS.

were meant the formal requisites necessary to obtain for an
engagement legal recognition, that is, the ceremonial con-
ditions which constituted stijjtdatio, nexum, &c. (c). The
cause d'oil naisse I'obligation of the French civil code is
nearer in meaning to our consideration, but is more exten-
sive, and may denote a mere moral duty, or a fancied duty
based upon feelings of honour, and even the moti^'e which
may actuate a person in making a promise (/), to which the
English word does not extend.
Nudum ^ The force of the above maxim, as used in English iuris-

paclum in . a o

English juris- prudence, is thus explained by Blackstone. "A considera-
^'^ ■ tion of some sort or other is so necessary to the forming of

a contract, that a michim pactum, or agreement to do or pay
something on one side, without any compensation on the
other, will not at law support an action ; and a man cannot
be compelled to perform it " (g). The nakedness of a pro-
mise, in our system, consists in the absence of consideration,
and not in the want of formal conditions, such as ■writing or
registration. Thus, our notion of a bare promise bears no
analogy to the nudum %>actum of the digest. The law, it
has been observed (/;), " supplies no means nor affords any
remedy to compel the performance of an agreement made
without sufficient consideration. Such agreement is nudum
pactum ex quo nan oritur actio ; and whatsoever may be the
sense of this maxim in the civil law, it is in the last -men-
tioned sense only that it is to be understood in our law."

The modern English doctrine of consideration has been
one of gradual development. In the time of Henry VI. the
word does not seem to have been in vogue; the equivalent
found in cases of that period is quid pro quo (i), and that

Considera-
tion.

V. Van Mierop, 3 Burr. 1670 et seg. ;
1 Fonbl. Eq., 5tli ed. 335 (a).

(e) Pollock on Contr., Chap. III.

(/) Ibid., Chap. IV.

\g) 2 Bl. Com. 445 ; Noy, Max.,
9th ed. 348.

(7i) Per Skynner, C.B., Rann v.

Hughes, 7 T. R. 350, n. (a). See,
per Ld. Kenyon, 3 T. R. 421 ;
Judgm., Bank of Ireland v. Archer,
11 M. & W. 389. See McManus v.
Bark, L. R. 5 Ex. 65 : 39 L. J. Ex.
65.

(i) Pollock, Contr., Chap. III.

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THE LAW OP CONTRACTS. 5

phrase conveys an accurate idea of the connotation of the
modern word, except indeed as used by conveyancers in
conjunction with good (k). Consideration could not be
better defined than it is in the Indian Contract Act : " when
at the desire of the promisor, the promisee or any other
person, has done or abstained from doing, or does or ab-
stains from doing, or promises to do or abstain from doing
something, such act or abstinence or promise is called a
consideration for the promise " (l). Accordingly, if I promise
to pay a man £100 for nothing, he neither doing nor pro-
mising anything in return or to compensate me for my
money, my promise is nudum pactum, and has no force m
law ()ft). A gratuitous promise or undertaking may indeed
form the subject of a moral obligation, and may be binding
in honour, but it does not create a legal responsibility (n).

Where indeed a promise is made under seal, the solemnity Contract
of that mode of delivery is held to import, at law, that there
was a sufficient consideration for the promise, so that the
plaintiff is not in this case required to prove a considera-
tion ; nor can the deed be impeached by merely showing
that it was made without consideration, unless proof be
given that it originated in fraud (o). Neither is a con-
sideration necessary for the validity of a deed operating at
common law. Nevertheless if A. made a feoffment in fee
to another without consideration, equity would presume
that he meant it to the use of himself, and would therefore
raise an implied resulting use in his favour (p). Even if
he should by express limitation of uses prevent the estate
from resulting at law, there would still in equity result a
trust for his benefit. Even in the case of a deed, moreover,

(k) As to which see below, p. 570. Balfe v. West, 13 0. B. 466 ; Elsee

(I) Indian Contract Act, sect. 2. v. Oatward, 5 T. E. 143, 149.

All the definitions in this section (o) 2 Bla. Com., 16th ed. 446, n.

should he carefully studied. (4). Per Parke, B., WalUs v. Day,

(m) 2 Bl. Com. 445 ; Yin. Abr., 2 M. & W. 277.

" Contract " (K). (p) 1 Sand. Uses, 68.

(tc) Judgm., 1 H. Bla. 327. See

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586 THE LAW OF CONTRACTS.

" Good " and it is necessary to observe the distinction between a good
consideration, and a valuable consideration ; the former is such as that of
blood, or of natural love and affection, as when a man
grants an estate to a near relative, being influenced by-
motives of generosity, prudence, or natural duty. Deeds
made upon this consideration are looked upon by the law
as merely voluntary, and, although good as between the
parties, are liable to be set aside in favour of creditors
under the Bankruptcy Act, 1883, s. 47, or, if fraudulent
within the meaning of the 13 Eliz. c. 5, under that Act(g).
On the other hand, a valuable consideration is such as
money, marriage, or the like ; and this is esteemed by the
law as an equivalent given for the grant (r).

Owing to the construction put upon the 27 Eliz. c. 4,
a purchaser for valuable consideration of lands, could, as
a rule, avoid a prior voluntary conveyance of the lands,
though in fact made bond fide and without any fraudulent
intent (s). But this rule was altered by the Voluntary
Conveyances Act, 1893 {t).
Consideration It is of the greatest importance to the student of our law
contract. to start with an accurate comprehension of the meaning of
consideration in simple contracts. We therefore add to
what has already been said the definition of Parke, B. :
" any act of the plaintiff from which the defendant derives
a benefit or advantage, or any labour, detriment, or incon-
venience sustained by the plaintiff, however small the
benefit or inconvenience may be, is a sufficient consideration,
if such act is performed, or such inconvenience suffered, by
the plaintiff with the consent, either express or implied, of
the defendant " (it).

(2) See notes to Twyne's case, 1 Gilchrist, [1892] A. C. 412 : 61 L. J.

Smith, L. 0., lltli ed, 1 ; 46 & i7 P. C. 72.

Vict. u. 52, s. 47. (t) 56 & 57 Vict. o. 21.

(r) 2 Bl. Com. 297, 444 ; 10 B. & (m) 1 Selw. N. P., 10th ed. 41 ;

C. 606. Judgm., 2 E. & B. 487—488; per

(s) See Doe v. Manning, 9 East, Parke, B., Moss v. Hall, 5 Exch.

59, 66 : 9 R. R. 503 ; Bamsay v. 49 ; Bracewell v. Williams, L. R. 2

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THE LAW OF CONTRACTS.

587

The consideration for a promise must have some tangible Consideration
value in the eye of the law (a;). Where in an action of Smevakfe.
assumpsit the consideration for the defendant's promise
was stated to be the release and conveyance by the plaintiff
of his interest in certain premises, at the defendant's
request, but the declaration did not show that the plaintiff
had any interest in the premises except a lien upon them,
which was expressly reserved by him, the declaration was
held bad, as disclosing no legal consideration for the
promise (y).

It is now well settled that, as long as the consideration Adectuaoy not
for a promise has some value its adequacy is not material (z). ™* ^^^^ '
The value of all things contracted for " is measured by the
appetite of the contractors, and therefore the just value is
that which they be content to give " (a). Moreover, the con- Value may be
sideration may be contingent. It may consist of something '^°^ ^^^^ '
which a party does not undertake, and consequently is
not bound to perform, but which being done renders the

C. p. 196; Crowther v. Fairer, 15
Q. B. 677, 680 ; Hulse v. Hulse, 17
C. B. 711. See, also, Nash v. Arm-
strong, 10 0. B. N. S. 259 ; Shadwell
V. Shadwell, 9 Id. 159; Davis v.
Nisbett, 10 Id. 752 ; Surtees v. Lister,
7 H. & N. 1 ; Scotson v. Pegg, 6 Id.
295; Westlake v. Adams, 5 C. B.
N. S. 248 ; Hartley v. Ponsonby, 7
E. & B. 872; Carlile v. Ca/rbolie
Smoke Ball Co., [1893] 1 Q. B. 256,
271 : 62 L. J. Q. B. 257.

(x) Per Patteson, J., Thomas v.
Thomas, 2 Q. B. 859; Price v.
Eastern, 4 B. & Ad. 433 ; Tweddlc v.
Atkmsm, 1 B. & S. 393 ; Edwards
V. Baugh, 11 M. & W. 641 ; Bridg-
man v. Dean, 7 Exch. 199 ; Wade v.
Simeon, 2 C. B. 548 ; Llewellyn v.
Llewellyn, 15 L. J. Q. B. 4 ; Crow v.
Rogers, 1 Stra. 592 ; Lilly v. Hays,
5 A. & E. 548 ; approved in NobleY.
National Discov/nt Co., 5 H. & N.
225, 228; Galloway v. Jackson, 3

Scott, N. E. 758, 763 ; Thcn-nton v.
Jenyns, 1 Id. 52; Jackson Y.Cobbin,
8 M. & W. 790; Cowper v. Green, 7
M. & W. 633: 1 Boll. Abr. 23,
pi. 29 ; Fisher v. Waltham, 4 Q. B.
889 ; Wilson V. Wilson, 1 H. L. Gas.
538 ; Ha/rt v. MiUs, 4 C. B. N. S.
371, and eases infra.

(y) Kaye v. Dutton, 7 M. & Gr.
807 ; recognizing Edwards v. Baugh,
11 M. & W. 641 ; Lyth v. Ault, 7
Exch. 669 ; Strickland v. Turner,
Id. 208 ; Fremlin v. Hamilton, 8
Exch. 308; see Cooper v. Parker, 14
C. B. 118 ; Millward v. Littlewood,
5 Exch. 775; Wild v. Harris, 7
0. B. 999; Holmes v. Penney, 9
Exch. 584, 589 ; Foakes v. Beer, 9
App. Gas. 605.

(0) Westlake v. Adamis, 5 C. B.
N. S. 248, 265 : 24 L. J. 0. P. 271 ;
per Byles, J.

(a) Hobbes, Leviathan, pt. 1, Gh.
XV.

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THE LAW OP CONTRACTS.

or problem-
atical.

Consideration
must be real,
not illusory ;
must not fail
through the
act of the
promisee.

promise on the other side binding in law. Thus, if a
tradesman agree to supply on certain terms such goods as
a customer may order during a future period, he cannot sue
the customer for not ordering any goods, but if the cus-
tomer order any goods, the consideration becomes effectual,
and a contract binding upon the tradesman immediately
arises (/;). Not only is a promise to forbear an action a
good consideration, but so also is actual forbearance at
request (c).

Moreover, a consideration may be good in law, although
there may be merely a chance, and that a remote one,
of any benefit arising to one party or detriment to the
other. Thus, although a claim be wholly ill-founded, yet
if it has been made in good faith, a promise to abandon it,
or its abandonment at request, either before or pending
an action upon it, constitutes a good consideration for a
contract (rf).

The consideration for a contract, although its adequacy
will not be examined by the Courts, must not be colourable
merely nor illusory (c), and it is open to the promisor to
show, if he can, that the chance of his deriving benefit from
that which is put forward as the consideration for his
promise has been defeated by the act of the promisee. In
such a case there is said to be a failure of consideration.
In debt for money had and received, the defendant pleaded
the execution and delivery to the plaintiff of a deed securing
to the plaintiff an annuity, and acceptance of the same
by the plaintiff in discharge of the debt ; replication, that
no memorial of the deed had been enrolled pursuant to the
statute ; that, the annuity being in arrear, the plaintiff

(b) G. N. B. Co. V. Witliam, L. E.
9 C. P, 16 : 43 L. J. 0. P. 1.

(c) Crears v. Hunter, 19 Q. B. D.
341 : 56 L. J. Q. B. 518.

(d) CalUsher v. Bischoffheim,
L. R. 5 Q. B. 449: 39 L. J. Q. B.
181 ; Miles v. N. Zealand Co., 32

Ch. D. 266 : 55 L. J. Oh. 801.

(e) White v. Bluett, 23 L. J. Exch.
36. See Oough v. Findon, 7 Exch.
48 ; Frazer v. Batten, 2 0. B. N. S.
512 ; Ooj-gier v. Morris, 7 0. B.
N. S. 588.

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THE LAW OF OONTEACTS. 589

brought an action for the arrears ; that defendant pleaded
in bar the non-enrolment ; and that plaintiff thereupon
elected and agreed that the indenture should be void, and
discontinued the action. The replication was held to be a
good answer to the plea, since it showed that the accord
and satisfaction thereby set up had been rendered nugatory
by the defendant's own act (/).

The definitions of consideration which have already been Consideration
given are sufficient to preclude the possibility of its being confounded
confounded with the motive of a promise {g). Consideration ^^ '^° ^^®'
may furnish the inducement for a promise, and that in-
ducement may be a motive, but the motive is a mental fact
subjective to the promisor, the consideration is objective
and extraneous to his mind. A common expression, which
involves a leading principle of the law of contracts, is that
the consideration must move from the plaintiff. By this is Consideration
meant not only that the consideration must be something from the
external to the mind of the promisor, and therefore not ^ "^ ^ "
a mere motive, but also, that there must have been what is
called privity of contract between the promisor and the
person who seeks to enforce the promise. In common
parlance, the principle may be thus stated : he alone can
exact performance of a promise, who has furnished or
contributed to furnish the consideration (h).

Where plaintiff promised to discharge A. from part of a
debt due to himself, and to permit B. to stand in his place
as to that part, defendant promising, in return, that B.
should give plaintiff a promissory note ; the consideration
moving from plaintiff, and being an undertaking detrimental
to him, was held sufficient to sustain the defendant's

(/) Turner v. Browne, 3 C. B. graph Co., L. E. 4 Q. B. 706;

157; Thomas v. Thomas, 2 Q. B. Becher v. G. E. B.Co.,Ij.'R. 5 q.B.

851. 241 ; Jennings v. O. N. B. Co., L. E.

(3) Per Ld. Denman, and Patte- 1 Q. B. 7 ; Alton v. Midland B.

son, J., Id. 859 ; Id. 861 (a). Co., 19 C. B. N. S. 213 ; Watson v.

(h) See Plat/ford v. U. K. Tele- Bussell, 5 B. & S. 968.

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THE LAW OF CONTRACTS.

promise (i). Where, however, A. being indebted to plaintiff
in one sum, and B. being indebted to A. in another, the
defendant, in consideration of being permitted by A. to sue
B. in his name, promised to pay A.'s debt to the plaintiff,
and A. gave such permission, whereupon defendant recovered
from B. ; judgment was arrested on the ground that plaintiff
was a mere stranger to the consideration for the promise
made by defendant, having done nothing of trouble to
himself or of benefit to the defendant (k).

The question of privity of contract has been much dis-
cussed in connection with the relation of a country solicitor
towards his client and town agent respectively. It has been
more than once subject of inquiry whether such privity
exists between the client and town agent as would entitle
one to sue the other. Where B., the country attorney of
A., sent money to the defendants, who were his London
agents, to be paid to C, on account of A., and the defen-
dants promised B. to pay the money according to his
directions, but afterwards, being applied to by C, refused
to pay it, claiming a balance due to themselves from B. on
an account between them, it was held that an action for
money had and received would not lie against the defendants
at the suit of A. (l). " The general rule," observed Lord
Denman, " undoubtedly is, that there is no privity between
the agent in town and the client in the country ; and the

(i) Peate v. Dicken, 1 Cr. M. & B. 359 ; Hooper v. Treffry, 1 Exch. 17.

422 ; Tipper v. BicJcnell, 3 Bing. See Litt v. Martmdale, 18 C. B. 314,

N. 0. 710 ; Sa/rper v. Williams, where there seems to have been very

4 Q. B. 219; and DasMvood v. slight (if any) evidence of privity;

Jermyn, 12 Oh. D. 776. Johnson v. B. Mail St. Packet Co.,

(k) Bourne v. Mason, 1 Ventr. 6 ; L. R. 3 0. P. 38 ; Moore v. Bushell,

Liversidge v. Broadbent, 4 H. & N. 27 L. 3, Ex. 3 ; Gerhard v. Bates,

603, 610, and Tweedle v. Atkinson, 2 B. & B. 476 ; Brewer v. Jones, 10

1 B. & S. 393, also illustrate the Exoh. 655 ; Barkivorth v. Ellerman,

maxim. 6 H. & N. 605; Painter v. Abel, 2

(l) Cobb V. Becke, 6 Q. B. 930; H. & 0. 118; Collins v. Brook, 5

Bobbins v. Fennell, 11 Q. B. 248 ; H. & N. 700.
Bluck V. Siddaway, 15 L. J. Q. B.

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THE LAW OF CONTRACTS. 591

former cannot maintain an action against the latter for his
fees, nor the latter against the former for negligence " (m).

A. employs B., an attorney, to do an act for the benefit
of C, A. having to pay B., and there being no intercourse
of any sort between B. and C. If, through the negligence
or ignorance of B. in transacting the business, C. loses the
benefit intended for him by A., C. cannot maintain an action
against B. to recover damages for the loss. If the law were
otherwise, a disappointed legatee might sue the solicitor
employed by a testator to make a wiU in favour of a stranger,
whom the solicitor never saw or before heard of, if the will
were void for not being properly signed and attested (;i).

As will shortly be seen, nothing done or suffered by the Moral obliga-

, , . , . , , , *io'i d°2s not

promisee antececkntiy to the promise constitutes a good constitute
consideration for the promise unless it was done or suffered 1°^^] °'^^'
at the request of the promisor. In certain cases it was once
thought that where the plaintiff voluntarily did that which
the defendant was morally bound to do, and the defendant
afterwards expressly promised to reward him, a previous
request would be implied, so that the moral duty attaching
to the defendant would be a valid consideration for his
promise (o). It never was considered that every moral
consideration was sufficient for this purpose {p). After
considerable controversy it was finally settled in Eastwood
V. Kenyon (q), that a mere moral obligation arising from a
past benefit not conferred at the request of the defendant is
not a good consideration, and that the class of considerations

(m) For later oases on this subject the relation of attorney and client,

see Lawrence v. Fletcher, 12 Ch. D. see Fish v. Kelly, 17 G. B. N. S.

858 ; Vyse v. Foster, L. E. 10 Ch. 194; Helps v. Clayton, Id. 553.

236; Ex p. Edwards, 8 Q. B. D. (o) Lee v. Muggeridge, 5 Taunt.

262 ; Be Nelson, 30 Ch. D. 1 ; Mac- 36 ; Watson v. Turner, B. N. P.

farlane v. Lister, 37 Oh. D. 89 ; 129, 147, 281 ; Trueman v. Fenton,

Hannaford v. Syms, 79 L. T. 30. Cowp. 544 ; Atkins v. Banwell, 2

(w) Per Ld. Campbell, Robertson East, 505.

y. Fleming, 4 Maoq. So. App. Gas. (p) Per Jji. Tenteia.en,Littlefield

177. V. Sfiee, 2 B. & Ad. 811.

As to privity in connection with (2) 11 A. & E. 438, 446.

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592 THE LAW OF CONTRACTS.

derived from moral obligations includes only those cases
in which there has been a legal right deprived of legal
remedy. In such cases, as will be seen, the defendant may
be held liable, without putting moral duty on a par with
legal consideration (;■). It is now past controversy that
mere moral feeling is not enough to affect the legal rights
of parties (s) ; nor can a subsequent express promise con-
vert into a debt that which of itself was not a legal debt (t) ;
and although the mere fact of giving a promise creates a
moral obligation to perform it, yet the enforcement of such
promises by law, however plausibly justified by the desire
to effect all conscientious engagements, might be attended
with mischievous consequences ; one of which would be the
frequent preference of voluntary undertakings to claims for
just debts. Suits would thereby be multiplied, and volun-
tary undertakings would also be multiplied, to the prejudice
of real creditors («).
BiUs of As regards bills of exchange, cheques, and promissory notes

exo ange. ^^^ ^^^^^ ^^^ ^-^^^ ^^^^ instruments are presumed to be made

upon, and imma facie import, consideration (.i) . And the
words "value received" express only what the law implies
from the nature of the instrument, and the relation of the
parties apparent upon it (?/), and then the maxim, expressio
eorum qiue iacitc insitnt nihil operator, is applicable (z). In an
action upon a bill or note between the immediate parties
thereto, the consideration may be inquired into ; and if it be

(r) Seejposf, p. 597. which is nothing."

(s) PerLd. Denman, Bca«moKiv. (t) Per Tindal, C.J., Kaye v.

Reeve, 8 Q. B. 483 ; cited and recog- Duiton, 7 M. & Gr. 811—812.

nised, Fisher v. Bridges, 3 B. & B. (n) Judgm., 11 A. & E. 450, 451.

642 ; Eastwood v. Kenyan, 11 A. & See Roberts v. Smith, 4 H. & N.

E. 438 ; Wennall v. Adney, 3 B. & P. 315.

247, 249 (a) : 6 E. B. 780. In Jen- (x) Per Martin, B., 1 H. & C.

nings v. Brown, 9 M. & W. 501, 710 ; see 45 & 46 Vict. ^. 61, s. 30.

Parke, B., observes in reference to (y) Hatch v. Trayes, 11 A. & E.

Binnington v. WalUs (4 B. & Aid. 702.; see 45 & 46 Vict. c. 61, s. 3(4).

650), that the giving up the annuity (2) Ante, p. 519.

was " a mere moral consideration,

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THE LAW OF CONTRACTS. 593

proved that the plaintiff gave, and the defendant received,

no value, the action will fail (a). And it may fail in part

where the consideration is divisible and has failed in part ;

for where, observed Cresswell, J. (6), there is a promise to pay

a certain sum, the whole being supposed to be due, " each

part of the money expressed to be due is the consideration

for each part of the promise ; and the consideration as to any

part failing, the promise ia pro tanto nudum pactum."

In actions not between immediate parties to a bill or

note, the established rule is, that suspicion must be cast

upon the plaintiff's title before he can be required to prove

what consideration he gave for it. But, if it be proved that

the instrument was obtained by fraud, or is affected by

illegality, such proof affords a presumption that the guilty

party placed it in the hands of an accomplice to sue upon

it, and consequently casts upon the plaintiff the burden of

showing that he was a bond fide indorsee for value (c).

Having thus briefly shown the nature of the consideration Different
-. ,-. . ■ , 1 • T J i kinds of eon-

and the -privity necessary to a valid contract, we may sideration.

proceed to specify the important distinctions which exist
between considerations executed, concurrent, continuing, and
executory. These terms, as used to qualify consideration,
are relative in point of time to the promise. The following
example will serve as an introductory illustration. A
declaration in assumpsit stated that in consideration of the
plaintiff's acjreeing to stay an action against B., the defen-
dant promised to pay the amount upon a certain event ; at
the trial, the following agreement was proved : " In con-
sideration of the plaintiff's having agreed to stay proceedings
against B., &c. ; " it was held that the contract was an
executory contract, and a continuing agreement to stay
proceedings, and that there was therefore no variance (rf).

(a) Southall v. Bigg, and Forman (c) Per Parke, B., Bailey v. Bid-

V. Wright, 11 0. B. 481, 492 ; see well, 13 M. & W. 73, 76 ; see 45 &

Be Whitaker, 42 Ch. D. 119. 46 Viot. e. 61, s. 30 (2) ; Tatam v.

(6) 11 0. B. 494 ; see Wanvick v. Haslar, 23 Q. B. D. 845.
Nairn, 10 Bxoli. 762. (d) Tanner v, Moore, 9 Q. B. 9.

L.M. '^^

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594

THE LAW OP CONTRACTS.

Consideration
must be
moved by
request.

In case of
past service,
request must
be proved.

Cases of
executed
service where
it is not neces-
sary to prove
request.

In this case having agreed before the date of the promise
would indicate an executed consideration, agreeing might
constitute a concurrent consideration (i.e., coincident in
point of time with the promise), or executory {i.e., to be
performed after the promise).

It will appear from the definitions of consideration above
cited (e), that it is necessary that the service which is
advanced as the consideration for a promise should be
undertaken at the instance or request of the promisor.
This is the meaning of the decision in the leading case of
Lampleigh v. Brathwait (/), that a mere voluntary courtesy
will not support an assumpsit, but a courtesy moved by a
previous request will. In the case of a service which is
not past or executed at the time of the promise, it is obvious
that a request on the part of the promisor is a logical
necessity. To promise something in consideration that
another will in the future do or suffer something (executory
consideration), or will continue to do or suffer something
(continuing), or will hie et nunc do or suffer something
(concurrent), is itself a request.

Where, however, the service is past or executed at the
date of the promise, it is, as a rule, necessary to show that
the service was undertaken at the request of the promisor.
For, to take a simple illustration, if a man disburse money
about the affairs of another, without request, and then after-
wards the latter promise to repay him (g), there is wanting
an essential element of valid legal consideration.

Although, generally speaking, in the ease of executed con-
siderations it is necessary that a request should be laid and
proved, there are cases of past consideration, where, as in
the case of executory service, the nature of the consideration

(e) Ante, pp. 584-587.

(/) 1 Sm. L. C, nth ed. 141,
;per Parke, J., Reason v. Wirdnam,
1 0. & P. 434 ; 1 Wms. Saund. 264

{g) Per Tindal, G.J., Thornton v.
Jenyns, 1 Scott, N. E. 74, citing
Hunt V. Bate, Dyer, 272, and 1
Roll. Abr. 11. See particularly
Eoscorla v. Thomas, 3 Q. B. 284.

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THE LAW OP CONTRACTS. 595

itself imports a request (h). Thus, in an action of as-
sumpsit for money lent, it was held unnecessary to allege
that it was lent at the defendant's request ; for there cannot
be a claim for money lent unless there be a loan, and a loan
implies an obligation to pay (i). In the case of monej paid,
however, the above doctrine will not apply, because a
gratuitous payment would not create a legal obligation;
and " no man can be a debtor for money paid unless it was
paid at his request " (k).

Moreover, there are circumstances under which the laiv Request
will itself imply that the service has been undertaken certain oases,
by request of the promisor. Such request is implied in the
following cases : —

1. Where the defendant has adopted and enjoyed the
benefit of the service, and the maxim, omnis ratihabitio
retrotrahitur et manclato priori mquiparatur (Z), is applicable ;
for instance, where A., purporting to act on behalf of B.,
but without his authority, orders goods from C, and pays
the price, and A. afterwards adopts the contract by accepting
the goods. But it must be observed that a person cannot
be said in law to adopt or ratify an act, unless it was in fact
done on his behalf (m), and a request to do an act is not
implied from the mere fact that a benefit is enjoyed by
reason that the act was done. This is shown by the cases
where one of the parties interested in a life policy, who on
his own account has kept it up by paying the premiums (n), or

{h) See 1 M. & Gr. 265, note ; in further illustration of the subject

cited jger Parke, B., 12 M. & W. 759. above touched upon, Dietrichsen v.

(i) Victors v. Davies, 12 M. & W. Oiubilei, 14 M. & W. 845 ; pej-

758 ; per Pollock, O.B., 1 H. & C. Parke, B., King v. Sears, 2 Or. M.

716; M'Oregor v. Graves, 3 Exoh. & B. 53; Emmens v. Elderton, 4

34. H. L. Cas. 624.

(fe) Per Parke, B., 12 M. & W. (I) See post, p. 672.

760 ; Brittain v. Lloyd, 14 M. & W. (m) See per Bowen, L.J., 34 Oh.

762 ; cited in Lewis v. Campbell, 8 D. 250 ; Durant v. Roberts, [1900]

C. B. 541, 547 ; and per Parke, B., 1 Q. B. 629 : 69 L. J. Q. B. 382.

ButcMnsonv. Sydney, WExcKiSd. (n) Leslie v. French, 23 Oh. D.

Sayes v. Warren, 2 Stra. 933, 552 ; Falche v. Scottish Co., 34 Oh.

cited 1 Wms. Saund. 264 (1). See, D. 234 ; Be Winchilsea, 39 Oh. D.

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596 THE LAW OF CONTEACTS.

one tenant in common of a house, who on his own account
has spent money on its repair (o), has failed to recover for
his outlay from the others. Again, where a builder contracts
to erect buildings on the defendant's land for a lump sum,
and, after part of the work has been done, abandons the
contract, the defendant is not liable to pay for the work
done merely by reason of his deriving benefit from it (p).

2. Where the service consists in the plaintiff having
been compelled to do that to which the defendant was
legally compellable. Thus, as a rule, a person, whose goods
are lawfully seized for another's debt, is entitled to redeem
them and to recover the amount paid from the debtor, or,
if the goods be sold to satisfy the debt, he may recover
their value (§'). And upon this principle rests the right to
indemnity of a surety who pays the debt of his principal,
and the right to contribution of a joint debtor who pays the
whole joint debt {q). This rule, however, may be excluded
by contract ; and where the owner of the goods seized is, as
between himself and the defendant, liable to pay the debt,
the rule is inapplicable {q) .

3. Where the plaintiff voluntarily does that which the
defendant might have been legally compelled to do, and the
defendant afterwards in consideration of the service expressly
promises (r). It is to be noticed that in the case of such
voluntary service, a subsequent express promise is necessary
to support an action, whereas in the cases under the two
former heads, the promise is implied as weU as the request (s).

168. See also The Gas Float Whitton, to compulsion, see Johnson v. E.

[1896] P. 42, 58 : [1897] A. C. 337. Mail St. P. Co., L. B. 3 0. P. 38 ;

(o) Leigh v. Dickeson, 15 Q. B. D. GebhardtY. Saunders, [1892] 2 Q. B.

60. But see Be Jmies, [1893] 2 Ch. 452, 458 ; Andrews v. St. Olave B.

461 ; Be Cook, [1896] 1 Ch. 923 : 65 W., [1898] 1 Q. B. 775 : 67 L. J.

L. J. Oh. 654. Q. B. 592.

(p) Sumpter v. Hedges, [1898] 1 (r) Wennall v. Admey, 3 B. & P.

Q. B. 673 : 67 L. J. Q. B. 545. 250, in notis : 6 R. B. 780 ; Wing y.

(g) See Edmunds v. Wallingford, Mill, 1 B. & Aid. 104 ; Paynter v.

14 Q. B. D. 811, 814, 815, and the Williams, 1 C. & M. 818.
authorities there cited ; The Orchis, (s) Atkins v. Banwell, 2 East

15 P. D. 38. As to what amounts 505.

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THE LAW OP CONTKAOTS. 597

A distinction will be noted between the above cases and Where sus-
cases in which it has been held that an express promise may of^otb"!? *
effectually revive a precedent good consideration, which revived by

, 6xpr6ss

might have afforded grounds for an action upon a promise promise.
implied from such consideration, were it not for the inter-
ference of some positive rule of law, which has suspended
the action or remedy without destroying the right. Thus
a debt barred by the Statute of Limitations is still a good
consideration for a promise in writing to pay (t) ; for the
effect of a plea of the statute is to admit that the cause or
consideration of the action still exists, but to show that the
remedy is lost by lapse of time (m).

" The cases," said Lord Denman {x), " in which it has
been held, that, under certain circumstances, a considera-
tion insufficient to raise an implied promise will nevertheless
support an express one, will be found collected and reviewed
in the note to Wennall v. Adney (y), and in Eastivood v.
Kenyan (z). They are cases of voidable contracts subse-
quently ratified, of debts barred by operation of law, but
subsequently revived, and of equitable and moral obligations,
which, but for some rule of law, would of themselves have
been sufficient to raise an implied promise."

At one time there was an inclination to explain the rule
stated thus by Lord Denman, and previously laid down by
Lord Mansfield (a), as depending upon the moral obligation
arising from the previous agreement (b). It is not easy to
see how such a theory was reconciled with the fact, that an
express promise was ineffectual where the original contract
to which it had reference was not merely suspended for a
time or voidable at the option of the defendant, but absolutely
void at law. While, on the other hand, it was always

(t) La Touche v. La Touche, 3 (y) 3 B. & P. 249.

H. & 0. 576, 588. (z) 11 A. & E. 438.

(u) Scarpillini v. Atcheson, 7 (o) Hawkes v. Sanders, Oowp.

Q. B. 878. 290 ; AtUns v. Hill, Id. 288.

(x) Boscorla yMfhomas, 8 Q. B. [b] Leake, Law of Contracts, 615.

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237; Judgm., 1 C. B. 870,

598

THE LAW OF CONTEACTS.

understood that where the vahdity of an agreement is not
affected by statute, but the remedy of one party is suspended,
an express promise subsequently made will have relation
back to the previous consideration, and will not be treated
as nudum pactam (c).
Illustrations. Promises to pay a debt simply, or by instalments, or when
the party is able, are all equally supported by the past con-
sideration, and, when the debts have become payable
instanter, may be given in evidence in support of the
ordinary indebitatus counts. So when the debt is not
already barred by the statute, a promise to pay the creditor
will revive it and make it a new debt, and a promise to an
executor to pay a debt due to a testator creates a new debt
to him. But it does not follow that though a promise
revives the debt in such cases, the debt will be a sufficient
consideration to support a promise to do a collateral thing,
as to supply goods or perform work and labour. In such
case it is but an accord unexecuted, and no action will lie
for not executing it (d).

Formerly many contracts made by an infant, which are
now void, were merely voidable at his option. Accordingly
an express promise made by him after full age revived the
previous consideration so as to remove the subsequent
promise from the category of nibda pacta (e) ; but since the
Infant Eelief Act, 1874 (/), this is no longer so, for s. 2 of
that statute expressly enacts that no action shall be brought
to charge any one upon any such promise (g). The contract
of a married woman was at one time absolutely void (h) ;
and, therefore, if the record stated that goods were supplied

Infants.

Married
women.

(c) See Pollock, Oontr. Ohap. XII.
Judgm., Earl v. Oliver, 2 Exoli. 90.
See Reeves v. Hearne, 1 M. & W.
323.

(d) Judgm., 2 Exch. 90 ; per
Parke, B., Smithy. Thorne, 18 Q. B.
189.

(e) Per Patteson, J., 8 A. & E.

470. See note (a) to Wetmall v.
Adney, 3 B. & P. 249.

(/) 37 & 38 Vict. 0. 62 ; ante, p.
546.

(g) For the effect of tliis St., see
PoUook, Oontr. Oh. II., pt. 1.

(h) See Nevev. Hollands, 18 Q. B.
262.

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THE LAW OF OONTBACTS. 599

to a married woman, who, after her husband's death,
promised to pay, this was not sufficient, because the debt
was never owing from her (i).

Another illustration, which would suffice, if it were Debts dis-
necessary, to refute the theory of moral obligation, is bankmptey.
afforded by the case of a person who promises to repay a
debt from which he has been discharged by bankruptcy.
The Banki'uptcy Act, 1849, expressly annulled the efficacy
of such promise which previously might have been enforced.
A similar provision was contained in the Act of 1861, but
not in that of 1869, and, consequently, the question was
more than once raised under the last-mentioned statute,
whether the common law was revived in consequence of the
omission. It was, however, decided that the policy of the
bankruptcy laws was sufficient without express statutory
enactment to render ineffectual any attempt to resusci-
tate a debt from which a person had been discharged by
bankruptcy (k).

Again there are cases of agreements coming within the statute of
purview of s. 4 of the Statute of Frauds, in which no action
can be brought on account of the absence of a written
memorandum, but in which a subsequent promise may
nevertheless furnish a ground of action. A verbal agree-
ment was entered into between the plaintiff and defendants
respecting the transfer of an interest in land. The transfer
was effected, and nothing remained to be done but to pay
the consideration. It was held, that the agreement, not
being in writing, as required by the statute, could not be
enforced by action, but that, as the transferee had, after
the transfer, admitted to the transferor that he owed him

(■i) Meyer v. Ha/worth, 8 A. & E. tion, " because it was a trouble and

467, 469. In Traver v. , 1 Sid. charge to the creditor to prove his

57, a woman, after her husband's debt." See Cope v. Alhinson, 8

death, promised the plaintiH that, Exch. 185.

if he would prove that her husband (&) Heather v. Webb, 2 C. P. D. 1 ;

had owed him £20, she would pay 46 L. J. G. P. 89.

it. This was held a good oonsidera-

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600

THE LAW OF CONTBAOTS.

Usury laws.

Promise
express or
implied.

the stipulated price, the amount might be recovered as
money found to be due upon an account stated (Z)- Also
bills of exchange given after the repeal of the usury law
by 17 & 18 Vict. c. 90, in renewal of bills given while
that law was in force to secure payment of money lent at
usurious interest, iave been held valid, the receipt of the
money being a sufi&cient consideration to support a new
promise to pay it. In the case referred to, this qualified
proposition was sanctioned by the majority of the court :
" A man by express promise may render himself liable to
pay back money which he has received as a loan, though
some positive rule of law or statute intervened at the
time to prevent the transaction from constituting a legal
debt " (m).

We must, in the next place, observe that the subsequent
promise, like the antecedent request, may, in many cases,
be implied. For instance, the very name of a loan imports
that it was the intention of both parties that the money
should be repaid (n) ; a promise to pay interest will be
implied by law from the forbearance of money at the
defendant's request (o); and from money being found due
on accounts stated, the law implies a promise to pay it ( p) ;
but where the consideration has been executed, and a
promise would, under the circumstances, be implied by law,
it is clearly established that no express promise, made in
respect of that prior consideration, but differing from that
which by law would be implied, can be enforced (q). For,
were it otherwise, there would be two co-existing promises
on one consideration (r). It has, however, been said that
the cases establishing this proposition may have proceeded

(I) Cocking v. Ward, 1 C. B. 858, W. 723.

870. See 1 Smith, L. 0. , llth ed. 321 .

(m) Flight v. Beed,'l H. & C. 703,
716.

(») Per Pollock, O.B., 1 H. & 0.
716.

(o) Nordenstrom v. Pitt, 13 M. &

{p) Per Crompton, J., Fogg v.
Nudd, 3 E. & B. 652.

(2) Judgm., Kaye v. Button, 7
M. & Gr. 815, and oases there cited,

{r) Per Maule, B,, Hopkins v.
Logan, 5 M. & W. 249.

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THE LAW OF CONTRACTS. 601

on another principle, viz., that the consideration was
exhausted by the promise impHed by law from the very
execution of it, and that, consequently, any promise made
afterwards must be nudum pactwm, there remaining no con-
sideration to support it (s). " But the case may perhaps
be different where there is a consideration from which no
promise would be implied by law, that is, where the party
suing has sustained a detriment to himself, or conferred a
benefit on the defendant, at his request, under circumstances
which would not raise any implied promise. In such cases
it appears to have been held, in some instances, that the
act done at the request of the party charged, is a sufficient
consideration to render binding a promise afterwards made
by him in respect of the act so done (<)•

But, however this may be, it is quite clear, that, where Nature of
the consideration is past, the promise alleged, even if ™onifse.
express, must be identical with that which would have
been implied by law from the particular transaction; in
other words, "a past and executed consideration will
support no other promise than such as may be implied by
law " (u) ; thus, in assumpsit, the declaration stated, that,
in consideration that plaintiff, at the request of defendant,
had bought a horse of defendant at a certain price,
defendant promised that the horse was free from vice, but
deceived the plaintiff in that the horse was vicious. This
declaration was held bad ; for the executed consideration,
though laid with a request, neither raised by implication of
law the promise charged in the declaration, nor supported
such promise if express ; and the Court observed, that the
only promise which would result from the consideration,
as stated, and be co-extensive with it, would be to deliver
the horse upon request {x).

(s) See Deacons. Oridley, 15 0. B. Earle v. Oliver, 2 Exoh. 89 ; Latti-
295. more v. Garrard, 1 Exoli. 809, 811.

(t) Judgm., 7 M. & Gr. 816. [x) Boscorla v. Thomas, 3 Q. B.

(u) Per Parke, B., Atkinson v. 234, 237.
Stephens, 7 Exoh. 572; Judgm.,

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602 THE LAW OF CONTRACTS.

In an action against the public officer of an insurance
company, a count in the declaration stated, that it was
agreed between the company and the plaintiff, that, from
the 1st of January then next, the plaintiff, as the attorney
of the company, should receive a salary of £100 per annum,
in lieu of rendering an annual bill of costs for general
business; and in consideration that the plaintiff had
promised to fulfil the agreement on his part, the company
promised to fulfil the same on their part, and to retain and
employ the plaintiff as such attorney (y). The verdict being
in favour of the plaintiff, the judgment was afterwards
arrested by the Court of Common Pleas, upon this ground,
that there was no sufficient consideration to sustain that
part of the above count, which alleged a promise to retain
and employ the plaintiff, the Court holding that the
language of the agreement, as stated, imported an obliga-
tion to furnish actual employment to the plaintiff in his
profession of an attorney, and that, inasmuch as the con-
sideration set forth was in the past, that the plaintiff had
promised to perform his part of the agreement, such
consideration, being a past or executed promise, was
exhausted by the like promise of the company to perform
the agreement, and did not enure as a consideration for
the additional part of the promise alleged, to retain and
employ the plaintiff in the sense before mentioned, as
also to perform the agreement. The view thus taken,
however, was pronounced erroneous by the Court of
Exchequer Chamber, and by the House of Lords, who
held that the averment as to retaining and employing
the plaintiff was not to be understood as importing a
contract beyond the strict legal effect of the agreement,
whence it followed that the mutual promises to perform such
agreement, laid in the count objected to, were a sufficient
legal consideration to sustain the defendant's promise.

(y) Emmens v. Elderton, i H. L. Gas. 624; S. C, 13 0. B. 495 : 6 Id. 160
4 Id. 479.

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THE LAW OP CONTKAOTS. 603

A concurrent consideration is where the act of the Concurrent
plaintiff and the promise of the defendant take place at tion.
the same time ; and here the law does not, as in the case
of a bygone transaction, require that, in order to make
the promise binding, the plaintiff should have acted at the
request of the defendant (z). Thus, where it appeared from
the whole declaration taken together, that, at the same
moment, by a simultaneous act, a promise was made, that,
on the plaintiff's accepting bills drawn by one of the parties
then present, the defendants should deliver certain deeds
to the plaintiff when the bills were paid, it was held, that
a good consideration was disclosed for the defendant's
promise (a). So, where the promise of the plaintiff and
that of the defendant are simultaneous, the one may be a
good and sufficient consideration for the other (b) ; and where
two parties, upon the same occasion, and at the same time,
mutually promise to perform a certain agreement not then
actually entered into, the consideration moving from the one
party is sufficient to support the promise by the other (c).

Again, where, by one and the same -instrument, it is
agreed that one of the contracting parties shall pay a sum
of money, and that the other shall at the same time
execute a conveyance of an estate, the payment of the
money and the execution of the conveyance may properly
be considered concurrent acts ; and, in this case, no action
can be maintained by the vendor to recover the money
until he executes, or offers to execute a conveyance (d). It
may, indeed, be stated, generally, that neither party can

(0) Per Tindal, C.J., 3 Bing. N. 0. (c) Thornton v. Jenyns, 1 M. &

715. Gr. 166. See King v. Gillett, 7 M.

(a) Tipper v. Bicknell, Id. 710 ; & W. 55 ; Harrison v. Gage, 1 Ld.

West V. Jackson, 16 Q. B. 280. Eaym. 386 ; cited Smiths. Woodfine,

(6) As to mutuality in contracts, 1 C. B. N. S. 667.
see Broom's Com., 5th ed. 307 et {d) Per Ld. Tenterden, Spiller v.

seq. ; Bealey v. Stuart, 31 L. J. Ex. Westlake, 2 B. & Ad. 157 : 36 E. B.

281; Westhead v. Sproson, 6 H. &. 520; Banhart v. Bowers, L. R. 1

N. 726 ; WhAttU v. Frankland, 2 C. P. 484.
B. & S. 49.

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THE LAW OF CONTRACTS.

Oontinuing
considera-
tion.

sue on such an entire contract without showing a per-
formance of, or an offer, or, at least, a readiness and
willingness to perform his part of the agreement, or a
wrongful discharge or prevention of such performance by
the other party; in which latter case the party guilty of
the wrongful act shall not, in accordance with a maxim
already considered, be allowed to take advantage of it, and
thereby relieve himself from liability for breach of con-
tract (c). Whether or not, in any given case, one promise
be the consideration for another, or whether the performance,
and not the mere promise, be the consideration, must be
gathered from, and depends entirely upon, the words and
nature of the agreement, and the intention of the contracting
parties (/).

In addition to cases in which the consideration is con-
current, or is altogether past and executed, others occur
wherein the consideration is continuing at the time of
making the promise ; thus, it has been held, that the
mere relation of landlord and tenant is a sufficient con-
sideration for the tenant's promise to manage a farm in a
husbandlike manner (</).

Kule of the
Roman law.

Caveat Emptob. (Hoh. 99.) — Let a purchaser beicare.

It seems clear, that, by the civil law, a warranty of title
was, as a general rule, implied on the part of the vendor of
land, so that he was answerable in damages to the buyer if

(e) Ante, p. 233, et seg^. " If a
party does all he can to perform
the act which he has stipulated to
do, but is prevented by the wrongful
act of the other party, he is iu the
same situation as if the performance
had been perfected : " per Hoboyd,
J., Studdy V. Sanders, 5 B. & C.
639; see also, Caines v. Smith, 15
M. & W. 189. See notes to Cutter

V. Powell, 2 Sm. L. C. 1.

(/) Thorpe v. Thorpe, 1 Ld.
Eaym., 662; 1 Salk. 171 ; per Cur.,
Stavers v. Curling, 3 Scott, 750,
754 ; per Williams, J., Christie v.
Boulby, 7 C. B. N. S. 567.

(g) Powley v. Walker, 5 T. B.
373 : 2 R. E. 619 ; recognised Beale
V. Sanders, 3 Bing. N. C. 850;
Massey v. Qoodall, 17 Q. B. 310.

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THE LAW OP CONTRACTS. 605

evicted ; sivc tota res evincatur, sire pars, habet regressum

emptor in venditorem (h) ; and again, non duhitatur, rtsi

speciaUtcr venditor evictionem non proniiserif, re evictd, ex

empto co)npctere actionem (i). With us, however, the above and of our

proposition does not hold, and it is laid down, that, " if a ''°™'^°'^ ^^•

man buy lands whereunto another hath title, which the

buyer knoweth not, yet ignorance shall not excuse him " (/<;).

By the civil law, as observed by Sir E. Coke, every man is

bound to warrant the thing that he sells or conveys, albeit

there be no express warranty ; but the common law binds

him not, imless there be a warranty, either in deed (I), or in

law ; for caveat emptor (m) qui ignorare non debuit quod jus

alieninn emit (n) — let a purchaser, who ought not to be

ignorant of the amount and nature of the interest which he

is about to buy, exercise proper caution.

Sale of land. — As the maxim caveat emptor applies, with
certain specific restrictions, not only to the quality of, but
also to the title to land which is sold, the purchaser is
generally bound to view the land and to inquire after
and inspect the title-deeds, at his peril if he does not. He
does not use common prudence, if he relies on any other
security (o). The ordinary course, mdeed, which is adopted
on the sale of real estates is this : the seller submits his title
to the inspection of the purchaser, who exercises his own
judgment, or such other as he confides in, on the goodness
of the title {p) ; and if it should turn out to be defective, the
purchaser has no remedy, unless he take special covenant
or warranty, provided there, be no fraud practised on him to

(h) D. 21, 2, 1. 3 Taunt. 439; see L. B., 2 0. P.

(i) G. 8, 45, 6. 379; [1895] 2 Q^ B. 616.

(k) Doct. and Stud., bk. 2, ch. 47. (w) Hobart, 99.

(I) See Worthington v. Wa/rring- (o) 3 T. R. 56, 65 ; Boswell v.

ton, 5 C. B. 635 ; Ellis v. Bogers, Vaughcm, Cro. Jao. 196 ; per Holt,

29 Ch. D. 661. C.J., 1 Salk. 211.

(m) Co. Litt. 102, a. " I have (p) 37 & 38 Viot. o. 78, s. 1, sub-
always understood that in purchases stituted 40 for 60 years as a sufficient
of land the rule is caveat emptor ; " root of title, and see 44 & 45 Vict.
per Lawrence, J., Owillim v. Stone, u. 41, s. 3,

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606 THE LAW OF CONTRACTS.

induce him to purchase (9). Thus, if a regular conveyance
is made, containing the usual covenants for securing the
buyer against the acts of the seller and his ancestors only,
and his title is actually conveyed to the buyer, the rule of
caveat eviptor applies against the buyer, so that he must,
at his peril, perfect all that is requisite to his assurance ;
and, as he might protect his purchase by proper covenants,
none can be added (r). An administrator found, among
the papers of his intestate, a mortgage deed, purporting to
convey premises to him, and without arrears of interest.
Not knowing it to be a forgery, he assigned it, covenanting,
not for good title in the mortgagor, but only that nothing
had been done by himself or by the intestate to encumber
the property ; and, as this precluded all presumption of any
further security, the assignee was held bound to look to
the goodness of the title, and failed to recover the purchase-
money (s). The case of an ordinary mortgage, however,
differs from that of a conveyance, because the mortgagor
covenants that at all events he has a good title {t).
Landlord and That an evicted tenant may be without remedy against
his landlord, by reason of the maxim caveat emptor, is well
shown by the case of Baynes v. Lloyd (it). The plaintiffs
accepted from the defendants a lease under seal, the opera-
tive words whereof were " the landlords agree to let ; " the
word " demise " was not used, and there were no express
covenants for title. The defendants had only a leasehold
interest in the premises let ; their lease expired during the
plaintiff's term, and thereupon the plaintiffs were evicted
by the superior landlord. It was held that they had no

(g) Pe?-Lawrence, J.,2 East, 323; (s) Bree v. Solbech, Dougl. 655;

Judgm., Stephens v. De Medina, 4 cited 6 T. K. 606 ; per Gibbs, O.J.,

Q. B. 428 ; per Erie, C J., Thackeray 1 Marsh. R. 163 ; Thackeray v.

V. Wood, 6 B. & S. 773 ; per Martin, Wood, 6 B. & S. 766.

B., Id. 775. («) Per Ld. Kenyon, Cripps v.

(r) See Judgm., Johnson v. John- Beade, 6 T. R. 607 : 3 R. R. 273.

son, 3 B. & P. 162, 170 : 6 R. R. (m) [1895] 1 Q. B. 820 : 2 Id. 610 :

736 ; Arg. 3 East, 446 ; 4 Rep. 26 ; 64 L. J. Q. B. 787.
5 Rep. 84

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THE LAW OF CONTRACTS. 607

remedy in covenant against the defendants. From the
judgments given it appears that the weight of authority
favours the view that a covenant in law is not impUed
from the mere relation of landlord and tenant, but only
from certain words if used in creating the lease (x) ; but if
any covenant is implied from that relation (y), it is only a
covenant for quiet enjoyment (z), determining, where the
landlord has any estate, with the determination of that
estate. "Whoever wants to be secure when he takes a
lease should inquire after and examine the title-deeds " (a).

As a general rule, there is no warranty, still less a condi- state of
tion, implied by law on the demise of real property, that premises.
it is fit for the purpose for which it is let. For instance,
on the lease of a house or farm there is usually no implied
warranty that it is reasonably fit for habitation or cultiva-
tion (b) . But to this rule there are some exceptions ; for on
the letting of a ready-furnished house the lessor impliedly
undertakes that the house is reasonably fit for habitation at
the time when the tenancy commences, and if it be not so
fit the tenant may at once quit it without notice (c). By
statute, there is a similar condition implied on the letting
of a house, though not furnished, for habitation by persons
of the working classes (d).

The general rule that there is no such implied warranty
is well illustrated by the decision in Sutton v. Temple (e),

(a;) As to "demise," see the {b) Hart Y. Windsor, 12 M. & W.

authorities collected in the above ""68; Surplice -v. Farnsworth, 7 M. &

case. Gr. 576; see EeaUs v. Earl of

(y) See Bandy v. CartwrigM, 8 Cadogan, 10 C. B. 591.

Exch. 913 ; Hall v. City of London (c) Smith v. Marrable, 11 M. &

Brewery, 2 B. & S. 737 ; cited [1895] W. 5 ; Wilson v. Finch Hatton, 2

1 Q. B. 826. Ex. D. 336 ; Sarson v. Boberts,

(z) As to this covenant, see Ha/r- [1895] 2 Q. B. 395 : 65 L. J. Q. B.

rison v. Muncaster, [1891] 2 Q. B. 37.

680; M., S. <& L. B. Co. v. Ander- {d) 53 & 54 Vict. c. 70, s. 75; see

son, [1898] 2 Ch. 394 ; Tebb v. Cave, Walker v. Hobbs, 23 Q. B. D. 458 :

[1900] 1 Oh. 642. 59 L. J. Q. B. 93.

(a) Per Ld. Mansfield, Keech v. (e) 12 M. & W. 52.
Hall, 1 Dongl. 21.

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608 THE LAW OP CONTKACTS.

where the eatage of a field, that is, the use of the herbage
to be eaten by cattle, was let for a specific time at a specific
rent. Upon the tenant stocking the field with his beasts
several of them died from the effects of a poisonous sub-
stance which had been spread over the field without the
landlord's knowledge. It was held that there was no
implied warranty by the landlord that the eatage was
wholesome food for cattle, and that the tenant was not
entitled to throw up the lease. The word " demise," it was
observed did not carry with it any warranty as to fitness of
purpose.

Fraud and The question of warranty is distinct from that of fraud

misrepresen- t ■, , ,-, i. ,.,. ...

tation. and also from that of material misrepresentation on the

part of the vendor. The effect of fraud will be considered
later (/), when we deal with contracts for the sale of goods ;
it seems enough to say here that the general principles,
there briefly referred to, apply equally to cases where
contracts to purchase land are induced by fraud. In the
absence of fraud, the common law did not regard any mis-
representation as to the subject-matter of a contract, as a
cause of action, unless such misrepresentation amounted to
a warranty, or as a defence, unless either the misrepresenta-
tion was such as struck at the root of the contract or the con-
tract was conditional upon the truth of the representation (g);
but the rule of equity has long been otherwise, and conse-
quently specific performance of contracts to purchase land can
be resisted, or rescission of such contracts obtained, not only
where they have been effected through fraud (/i), but also
where they have been brought about by a material mis-
representation, however innocent, of the vendor or his

( /) Post, p. 618. Panama, New Zealand <t Australian

(g) Ghandelor v. Lopus, Cro. Jac. Boyal Mail Co., L. R. 2 Q. B. 580,

4 ; Cornfoot v. Fowhe, 6 M. & W. 587 : 36 L. J. Q. B. 260. See also

358; and see the judgment of Derry v. Peek, 14 A. 0. 337; 58

Bowen, L.J., in Newhigging v. L. J. Ch. 864.

Adam, 34 Ch. D. 582, 592 ; and (h) See Attwood v. Small, 6 01. &

•per Blackburn, J., in Kennedy v. F. 232.

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THE LAW OF CONTBACTS. G09

authorised agents (i). For instance, where a contract to
purchase an hotel was entered into on the faith of a repre-
sentation that the tenant, who was in fact insolvent, was
"very desirable," specific performance was refused and
rescission was decreed (k). It must be noticed, however,
that, although completion by conveyance is not a bar to
rescission on the ground of fraud, yet misrepresentation
is not a ground for rescinding a contract for the purchase
of land after completion, unless it was fraudulent and
capable of supporting a common law action of deceit (l).
After taking the conveyance and paying the purchase-
money, the purchaser, who has accepted the title, cannot
call upon the vendor to take back the land and give back
the money, merely because it turns out that the title, which
the vendor innocently represented as good, is in fact bad ;
otherwise there would be no use in taking covenants for
title, or in restricting their scope (m).

Cases sometimes arise in which the vendor can perform Slight
his contract in its substance, but cannot perform it to the description,
letter, owing to some very shght error of description. In
such cases, if the error does not amount to a material mis-
representation on the faith of which the purchaser con-
tracted, the vendor may be able to obtain a decree for
specific performance on the terms of making compensation
for the error (m). The modern tendency, however, is to
hold the vendor strictly to the bargain he in fact made, and
a purchaser is never compelled to take with compensation
something materially different from what he was induced
by representations to believe that he was ofi'ered(o). For

(i) See Bedgrave v. Hurd, 20 Oh. Ch. D. 96, 102 : 57 L. J. Oh. 145.

D. 1, 12 : 51 L. J. Ch. 113. (m) See per Ootton, L.J., 37 Ch.

(h) Smith V. Lcmd Corporation, D. 101.

28 Ch. D. 7. (») See Mortlock v. Buller, 10

(0 Wilde V. Gibson, 1 H. L. 0. Yes. 305 : 7 E. B. 417 ; Budd v.

605 ; Brett v. Clowser, 5 0. P. D. LascelUs, [1900] 1 Ch. 815.

376 ; BrownUe v. Campbell, 5 App. (o) Be Arnold, 14 Oh. D. 270,

Gas. 925, 937 ; Soper v. Arnold, 37 279.

L.M.

39
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610

THE LAW OF OONTEACTS.

Stipulations
as to errors.

Efiect of
completion.

Vendor
retaining
possession
until com-
pletion.

instance, a purchaser will not be compelled to accept an
underlease, if it was misdescribed in the vendor's particulars
of sale as a lease, and was bought as such {j})-

Contracts for the sale of land often contain a stipulation
that if there be any misdescription in the particulars of the
sale, the contract shall not be annulled, but compensation
shall be given. Such a stipulation, however, is not construed
as applicable to every misdescription ; it does not apply to
a fraudulent one, nor to one the compensation for which
could not reasonably be estimated ; and where the mis-
description, though not fraudulent, is in a material and
substantial point, so far affecting the subject-matter of the
contract that it may reasonably be supposed that, but
for such misdescription, the purchaser might never have
entered into the contract at all, then he may annul the
contract, and is not bound to resort to compensation, not-
withstanding the stipulation (g). Moreover, unless the
stipulation be so expressed as to limit it to errors discovered
before the conveyance, the right to compensation under the
stipulation is not extinguished by the completion of the
purchase ; for the conveyance does not cover the whole
ground covered by the contract (r).

Where, however, there is no contract for compensation,
a lessee or purchaser cannot, after completion, claim com-
pensation for a defect of title which he might have
discovered before completion ; in the absence of fraud, he
is without remedy, unless some express or implied covenant
of the lease or conveyance has been broken ; and it may be
observed that an express qualified covenant excludes the
implication by law of any wider covenant (s).

A vendor of land who retains possession until completion
owes some duty to the purchaser to take reasonable care

[p) Be Beyfus & Masters's Con- 351 : 53 L. J". Q. B. 348.
tract, 39 Oh. D. 110. (s) Clayton v. Leech, 41 Oh. D.

(2) Be Fawcett <& Holmes, i3, Oh. 103 ; Kelly v. Bogers, [1892] 1 Q. B.

D, 150, 156 : 58 L. J. Ch. 768. 910 : 61 L. J. Q. B. 604 : ante, p!

()■) Palmers. Johnson, l^f^.H-T). 504.

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THE LAW OF CONTRACTS. 611

to preserve the property of which he thus retains posses-
sion, and to see that it does not become deteriorated.
Whilst a vendor was still in possession, a trespasser
removed large quantities of soil from the land; the con-
veyance was afterwards executed, neither party being then
aware of the trespass. It was held that the conveyance
did not extinguish the vendor's liability to the purchaser
for his breach of duty (t).

An unpaid vendor of a house, or other building, who Risk oJ fire.
retains possession until completion, is, however, as a rule,
not answerable to the purchaser, if in the interval the
building be damaged or destroyed by accidental fire ; the loss
must fall upon the purchaser, if bound by the contract of
sale (u) ; and if the contract is silent as to insurances against
fire effected by the vendor, the purchaser cannot, even after
completion, maintain any claim against the vendor in respect
of moneys received by him from the insurance offices (x).

We may here add that the maxim, damnum sentit
dominus, or res pent domino (y), expresses the general rule
apphcable in our law to the case of the accidental destruc-
tion of goods contracted to be sold : in the absence of any
agreement to the contrary, the loss usually falls on the
buyer or on the seller according as the property in the goods
has or has not passed (z). The above maxim, however, is
affected by another, mora debitoris nan debet esse creditori
damnosa(a); for where delivery of the goods has been
delayed through the fault of either buyer or seller, the goods
are at the risk of the party in fault as regards any loss which
might not have occurred but for such fault (b).

(i) Clarke v. Bavmz, [1891] 2 Castellain v. Preston, 11 Q. B. T>.

q. B. 456 : 60 L. J. Q. B. 679. 380 : 52 L. J. Q. B. 366.

(u) Fame v. Meller, 6 Ves. 849 : 5 (y) Cited by Blackburn, J., L. K.

B. B. 327. 7 Q. B. 453, 454.

{x) Bayner v. Preston, 18 Oh. D. {«) See 56 & 57 Vict. o. 71, s. 21 ;

1 : 50 L. J. Oh. 472 ; see Collmg- of. s. 7 ; and see also ss. 32, 33.

ridge v. Boyal Exch. Ass. Co., 3 {a) See Pothier, 0. de Vente, § 58.

Q. B. D. 173: 47 L. J. Q. B. 82; (6) 56 & 57 Vict. o. 71, s. 21.

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612

THE LAW OP CONTRACTS.

Sale of

personal

chattels.

Distinction
between con-
ditions and
warranties.

Sales of im-sonal property. — We shall now consider
shortly how far the maxim caveat emptor applies to sales of
personalty, and what are the risks taken by a buyer in
respect, first, of the quality of what he buys, and secondly,
of the title thereto. Discussion of the subject, so far as
goods are concerned, has been simplified by the Sale of
Goods Act, 1893 (c), whereby the legislature codified the
law relating to the sale of all chattels personal, except
things in action and money. The term " goods," as used
in the Act, includes " emblements, industrial growing
crops, and things attached to or forming part of the land,
which are agreed to be severed before sale or under the
contract of sale " {d).

To understand the subject, it is necessary at the outset

to grasp the distinction drawn, as regards contracts of sale,

between a condition and a warranty. A warranty is but a

collateral agreement with reference to the goods which are

the subject of the contract, and its breach, though it may

give rise to a claim for damages, gives no right to reject

the goods and treat the contract as repudiated (e) ; whereas

the breach of a condition to be fulfilled by the seller, so

long as it may be treated as a condition, gives this right (/).

Whether a stipulation in the contract is a condition or a

warranty is a question of construction, and it may be a

condition, though called a warranty (f/). The buyer may

treat a breach of a condition as a breach of warranty (/i) ;

and, subject to the express or implied terms of the contract,

that is his only remedy after he has accepted any of the

goods under a contract which is not severable, or after the

property in the goods has passed to him under a contract

for specific goods (i). Specific goods are goods identified

and agreed upon at the time of the contract (k).

(c) 56 & 57 Viot. 0. 71. (h) Id. s. 11 (a).

id) 56 & 57 Viot. o. 71, s. 62 (1). (i) Id. s. 11 (c). See PerUns v.

(e) Id. s. 62 (1). Bell, [1893] 1 Q. B. 193 : 62 L. J.

(/) Id. s. 11. Q. B. 91.

(£/) Id, s. 11 (b). (h) Id. s, 62 (1).

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THE LAW OF CONTEACTS. 613

Upon a sale of goods the general rule with regard to Oaveat
then- nature or quality is caveat emptor, so that, in the ^'"^°''
absence of fraud, the buyer has no remedy against the
seller for any defect in the goods, not covered by some con-
dition or warranty, either express or implied. It is beyond
all doubt that, by the general rules of law, there is no
warranty of quality arising from the bare contract of sale
of goods, and that, where there has been no fraud, a buyer,
who has not obtained an express warranty, takes all risk of
defect in the goods, unless there are circumstances beyond
the mere fact of sale from which a warranty may be
impHed {I).

It is, therefore, necessary to consider under what circum- implied

. ii 1 • T i c Ti_ warranties.

stances the law implies any warranty or quality upon a
sale of goods; and the following appear to be the only
cases in which, when goods are sold, there can be any
implied condition or warranty as to either their nature or
their quality (?)i). Quality of goods here includes their
state or condition {n).

1. Where there is a contract for the sale of goods by Sale by
description (o) there is an implied condition that the goods ^^'^'^^^ ^°'^'
shall correspond with the description (p). If the sale be by
sample, as weU as by description, it is not sufficient that the
bulk of the goods corresponds with the sample, if the goods
do not also correspond with the description (g). AVith this
rule, that where the sale is not merely a sale of a specific
article, but is a sale of an article by description, the article

(Z) Springwell v. Allen, Alleyn, depends, mainly, upon 56 & 57 Viot.

91, and 2 East, 448, n. : 15 E. E. c. 71, ss. 13—15. For a olassifioa-

611 ; Williamson v. Allinson, 2 tion of the oases on the subject.

East, 446 ; Early v. Ga/rrett, 9 B. & as decided by the common law, see

C. 902 : 33 E. K. 371 ; Morley v. Jones v. Just, L. E. 3 Q. B. 197, 202.

AUenborvugh, 3 'Ex. 500; Ormrody. (n) See 56 & 57 Vict. i;. 71,

muh, 14 M. & W. 664; Hall v. s. 62 (1).

Conder, 2 0. B. N. S. 22 ; Hopkins (o) See Va/rley v. Whipp, [1900] 1

V. Tanqueray, 15 0. B. 130 ; Ward Q. B. 513 : 69 L. J. Q. B. 333.

V. Hobbs, 4 App. Gas. 13. {p) 56 & 57 Vict. c. 71, s. 13.

(m) The law on this subject now (g) Id.

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THE LAW OF CONTEACTS.

Sale, by
description,
of goods dealt
in by seller.

Sale by
sample.

Purchase for
particular
purpose,
known to
seller.

must answer to that description, we may compare the state-
ment of the civil law, si aes pro ain-o v en eat, non valet : aliter
atquc si aunim quidem fuerit, deterius autem quam emptor
existimarit : tunc enim emptio valet {r). Generally, if the
article tendered agrees, in its nature, with the description,
the buyer takes the risk as to its quality ; and in this respect
there appears to be no difference between a sale of victuals
and a sale of any other commodity (s). There can be no
implied warranty as to quality, unless the case falls within
one of the classes of cases next to be mentioned.

2. Where goods are bought by description from a seller
who deals in goods of that description, whether he be the
manufacturer or not, there is an implied condition that the
goods shall be of merchantable quality {t). If, however,
the buyer has examined the goods, there is no implied
condition as regards defects which such examination ought
to have revealed {t).

3. In the case of a contract for sale by sample there are
three implied conditions (w) : 1, that the bulk shall correspond
with the sample in quality {x) ; 2, that the buyer shall have
a reasonable opportunity of comparing the bulk with the
sample (,«/) ; and 3, that the goods shall be free from any
defect rendering them unmerchantable, which would not be
apparent on reasonable examination of the bulk {z) .

4. Where the buyer, expressly or by implication, makes
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 adescription

(r) Cited L. E. 2 Q. B. 588.

(s) Burnby v. Bollett, 16 M. & W.
644 ; Emmerton v. Mathews, 7 H. &
N. 586 ; Smith v. Baker, 40 L. T.
261; Ward v. Sobbs, 4 App. Gas.
13 : 48 L. J. Q. B. 281.

(t) 56 & 57 Vict. c. 71, s. 14 (2) ;
Wren v. Solt, [1903] 1 K. B. 610 :

72 L, J. K. B. 340 (beer sold in a 563.

tied house).

(m) Id. s. 15 (2).

{x) See Wells v. Hopkins, 5 M. &
W. 7.

iy) See Lorymer v. Smith, IB. &
C. 1.

(z) See Drtimmond v. Van Ingen,
12 App. Gas. 284: 56 L. J. Q. B.

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THE LAW OF CONTEAOTS. Gl5

which it is in the course of the seller's business to supply,
whether he be the manufacturer or not, then there is an
implied condition that the goods shall be reasonably fit for
that purpose (a). "Where, however, a contract is made for
the sale of a specified article under its patent or other trade
name, there is no implied condition as to its fitness for any
particular purpose (6).

5. An implied warranty or condition as to quality or Usage of
fitness for a particular purpose may be annexed by the
usage of trade (c).

6. Axi implied warranty or condition may be annexed by Act of

,, . . '' ■' •' Parliament.

the provisions of a statute {d). For instance, on the sale of

a chain cable there is, usually, an implied warranty that

it has been duly tested and proved (e).

In passing now from implied to express warranties, we
may notice that, as a general rule, an express warranty or
condition does not negative a warranty or condition implied
by law, unless inconsistent therewith (/).

With regard to express warranties, the general rule is Express
that every affirmation made at the time of sale is a warranty,
provided it appears, on the evidence, to have been so
intended, the question whether or not it was so intended
being one of fact for the jury ; and no special form of words
is required to constitute a warranty, for if the seller assumes
to assert a fact of which the buyer is ignorant, he will
generally be taken to have intended a warranty ; but it is
otherwise, if he merely gives an opinion on a matter of
which he has no especial knowledge, and on which the buyer

(a) Id. s. 14 (1). See, for instance, Bowden, i Taunt. 847 : 14 E. E.

Brown v. Edgmgton, 2 M. & Gr. 683.

279 ; Randall v. Newson, 2 Q. B. D. (d) 56 & 57 Vict. o. 71, s. 14.

102 ; Frost v. Aylesbury Dairy Co., (e) 62 & 63 Vict. c. 23, s. 2.

[1905] 1 K. B. 608 : 76 L. J. K. B. (/) 56 & 57 Vict. o. 71, s. 14 (4) ;

386. Bigge v. Parhinson, 7 H. & N. 955.

(6) Id. s. 14 (1). See, for instance, Of. the maxim, expressis unim, dc,

Chanter v. Hopkins, 4 M. & W. 399. ante, p. 504.

(c) Id. s. 14 (3). See Jones v.

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616 THE LAW OF CONTRACTS.

may be expected also to have an opinion and to exercise
his judgment (</).
Visible It is, indeed, laid down by the older authorities that

defects. . „ , . j • i j i

" defects, apparent at the time of a bargain, are not included
in a warranty, however general, because they can form no
subject of deceit or fraud; and, originally, the mode of
proceeding for breach of warranty was by an action of deceit,
grounded on a supposed fraud ; and it may be presumed
that there can be no deceit where a defect is so manifest
that both parties discuss it at the time of the bargain. A
party, therefore, who should buy a horse, knoiving it to be
blind in both eyes, could not sue on a general warranty of
soundness " (/;). The maxim, caveat emptor, seems, therefore,
to apply, as a rule, in cases where the seller affirms that
the subject-matter of the sale has not a defect, which
is a visible defect and obvious to the senses ; ea quce com-
menclancli causa in venditionibus dicimtiir, si palain appareant,
renditorem non obligant (i) ; in the absence of an express
agreement to the contrary, a general warranty does not
usually extend to defects apparent on simple inspection,
requiring no skill to discover them, nor to defects known to
the buyer (k). However, if without such knowledge on the
part of the buyer, a horse is warranted sound, which, in
reality, wants the sight of an eye, though this might be
thought to be the object of one's senses, yet, as the discern-
ment of such a defect is frequently matter of skill, it has been
held, that an action lies to recover damages for the im-
position (I). " The defect," as Lord Campbell said (m), " was
not one of which the purchaser with express warranty was

(g) Per Buller, J., Pasley v. Free- HolUday v. Morgan, 1 E. & E. 1.

inan, 3 T. R. 51, 57 : 1 R. K. 634; (i) D. 18, 1, 43, pr.

Power V. Barham, 4 A. & E. 473 ; (fc) See Beuj., Sales, 4tli ed., p.

CarUr v. Crick, 4 H. & N. 412 ; 613.

Stucley V. Baily, H. & 0. 405. (I) Butterfeilds v. Burroughs, 1

(h) Per TinA.&\,G.Z. ,Margetsonv. Salk. 211; HolUday v. Morgan, 1

Wright, 7 Bing. 605. See Liddard E. & E. 1.

V. Kain, 2 Bing. 183 : 27 R. R. 582 ; (m) 1 E. & E. 4.

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THE LAW OF CONTRACTS. 617

bound to take notice ; he might naturally exercise less
vigilance than he would exercise where he had not a warranty
to rely on."

It is to be remarked that an express warranty will not simple com-
necessarily result from a simple commendation of the ™^°
quality of goods by the seller ; for in this case the rule of
the civil law, simjilex commendatio non obligat(n), has been
adopted by our own, and such simplex commendatio will, in
most cases, be regarded merely as an invitation to custom,
since every seller will naturally affirm that his own wares
are good (o), unless it appear on the evidence, or from the
words used, that the affirmation at the time of sale was
intended to be a warranty, or that such must be its necessary
meaning {p) : it is, therefore, laid down, that in a purchase
without warranty, a man's eyes, tastes, and senses must be
his protection (5); and that where the subject of the affirma-
tion is mere matter of opinion {r), and the buyer may
himself institute inquiries into the truth of the assertion,
the affirmation must be considered a " nude assertion,"
and it is the buyer's fault from his own laches that he is
deceived (s). Either party may, therefore, be innocently

(to) D. 4, 3, 37; per Byles, J., 17 Shepherd v. Kaim,, 5 B. & Aid. 240;

C. B. N. S. 597. 24 R. E. 344 ; Freeman v. Baker, 5

(0) See, per Sir J. Mansfield, B. & Ad. 797 : 39 B,. R. 651 ; Bitdd

Vernon v. Keyes, 4 Taunt. 488, 493 : v. Fairmaner, 8 Bing. 52 : 34 B. E.

11 E. E. 499 ; Arg., West v. Jackson, 619 ; CoverUy v. Burrell, 5 B. & Aid.

16 Q. B. 282, 283 ; Chandelor v. 257 : 24 E. E. 350.

Lopus, Oro. Jac. 4. Where A. (g) Pitz., Nat. Brev. 94; 1 RoU.

bought a waggon at sight of B., Abr. 96.

which B. afiirmed to be worth much (r) See Power v. Barham, 4 A. &

more than its real value : it was E. 473 ; Jendwine v. Slade, 2 Esp.

held that no action would lie N. P. 0. 572.

against B. for the false afflrmation, (s) Fer Grose, J., 3 T. E. 54, 55 ;

there being no express warranty nor Bayley v. Merrel, Oro. Jae. 386 : 3

any evidence of fraud : Davis v. Bulstr. 94 ; cited and distinguished

Meeker, 5 Johns. (U.S.), E. 354. in Brass v. Maitland, 6 B. & B.

{p) Per Buller, J., 8 T. E. 57 ; 470 ; Bisney v. Selby, 1 Salk. 211 :

Allan V. Lake, 18 Q. B. 560 ; Jones 2 Ld. Eaym. 1118 ; recognised in

V. Clark, 27 L. J. Ex. 165 ; Vernede Dobell v. Stevens, 3 B. & C. 625 : 27

V. Weber, 1 H. & N. 311 ; Simond R. R. 441 ; per Tindal, C. J., Shrews-

V. Braddon, 2 C. B. N. S. 321 ; bmy v, Blount, 2 Scott, N. R. 594.

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618

THE LAW OF CONTRACTS.

Fraud.

Remedies for
fraud.

silent as to grounds open to both to exercise their judgment
upon ; and in this ease, aliitd est celarc, aUud tacercit) : silence
is not equivalent to concealment («) .

It may be recollected that our proposition was that a
buyer of goods has no remedy against the seller for any
defects not covered by some condition or warranty, in the
absence of fraud. We have already, in noticing the maxim
as to dohts malus (x), observed generally upon the effect
of fraud in vitiating transactions, and the remarks then
made apply with peculiar force to the contract of sale.

There are two courses, either of which is usually open
to a buyer who has been induced to buy goods by the
seller's fraud (,i/). He may either abide by the contract,
and bring an action, usually called an action of deceit, for
the damage sustained by the fraud : or he may rescind
the contract, returning the goods, if already accepted, and
recovering the price, if already paid, by action after
demand and refusal ; but he cannot pursue the latter
course after his own act has put it out of his power to
restore the parties to their original condition (s) — " you
cannot both eat your cake, and return your cake " (a).
And a contract induced by fraud is not void, but only
voidable at the election of the party defrauded (b). When
once he has elected to abide by the contract, being aware

As to the rule in equity, where
specific performance or rescission is
sought, see Price v. Macaulay, 2 De
G. M. & G. 339,346; Redgrave v.
Hurd, 20 Oh. D. 1, 13.

(t) Cicero, de Ofiaciis, 1. 3, c. 12, 13.

(m) Per Ld. Mansfield, Carter v.
Boehm, 3 Burr. 1910 ; per Best, C.J.,
3 Bing. 77. See Laidlaw v. Organ,
2Wheaton (U.S.), R. 178; Arg., 9
Id. 631, 632 ; per Abbott, G.J.,
Bowring v. Stevens, 2 0. & P. 341.

As to what will constitute fraudu-
lent concealment in the view of a
Court of equity, see Central B. Co.
of Venezuela v, Kisch, L. R. 2 H. L.

99. By such a Court the maxim,
gui villi decipi decipiatur, is recog-
nised ; see Beynell v. Sprye, 1 De
G. M. & G. 687, 710.

(a;) Ante, p. 569.

(y) As to remedies for a breach of
warranty in the sale of goods, see
56 & 57 Vict. 0. 71, s. 53.

(«) Clarke v. Dickson, E. B. & E.
148 : 27 L. J. Q. B. 228 ; Urguhart
V. Macpherson, 3 App. Cas. 831, 838.

(a) Per Crompton, J., E. B. & E.
152.

(b) Clough v.L.<& N. W. B. Co.,
L. R. 7 Ex. 26, 84.

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THE LAW OF CONTEAOTS. 619

of the fraud, he cannot afterwards rescind it — qaod scmel
placuit ill electionibus ampllus cUspUcere non potest (c) ; and
in this, as in all cases of election, the election, if it be to
rescind, must be made within a reasonable time, that
is to say, within a reasonable time after the discovery of
the fraud (d).

To establish his right to rescind a contract on the ground
of fraud, or to recover damages on that ground, the buyer
must be prepared to prove affirmatively the following
matters : 1, that the seller made a false representation
of fact ; 2, that in making it he was guilty of fraud ;
3, that he made the fraudulent misrepresentation with the
intention that the buyer should act upon it ; 4, that the
buyer believed it to be true ; and 5, that he was thereby
induced to enter into the contract. In an action of deceit,
the buyer must also prove that he has suffered damage
arising out of the fraud, for fraud without damage or
damage without fraud is insufficient — these two must
concur, to give this cause of action (e).

Upon the first of these matters which the buyer must What is a
prove, it should be noticed that a seller who knows of tation^'^^^'^"
defects in his goods is under no legal obligation to disclose
them to a buyer who is ignorant of them (/), and an action
cannot be maintained against a person for an alleged
deceit, " charging merely his concealment of a material
fact which he was morally, but not legally, bound to
disclose "(g). The seller may know that the buyer believes
the goods to be different in quality from what they really
are, but if that belief has not been induced by the act of
the seller, he is not chargeable with misrepresentation

(c) Co. Litt. 146 a; ^erLd. Black- C, 11th ed. 66, and the notes

burn, Scarf v. Jardine, 7 App. 345, thereto.

360 : 51 L. J. Q. B. 612. (/) Eeates v. Earl of Cadogan,

{d) Lindsay Petroleum Co. v. 10 C. B. 591.

Hurd, L. E. 5 P. C. 221. (?) Per Ld. Chelmsford, Peek v.

(e) Per Croke, J., 3 Bulst. 95 ; Gicrney, L. R. 6 H. L. 377, 390.
see Pasley v. Freeman, 2 Sm. L.

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620 THE LAW OF CONTRACTS.

merely because he is silent (h). A seller, however, is, no
doubt, guilty of a misrepresentation, if he does not merely
keep silent, but in some way actively fosters a mistaken
belief which he knows that the buyer entertains. Although
simply reticence may not amount to fraud in law, however
it might be viewed by moralists, yet a mere nod or shake
of the head by the seller, with the intention of inducing
the buyer to believe in the existence of a non-existing fact,
must be treated as a misrepresentation (i) ; and with regard
to misrepresentations it is clear that silence is an equivalent
when the withholding of that which is not stated makes
that which is stated absolutely false (fc). Half a truth may
amount to a real falsehood (Z), and fraud may thus consist
as well in the suppression of what is true, as in the repre-
sentation of what is false (m). Again, a number of state-
ments which, when taken together, necessarily give a false
impression, are none the less false because it may be
difficult to point out that any particular statement is
untrue (n).
What is With regard to the proof of fraud, fraud is proved when

fraud. -J. • 1 1

it is shown that a false representation has been made,
(1) knowingly, or (2) without belief in its truth, or
(3) recklessly, careless whether it be true or false. The
third case is- probably but an instance of the second, for one
who makes a statement under such circumstances can have
no real beHef in the truth of what he states; and to
prevent a false statement from being fraudulent there must
always be an honest belief in its truth. If fraud be proved

(h) Smithy. Huglus, L. R. 6 Q. B. Gurney, L. R. 6 H. L. 377, 403.

597; Ward v. Bohhs, i App. Gas. (i) See S. C, p. 392, per Ld.

18 : 48 L. J. Q. B. 28 ; Turner v. Chelmsford ; Gluckstein v. Barnes,

Green, [1895] 2 Ch. 205: 64 L. J. [1900]A.C.251,perLd.Maonaghten!

'^^- 539. (to) Per Chambre, J., Tapp v.

(i) See per Ld. Campbell, Walters Lee, 3 B. & P. 371.

V. Morgan, 3 D. F. & J. 723 ; cited, («) See per Ld. Halsbury, Aaron's

[1895] 2 Ch. 209. Beef v. Twiss, [1896] A. C. 273, 281 :

(h) See per Ld. Oairnis, Peek v. 65 L. J. P. 0. 54.

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THE LAW OF CONTEACTS. 621

the motive of the person guilty of it is immaterial (o).
The absence of reasonable grounds for making a statement
does not make the statement fraudulent, if honestly believed
in ; and it is only material so far as it throws light on the
question whether there was an honest belief in the state-
ment (p). False representations, made without knowledge
that they are false, are not rendered fraudulent by stupidity
or carelessness, however gross ; there must be some in-
difference to the truth amounting to dishonesty (5). The
expression "legal fraud," which is said to have owed its
origin to Lord Kenyon, is misleading. Fraud has the
same meaning when used in Courts of law as in ordinary
parlance, and always implies moral turpitude.

It is generally said that the misrepresentation to be
proved must be one of fact (?•) ; and this is so far correct
that the expression of mere general hopes or expectations
as to the benefits which may follow from making the con-
tract is insufficient (s). The maxim simplex commcndatio
non nocet, to which we have already referred (t), is then
applicable. But expressions of opinion, whether as to the
past or the future, may, and often do, involve statements
of existing facts, for which a person will be held respon-
sible («) ; and so may expressions of opinion upon matters
which, in one aspect, are matters of law (^r) .

The intention with which a fraudulent misrepresentation Fraudulent
is made is generally a matter of inference. The law,
however, as a rule, imputes to a man an intention to

(0) Per Ld. Herschell, in Derry (s) Bellairs v. Tucker, 13 Q. B. D.

V. Peek, U App. Gas. 337, 374: 562,575.

58 L. J. Ch. 864, after an ex- («) Ante, p. 617.

haustive review of the previous (u) Edgington v. Fitzmaurice, 29

authorities. Oh. D. 459 : 55 L. J. Ch. 650; see

{p) S. 0., 14 App. Cas. 869, per per Bowen, L.J., Smith v. Lai%d

Ld. Herschell. Corporation, 28 Ch. D. 7, 15 ; per

(g) Angus v. Clifford, [1891] 2 Ch. Lindley, L.J., Karherg's case, [1892]

449 : 60 L. J. Oh. 443. 3 Ch. 1, 11 : 61 L. J. Ch. 741.

(r) See, for instance, per Ld. (x) West London Bank v. Kitson,

Cairns, L. B. 6 H. L. 409. 13 Q. B. D. 360 : 53 L. J. Q. B. 345.

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622 THE LAW OF CONTRACTS.

produce those consequences which are the natural result
of his acts, and if a man knowingly uses language which
in its natural sense conveys a wrong impression, he can
scarcely be heard to say that he did not intend to deceive {y).
To prove, in an action of deceit, that he intended to deceive
the plaintiff, it is not necessary to show that his misrepre-
sentation was made to the plaintiff direct ; it is enough
that it was made to a third person with the direct intent
that it should be communicated to the plaintiff, or to a
class of persons of which the plaintiff was one, and should
be acted upon by the plaintiff in the manner in which he
in fact acted upon it {z). Fraud, it has been said, is
infinite in variety ; but it is the fraud, and not the manner
of it, which calls for the intervention of the Courts (a) .
The deceit. It is not sufficient for a buyer to prove that the seller

intended to defraud him; he must also prove that the
fraud " was an inducing cause to the contract ; for which
purpose it must be material, and it must have produced in
his mind an erroneous belief, influencing his conduct " (6).
Accordingly, where an action of deceit was brought upon
a statement in a prospectus, and that statement was
ambiguous, being true or false according as one or other of
two possible meanings was attached to it, it was held that it
was essential to the plaintiff's case that he should prove that
he had interpreted the statement in the sense in which
it was false, and had in fact been deceived by it (c).

It may be observed that, when an action is brought upon
a fraudulent prospectus, it is an old expedient, and seldom
successful, to cross-examine the plaintiff, and ask him as to
each particular statement in the prospectus what influence

{y) 9 App. Gas. 190 : 41 Oh. D. 377 ; Andrews v. Mochford, [1896]

372. A dooument must be read, as 1 Q. B. 872 : 65 L. J. Q. B. 302.

against its author, in the sense it (a) Per Ld. Macnaghten, [1895]

was intended to convey ; [1900] A. 0. A. C. 221.

250. (6) Per Ld. Selborne, 9 App. Gas.

{«) See Swift v. Winterhofham, 190.

L. E. 8 Q. B. 244, 253 (S. C, 9 Id. (c) Smith v. ChadwicTc, 9 App.

801) ; Peek v. Qurncy, L. E. 6 H. L. Gas. 187 : 51 L. J. Ch. 597.

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THE LAW OF CONTRACTS. 623

it had upon his mind, and how far it determined him to
enter into the contract. This is quite fallacious. * A person
reading a prospectus generally looks at it as a whole, and
on the whole forms his conclusion. You cannot weigh
the elements by ounces (d).

The second question which we proposed shortly to Seller's
consider relates to the risks run by a buyer of goods with ™to\uiel^
regard to the title thereto. Before the Sale of Goods Act,
1893 (e), it was, at any rate at one time, a great question
under what circumstances could any undertaking by the
seller as to his title to sell be implied. But the discussion
of this question has been much limited by the rule laid
down in that Act. The rule which now obtains is that, in
a contract of sale of goods, unless the circumstances of the
contract are such as to show a different intention, there is
an implied condition on the seller's part that, in the case
of a sale, he has a right to sell, and that, in the case of an
agreement to sell, he will have that right at the time when
the property is to pass (/). Moreover, in the absence of
circumstances showing a contrary intention, there is an
imphed warranty that the buyer shall enjoy quiet possession
of the goods (g), and that the goods shall be free from any
encumbrance in favour of a third party, not declared or
known to the buyer before or at the time when the contract
is made {h).

This rule limits discussion mainly to the point whether
in a particular case an intention was shown that the buyer
should take risks as to title ; and its effect is that a person
who buys goods in the ordinary way across the counter in
a shop usually has a remedy against the seller, if the goods
be subsequently claimed of right by some other person.

{d) Per Ld. Halsbury, Arnison v. o£ Mr, Benjamin, founded on the

Smith, 41 Gh. T>. 348, 369 : 58 L. 3. decision in EichhoU v. Bcmnister,

Cjj, 335. 17 C. B. N. S. 708 : 34 L. J. C. P.

(e) 56 & 57 Vict. c. 71. 105 ; see Benj. on Sale, 4tli ed. 634.

(/) Id. s. 12 (1) ; wMch states the (g) 56 & 57 Vict. c. 71, s. 12 (2).

law in accordance with the opinion (h) Id. s. 12 (3).

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624 THE LAW OF CONTEACTS.

It must be remembered, however, that the above implied
conditions and warranties may be negatived or varied by
express agreement or by the course of dealing between the
parties, or by usage binding upon both (0-

If goods be sold by a person who is not the owner, and
the owner be found and be paid for the goods, then, as a
general rule, the person who sold them under pretended
authority has no right to call upon the buyer to pay him
also (k). For example, though an auctioneer, inasmuch as
he has a lien on the purchase-money, may bring an action
in his own name against the buyer for the price of goods
sold, and the defendant has no right to plead payment to
the auctioneer's employer, yet if the employer was not the
true owner of the goods, the defendant may plead payment
to or a claim by the true owner (I).
General rule Although the buyer of goods bought from a seller who
of title. had no title to sell them may have remedies against the

seller, yet, as a rule, the sale gives him no title to the goods
as against the owner, and, as between the buyer and the
owner, the maxim caveat emptor applies. For the general
principle is that where goods are sold by a person who is
not the owner, and who does not sell under the authority or
with the consent of the owner, the buyer acquires no better
title to the goods than the seller had (m) : nemo dat quod nan
habct (ft) ; ncvio 2}lus juris ad alium transferre potest quam ipse
liahet (o). To this well-established principle, which applies
to choses in action as well as to goods there are, neverthe-
less, certain exceptions which, or some of which, will be
briefly mentioned.

(i) 56 & 57 Vict. 0. 71, s. 55. (m) 56 & 57 Vict. e. 71, s. 21 (1).

(k) Allen v. Hopkins, 13 M. & W. (n) Per Littledale, J., 5 B. & Ad.

102. See Walker v. Mellor, 11 Q. B. 339 ; per WiUes, J., 14 0. B. N. S.

478. 257.

(0 Bobinsmv. Butter, 4 E. & B. (o) D. 50, 17, 54; Wing. Max.,

954 ; Dickenson v. Naul, 4 B. & Ad. p. 56 ; 2 Pothier, Oblig. 263 ; see

638 ; see also Gricev. Kenrick, L. B. pw Parke, B., 6 Exch. 872.
5Q. B. 340: 39 L. J. Q. B. 175.

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THE LAW OF CONTRACTS. 625

1. The first exception occurs in cases where the owner of Exceptions.
the goods is by his conduct prechided or estopped from i-^i'ieby
denying the seller's authority to sell (p). Mere carelessness

where there is no duty to be careful creates no estoppel ;
for instance, a person who does not lock up his goods,
which are consequently stolen, may be said to be negligent
towards himself, but, since he neglects no duty which the
law casts upon him, he is not estopped from denying the
title of persons who may have, however innocently, bought
the goods from the thief (g). But the case is otherwise,
where the owner by his words or conduct caused the buyer
to believe that the seller was the owner of the goods or had
the owner's authority to sell them, and induced him to buy
them in that belief, for then he cannot afterwards set up
the seller's want of title or authority to sell (?•).

2. A second exception arises in cases which are governed 2. Title under
by the Factors Act, 1889 (s), or any enactment enabling

the apparent owner of goods to dispose of them as if he

were the true owner (i). Under the Factors Act, where a Sale by

mercantile agent is, with the owner's consent, in possession ^ent™ ' ^

of goods or the documents of title to goods, a sale of the

goods, made by him when acting in the ordinary course of

business of a mercantile agent, is as valid as if he were

expressly authorised by the owner to make it, provided

that the buyer acts in good faith and has not at the time of

the sale notice that the agent has not authority to make

it (u). The owner's consent to the possession must be

{p) 56 & 57 Vict. c. 71, s. 21 (1). Parke, B., in Freeman v. Cooke, 2

(3) Per Blackburn, J., Swan v. Bxch. 654.

N. Brit. Australian Co., 2 H. & C. (s) 52 & 53 Vict. 0. 45.

175, 181; of. per Ld. Halsbury. (<) 56 & 57 Vict. u. 71, ». 2 (a).

Scholfield V. Londesborough, [1896] (u) 52 & 53 Vict. c. 45, s. 2 (1).

A. C. 514, 522 : 65 L. J. Q. B. 593. " Mercantile agent " means a mer-

(r) See the general rule as to cantile agent having in the custo-

estoppels by conduct laid down by mary course of his business as such

Ld. Denman in Pickard v. Sears, 6 agent authority to sell goods, or oon-

A. & E. 469, 474, and expounded by sign them for sale, or buy them, or

L.M.

40

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626 THE LAW OF CONTRACTS.

presumed in the absence of evidence to the contrary (x) ;

and if it has been given, it cannot be determined as against

a buyer buying without notice of the determination (y).

Sale by seller Moreover, under the provisions of this Act (z), where a

pos^'selsYo™ person, having sold goods, continues in possession of the

after sale. goods, or the documents of title thereto, his delivery of the

goods, or documents, under a sale or agreement for sale, to

a person receiving them in good faith and without notice of

the previous sale, has the same effect as if the delivery

were expressly authorised by the owner (a). And, again,

where a person, having bought or agreed to buy goods,

obtains with the seller's consent possession of the goods or

the documents of title thereto, his delivery of the same

under a sale or agreement for sale to a person receiving

them in good faith, and without notice of any right of

the original seller in respect of the goods, has the same

effect as if the delivery were made by a mercantile agent in

possession of the goods or documents with the owner's

consent (if;).

3. Sale under 3. A third exception comprises cases in which a sale is

specia power, jj^g^^g under a special common law or statutory power of sale,

or under the order of a Court of competent jurisdiction (c).

Sales by pawnees (d), sheriffs (c), masters of ships in case of

raise money on their security : Id. (c) 56 & 67 Vict. c. 71, s. 21 (2) (b).

s. 1 (1); see Hastings v. Pearson, As to sales by order of Court, see

[1893] 1 Q. B. 62 : 62 L. J. Q. B. 75. R. S. C. 1883, 0. L., r. 2 : C. C. R.

(x) 52 & 53 Vict. c. 45, s. 2 (4). 1889, 0. XII., r. 2. See also 44 &

(y) Id. s. 2 (2). 45 Vict. i;. 41, s. 70.
(z) Ss. 8 & 9; see also 56 & 57 (d) SeePothonierY.Dawsmi.'H.olt,

Vict. c. 71, s. 25. 385: 17 R. R. 647; Tucker v. Wil-

(a) See Nicholson v. Harper, son, 1 P. Vi^ms. 261 ; LocJcwood v.
[1895] 2 Oh. 415 : 64 L. J. Ch. 672. Ewer, 9 Mod. 278 ; Martin v. Bead,

(b) See ante, p. 363. As to hire- 11 C. B. N. S. 730 ; Johnstmi v.'
purchase agreements, see Lee v. Stear, 15 Id. 330 ; Pigot v. Cubley,
ButUr, [1893] 2 Q. B. 318 ; Helhy v. Id. 701 ; Halliday v. Holgate, L. R.'
Matthews, [1895] A. 0. 471 ; Payne 3 Ex. 299. As to pawnbrokers, see
V. Wilson, [1895] 1 Q. B. 653 : 2 Id. 35 & 36 Vict. i;. 93.

537 ; as to auctioneers, Shenstone v. (e) Dyer, 363 a ; Doe v. Donston

Hilton, [1894] 2 Q. B. 458. 1 B. & Aid. 230 : 19 R. R. 300

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THE LAW OF CONTRACTS. 627

necessity (/), landlords distraining for rent (g), or innkeepers
realising their lien(/0, are examples of this exception.

4. A fourth exception relates to sales in market overt ; *• Sale in
for where goods are sold in market overt according to the
usage of the market, the buyer acquires a good title thereto,
if he buy in good faith and without notice of any defect or
want of title on the part of the seller (i). This exception
does not effect an unauthorised sale of goods belonging to
the Crown (k) ; and it protects only the buyer, and not the
seller, however innocent (l). It applies only to sales in an
open, public and legally constituted market or fair {m) ;
though it seems that a sale in a modern statutory market
is as much protected as a sale in an ancient market held
by charter or prescription (n). The buyer is not protected,
unless the sale was according to the usage of the market.
Hence, he is not protected, unless the whole transaction
took place in the market (o) ; and a sale by sample in the
market of goods lying outside the market-place affords him
no protection (p). It seems that the onus of showing that
the usages of the market, as to payment of toll or otherwise,
were compUed with lies upon the buyer (q).

By the custom of the city of London, every shop in the
city which is open to the public is market overt, between
sunrise and sunset on all days, save Sundays and holidays ;
but only so for such goods as the shopkeeper professes

(/) Kaltenbach v. Mackenzie, 3 (I) Peer v. Humphrey, 2 A. & E.

0. P. D. 467, 473. 495.

Ig) 2 W. & M., sesB. 1, 0. 5, s. 2 ; W I^ee v. Bayes 18 0 B. 599.

51 & 52 Viot. c. Jl. ^_ ^ gg ^^^ ^^^ ^_

(h) 41 & 42 Vict. c. 38. Newington, 4 Q. B. D. 32.

(i) 56 & 57 Viot. 0.71,3. 22, which (qJ g Inst. 713; Boll. Abr.

agrees with the common law : see 2 „ Market," E ; Dyer, 99 b.

Blao. Com. 449 ; Pease on Markets, |^) ^m y. Smith, 4 Taunt. 520,

120. The sale of horses is stiU 532: 13E. R. 670; Craney. London

regulated by the common law, as Dgf.)^ (jo_^ 5 B. & S. 313.

amended by 2 & 3 Ph. & M. c. 7, (g) Moran v. Pitt, 42 L. J. Q. B.

and 31 Eliz. c. 12. 47 ; see Oomyns v. Boyer, Cro. Eliz,

(&) 2 Inst. 713. 485,

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628 THE LAW OF CONTEACTS.

to trade in ; and the custom does not apply where the
shopkeeper is buyer, and not seller (r).

In the case of stolen goods, the title acquired by buying
in market overt is liable to be defeated. Where goods have
been stolen, and the offender is prosecuted to conviction,
the property in the goods revests in the owner, notwith-
standing any intermediate dealing with them, whether by
sale in market overt or otherwise (s). None but stolen goods,
however, now so revest. Goods obtained by fraud or other
wrongful means not amounting to larceny, do not revest by
reason only of the conviction of the offender (<).

Although the conviction of the thief revests the property
in stolen goods, yet until such conviction a title gained by
purchase in market overt continues good. Hence the owner
cannot maintain trover against the buyer if he disposed of
the goods before the conviction, and it is immaterial that
the buyer disposed of them with notice of the theft (u). The
buyer, on the other hand, cannot recover from the owner
the cost of keeping the goods before they revested (x).
5. Transfer 5. The fifth and last exception which we shall mention

instruments, to the general rule, that a good title to personal property
cannot be acquired from a person who has none, relates to
money, bank-notes and negotiable instruments. In a leading
case on this subject, it was decided that the property in
a bank-note, like that in cash, passes by delivery, and that
a party taking it in good faith and for value, as money, is
entitled to retain it as against a former owner from whom
it was stolen (y). And it is well-established law that a

(r) Hargreave v. Spink, [1892] Vict, o. 96, s. 100, as construed in

1 Q. B. 25 : 61 L. J. Q. B. 318 ; BentUy v. Vilmont, 12 App. Gas.

Lyms V. De Pass, 11 A. & E. 326 ; 471.

see 5 Eep. 88 b; Oro. Eliz. 454; (m) Borwood v. Smith, 2 T. E.

Moore, 360 ; Oro. Jao. 68 ; 12 Mod. 750 : 1 E. E. 618.

621 ; 2 Camp. 335. (e) Walker v. Matthews, 8 Q. B. D.

(s) 56 & 57 Viot. u. 71, s. 24 (1). 109: 51 L. J. Q. B. 243.

This section applies to horses, as (y) Miller v. Bace, 1 Burr. 452.

well as other goods. The reader is referred, for some

[t) Id. s. 24(2), amending 24 & 25 further information on the subject

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THE LAW OF CONTRACTS. 629

persou who takes a negotiable instrument in good faith and
for vahie, obtains a vahd title, although he takes from one
who had none (z). It must be noticed, however, that if the
signature of any person is necessary to render any instru-
ment negotiable, it does not become negotiable by the forgery
of his signature ; and the general rule is that no title can
be obtained through a forgery (a). Moreover, if a person
is induced by fraud to sign a negotiable instrument under
the belief that he is signing an entirely different instrument,
his signature is a nullity, provided that in so signing he
acted without negligence (b).

A negotiable instrument is taken in good faith when it Meaning of
is taken honestly, whether it be taken negligently or not (c). ^°° ^^ '
A person who takes such an instrument for value, honestly
beUeving that the person from whom he takes it has a
right to dispose of it, acquires a good title to it ; and his
knowledge that the person disposing of it is only an agent
does not compel him to inquire into the extent of such agent's
authority (d). But, although carelessness or foolishness in
not suspecting that there is something wrong in the trans-
action is not dishonesty, yet it is dishonesty, and not good
faith, to take a negotiable instrument, suspecting that there
is something wrong, and carefully refraining from further
inquiry, lest such suspicion of mala fides may be converted
into knowledge (e).

of negotiable instruments, to the 0. P. 704 ; Lewis v. Clay, 67 L. J.

note appended to this case, 1 Sm. Q. B. 224.

L. C, 10th ed. 447. (c) See 45 & 46 Viot. c. 61, s. 90.

(z) Gorgier v. Mieville, 3 B. & 0. (d) London J. S. Bank v. Sim-
id : 27 B. E. 290 ; London Joint mons, supra. As to acceptances and
Stock Bank v. Simmons, [1892] A. G. indorsements per pro, see Bryant v.
201 : 62 L. J. Ch. 427. As to hiUs Banqtie du Peuple, [1893] A. 0. 170 :
of exchange, promissory notes, and 62 L. J. P. 0. 68 ; 45 & 46 Vict,
cheques, see 45 & 46 Vict. c. 61, c. 61, s. 25.
ss. 29, 38. (e) Id. ; Raphael v. Bank of Eng-

(ffl) Johnson V. Windle, 3 Bing. land, 17 C. B. 161 ; Jones v. Gordon,

N. C. 225, 229 ; 45 & 46 Vict. o. 61, 2 App. Gas. 616 ; see Tatam v.

g_ 24. Haslar, 23 Q. B. D. 345 : 58 L. J.

(b) Foster v. Mackinnon, L. B. 4 Q. B. 432.

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630

Holder for
value.

Money.

THE LAW OF CONTRACTS.

Value is given for a negotiable instrument if it is accepted
in accord and satisfaction of a liability. The manager of
a bank stole therefrom certain negotiable bonds, and the
plaintiffs became the holders for value without notice of
any fraud. Afterwards the bank manager, by a fraud upon
the plaintiffs, obtained from them some of the bonds, and
also others similiar to, though not the same as, the remainder
of the stolen bonds. All the bonds, so obtained by him,
were placed in the possession of the bankers, were shown
to the bank's auditors, and treated as the bank's securities,
before the theft had been discovered. In an action brought
by the plaintiffs against the bankers to recover the bonds,
it was held that, in the absence of evidence to the contrary,
the presumption was that the bankers had accepted the
bonds in discharge of their manager's civil obligation to
make restitution in respect of his theft, and that they were
entitled to retain the bonds, as bond fide holders for
value (/).

With regard to money we may here notice the following
case ((/). A thief stole a five-pound gold piece which was
current coin of the realm, and in exchange for it a dealer in
curiosities gave him five sovereigns; upon the subsequent
conviction of the thief, the convicting justices made an
order, under the Larceny Act, 1861 (h), for the restitution
of the coin by the dealer to the original owner; and this
order was upheld by a Divisional Court. The Court was of
opinion that the coin would not have revested upon the
conviction, if it had passed, as current money, to a person
innocently taking it in discharge of a debt, but that the
order was good in the particular case on the ground that
the coin was passed to the dealer, not in its character as
coin of currency, but as the subject of a sale as an article of

(/) London & County Bank v. [g) Moss v. Hancock, [1899] 2

London <& B. P. Bank, 21 Q. B. D. Q. B. Ill : 68 L. J. Q. B. 657. Of.

535 : 5T L. J. Q. B. 601. See Nash Clarke v. Shee, 1 Cowp. 197.

V. De Frcmlle, [1900] 2 Q. B. 72. (h) 24 & 25 Vict. u. 96, s. 100.

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THE LAW OF CONTBAOTS. 631

virtu. With deference, this ground of decision (i) does not
seem wholly satisfactory ; it is, at any rate, not easy to see
how the nature of the transaction can be made to depend
upon what the person who takes the coin intends to do with
it when the transaction has been completed.

Another rather peculiar case may here be mentioned,
which is not only illustrative of the general legal doctrines
regulating the rights of buyers, but likewise of another
principle (/c), which we have already considered in con-
nection with criminal law ; viz., where a man buys a chattel
which, unknown to himself and to the seller, contains
valuable property (l). A person bought, at a public auction,
a bureau, in a secret drawer of which he afterwards
discovered money, which he appropriated to his own use.
At the time of the sale, no person knew that the bureau
contained anything whatever. The Court held(Ht) that,
although there was a delivery of the bureau, and a lawful
property in it thereby vested in the buyer, yet that there
was no dehvery so as to give him a lawful possession of the
money, for the seller had no intention to deliver it, nor
the buyer to receive it ; both were ignorant of its existence ;
and when the buyer discovered that there was a secret
drawer containing the money, it was a simple case of
finding, to which the law applicable to all cases of finding
applied. It was further observed, that the old rule (n), that
" if one lose his goods and another find them, though he
convert them, animo furancli, to his own use, it is no

(i) Ohannell, J., drew the infer- not seem to have been adec[uately

ence that the coin was not taken discussed.

bond fide. The onus of proving that (k) Actus non facit reum nisi

it was so taken probably lay on the mens sit rea ; see ante, p. 256.

dealer; see the rule as to bills of (I) Of. Elwes v. Brigg Gas Co., 33

exchange, per Parke, B., Bailey v. Ch. D. 563, where, after laud had

Bidwell, 13 M. & V\f . 76 ; Tatam v. been demised, a prehistoric boat was

Baslar, 23 Q. B. D. 345. It was found buried in the land,

stated that the coin in question (m) Merry v. Green, 1 M. & W.

"had never been in circulation;" 623.

but the meaning of this phrase does (n) 3 Inst. 108.

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632 THE LAW OF CONTRACTS.

larceny," has undergone, in more recent times, some limita-
tions (o). One is, that, if the finder knows who the owner
of the lost chattel is, or if, from any mark upon it, or the
circumstances under which it is found, the owner could be
reasonably ascertained, then the taking of the chattel, with
a guilty intent, and the subsequent fraudulent conversion to
the taker's own use, constitutes a larceny. To this class of
decisions the case under consideration was held to belong,
unless the buyer had reason to believe that he bought the
contents of the bureau, if any, and consequently had a
colourable right to the money.

In the preceding remarks upon the maxim caveat emptor,
we have confined our attention to those classes of cases to
which alone it appears to be strictly applicable, and in
connection with which reference to it is, in practice, most
frequently made. To consider all the applications of the
maxim which is invoked so frequently in discussions
relating to the rights and duties of a purchaser would not
have been possible within the limit of this treatise.

QUICQUID SOLVITUE, SOLVITUK SECUNDUM MODUM SoLVElS'TIS
— QUICQUID EECIPITUE, EECIPITUK SECUNDUM MODUM

Eecipientis. (Halle. M., p. 149.) — Money paid is to he
applied according to the intention of the party paying it ;
and money received, according to that of the recipient.

The question upon what terms was money paid and
received often resolves itself into one merely of fact, or of
inference to be drawn by a jury from the facts. For
instance, where the dispute is whether money offered in
satisfaction of a claim was so taken, it is a question of fact
whether the payee agreed to take it in satisfaction or took
it merely on account of his claim, and an inference may be

(o) See Pollock & Wright, Possession, p. 180 ; Beg. v. Flmoers, 16 Q. B.
D, 643.

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IHE LAW OF CONTRACTS. 633

drawn in his favour from what he said when he took the
money (p), or against him from his taking it in silence and
without objection (q). Again, where money is both paid
and received as rent under a lease, a mere protest that it is
accepted conditionally and without prejudice to the right to
insist upon a prior forfeiture cannot countervail the fact of
such receipt (?•), but still it is a question of fact whether the
money was received as rent (s).
With these observations, we pass to consider briefly the Appropriation

. . 1 ■ °^ payments.

maxun before us, which is frequently cited in cases where,
a debtor having made a payment on account to a creditor
to whom he owes several distinct debts, the question arises,
from which one or more of the debts does the payment
operate as a total or partial discharge (t).

The general rule of our law upon this subject is that General rule.
" the debtor may, in the first instance, appropriate the
payment : solvitiir in modum solventis ; if he omit to do so,
the creditor may make the appropriation : recipitur in
modum recipientis ; but if neither make any appropriation,
the law appropriates the payment to the earlier debt " («')•

The debtor may appropriate the payment, in the first Appropriation
instance, that is, at the time when he makes the payment,
but not afterwards (x). It was long ago established that a
debtor who owes distinct debts to one creditor may, as a
rule, discharge first whichever he prefers (y). A tender of
part of one entire debt is bad (z) : the creditor may stand
on his rights and refuse it ; but if he accept the money as
offered, the debt is discharged to the extent of the payment.

(p) Day V. McLea, 22 Q. B. D. (t) For further information upon

610 : 58 L. J. Q. B. 293. the maxim, see the learned article

(g) Kitchin v. Hawkins, L. E. 2 by Ld. Lindley in the Law Mag. for

C. P. 22 ; see Webb v. Weatherby, 1 Aug., 1855, p. 21.
Bing. N. C. 505. (m) Per Tindal, O.J., Mills v.

(r) Davenport v. The Queen, 3 Fowkes, 5 Bing. N. C. 461.
App. Caa. 115, 132 : 47 L. J. C. P. 8. {x) The Mecca, [1897] A. C. 286,

(s) Seeper Ld. Wensleydale, Croft 293 : 66 L. J. P. 86.
V. Ltmley, 6 H. L. Oas. 672, 744 ; (y) Anon, Oro. Eliz. 68.

S. C, 5 E. & B. 648, 682. {z) Dixon v. Clark, 5 0. B. 365,

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634 THE LAW OF CONXEACTS.

An appropriation by the debtor at the time of payment
need not be express : it may be inferred from the circum-
stances of the transaction (a). For instance, where a
security for a particular debt is sold and the proceeds paid
to the creditor, they are, jjiimd facie, applied in discharge
of that debt (6). There is a presumption, until the contrary
appear, that a man pays his own money on account of what
he alone, and not another, owes, and that he pays on
account of what he owes to the payee alone, and not of
what he owes to the payee and others (c).
Appropriation If the debtor does not make any appropriation at the
by creditor. ^.^^^ when he makes the payment, the right of application
devolves on the creditor (cl), and this right then continues
" up to the very last moment : " that is, until he communi-
cates an appropriation to the debtor, for his election, whilst
not so communicated, remains incomplete (e) : or until he
brings an action (/), or the case comes before a jury (r/).
" He is not bound to declare his election in express terms ;
he may declare it by bringing an action, or in any other way
that makes his meaning and intention plain. Where the
election is with the creditor, it is always his intention
expressed, implied, or presumed, and not any rigid rule of
law, that governs the application of the money " (h).

A creditor, having the right to appropriate, may elect
between an earlier and a later debt (i), between a specialty
and a simple contract debt(*), between a debt which is
guaranteed and one which is not ( j), between a debt which

(a) Peters v. Anderson, 5 Taunt. (/) Miles v. Fowkes, 5 Bing.
596 : 15 B. E. 592 ; Newmarch v. N. 0. 462.

Clay, 14 East, 244 ; Thompson v. [g) Per Taunton, J., Philpott v.

Hudson, L. E. 7 Oh. 320. Jones, 2 A. & E. 41, 44 : see [1897]

(b) Brett v. Marsh, 1 Vern. 468. 2 Oh. 437.

(c) Nottidge v. Prichard, 2 01. & (h) Per Ld. Maonaghten, [1897]
P. 393 ; 32 R. E. 187 ; Burland v. A. C. 294.

Nash, 2 I'. & F. 687. (i) Peters v. Anderson, 5 Taunt.

(d) The Mecca, [1897] A. 0. 286. 596 : 15 E. E. 592.

(e) SimsonY. Ingham, 2 B. & C. (j) Kirbyv. Duke of Marlborough,
65, 74 : 26 R. R. 273. 2 M. & S. 18 : 14 R. E. 573 ;

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THE LAW OF CONTRACTS.

635

bears interest and one ■which bears none(/v), between a
purely equitable and a legal debt(0, between a debt
incurred through marriage and a debt personally con-
tracted (m) between a debt which is founded and one which
is not founded on an illegal consideration (m). He may
appropriate the payment to a debt barred by the Statute of
Limitations, but his appropriation to part of a debt so barred
does not revive the debt so as to entitle him to sue for the
balance ; the debt, if revived, is revived, not by the creditor's
appropriation, but by the payment being made under
circumstances evidencing a promise by the debtor to pay
the whole of that debt (o).

A creditor, however, has no right to appropriate a pay-
ment to a debt which arises after, or the amount of which is
not ascertained until after, the time of the payment (p); and
it has been laid down generally that " there must be two
debts : the doctrine never has been held to authorise a
creditor, receiving money on account, to apply it towards
satisfaction of what does not, nor ever did, constitute any
legal or equitable demand against the party making the
payments " (q). The law will not appropriate a payment to
a demand which it prohibits as illegal (c). Moreover, the
creditor's right of appropriation does not extend to all
moneys of the debtor which come to the creditor's hands ;
if he receive money to his debtor's use without the debtor's

WilUams v. Rawlinson, 3 Bing. 71 : 72 L. J. K. B. 853 (where the

28 R. R. 584 ; Be Sherry, 25 Oh. D. creditor in special circumstances

704. had lost the right to appropriate).

(fe) Chase v. Cox, Freem. 261 ; (o) Seymour v. Pickett, [1905] 1

Manning v. Westeme, 2 Vern. 606. K. B. 715 : 74 L. J. K. B. 418.

(Z) Bosanquet v. Wray, 6 Taunt. (p) Sammersley v. Knowlys, 2

597 : 16 R. R. 677. Esp. 666 : 5 R. E. 764 ; Qoddard

(m) Goddart v. Cox, 2 Str. 1194 ; v. Hodges, 1 Or. & M. 33 ; see Be

see 45 & 46 Vict. c. 75, h. 14. Harrison, 33 Ch. D. 52, 67.

(n) See Friend v. Towng, [1897] (q) Lamprell v. Billericay Union,

2 Ch. 421 : 66 L. J. Ch. 737, and 3 Exch. 307.

oases there collected. See also (r) Wright v. Laing, 3 B. & C.

Smith V. Betty, [1903] 2 K. B. 317 : 165, 171 : 27 R. R. 313.

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636

THE LAW OF CONTKACTS.

Entire
account.

Clayton'i
case.

knowledge, he cannot at once appropriate it to a statute-
barred debt ; the debtor must be given an opportunity of
electing how the money should be applied (s).

The rule which we have been considering is " that where
there are distinct accounts and a general payment, and no
appropriation made, at the time of such payment, by the
debtor, the creditor may apply such payment to which
account he pleases. But where the accounts are treated as
one entire account by all parties, that rule does not
apply "(0.

For instance, in the case of a current account between
banker and customer, as a rule, all the sums paid in form
one blended fund, the parts of which have no longer any
distinct existence ; the customer draws upon the entire fund.
In this case there is generally " no room for any other
appropriation than that which arises from the order in which
the receipts and payments take place and are carried to the
account. Presumably, it is the sum first paid in that is first
drawn out ; it is the first item on the debit side of the account
that is discharged or reduced by the first item of the credit
side ; the appropriation is made by the very act of setting
the two items against each other " (u).

This doctrine, with regard to current accounts, which is
known as a rule in Claytnn's case, has been often applied
in cases where a current account to which a partnership
firm is party, is continued without break, after a change
in the constitution of the firm. If such a change is effected
by a partner's death at a time when the firm is indebted
on such an account, and the account is continued as an
unbroken account between the new firm and the creditor,
payments by the new firm, when brought into the account,
usually discharge or reduce the liability of the deceased

(s) Waller v. Lacy, 1 Man. & B. E. 342.

Gr. 70. {u) Per Grant, M.E., Clayton's

{t) Per Bayley, J., Bodenham v. case, 1 Mer. 572, 608 : 15 R.

Purchas, 2 B. & Aid. 45 : 20 R, 161.

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THE LAW OF CONTRACTS. 637

partner's estate (,r). But an incoming partner is not liable
for the debts of the old firm in the absence of an express or
implied agreement by him to answer for them (t/).

The above doctrine, however, ought not to be applied
to defeat a creditor's right of appropriation, as already
explained, in cases where there is no current account between
the parties (2). Even in cases prima facie falling within
that doctrine, an account between the parties, however
kept and rendered, is not conclusive on the question of
appropriation; accounts rendered are evidence of the
appropriation of payments to earlier items, but that
evidence may be rebutted by other evidence to the con-
trary : each case must be decided according to its own
circumstances (a).

A person holding money as trustee mixes it with his own Following
money by paying it into his private current account with
his bankers ; he afterwards from time to time draws upon
the account, and makes payments into it, in the ordinary

manner. In favour of the cestui que trust seeking to follow
the trust money, the law presumes that, so far as the

trustee had money of his own to draw upon, he drew upon

that, and not upon the trust money (h).

Where both principal and interest are due, sums paid Interest.

on account are, as a rule, applicable first to interest ; but

this rule does not extend to interest which, by express or

implied agreement, has been added to and become part

of the principal debt (c).
Where a bill of exchange or promissory note has been Payment by

bill.

(a;) Clayton's case, supra; Hooper City Discount Co. v. MoLeam,, L. E.

V. Keay, 1 Q. B. D. 178. For 9 0. P. 692 ; Henmker v. Wigg, i

further illustrations, see Lindley on Q. B. 792.

Partnership. (6) BeSallett, 13 Ch. D. 696; see

(y) See 53 & 54 Vict. o. 39, s. 17 ; Ba/ncock v. Smith, 41 Ch. D. 456 ;

Bolfe V. Flower, L. B. 1 P. C. 27. Be Ballett, [1894] 2 Q. B. 237, 245 :

(2) The Mecca, [1897] A. 0. 286 : 63 L. J. Q. B. 573.

66 L. J. P. 86. (c) Parr's Bank v. Yates, [1898] 2

(a) Id., per Ld. Macnaghten ; see Q. B. 460 : 67 L. J. Q. B. 851.

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638 THE LAW OF CONTRACTS.

given by a debtor to his creditor, the question sometimes
arises, whether the giving of such instrument should be
considered as payment, and as operating to extinguish the
original debt : or merely as security for its payment, and as
postponing the period of payment until the bill or note
becomes due. Upon this subject the general rule was thus
laid down by Lord Langdale : — " The debt may be considered
as actually paid if the creditor, at the time of receiving the
note, has agreed to take it in payment of the debt, and to
take upon himself the risk of the note being paid ; or if,
from the conduct of the creditor, or the special circum-
stances of the case, such a payment is legally to be impHed.
But in the absence of any special circumstances throwing
the risk of the note upon the creditor, his receiving the note
in lieu of present payment of the debt is no more than
giving extended credit, postponing the demand for immediate
payment, or giving time for payment on a future day, in
consideration of receiving this species of security. Whilst
the time runs, payment cannot legally be enforced, but the
debt continues till payment is actually made ; and if pay-
ment be not made when the time has run out, payment of
the debt may be enforced as if the note had not been given.
If payment be made at or before the expiration of the
extended time allowed, it is then for the first time that the
debt is paid" {d).

[d] Bayer v. Wagstaff, 5 Beav. Q. B. 844; Bence v. Shearman,

415; Be Bomer, [1893] 2 Q. B. 286: [1898] 2 Ch. 582: 67 L. J. Ch. 513.

62 L. J. Q. B. 610 ; see Peacock v. See Felix, Hadley <£ Co. v. HadUy,

Purssel, 14 C. B. N. S. 728 ; Davis [1898] 2 Ch. 680 : 67 L, J. Oh. 649.
V. Beilly, [1898] 1 Q. B. 1 : 66 L. J.

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THE LAW OF CONTEAOTS.

639

Qui per alium facit per seipsum facere vidbtue. (Co.
Lift. 258 a.) — Hr iclio does an act through another is
deemed in law to do it himself.

This maxim enunciates the general doctrine on which General rule,
the law relative to the rights and liabilities of principal and
agent depends. It can, however, in this volume be but
briefly considered.

Where a contract is entered into with A. as agent for B.,
it is deemed, in contemplation of law, to be entered into
with B., and the principal is, in most cases, the proper
party to sue (e) or be sued for a breach of such contract —
the agent being viewed simply as the medium through
which it was effected (/) : Qui facit per alium facit per sc.

The following instances, which are of ordinary occurrence. Examples of
illustrate the rule, which, for certain purposes, identifies "^^ ^'
the agent with the principal : — Payment to an authorised payment to
agent {g), as an auctioneer, in the regular course of his ^S^^^-
employment Qi), is payment to his principal (i), and generally

(e) To entitle a person to sue upon
a contract it must be shown that he
himself made it, or that the contract
was made on his behalf by an agent
authorised to act for him at the time,
or whose act has been subsec[uently
ratified and adopted by him : Watson
V. Sioann, 11 C. B. N. S. 756. .

(/) Thus, in Dejpperman v. Hub-
bersty, 17 Q. B. 766, Coleridge, J.,
observed : " Here an avowed agent
of a principal sues another avowed
agent of the same principal ; and
the action must fail for want of
privity of contract between the two
parties to the suit." See Lee v.
Everest, 2 H. & N. 285, 291 ;
Coombs V. Bristol & Exeter B. Co.,
3 H. & N. 1.

((/) Bostock V. Htime, 8 Scott, N. K.
590.

{h) See Mews v, Carr, 1 H. & N.

484 ; Bell v. Balls, [1897] 1 Ch. 663 :
66 L. J. Oh. 397.

(i) Sykes v. Giles, 5 M. & W. 645 ;
approved in Williams v. Evans,
L. E. 1 Q. B. 352 (which shows
that an auctioneer has no authority
to receive payment by a bill of
exchange).

" The general rule of law is, that
where a creditor's agent is bound to
pay the whole amount over to the
principal, he must receive it in cash
from the debtor ; and that a person
who pays such agent, and who
wishes to be safe, must see that the
mode of payment does enable the
agent to perform this his duty ; "
per Bovill, G.J., Bridges v. Garrett,
L. R. 4 C. P. 587—588, and cases
there cited. See Catterall v. Hindle,
L. B. 2 C. P. 368 ; Stephens v. Bad-
coch, 3 B. & Ad. 354 : 37 B. B. 448 ;

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640 THE LAW OF CONTRACTS.

payment to an agent, if made in the ordinary course of
business, operates as payment to the principal (A), but such
payment, in the absence of a custom of trade to the contrary,
must be made in cash (l) ; if made by a bill, cheque, or
note, it may be a good payment if such bill is subsequently
honoured, or the cheque or note paid (vi).

In connection with the subject of payment it may here be
noticed that, where an agent has bought goods on credit
for his principal, a subsequent payment by the principal to
his own agent does not, as a rule, discharge the principal
from his liability to the seller for the price of the goods.
It is clear that if the seller knew, when the contract was
made, that the agent was acting for a principal, whether
disclosed or undisclosed, the subsequent payment by the
principal to his agent does not affect the seller, unless,
indeed, the payment was made in the belief that the seller's
claim had been already satisfied, and it was the seller's own
conduct that misled the principal into that belief («). It
has been held that, where the seller has given credit to the
agent as a principal in ignorance of the fact that there was
a principal behind him, a payment by the principal to the
agent may discharge the principal as against the seller (o) ;
but the correctness of this decision has been doubted (n) .
Tender. The receipt of money by an authorised agent will charge

the principal (p), and in like manner, a tender made to an
authorised agent will in law be regarded as made to the
principal. Thus, where the plaintiff directed his clerk,

cited, Arg., Wliyte v. Rose, 3 Q. B. (m) Bridges v. Oan-ett, L. E. 5

498; Parrott v. Anderson, 7 Exoh. 0.'P.4:56;per'B\a,okhxan,J., Williams

93. V. Evans, L. B. 1 Q. B. 852, 354.

{k) Williams v. Deacon, 4 Ex. (n) Irvine v. Watson, 5 Q. B. D.

397 ; Underwood v. NichoUs, 17 414 : 49 L. J. Q. B. 531 ; Davison

C. B. 239. V. Donaldson, 9 Q. B. D. 623.

(l) Barker v. Greenwood, 2 Y. & (o) Armstrong' v. Stokes, L. R. 7

G. (Ex. R.) 414, 419 ; Sweeting v. Q. B. 598 : 41 L. J. Q. B. 253.

Pearce, 9 C. B. N. S. 534 ; 30 L. J. (p) SeeThompsonv.Bell,10'E,xch.

0. P. 1C9. See Papi v. Westacott, 10.
[1894] 1 Q. B. 272 : 68 L. J. Q. B. 222,

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THE LAW OF CONXEACTS.

641

who was in the habit of receiving money for him, not to
receive certain money from his debtor if it should be offered
to him, and the clerk, in pursuance of these directions,
refused to receive the money when offered : upon the prin-
ciple qui facit per alium facit per se, the tender to the
servant was held to be a good tender to the master (5). Pay-
ment also by an agent as such is equivalent to payment by Payment by
the principal. Where, for example, a covenant was " to pay ^^®" "
or cause to be paid," it was held that the breach was suffi-
ciently assigned by stating that the defendant had not paid,
without saying, " or caused to be paid ; " for had the
defendant caused to be paid, he had paid, and, in such a
case, the payment might be pleaded in discharge (r). So
payment to an agent, if made in the ordinary course of
business, will operate as payment to the principal (s).

On the same principle, the delivery of goods to a carrier's Delivery of
servant is a delivery of them to the carrier (t), and the ^°° ^'
deUveryof a cheque to the agent of A. is a delivery to A. (»)•
Railway companies, moreover, are not to be placed in a
different condition from all other carriers. They will be
bound in the course of their business as carriers by the
contract of the agent whom they put forward as having
the management of that branch of their business. So that,
where it appeared from the evidence, that certain goods
were undoubtedly received by a railway company, for
transmission on some contract or other, and that the only

(2) Moffat V. Parsons, 5 Taunt. 28 E. E. 226; Q. W. B. Co. v.

307 : 15 E. E. 506. Goodman, 12 0. B. 313. Moreover,

(r) Gyse v. Ellis, 1 Stra. 228. a deUvery to the carrier may be in

(s) See Williams v. Deacon, i law a delivery to the consignee ; see

Exch. 397; Kayey. Brett, 5 Exoh. the above oases, and Dunlop v..

269 ; Pa/rrott v. Anderson, 7 Exch. Lambert, 6 01. & F. 600. But an

93 ; and cases cited ante, p. 639. acceptance by the carrier is not an

(t) Dawes v. Peck, 8 T. E. 330 : acceptance by the consignee ; per

i E. E. 675 ; Brown v. Hodgson, Parke, B., Johnson v. Dodgson, 2

2 Camp. 36 ; per Ld. EUenborough, M. & W. 656.
Griffin v. Langfield, 3 Camp. 254 ; («) Samuel v. Green, 10 Q. B,

Fragano v. Long, 4 B. & 0. 219: 262.

L.M.

41
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(342 THE LAW OF CONTRACTS.

person spoken to respecting such transmission was the
party stationed to receive and weigh the goods; it was
held that this party must have an impHed authority to
contract for sending goods, and that the company were
consequently bound by that contract (x). It has been held,
that the stationmaster of a railway company has not,
though the general manager of the company has (2/), impUed
authority to bind the company by a contract for surgical
attendance on an injured passenger (z).
Agent for sale When an agent for the sale of goods contracts in his
own name, and as a prindpal, the general rule is, that
an action may be maintained, either in the name of the
party by whom the contract was made, and privy to it, or
of the party on whose behalf and for whose benefit it was
made (a). Even when the agent is a factor, receiving a
del credere commission, the principal may, at any period
after the contract of sale, demand payment to himself of
the sum agreed on, unless such payment has previously
been made to the factor, in due course, and according to the
terms of the contract Qj). The following rules, respecting
the liability of parties on a contract to buy goods, are
likewise illustrative of the doctrine under consideration,

(x) Pichford v. Grand Junction Poole, 1 Cr. JM. & R. 413; per Ld.

B. Co., 12 M. & W. 766 ; Heald v. Abinger, 5 M. & W. 650 ; Garrett v.

Carey, 11 C. B. 977. Handley, 4 B. & C. 656 : 27 B. R.

(y) Walker v. O. W. B. Co., L. R. 405 ; distinguished in Agacio v.

2 Ex. 228. Forbes, 14 Moo. P. C. C. 160, 170,

(s) Cox V. Midland Counties B. 171 ; see Bamasotti v. Bmoring, 7

Co. , 3 Excii. 268. See ^\^alher v. O. C. B. N. S. 851 ; Ferrand v. Bis-

W. B. Co., L. R. 2 Ex. 228 ; cJioffsheim, 4 Id. 710 ; Biggins v.

Poulton V. L. (& S. W. B. Co., L. B. Senioi; 8 M. & W. 844.

2 Q. B. 534. (6) Hornby v. Lacy, 6 BI. & S.

(a) Per Bayley, J., Sargent v. 172: 18 B. R. 345; Morris v.

Morris, 3 B. & Aid. 280 : 22 R. R. Cleasby, 4 M. & S. 566, 574 : 16

382 ; Sims v. Bond, 5 B. & Ad. 393 : R. R. 544 ; Sadler v. Leigh, 4

39 R. B. 511 ; Duke of Norfolk v. Camp. 195 ; Grove v. Diibois, 1

Worthy, 1 Camp. 337 : 10 R. E. T. B. 112 ; 16 R. B. 664, n. ;

749 ; Cothay v. Fennell, 10 B. & C. Scrimshire v. Alderton, 2 Stra. 1182.
672 : 34 R. B. 541 ; Bastable v.

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THE LAW OF CONTRACTS. 643

and are here briefly stated on account of their general
importance : — 1st, an agent, contracting as principal, is
liable in that character ; and if the real principal was known
to the seller at the time when the contract was entered into
by the agent, dealing in his own name, and credit is after-
wards given to such agent, the latter only can be sued on
the contract (c) ; 2ndly, if the principal be unknown at the
time of contracting, whether the agent represent himself as
such or not, the seller may, within a reasonable time after
discovering the principal, debit either at his election (d).
But, 3rdly, if a person act as agent without authority, no
one but he himself can be liable; and if he exceed his
authority, the principal is not bound by acts done beyond
the scope of his legitimate authority (e). If A. employ B.
to work for C, without warrant from C, A. alone can be
liable to pay for the work done (/), and C. is not liable
merely because B. believed A. to be in truth the agent of
C. ; for, in order to charge C, there must be proof of a
contract with him, either express or implied, and with him

(c) Paterson v. Gmidasegiii, 15 throp, 2 M. it V^. 863 ; Fenn w
East, 62 ; 13 B. B. 368 ; Addison v. Earrison, 3 T. B. 757 ; Polhill v.
Gandasequi, 4:Ta.xmt. 574: 13 E. E. Walter, 3 B. & Ad. 114: 37 E. E.
689 ; FranUyn v. Lamcmd, i C. B. 344 ; per Ld. Abinger, C.B., Aceij v.
637. See Smith v. SUap, 12 M. & Fernie, 7 M. & W. 154 ; Davidson v.
W. 585 588. Stanley, 8 Scott, N. E. 49 ; Harper

(d) Thomson v. Davenport, 9 B. ^. Williams, i Q. B. 219. See
& C. 78 : 32 E. E. 578 ; cited per Doionman v. Williams, 7 Q. B. 103
Martin, B., Barber v. Pott, 4 H. & (where the (juestion was as to the
N. 767 ; Smethurst v. Mitchell, 1 E. construction of a written undertak-
& E. 622, 631 ; Heald v. Eenworthy, ing) ; Cooke v. Wilson, 1 G. B. N. S.
lOExch.734; Bisbourg v. Bruckner, 153; Gillettv. Offor, 18 C. B. 905
3 C B N S 812; per Park, J,, Green v. Kopke, Id. 549 ; Parker v.
Bobinsm v. Gleadow, 2 Bing. N. 0. Winknv, 7 E. & B. 942, 949 ; Wake
161 162 ■ Paterson v. GoMdasegui, v. Harrop, 1 H. & 0. 202 ; S. C, 6
suma ■ WiUon v. Hart, 7 Taunt. H. & N. 768 ; OgUsby v. Yglesias,
295; HiggiMsv. Senior,?, U. & W. E. B. & E. 930; Williamson v.
834 ; Humfrey v. Dale, 7 B. & B. Barton, 7 H. & N. 899.

266 ; S. C, E. B. & E. 1004. (/) Per Ld. Holt, C.J., Ashton v.

(e) Woodiny. Burford, 2 Or. & M. Sherman, Holt, 309 ; cited 2 M. &
391 : 39 E. E. 802 ; Wilson v. Bar- W. 218.

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644 THE LAW OF CONTRACTS.

in the character of a principal, directly, or through the
intervention of an agent (g).
Liability for The question what is the liability of a person who

acting as i i i • ,. i

agent with- professes to contract as an agent, when he has m fact
ou au on y. ^^ authority to make the contract, has been frequently

discussed, and the result of the discussion appears to be as

follows : —

1. He is not liable, as a rule, upon the contract itself as
a party to it, for he professes to bind not himself, but
another (/i). To this rule, however, there appears to be an
exception in certain cases where a person contracts as agent
for a non-existent principal. For where goods were ordered
on behalf of a company which had not been formed at the
date of the order, and were supplied pursuant to the order,
and subsequently consumed in the company's business, it
was held that the person who gave the order was personally
liable upon the contract for the price of the goods (i).

2. Although he be not personally liable on the contract,
yet a person who professes to contract as agent when he
in fact has no authority, usually incurs a liability. If he
knows that he has no authority, but induces a person to
contract on the faith of his representation that he has
authority, he is liable for the damage resulting from his
fraud, in an action of deceit (fc). And even if he represent
himself as an agent innocently, in the mistaken belief that
he is such, he is generally liable, in damages, for the breach
of his warranty of authority. By professing to contract
as agent, a person usually warrants his authority, either
expressly or impliedly, and it is a good consideration for
the warranty that the contract is entered into on the faith
of it {I). The measure of damages is, as a rule, the actual

(g) Thomas v. Edwards, 2 M. & 174, where the maxim, ut res magis

W. 215. valeat guam pereat, was applied.

(h) Jenkins v. Hutchinson, 13 {k) Polhill v. Walter, 3 B. & Ad.

Q. B. 744 ; Lewis v. Nicholson, 18 114 : 37 R. K. 344.

Id. 503. (i!) Collen v. Wright, 8 E. & B.

(i) Kelner v. Baxter, L. R. 2 0. P. 647, 658 ; Chen-y v. Colonial Bank

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THE LAW OF CONTRACTS. 645

loss sustained by the plaintiff in consequence of his not
having the benefit of the contract warranted (m) ; and costs
reasonably incurred in attempting to enforce the contract
against the supposed principal are recoverable {n).

3. It is open, however, to a person who professes to contract
as agent to stipulate expressly that he does not warrant
his authority (o), and such a stipulation may be inferred by
necessary implication (p), or from usage of trade {q). It
seems that no warranty of authority will be implied in
cases where a public servant purports to contract on behalf
of the Crown (r).

4. A person who continues to act as agent, in ignorance
that his authority has been determined by his principal's
death or lunacy, may be liable as having impliedly
warranted the continuance of his authority (s).

On the maxim, qui facit per alimn facit per se, depends Liability of
also the liability of persons in partnership for the acts of a
member of the firm. The law of partnership, as it stood at
common law, was frequently stated to be a branch of the
law of principal and agent (t) ; and that doctrine is expressly
recognised by the Partnership Act, 1890 (u), which declared
and amended the law of partnership. Every partner is an

of Australasia, L. B. 3 P. C. 24; (g) LilhjY, SmaUs, [1892] 1 Q. B.

West London Commercial Bank v. 456.

Kitson, 13 Q. B. D. 360. See also (r) Dunn v. Macdonald, [1897] 1

Firbank's Executors v. Humphreys, Q. B. 401, 555 : 66 L. J. Q. B. 420.
18 Q. B. D. 54, 60: 56 L. J. Q. B. (s) See Tonge v. Toynbee, [1910]

57 ; Starhey v. Bank of England, 1 K. B. 215 : 79 L. J. K. B. 208,

[1903] A. 0. 114 : 72 L. J". Ch. 402 ; which seems in effect to overrule

Yonge v. Toynbee, [1910] 1 K. B. 215. Smout v. Ilbei-y, 10 M. & W. 1, and

(m) Simons V. Patchett, TE,. k'B. Saltan v. New Beeston Cycle Co.,

568 ; Meek v. Wendt, 21 Q. B. D. [1900] 1 Ch. 43 : 68 L. J. Ch. 370.

126 : W. N. 1889, 4. But see 44 & 45 Vict. c. 41, b. 47, as

(n) Collen v. Wright, supra ; to agents acting under a power of

Richardson v. Dunn, 8 C. B. N. S. attorney.
g55_ it) See per Abbott, C.J., 2 B. &

(o) Balbot V. Lens, [1901] 1 Ch. Aid. 678 ; per Ld. Wensleydale, 6

344 : 70 L. J. Oh. 125. H. L. Cas. 417, 418 : 8 Id. 304, 312.

(p) Srmmt v. Ilbery, 10 M. & W. («) 53 & 54 Vict. o. 39.

1,12.

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646

THE LAW OF CONTBACTS.

General
remarks as
to agency.

agent of the iirm, and his other partners, for the purpose
of the business of the partnership, and the acts of every
partner, who does any act for carrying on in the usual way
business of the kind carried on by the firm, bind the firm
and his partners, unless the partner has in fact no authority
to act for the firm in the particular matter, and the person
with whom he deals either knows that he has no authority,
or does not know or believe him to be a partner (x). And
where, by any wrongful act or omission of any partner
acting in the ordinary course of the business of the firm, or
with the authority of his co-partners, loss or injury is caused
to strangers, the firm is liable therefor to the same extent
as the partner (y). Again, the firm is liable to make good
the loss where one partner, acting within the scope of his
apparent authority, receives money or property of a third
person and misapplies it ; or where the firm in the course
of its business receives such money or property and it is
misapplied by a partner while it is in the firm's custody (z).

These rules are well illustrated by the decision in Marsh
V. Keating (a). There a partner in a firm of bankers caused
a customer's stock in the firm's custody to be sold under a
forged power of attorney ; the proceeds, having been paid
into the firm's account with their agent, were drawn out by
the partner by means of a cheque signed in the firm's
name (h), and were then appropriated by him for his own
private purposes. The other partners were ignorant of
these transactions, but it was held that the customer was
entitled to adopt the sale, and sue the firm for the proceeds,
as money had and received.

Without entering at length upon the subject of partner-
ship liabilities incurred through the act of a member of the
firm, we may observe, that wherever a contract is alleged
to have been made through the medium of a third person.

{x) S. 5.

(y) s. 10.

{z) S, 11.

(a) 2 01. & P. 250.
(6) See s. 6,

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way com-

THE LAW OF CONTRACTS. G47

whether a co-partner or not, the real and substantial
question is, with whom was the contract made? and, to
answer this question, the jury usually have to consider
whether the party through whose instrumentality the
contract is alleged to have been made, had in fact authority
to make it. " It would," however, " be very dangerous to
hold," as matter of law, " that a person who allows an
agent to act as a principal in carrying on a business, and
invests him with an apparent authority to enter into
contracts incidental to it, could limit that authority by a
secret reservation " (c).

Where an action is brought by a creditor against a Application

1 I- ii • • • 1 • . . I. °^ maxim to

member of the managmg or provisional committee of a committee-
railway company, the question of liability ordinarily
resolves itself into the consideration, whether the defendant pa>iies.
did or did not authorise the particular contract upon which
he is sued. In Barnett v. Lambert (d) the defendant Bamett v.
consented, by his letter to the secretary of a railway
company, that his name should be placed on the list of
its provisional committee. His name was accordingly
published as a provisional committee-man, and on one
occasion he attended and acted as chairman at a meeting
of the committee. It was held that he was liable for the
price of stationery supplied on the secretary's order and
used by the committee, after the date of his letter — the
question for decision being one of fact, and matter of
inference for the jury, to be drawn from the defendant's
conduct, as showing that he had constituted the secretary
his agent to pledge his credit " for all such things as were
necessary for the working of the committee, and to enable

(c) Per Melior, J., Edmunds v. {d) 15 M. & W. 489, where Todd

Bmhell, L. B. 1 C. P. 97, 100. See v. E7nly, 8 M. & W. 5,05 ; FUmyng v.

Watteau v. Fenwick, [1893] 1 Q. B. Hector, 2 M. & W. 172 ; and Tredwen

34; Howard v. Sheward, L. E. 2 v. Bourne, 6 M. & W. 461, were

C. P. 148 ; Baines v. Swing, L. E. 1 cited,
Ex. 320.

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648

THE LAW OF CONTRACTS.

Beynell v.
Lewis.

With whom
was contract
made,

ic to go on." "Where," observed Alderson, B., "a sub-
scription has been made, and there is a fund, it is not
so ; because if you give money to a person to buy certain
things with, the natural inference is that you do not mean
him to pledge your credit for them " (e).

In Beynell v. Leivis and Wylcle v. Hop/cms (/), decided
shortly after Barnett v. Lambert, the Court of Exchequer
laid down the principles applicable to such cases ; and
it may probably be better to give the substance of this
judgment at some length, as it affords important practical
illustrations of that maxim, " which," in the words of
Tindal, C.J. (^), "is of almost universal application:" qui
facit per alium facit per se.

" The question," observed the Court, " in all cases in
which the plaintiff seeks to fix the defendant with liability
upon a contract, express or imphed, is, whether such
contract was made by the defendant, by himself or his
agent, with the plaintiff or his agent, and this is a question
of fact for the decision of the jury upon the evidence before
them. The plaintiff, on whom the burthen of proof lies
in all these cases, must, in order to recover against the
defendant, show that the defendant contracted expressly
or imp)liedly ; expressly, by making a contract with the
plaintiff; impliedly, by giving an order to him under such
circumstances as show that it was not to be gratuitously
executed: and, if the contract was not made by the
defendant personally, it must be proved that it was made
by an agent of the defendant properly authorised Qi), and
that it was made as his contract. In these cases of actions
against provisional committee-men of railways, it often
happens that the contract is made by a third person, and

(e) Biggins v. Hopkins, 3 Exoh.
163 ; Burnside v. Dayrell, Id. 224.

(/) 15M.&W.517; CoUingwood
V. Berkeley, 15 0. B. N. S. 145;
Cross V. Williams, 7 H. & N. 675 ;

Barker v. Stead, 16 L. J. C. P
160.

(fif) 8 Scott, N. R. 830.

(h) See Cooke v. Tonkin, 9 Q. B.
936.

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THE LAW OF CONTRACTS. 649

the point to be decided is, whether that third person was
an agent for the defendant for the purpose of making it,
and made the contract as such (i). The agency may be Agency, how
constituted by an express Umited authority to make such
a contract, or a larger authority to make all falling within
the class or description to which it belongs, or a general
authority to make any ; or it may be proved by showing
that such a relation existed between the parties as by law
would create the authority, as, for instance, that of partners,
by which relation, when complete, one becomes by law the
agent of the other for all purposes necessary for carrying
on their particular partnership, whether general or special,
or usually belonging to it ; or the relation of husband and
wife, in which the law, under certain circumstances, con-
siders the husband to make his wife an agent. In all
these cases, if the agent in making the contract acts on
that authority, the principal is bound by the contract, and
the agent's contract is his contract, but not otherwise.
This agency may be created by the immediate act of the
party, that is, by really giving the authority to the agent,
or representing to him that he is to have it, or by consti-
tuting that relation to which the law attaches agency; or
it may be created by the representation of the defendant
to the plaintiff that the party making the contract is the
agent of the defendant, or that such relation exists as to
constitute him such ; and if the plaintiff really makes the
contract on the faith of the defendant's representation,
the defendant is bound — he is estopped from disputing the
truth of it with respect to that contract ; and the repre-
sentation of an authority is quoad hoc, precisely the same
as a real authority given by the defendant to the supposed
agent. This representation may be made directly to the
plaintiff, or made publicly, so that it may be inferred to
have reached him : and may be made by words and

(i) SeeBileyv. PacTcington,lj.B,. 17 0. B. N. S. 829; Btir,
2 C. P. 536 ; Maddick v. Marshall, Morris, 3 H. & C. 66.

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650 THE LAW OF CONTRACTS.

conduct. Upon none of these propositions is there, we
apprehend, the slightest doubt, and the proper decision
of all these questions depends upon the proper application
of these principles to the facts of each case, and the jury
are to apply the rule with due assistance from the judge."
In the course of the judgment from which we have made
so long an extract, the Court further observed, that an
agreement to be a provisional committee-man is merely
an agreement for carrying into effect the preliminary
arrangements for petitioning Parliament for a bill, and
thus promoting the scheme, but constitutes no agreement
to share in profit or loss, which is the characteristic of a
partnership, although if the provisional committee-man
subsequently acts he will be responsible for his acts. They
likewise remarked, that where the list of the provisional
committee has appeared in a prospectus, published with
the defendant's consent, knowledge, or sanction, the context
of such prospectus must be examined, to see whether or
not it contains any statement affecting his liability, as, for
instance, the names of a managing committee, in which
case it will be a question whether the meaning be that the
acting committee shall take the whole management of the
concern, to the exclusion of the provisional committee, or
that the provisional committee-men have appointed the
acting committee, or the majority of it, as their agents (/,).
In this latter case, moreover, it must further be considered
whether the managing and delegated body is authorised
to pledge the credit of the provisional committee, or is
merely empowered to apply the funds subscribed to the
liquidation of expenses incurred in the formation and
carrying out of the concern (l).

{k) See Judgm., 15 M. & W. 530, Exoh. 292. See, also, as to the

531 ; Wilson v. Viscmmt Curzon, Id. liability of a provisional committee-

532; MHia»isv.Pi(/o«, 2 Exoh. 201. man, Patrick v. Beynolds, 1 C. B.

(I) Dawson v. Morrison, 16 L. J. N. S. 727 ; or member of a com-

C. P. 240 ; Eennie v. Clarke, 5 mittee of visitors, Moffatt v. Dickson,

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THE LAW OF CONTKACTS.

651

The authority of the master of a ship is very large. Master of
Under the general authority which he has, " he may make
contracts and do all things necessary for the due and
proper prosecution of the voyage in which the ship is
engaged. But this authority does not usually extend to
cases where the owner can himself personally interfere, as
in the home port, or in a port in which he has beforehand
appointed an agent who can personally interfere to do the
thing required" (m). He may make contracts to carry
goods on freight, but cannot bind his owners by a contract
to carry freight free. With regard also to goods put on
board the ship, the master may sign a bill of lading, and
acknowledge thereby the condition of the goods ; but
his authority to give bills of lading is limited to such goods
as have been put on board (n).

A wife, from the mere fact of marriage, has no Agency of
authority to pledge her husband's credit, except in the
particular case of necessity ; this necessity arises when the
wife is Hving apart from the husband, through his fault,
and is not properly provided for, but not, as a rule, when
they are living together (o).

The question whether a wife has authority to pledge
her husband's credit, while they live together, is a question
of fact, to be determined upon all the circumstances of the
particular case. The ordinary state of cohabitation between

13 C. B. 543 ; Kendall v. King, 17 Ex. 267 ; Valieri v. Boyland, L. R.

Id. 483, 508. As to the authority of 1 0. P. 382 ; Barker v. Highley, 15

a resident agent, or the directors of C. B. N. S. 27. Of. Compania Nav.

a mining company, to borrow money Vasconzada v. Churchill <& Sim,

on the credit of the company, see [1906] 1 K. B. 237 : 75 L. J. K. B.

Eicketts v. Bennett, 4 C. B. 686, and 94. See, further, as to the autho-

cases there cited; Burmester v. rityof the master, or ship's husband,

Norris, 6 Exoh. 796. to pledge the owner's credit. The

(m) Arthur v. Barton, 6 M. & W. Gi-eat Eastern, L. B. 2 A. & E. 88 ;

188 ; Gunn v, Boherts, L. K. 9 C. P. The Karnah, L. E. 2 P. 0. 505.
331 : 43 L. J. C. P. 233. (o) Debenham v. Mellon, 6 App.

(n) Grant v. Norway, 10 C. B. Gas. 24 : 50 L. J. Q. B. 155 ; Manby

665, 687 ; Hubbersty v. Ward, 8 v. Scott, 1 Siderf. 109 : 2 Smith,

Exch. 330 ; Jessel v. Bath, L. K. 2 L. 0.

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652 THE LAW OF CONTRACTS.

husband and wife gives rise to a presumption of an authority
in the wife to do things which, in the ordinary circum-
stances of cohabitation, it is usual in a wife to do. This
presumption can be rebutted ; but, since the management
of certain departments of the household expenditure is
usually entrusted to the wife, it may be presumed, until the
contrary be shown, that she has authority to pledge her
husband's credit in respect of necessaries, falling within
those departments, and suitable to his station in life and
style of living (o).
Sheriff. To the general principle under consideration may also be

referred the decisions which establish that the sheriff is
liable for an illegal or fraudulent act committed by his
bailiff, even if he were not personally cognisant of the
transaction (jj) ; and such decisions are peculiarly illustrative
of this principle, because there is a distinction to be noticed
between the ordinary cases and those in which the illegal
act is done under such circumstances as constitute the
wrong-doer the special bailiff of the party at whose suit
process is executed ; for, where the plaintiff's attorney
requested of the sheriff a particular officer, delivered the
warrant to that officer, took him in his carriage to the
scene of action, and there encouraged an illegal arrest, it
was held that the sheriff was not liable for a subsequent
escape (q). Nor will the sheriff be liable if the wrong
complained of be neither expressly sanctioned by him, nor
impliedly committed by his authority ; as, where the bailiff

(o) See note (o) on p. 651. Price, 5Y8 ; Jarmain v. Hooper, 7

(p) Per Ashhurst, J., Woodgate v, Soott, N. R. 663 ; Morris v. Salberg,

Knatchhull, 2 T. E. 148, 154 : 1 22 Q. B. D. 614.
R. R. 449 ; Gregory v. Cotterell, 5 (g) Doe v. Trye, 5 Bing. N. C,

E. & B. 571 ; Raphael v. Ooodman, 573 ; Ford y. Leche 6 A. & E. 699

8 A. & E. 565 ; Sturmy v. Smith, Wright v. Child, L. E. 1 Ex. 358

11 East, 25 ; Price v. Peek, 1 Bing. Alderson v. Davenport, 13 M. & W.

N. 0. 380 ; Crowder v. Long, 8 B. 42 ; per Buller, J., De Moranda v

& C. 602 ; Smart v. Sutton, 8 A. & Dunkin, 4 T. R. 121 ; Botten v

E. 568, n. See Peshall v. Layton, Tomlinson, 16 L. J. C. P. 138
2 T. E. 712 ; Thomas v. Pearse, 5

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THE LAW OF CONTRACTS. 653

derived his authority, not from the sheriff, but from the
plaintiff, at whose instigation he acted (r) ; and it is not
competent to one whose act produces the misconduct of the
bailiff, to say, that the act of the officer done in breach of
his duty to the sheriff, and which he has himself induced,
is the act of the sheriff (s) .

But, notwithstanding the almost universal applicability Exceptions
of the maxim under consideration, cases may occur in
which, by reason of express provisions of a statute, it will
not apply. Thus it was held that, under the 9 Geo. 4,
c. 14, s. 1, an acknowledgment signed by the debtor's agent
did not revive a debt barred by the 21 Jac. 1, c. 16 (t).
But the law upon this point was altered by the 19 & 20
Vict. c. 97, s. 13.

Before terminating our remarks as to the legal con- Delegated
sequences which flow from the relation of principal and
agent in transactions founded upon contract, we may briefly
refer to a kindred principle which limits the operation of
the maxim qui facit per alium facit per se. This principle
is, that a delegated authority cannot be re-delegated :
delegata potestas non potest delcgari (y) ; or, as it is other-
wise expressed, vicariiis non habet vicariiim (z) — one agent
cannot lawfully appoint another to perform the duties of
his agency (a). This rule applies wherever the authority
involves a trust or discretion in the agent for the exercise of

(r) Cooky. Palmer, 6 B. & 0. 39; {y) 2 Inst. 597; Arg., Fector v.

Crowder v. Long, 8 B. & 0. 598 ; Beacon, 5 Bing. N. C. 310.

Tompkvnsony. Russell, 9 Price, 287 ; («) Branch, Max., 5th ed. 380.

Bowden v. Waithmwn, 5 Moore, 183 ; (a) See per Ld. Denman, Cohh v.

Stuart V. Whittaker, B. & M. 310 ; Beche, 6 Q. B. 936 ; Combe's case, 9

Biggins v. M'Adam, 3 Y. & J. 1. Eep. 75 ; Owilliam v. Twist, [1895]

(s) Per Bayley, J., 8 B. & 0. 603, 2 Q. B. 84. See Beg. v. Newmarket

604. B. Co., 15 Q. B. 702 ; Beg. v. Dul-

(t) Hyde v. Johnson, 2 Bing. N. C. wich College, 17 Q. B. 600, 615,

776. See, also, Toms v. Cuming, 8 where Ld. Camptell incidentally

Scott, N. E. 910 ; Cuming v. Toms, observes that " the Crown cannot

Id. 827 ; Dames v. Hopkins, 3 0. B. enable a man to appoint magis-

N. S. 376. trates."

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654 THE LAW OF CONTEACTS.

which he is selected ; but does not apply where it involves
no matter of discretion, and it is immaterial whether the
act be done by one person or another, and the original
agent remains responsible to the principal (b). Thus, a
principal employs a broker from the opinion which he has
of his personal skill and integrity ; and the broker has no
right, without notice, to turn his principal over to another ;
and, therefore, a broker cannot, without authority from
his principal, transfer consignments made to him, in his
character of broker, to another broker for sale (c). On the
same principle, where an Act for building a bridge required
that any notice to be given by the trustees appointed under
the Act should be signed by three of the trustees, it was
held, that a notice, signed with the names of the clerks to
the trustees, but signed, in fact, not by such clerks, but by
a clerk employed by them, was insufficient, as being an
attempt to substitute for a deputy his deputy (d). But
where the act is purely ministerial, as for example, the
signing of a name, the discretionary part of the agency
having been exercised by the proper party to whom it was
entrusted, it may in general be delegated to and performed
by the hand of another (c) ; and an agent can employ
another in respect of such acts as are usually, and
in the ordinary course of the business for which the
agent is employed, done by others (/), or which the
agent must necessarily do through the agency of other
persons (g).

(b) See Leake ou Contracts, pp. 167; Henderson y. Barmvall, 1 Yo.
482—483, and Hemming v. Hale, 7 & J. 387 : 30 B. E. 799.

C. B. N. S. 498 ; see as slightly (d) Miles v. Bough, 8 Q. B. 845 ;

bearing on the question, Johnson v. cited, Arg., Allan v. Waterhotise, 8

BatjUon, 7 Q. B. D. 438 : 50 L. J. Scott, N. E. 68, 76.

Q. B. 753. (e) Leake on Contracts, p. 483 ;

(c) Cockran v. Irlam, 2 M. & S. Johnson y. Osenton,'L.'R. i 'Ex, 107 :
301, n. (a): 15 E. E. 257; Solly v. 38 L. J. Ex. 76.

Bathbone, 2 M. & S. 298 ; Catlin v. {/) Leake on Contracts, 483 ; Ex

Bell, 4 Camp. 183 ; Schmaling v. p. Sutton, 2 Cox, Eq. Oas. 84.

Thomlinson, 6 Taunt. 147 ; Coles (g) Bossiter v. Trafalgar Life Ass.

V. Trecothick, 9 Ves. 251 : 7 E. E. Association, 27 Beav. 377.

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655

It may, likewise, be well to observe, that delegated juris-
diction, as distinguished from proper jurisdiction, is that
which is communicated by a judge to some other person,
who acts in his name, and is called a deputy; and this
jurisdiction is, in law, held to be that of the judge who
appoints the deputy, and not of the deputy ; and in this
case the maxim holds, delegatus non potest delegare : the
person to whom any office or duty is delegated — for example,
an arbitrator — cannot lawfully devolve the duty on another,
unless he be expressly authorised so to do (/«). Nor can an
individual, clothed with judicial functions, delegate the
discharge of those functions to another, unless as in the
case of a County Court judge, he be expressly empowered
to do so (i). For the ordinary rule is that although a
ministerial officer may appoint a deputy, a judicial officer
cannot (k) .

A magistrate, as observed by Lord Camden, can have no
assistant nor deputy to execute any part of his employment.
" The right is personal to himself, and a trust that he can
no more delegate to another, than a justice of the peace
can transfer his commission to his clerk " (l).

Although, however, a deputy cannot, according to the ^^^^ j^,^
above rule, transfer his entire powers to another, yet a qualified,
deputy possessing general powers may, in many cases,
constitute another person his servant or bailiff, for the
purpose of doing some particular act ; provided, of course,

{h) See Bell, Diet, and Dig. of 165; Smeeton v. Collier, 1 Exoh.

Scotch Law, 280, 281, 292 ; Whit- 457 ; Sharp v. Noiuell, 6 0. B. 253.

■more v. Smith, 7 H. & N. 509 ; cited (i) 51 & 52 Vict. c. 43, ss. 18—

in Thorburn v. Barnes, L. E. 2 0. P. 21. See Bex v. Lloyd, [1906], 1

384, 404 ; Little v. Newton, 2 Scott, K. B. 22 : 75 L. J. K. B. 126.

N. R. 509; Beg. v. Jones, 10 A. & E. (k) See per Parlie, B., Walsh v.

576 ; Bughes v. Jones, 1 B. & Ad. 388 ; Southivorth, 6 Exoh. 150, 156 ;

Wilson V. Thorpe, 6 M. & W. 721 ; which illustrates the former part of

Arg., 5 Bing. N. 0. 310; White v. the rtde stated sitpra. See Baker -v.

Sharpe, 12 M. & W. 712 ; Butter v. Cave, 1 H. & N. 674.

Chapman, 8 M. & W. 1. See The (I) Entick v. Carrington, 19

case of the Masters' Clerks, 1 PhiU. HoweU, St, Trials, 1063.
650. See also Beg. v. Perkin, 7 Q. B.

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THE LAW OF CONTEACTS.

that such act be -within the scope of his own legitimate
authority. For instance, the steward of a manor, with
power to make a deputy, made B. his deputy, and B., by
writing under his hand and seal, made C. his deputy, to
the intent that he might take a surrender of G., of copy-
hold lands. It was held, that the surrender taken by C.
was a good surrender (m), and Lord Holt, insisting upon
the distinction above pointed out, compared the case before
him to that of an under-sheriff, who has power to make
bailiffs and to send process all over the kingdom, and that
only by virtue of his deputation (n).

The rule as to delegated functions must, moreover, be
understood with this necessary qualification, that, in the
particular case, no power to re-delegate such functions has
been given (o). Such an authority to employ a deputy
may be either express or implied by the recognised usage
of trade; as in the case of an architect or builder, who
employs a surveyor to make out the quantities of the
building proposed to be erected ; in which case the maxim
of the civil law applies, in contractis tacite insunt qum sunt
maris et consueUidinis (p) — terms which are in accordance
with and warranted by custom and usage may, in some
cases, be tacitly imported into contracts {q).

Respective
liability of
master and
servant.

Respondeat Supeeiob. (4 Inst. 114.) — Let the principal
he held responsible.

The doctrine enunciated in this maxim has been carried
in English law very far, and in the opinion of a learned
judge, quite as far as it should be (r). It is more usually

(m) Parker v. Kett, 1 Ld. Baym.
658, cited in Bridges v. Garrett,
L. B. 4 0. P. 591.

(n) 1 Ld. Baym. 659 ; Leak v.
Howell, Oro. Eliz. 533.

(o) See 2 Prest. Abs. Tit. 276.

(V) 3 Bing. N. C. 814, 818.

(2) De Bussche v. Alt, 8 Ch. D.
286, 310.

(r) Per Jessel, M.B., Smith v.
Keal, 9 Q. B. D. 840, 351 : 51 L. J.
Q. B, 487.

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THE LAW OF CONTRACTS. 657

and appropriately applied to actions ex delicto, than to such
as are founded in contract. Where, for instance, an agent
commits a tortious act, under the direction or with the
assent of his principal, each is liable at suit of the party
injured : the agent is liable, because the authority of the
principal cannot justify his wrongful act ; and the person
who directs the act to be done is likewise liable, according
to the maxim, respondeat superior (s). "If the servant
commit a trespass by the command or encouragement of
his master, the master shall be guilty of it, though the
servant is not thereby excused, for he is only to obey his
master ia matters that are honest and lawful " (t) ; and
" all persons directly concerned in the commission of a
fraud are to be treated as principals " (u).

It is well established that a person who has employed Employment
another to do an act is responsible for the act if it be in fulaot."
itself unlawful, and it is immaterial that he employed, not
a servant, but an independent contractor. A company
which apparently had no right to break up a street employed
a contractor to break it up, lay pipes in it, and re-instate
its surface ; the contractor's servants did not re-instate the
surface properly, but left a heap of stones in the street : it
was held that the company were liable for damage caused
by the nuisance (x). Again, "if I agree with a builder to
build me a house according to a certain plan, he would be

(s) 4 Inst. 114 ; Sands v. Child, executor, cannot be treated as exe-

3 Lev. 352 ; Jones v. Hart, 1 Ld. cutor de son tort, whether the will

Baym. 738 ; Britton v. Cole, 1 Salk. has been proved or not ; Sykes v.

408 ; Gauntlett v. King, 3 0. B. N. S. Sykes, L. B. 5 0. P. 113.

59; per Littledale, J., Laugher v. (i) IBlac. Com. 429; ^er Piatt, B.,

Pointer 5 B. & C. 559 : 29 B. B. Stevens v. Midland Counties B. Co.,

319 ; Perkins v. Smith, 1 Wils. 328 ; 10 Exch. 356 ; Eastern Counties

cited, 1 Bing. N. 0. 418 ; Stephens v. B. Co. v. Broom, 6 Exch. 814.

Elwall, 4 M. & S. 259 : 16 B. B. (u) Per Ld. Westbury, CulUn v.

458; Com. Dig., " Trespass " (C. 1). Thomson's Trustees, 4 Macq. 432—

See Collett v. Foster, 2 A. & N. 356 ; 433.

Bennett v. Bayes, 5 H. & N. 391. {x) Ellis v. Sheffield Gas Co., 2

A person who deals with the E. & B. 767.
goods of a testator, as agent of the

L.M. 42

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THE LAW OF CONTRACTS.

Employment
of contractor
to do lawful
work.

Relation of
master and
servant : how
constituted.

an independent contractor, and I should not be liable to
strangers for any wrongful act unnecessarily done by him
in the performance of his work {y) ; but clearly I should be
jointly liable with him for a trespass on the land, if it
turned out that I had no right to build upon it " (s). It
would be immaterial that I did not enter the land myself ;
for if I merely give a man leave to go on land over which
I have no right, and he goes, that will not make me a
trespasser, but if I request him to go, then he goes by
my authority, and I am liable {a).

On the other hand, the general rule is that a person who
employs, not his own servant, but an independent contractor
to do a lawful act is not answerable for wrongful or negligent
acts unnecessarily committed by the contractor, or his
servants, in the performance of the contract. In other words,
" ever since Quarman v. Burnett (b), it has been considered
settled law that one employing another is not liable for
his collateral negligence, unless the relation of master and
servant existed between them "(e). For instance, a butcher
who employs a drover, exercising an independent calling, to
drive a bullock through the streets is not liable for the
negligent driving of the drover's boy (rf).

It, therefore, often becomes necessary to determine
whether the relation between a defendant and a person
actually engaged upon work was that of master and servant,
or whether such person was an independent contractor or
the servant of such ; and the general rule is that the
relation of master and servant exists if the defendant has
the right at the moment to determine or control the manner
in which the work shall be done (e) ; whereas a person who

(j/) E.g., if his carter, in bringing
the materials to the land, drove
over a stranger in the street.

(z) Per Willes, J., Upton v. Town-
end, 17 C. B. 71.

(a) Per Alderson, B., Eobinson v.
Vaughton, 8 C. & P. 255.

(b) 6 M. & W. 499.

(c) Per Ld. Blackburn, Dalton v.
Angus, 6 App. Cas. 740, 829.

(d) Milligan v. Wedge, 12 A. & E.
737 ; see post, p. 660.

(e) Sadler v. Hemlock, 4 E. & B.
570, 578 ; Donovan v. Laing, [1893]
1 Q. B. 629, 634 : 63 L. J. Q. B. 25,
and oases there collected.

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THE LAW OF CONTRACTS. 659

undertakes to produce a given result in such manner as he
may think fit is an independent contractor, and the workmen
whom he employs to produce the result are his servants,
and not the defendant's. Nor are they the defendant's
servants merely because he stipulated for the right to
require the removal of incompetent workmen (/), or for the
employment of particular workmen (g), or agreed with the
contractor to pay to the workmen their wages (g). The
fact that he stipulated for the execution of the work under
the supervision of his own surveyor does not of itself make
him the workmen's master, but he may be responsible for
the consequences of the workmen obeying a particular order
given by the surveyor (/t).

In conformity with this rule, where the owner of a job-master
carriage jobs a horse to draw it and the job-master provides driver™^
the driver, the driver is generally the servant of the job-
master, and the owner of the carriage is not responsible for
the driver's negligent management of the horse, so long
as he merely directs where the driver is to take him and
does not make himself clomimts pro tempore by directing
how the horse is to be driven (i). But where a job-
master supphes merely the driver to the owner of a horse
and carriage, it may be proper to infer that the driver
while in charge of the horse is the servant of its owner, for
the owner has a right to direct how the horse shall be
driven (/i:).

Although the relation between two persons be such that. Special
at common law, it would be improper to treat them as
master and servant, yet to treat them as such may be
proper owing to some statute. Thus, under the 6 & 7 Vict.

(/) Reedie v. L. & N. W. B. Co., Council, [1896] 1 Q. B, 343, 344:

4 Ex. 244. 65 L. J. Q. B, 368.

(g) Quarman v. Burnett, 6 M. & (i) Quarman v. Burnett, 6 M. &

W. 499 ; Bourke v. White Moss Co., W. 499 ; Jones v. Liverpool Corpora-

2 C. P. D. 205. tion, 14 Q. B. D. 890.

(h) Steel V. S. E. B. Co., 16 G. B. (k) Jones v. Scullard, [1898] 2

550 ; Hardaker v. Idle District Q. B. 565 : 67 L. J. Q. B. 895.

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660

THE LAW OF CONTRACTS.

Employment
of contractor
upon work
lawful, but
dangerous.

c. 86, the registered proprietor of a cab in London is
answerable for the driver while plying for hire, as if the
driver were his servant, whatever may in fact be the
relation between them (I).

Notwithstanding the general rule to which we have
adverted, that a person is not liable for the collateral
negligence of an independent contractor whom he has
employed upon lawful work, there is an important class
of cases jin which a person may incur liability through his
contractor's negligence. Where a person, having a right
which he is not entitled to exercise except upon the terms
of his performing a duty, delegates to a contractor the
exercise of the right and performance of the duty, he is
answerable if the right be exercised, but through the
contractor's negligence the duty is not performed. " A
person causing something to be done, the doing of which
casts on him a duty, cannot escape from the responsibility
attaching on him of seeing that duty performed by dele-
gating it to a contractor " (m).

Thus, where a statute authorised a company to make
a swing-bridge across a river, but required them to open
the bridge for the purpose of letting vessels pass, it was
held that the company were liable by reason of the
negligence of their contractor who made the bridge so
that it would not open properly (»)• And, similarly, where
a statute authorised a company to cut a trench across a
road, but required them to re-instate the road when their
drain-pipes had been inserted, it was held that the company
were liable on account of their contractor's negligence in
not re-instating the road properly (o).

Nor is the rule confined to cases where both the right

(I) King v. London Cab Co., 23
Q. B. D. 281; Keen v. Henry, [1894]
1 Q. B. 292 : 63 L. J. Q. B. 211.

(m) Per Ld. Blackburn, Dalton
V. Angus, 6 App. Cas. 740, 8'29 ;
Eardaker v. Idle District Council,

[1896] 1 Q. B. 335, 342 : 65 L. J.
Q. B. 363, and oases there collected.

(n) Hole V. Sittinghourne B. Co.,
G H. & N. 488.

(o) Ormj V. Pullen, 5 B. & S. 970.

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THE LAW OF CONTRACTS. 661

and duty are statutory. For instance, the common law
requires a district council, when it causes a street to be
sewered under statutory powers, to take some care that,
in the execution of that work, gas-pipes known to be lying
under the street be not broken, and if such pipes get
broken through the negligence of the contractor employed
upon the work, and an explosion follows, the council are
liable for the ensuing damage (2?). Again, the law allows
a man to make an artificial reservoir on his land, but
imposes on him the duty, if he make the reservoir, of
keeping the water in. He may employ a contractor to
make the reservoir, but he remains liable, if, through the
contractor's negligence, the walls of the reservoir are made
too weak, and the water escapes and damage results {q).

The above cases show that where a contractor is employed Employer
to do work lawful in itself, but of a dangerous character, the f(^^breaeh^of
employer's duty is to take proper care that the danger is ^'^ "'"^ "^"*y-
avoided (r). The employer, however, is not liable for casual
or collateral acts of negligence on the part of the con-
tractor or his servants, which do not involve a breach of the
employer's duty. In truth, in the cases referred to, the
basis of the employer's liability is, not the contractor's
negligence, but his own, whether brought about by the
contractor's negligence or not. A company, having statu-
tory powers to build a bridge across a road, employed a
contractor to buUd it. In the course of the delivery of
material for the work, a workman of the contractor negli-
gently let a stone fall upon a person in the road, and it
was held that the company were not liable (s). This was
considered to be a mere collateral act of negligence.

(_p) Bardaker v. Idle District don U. C, [1899] 2 Q. B. 72: 68

Council, [1896] 1 Q. B. 335. L. J. Q. B. 704 ; Holliday v. Nat.

(2) Fletcher v. Bylands, L. B. 1 TeUphme Co., [1899] 2 Q. B. 392 :

Ex. 265 : 3 H. L. 830. 68 L. J. Q. B. 1016 ; The Snark,

(r) See also Pickard v. Smith, [1900] P. 105.

10 0. B. N. S. 470; Bower y.Peate, (s) Beedie v. L. d N. W. B. Co.,

1 Q. B. D. 321 ; Percival v Hughes, i Exoh. 244.
8 App. Gas. 443 ; Penny v. Wimble-

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662 THE LAW OF CONTRACTS.

Master's Where the relation of master and servant exists, " the

sMvanWacts. principle upon which the master is in general liable to

answer for accidents resulting from the negligence or

unskilfulness of his servant is that the act of the servant

is in truth his own act. If the master is himself driving

his carriage, and from want of skill causes injury to a

passer-by, he is of course responsible for that want of skill.

If, instead of driving the carriage with his own hands, he

employs his servant to drive it, the servant is but an

instrument set in motion by the master, and whatever the

servant does in order to give effect to the master's wish may

be treated as the act of the master : qui facit j^er alium facit

2)cr se"(t). And the general rules are that "a master is

responsible for all acts done by his servant in the course of

his employment, though without particular directions " («) '•

that " where a servant is acting within the scope of his

employment and in so acting does something negligent or

wrongful, the master is liable, even though the act done

may be the very reverse of that which the servant was

actually directed to do " (x) ; for " the law casts upon the

master a liability for the act of the servant in the course of

his employment ; and the law is not so futile as to allow

a master, by giving secret instructions to his servant, to

discharge himself from liability" (y).

On the other hand, the rule is that " the master is only

responsible so long as the servant can be said to be doing

the act, in the doing of which he is guilty of negligence,

in the course of his employment as servant " (z) ; for " where

the servant, instead of doing that which he is employed to

do, does something which he is not employed to do at all,

the master cannot be said to do it by his servant, and

(t) Eutchinsm v. Yorh, do. B., 0. P. 148, 152.
Co., 5 Exclt. 343, 350. (y) Per "WiUes, J., Limpus v. L. G.

(u) Per Ld. Holt, Tuberville v. Omnibus Co., 1 H. & C. 526, 589.

Stamp, 1 Ld. Raym. 266. [z) Per Cookbum, C J., Storey v.

{x) Per Kelly, C.B,, Bayley v. Ashton, L. R. 4 Q. B. 476, 479.
Manchester, dc, R. Co., L. R. 8

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THE LAW OF CONTRACTS. 663

therefore is not responsible for the negligence of the servant
in doing it " (a). It is often difficult to decide whether or not
a servant, in doing a particular act in which he was guilty
of a wrong or of negligence, was acting within the scope
of his employment. The question must be determined
according to the facts of the particular case ; it is usually
a question of fact, to be left, where the trial is by jury, to
the jury's determination (b).

It is not only for the negligence of his servant while Servant's
acting within the scope of his employment that a master °^ ^'
is liable; for the rule is that "the master is answerable
for every such wrong of the servant or agent as is committed
in the course of the service and for the master's benefit,
though no express command or privity of the master be
proved," and no distinction can be drawn between fraud
and any other intentional wrong (c) ; nor does the master
escape civil liability because the wrong is a criminal act (d) .
A master, however, is not answerable for his servant's
fraud, if committed, not with a view to benefit the master,
but for the servant's own private ends (e) ; and it seems
that this limitation upon a master's liability obtains,
whatever be the nature of the wrong committed by the
servant (/). For instance, " if a servant, driving a

{a) Per Maule, J., Mitchell v, {c) Barwicky. English J.S. Bank,
Crasswheeler, 13 C. B. 237, 247 ; L. E. 2 Ex. 259 ; Mackay v. Corn-
see Bayner v. Mitchell, 2 G. P. D. mercial Bank, L. R. 5 P. 0. 394 ;
357 ; Stevens V. Woodward 6 Q. B. D. Swire v. Francis, 3 App. Gas. 106 ;
318 ; and see Sanderson v. Collins, Houldsworth v. Glasgow Bank, 5
[1904] 1 K. B. 628 : 73 L. J. K. B. App. Gas. 317, 326.
358; Beard v. London General (d) Dyer v. Munday, [1895] 1
Omnibus Co., [1900] 2 Q. B. 530: Q. B. 742 : 64 L. J. Q. B. 448.
69 L. J. Q. B. 895; Hanson v. (e) British Mutual Bank y.Charn-
WalUr, [1901] 1 K. B. 390 : 70 L. J. wood Forest iJ. Co., 18 Q. B. D. 714 ;
K. B. 231. see Thorne v. Heard, [1895] A. 0.

(6) See Bank of N. S. Wales v. 495, 502 : 64 L. J. Ch. 652 ; and

Ouston, i App. Oas. 270 ; Abrahams Cheshire v. Bailey, [1905] 1 K. B.

V. Deakin, [1891] 1 Q. B. 516 : 60 237 : 74 L. J. K. B. 176 {thefts by

L. J. Q. B. 238, where it was held servants).

that there was no evidence to go to (/) Bichards v. West Middlesex

the jury. W. Co., 15 Q. B. D. 664.

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664

THE LAW OF CONTKACTS.

carriage, in order to effect some purpose of his own,
wantonly strike the horse of another person, and produce
an accident, the master will not be liable" (g). But to
render the master liable for the servant's wilful act of
wrong, it is sufficient that the servant did it in the pro-
secution of his master's business, intending to benefit his
master, and acting within the scope of his employ-
ment (h).

The same limitation of the rule has been applied in
Criminal Law. Where a servant had in his own physical
possession a fraudulent measure for his own fraudulent
purposes as distinguished from the interests of his master,
his possession was deemed to be his own possession, and
not the possession of his master, within the meaning of an
Act which imposes penalties on any person who has in his
possession for use for trade any measure which is false or
unjust (i).
Corporations. The general principles which render a private individual
liable for his servants' acts apply to render a corporation,
which can only act through agents, liable for its agents'
acts (/t). It is the duty of a railway company, being a
trading corporation, to keep on the spot an agent having
authority to act on their behalf in all emergencies likely to
arise there in the course of their business (T) ; and the fact
that there is a person on the spot who acts as if he had
such authority is evidence that he has it (m). If the com-
pany have statutory powers to arrest for a particular offence,
and such agent makes an arrest in the mistaken belief that

{g) Croft V. Alison, 4 B & Aid. [1899] 1 Q. B. 392 : [1900] 1 Q. B.

590, 592 : 23 E. B. 407. 22 ; Citizens' Life Assurance Co. v.

{h) Limpus v. L. O. Omnibus Co., Brown, [1904] A. 0. 423 : 73

1 H. & 0. 526 ; Seymour v. Green- L. J. P. C. 102.

ivood, 7 H. & N. 355. (I) Giles v. Taff Yah R. Co., 2

(i) Anglo-American Oil Co. v. E & B. 822 ; see The Apollo, [1891]

Manning, [1908] 1 K. B. 536 : 77 A. 0. 499, 507.

L. J. K. B. 205. (to) GoffY. G. N. R. Co., 3 E. & E.

(k) See Cornford v. Carlton Bank, 672 : 30 L. J. Q. B. 148.

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THE LAW OF CONTRACTS, 665

the offence has been committed, the company is Hable {n).
So, too, where a railway company was empowered to employ
special constables as its servants, the company was held
responsible for an arrest for felony made by a special
constable without reasonable grounds for believing that a
felony had been committed (o). If, however, such agent
makes an arrest for an imagined offence for the actual com-
mission of which the company has no statutory power to
arrest, an authority from the company to make the arrest
cannot be implied (p).

An important limitation to the maxim respondeat superior Doctrine of
is imposed, at common law, by the principle generally known employment,
as the doctrine of common employment. A series of
decisions, following in the train of Priestly v. Foteler (q),
established the principle that, at the common law, a servant,
when he engages to serve a master, undertakes, as between
himself and the master, to run all the ordinary risks of the
service, including the risk of injury, not only from his own
negligence, but also from the negligence of a fellow-servant,
whilst the servant is acting in discharge of his duty as
servant to him who is the common master of both (r).
Apart from statute, therefore, a master is not, as a rule,
answerable to his servant for the negligence of a fellow-
servant, provided that the master has taken due care to
associate the servant only with persons of ordinary compe-
tence (s) ; for it is usually the duty of the master to be
reasonably careful that the servant is not exposed to unneces-
sary risks, whether from incompetent fellow-servants (s), or
from defective machinery, or from improper methods of
using sound machinery (<). And the doctrine of common

(«) Id. ; Moore v. Metr. R Co., (r) Johnson v. Lindsay, [1891]

L. B. 8. Q. B. 36. A. G. 371, 377 : 61 L. J. Q. B. 90,

(o) Lambert v. Great Eastern By., and cases there cited.

[1909] 2 K. B. 776 : 79 L. J'. K. B. 32. (s) Hutchinson v. York, dc, B.

(p) Poulton V. L. & S. W. B. Co., Co., 5 Exoh. 343, 353 ; Wigmore v.

L. B. 2 Q. B. 534. Jay, Id. 354.

(q) 3 M. & W. 1. (t) Smith v. Baker, [1891] A. 0.

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666 THE LAW OF CONTRACTS-'.

employment cannot be applied unless there be both a
common master and a common employment 00- For
instance, if a person carry on the business of a banker in
one place and also the business of a brewer in another, a
clerk employed at the bank and a drayman employed at the
brewery are not in a common employment, and the doctrine
would not protect the common master from liability to the
clerk when run over by the drayman's negligence, though
both were engaged at the time on their master's service (x).
Servants may, however, be engaged in a common employ-
ment, though the duties they have to perform are different.
Accordingly, the driver and the guard of a coach, or the
steersman and the rowers of a boat, are generally engaged
in a common employment (y) ; and servants do not cease to
be fellow- servants because they are not all equal in point of
authority. Thus, it was held that the manager of a mining
pit was a fellow- workman engaged in a common employment
with the actual miners (^).

The rule at common law may accordingly be summed up
in the words of Lord Cairns (a), who said that the master is
not, and cannot be, liable to his servant unless there be
negligence on the part of the master in that which he, the
master, has contracted or undertaken with his servant to
do. The master has not contracted or undertaken to execute
in person the work connected with his business. But the
master, in the event of his not personally superintending
and directing the work, is to select proper and competent
persons to do so, and to furnish them with adequate
materials and resources for the work.

Statutory The liability, however, of employers to their workmen

modifications . ,1. .... . , . ., „

of doctrine, m respect of personal injuries received in the course of

325, 353 : 60 L. J. Q. B. 683 ; see 326 : 62 L. J. P. 92.

also Groves v. Wimhorne, [1898] {y) BartonshiU Coal Co. v. Beid,

2 Q. B. 402 : 67 L. J. Q. B. 862. 3 Maoq. 266, 295.

(m) Swainson v. N. E. E. Co., 3 (0) Wilson' \. Merry, L. R. 1 Sc.

Ex. D. 848. App. Gas. 326.

{x) See Tlie Petrel, [1893] P. 820, (a) L. R. 1 Sc. App. Gas. 332.

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THE LAW OF CONTBAOTS.

G67

their employment has been considerably extended by the
Employers' Liability Act, 1880 (b), and the Workmen's
Compensation Act, 1906 (c) : but it must not be forgotten
that the doctrine of common employment still exists and
affords a good defence in a common law action for negli-
gence. The last-mentioned Acts merely provide special
remedies in the cases to which they apply.

The maxim respondeat superior cannot be applied to Landlord's
render a landlord answerable for a nuisance committed fomuisanoef
during the term upon the demised premises by the occupy-
ing tenant, unless it be shown that the landlord authorised
the nuisance (d). But an occupier of premises who licenses
another to commit a nuisance thereon is liable for the act of
his licensee (e) Where demised premises adjoin a highway,
the landlord is not liable to a passer-by for injuries from
defects in the premises, such as an insecure chimney-pot or
dangerous grating, which arose during the term, and which
the landlord was not bound, as between himself and the
tenant, to remedy (/) ; nor is he liable, if the defects existed
at the time of the demise, but the duty of remedying them
was expressly cast, by the terms of the demise, upon the
tenant (g). He is liable, however, if the defects existed
at the time of the demise and the tenant did not agree
to remedy them (/i).

The duty to take care that premises are reasonably safe
for persons coming to them by invitation is primarily the
duty of the occupying tenant (i), and the landlord is, as a

(6) 43 & U Vict. 0. 42. (g) Gwinnell v. Earner, L. B. 10

(c) 6 Edw. VII. 0. 58. 0. P. 658 ; Pretty v. Bicknwre, L. K.

{d) Rich V. Basterfield, 4 0. B. 8 0. P. 401.

783 ; see Harris v. James, 45 L. J. (h) Paynev. Bogers, 2 H. Bl. 350 :

Q. B. 545. 3 R. E. 415 ; Todd v. FligM, 9 G. B.

(e) WHte V. Jameson, L. R. 18 N. S. 377 : 30 L. J. C. P. 21 ; Bowen

Eq. 303 ; Jenkins v. Jackson, 40 Gh. v. Anderson, [1894] 1 Q. B. 164.

D. 71 : 68 L. J. Oh. 124. (i) Indermaur v. Dames, L. R. 1

(/) Nelson v. Liverpool Brewery C. P. 274 : 2 C. P. 311 : 36 L. J.

Co., 2 0. P. D. 311 ; 46 L. J. Q. B. Ex. 181.
675.

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668 THE LAW OF CONTRACTS.

rule, under no duty save such as he may owe to his
tenant by the terms of his contract (k) . But there may be
cases where a landlord, by undertaking with his tenant to
repair some part of the premises (such as a common stair-
case to a block of flats), is liable for the consequences of
non-repair to persons coming thereon by the implied
invitation of the tenant (l).
Public funo- With respect to public functionaries, having authority,
such as judges civil or ecclesiastical, or magistrates, these
parties are, in general, protected from the consequences
of an illegal and wrongful act done by an officer or other
person employed in an inferior ministerial capacity, pro-
vided that the principal himself acted in the discharge of
his duty, and within the scope of his jurisdiction, and of
the authority delegated to him. The principle, however,
on which a private person or a company is liable for
damage caused by the neglect of servants has been held
applicable to a corporation which has been entrusted by
statute to perform certain works, and to receive tolls for
the use of such works, although those tolls, unlike the
tolls received by the private person or the company, are
not applied to the use of the corporation, but are devoted
to the maintenance of the works (m) .

" The law requires that the execution of public works
by a public body shall be conducted with a reasonable
degree of care and skill ; and if they, or those who are
employed by them, are guilty of negligence in the perform-
ance of the works entrusted to them, they are responsible
to the party injured " (n).

(7c) Lane v. Cox, [1897] 1 Q. B. 2 Q. B. 177, as explained in Huggett

415: 66 L. J. Q. B. 193; Cavalier v. Miers, [1908] 2 K. B. 278: 77

V. Pope, [1906] A. C. 428 : 75 L. J. L. J. K. B. 710.

K. B. 609 ; Huggett v. Miers, [1908] (m) Mersey Docks Trustees v.

2 K. B. 278 : 77 L. J. K. B. 710 ; Oibbs, L. B. 1 H. L. 93, where the

but see Hargroves, Aronson <& Co. v. cases are reviewed. See B. v. Selby

Hartopp, [1905] 1 K. B. 472 : 74 Dam Commrs., [1892] 1 Q. B. 348.

L. J. K. B. 283. [n) Clothier v. Webster, 12 C. B.

(l) See Miller v. Hancock, [1893] N. S. 790, 796. See Broionlow v

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THE LAW OF CONTRACTS. 669

In an ordinary case, however, where pubHc commis-
sioners in execution of their office enter into a contract for
the performance of work, it seems clear that the person
who contracts to do the work " is not to be considered as
a servant, but as a person carrying on an independent
business, such as the commissioners were fully justified
in employing to perform works which they could not
execute for themselves, and who was known to all the
world as performing them " (o). And the person thus
employed may himself, by virtue of an express statutory
clause, be protected from liability whilst acting under the
direction of the commissioners (p) ; provided there be no
personal negligence on his part or that of his servants,
since a negligent execution of the work will make him
liable to those injured thereby (q). And a shipowner is
not responsible at common law (r) for injuries occasioned
by the unskilful navigation of his vessel whilst under the
control of a pilot whom the owner was compelled to take
on board, and in whose selection he had no voice (s).

It is clear, also, that a servant of the Crown, contracting Rule inappii-
in his official capacity, is not personally liable on the crown.° ' ^
contracts so entered into. In such cases, therefore, the rule
of respondeat superior does not apply, such exceptions to it
resulting from motives of public policy ; for no prudent
person would accept a public situation at the hazard of
exposing himself to a multiplicity of suits by parties
thinking themselves aggrieved {t).

Metr. Board of Works, 16 C. B. (q) Addison on Torts, 5th ed. 671.

N. S. 546 ; Gibson v. Mayor of (r) See, also, 57 & 58 Viot. c. 60,

Preston, L. E. 5 Q. B. 218 ; Parsons s. 633 ; Oen. Steam Nav. Co. v.

V. St. Matheiv, Bethnal Qreen, L. B. British d Colonial Steam Nav. Co.,

3 0. P. 56 ; Byams v. Webster, L. B. L. B. i Ex. 238 ; The Lion, L. R. 2

4 Q. B. 138. P. 0. 525.

(o) Judgm., Allen v. Hayward, 7 (s) The Halley, L. B. 2 P. 0. 193,

Q. B. 975. See ante. 201, 202. See also The Thetis, L. R.

(p) Ward V. Lee, 7 E. & B. 2 A. & E. 365.

426 : Newton v. Ellis, 5 E. & B. (*) Per Dallas, O.J., Oidley v. Ld.

115. Palmerston, 3 B. & B. 286, 287 : 24

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670 THE LAW OF CONTRACTS.

Again, the maxim, respondeat supoior, does not apply
in the case of the sovereign ; for, as we have before seen,
the sovereign is not liable for personal negligence ; and,
therefore, the principle, qui facit per alium facit per se —
which is applied to render the master answerable for the
negligence of his servant, because this has arisen from
his own negligence or imprudence in selecting or retaining
a careless servant — is not applicable to the sovereign,
in whom negligence or misconduct cannot be implied, and
for which, if it occurs in fact, the law affords no remedy.
Euie inappii- Nor Can a public servant in his official capacity be held

cable to ^ ...

servants of liable for the torts of his subordinates in carrying on the
rown. business of the department, unless he has himself per-
sonally directed and ordered the commission of the wrongful
act complained of (ii). Accordingly, in a case already alluded
to, it was observed by Lord Lyndhurst, that instances have
occurred of damage occasioned by the negligent manage-
ment of ships of war, in which it has been held, that, where
an act is done by one of the crew without the participation
of the commander, the latter is not responsible ; but that
if the principle contended for in the case then before the
Court were correct, the negligence of a seamen in the service
of the Crown would, in such a case, render the Crown liable
to make good the damage; a proposition which certainly
could not be maintained (x).

E. E. 668 ; per Ashhurst, J., Mac- & S. 294 et seq. ; Tobin v. Beg., 16

beath v. Haldi/mand, 1 T. E. 181, C. B. N. S. 310; Beg. v. PHnce,

182 : 1 E. E. 177 ; Palmer v. L. E. 1 0. C. 150. See Hodgkinson

Hutchinson, 6 App. Cas. 619 ; Mil- v. Fernie, 2 C. B. N. S. 415.
clwll V. The Queen, [1896] 1 Q. B. It seems almost superfluous to

121, n. ; but see Graham v. Public observe, that the above remarks

Works Commrs, [1901] 2 K. B. 781: upon the -ma-Kim. respondeat superior,

70 L. J. K. B. 860. are to some considerable extent

(u) Baleigh v. Ooschen, [1898] 1 applicable in criminal law. On the

Ch. 73 : 67 L. J. Oh. 59 ; Bain- one hand, a party employing an

bridge v. Postmaster-Qeneral, [1906] innocent agent is liable for an

1 K. B. 178 : 75 L. J. K. B. 366. offence committed through this

{x) Viscount Canterbury v. A.-Cr., medium ; on the other, if the agent

1 Phill. 306; Feathery. Beg., 6 B. had a guilty knovs'ledge he will be

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THE LAW OF CONTRACTS.

671

A subject sustaining a legal -wrong at the hands of a
minister of the Crown is not, however, without a remedy,
for " as the sovereign cannot authorise wrong to be done,
the authority of the Crown would afford no defence to an
action brought for an illegal act committed by an officer of
the Crown" (a).

Lastly, assuming that an act which would prima facie
be a trespass, is done by lawful order of the government,
the party who commits the act is clearly exempted from
liabiUty ; and where the injury " is an act of state
without remedy, except by appeal to the justice of the

responsible as well as his employer.
See Bac. Max., reg. 16. Though
" it is a rule of orimiual law that a
person cannot be criminally liable
for acting as the agent of another
without any knowledge that he was
acting wrongly ; " per '_ Crompton,
J., Hearne v. Garton, 2 E. & E.
76.

In Coleman v. Riches, 16 C. B.
118, Jervis, C.J., specifies various
cases in which criminal responsi-
bility will be entaUed on a master
for the acts of his servants in the
ordinary course of their employment.
" There are," moreover, " many
acts of a servant for which, though
criminal, the master is civilly respon-
sible by action ; " per Jervis, C.J.,
Dunkley v. Farris, 2 0. B. 458 ;
Palmer v. Evans, 2 0. B. N. S. 151 :
Roberts v. Preston, 9 C. B. N. S.
208.

Upon the above subject Ld.
Wensleydale thus observes:— "I
take it to be a clear proposition
of law, that if a man employs an
agent for a perfectly legal purpose,
and that agent does an illegal act,
that act does not afiect the principal
unless a great deal more is shown :
unless it is shown that the principal
directed the agent so to act, or

really meant he should so act, or
afterwards ratified the illegal act,
or that he appointed one to be his
general agent to do both legal and
illegal acts ; " Cooper v. Slade, 6
H. L. Gas. 793 ; and see Parhes v.
Prescott, L. R. 4 Ex. 169.

Also, in Wilson v. Rankin, 6 B.
& S. 216, the Court thus remark : —
"It is a well-established distinc-
tion, that while a man is civilly
responsible for the acts of his agent
when acting within the established
limits of his authority, he will not
be criminally responsible for such
acts, unless express authority be
shown, or the authority is neces-
sarily to be implied from the nature
of the employment, as in the case
of a bookseller held liable for the
sale by his shopman of a libellous
publication. Under ordinary cir-
cumstances the authority of the
agent is limited to that which is
lawful. If in seeking to carry out
the purpose of his employment he
oversteps the law, he outruns his
authority, and his principal will not
be bound by what he does." See,
also, Reg. v. Stephens, Xj. B. 1 Q. B.
702.

(a) Judgm., Feather v. Reg., 6 B,
& S. 296; see ante, p. 46.

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672 THE L.VAV OF CONTRACTS.

state which inflicts it, or by application of the individual
sufferer to the government of his country to insist upon
compensation from the government of this — in either view,
the wrong is no longer actionable "(6).

Omnis Eatihabitio eeteotrahitur bt Mandato pkioei
JEQUiPAEATUK. {Co. Litt. 207 a.) — A subsequent ratifi-
cation has a retrospective effect, and is equivalent to a
prior command.

General rule. It is a rule of Very wide application, and one repeatedly
laid down in the Roman law, that ratihabitio mandato
comparatur (c ), where ratihabitio means " the act of assenting
to what has been done by another in my name" (d). " No
maxim," remarks Mr. Justice Story, "is better settled in
reason and law than the maxim, omnis ratihabitio retrotra-
Itittcr et mandato jJriori aquiparatur, at all events, where it
does not prejudice the rights of strangers. And the civil
law does not, it is believed, differ from the common law on
this subject " (j').

It is, then, true as a general rule, that a subsequent
ratification and adoption by a person of what has been
already done in his name or as on his behalf, but without
his authority, has a retrospective effect, and is equivalent
to his previous command. For instance, if a stranger pays
a debt without the debtor's authority, but acting as his
agent and on his behalf, and the debtor subsequently
ratifies the payment, it operates as a good payment made
by the debtor on the date when it was actually made (/).

(6) Vide per Parke, B., Buron v. (e) Fleckner v. United States

Deramara, 2Bxch. 189 ; explained in Bcmk, 8 Wheaton (U.S.), B. 363.

Feather v. Beg., 6 B. & S. 296. The operation of the maxim with

(c) D. 46, 3, 12, § 4; D. 50, 17, reference to the law of principal
60; D. 8, 5, 6, § 9; D. 43, 16, 1, and agent, is considered at length
§ 14. in Story on Agency.

(d) Briason. ad verb. " Batiha- (/) Simpson\. Egginton, lOExch,
bitio." 845.

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THE LAW OF CONTBACTS.

673

And if an action is brought in a person's name and for
his benefit, but without his knowledge, his subsequent
ratification of the proceedings in the action renders them as
much his own as if he had originally authorised them (g) .

Without multiplying instances of the doctrine, it
seems sufficient to state the general proposition, that the
subsequent assent by the principal to his agent's conduct
not only exonerates the agent from the consequences
of a departure from his orders, but likewise renders the
principal liable on contracts made in violation of such
orders, or even where there has been no previous retainer
or employment ; and this assent may be inferred from the
conduct of the principal (/(). The subsequent sanction is
considered the same thing, in effect, as assent at the time ;
the difference being, that, where the authority is given
beforehand, the party giving it must trust to his agent;
if it be given subsequently to the contract, the party knows
that all has been done according to his wishes (i). " That
an act done for another by a person not assuming to act for
himself, but for such other person, though without any
precedent authority whatever, becomes the act of the
principal if subsequently ratified by him, is the known and
well-established rule of law. In that case, the principal
is bound by the act, whether it be for his detriment
or advantage, and whether it be founded on a tort or a
contract, to the same extent as by, and with all the con-
sequences which follow from, the same act done by his
previous authority " (k).

The principal limitation to the doctrine that a person Act must be
can, by ratifying another's act, render that act his own in ratifier's
law, lies in the rule that a person cannot be said in law tehaif.
to ratify another's act, unless that other, in doing the act,

{g) Ancma v. Marks, 7 H. & N. (i) Per Best, C.J., Maclean v.

686. Dutm, i Bing. 72Y ; 29 R. K. 714.

(h) Smith, Mere. Law, 9th ed. (&) Wilson v. Tumrnan, 6 M. &

125, and oases there cited. Gr. 242.

L.M. 43

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674 THE LAW OF OONTKAOTS.

purported, or assumed, or intended (l) to do it as such
person's agent ; and this rule applies equally whether the
doctrine of ratification is invoked to enable a person to take
the benefit of an act, or to render him liable therefor as a
principal, or to justify an act as done by lawful authority.

Contracts. Thus, with regard to contracts, it is a well-established

principle that " to entitle a person to sue upon a contract,
it must be clearly shown that he himself made it or that it
was made on his behalf by an agent authorised to act for
him at the time, or whose act has been subsequently
ratified and adopted by him" (m).

Torts. Again, with regard to torts, it is laid down that, by the

common law, " he that receiveth a trespasser, and agreeth
to a trespass after it be done is no trespasser, unless the
trespass was done to his use or for his benefit, and then his
agreement subsequent amounteth to a commandment " («)•
The question of liability for a tort by ratification accord-
ingly depends upon whether the act was originally intended
to be done to the use or for the benefit of the party who
is afterwards said to have ratified it (o). Therefore, if A.
wrongfully seize my gun to his own use, B. does not become
answerable for that trespass, because he afterwards receives
the gun from A. and refuses my demand for its return (p) .
And, similarly, if the sheriff, acting under a vaUd writ by
the command of the Court and as the servant of the Court,
seizes the wrong person's goods, a subsequent declaration
by the execution creditor of his approval of the seizure does
not make the seizure a wrongful seizure by him : to render
him answerable for the seizure, it is necessary to show that
it was done under his previous direction (q).

(I) Keigliley, Maxsted tfi Co. v. (o) Judgm., Eastern Counties R.

Durant, [1901] A. 0. 240 : 70 L. J. Co. v. Broom, 6 Exch. 314, 327,

K. B. 662. citing 4 Inst. 317.

(m) Watson v. Swann, 11 0. B. (p) Wilson v. Barker, 4 B & Ad.

N. S. 756, 771. 614.

(«) 4 Inst. 317; cited by Parke, J,, 4 i (g) Wilson v. Tumman, 6 M. &

B.&Ad.616;andbyWilles,J.,Stocc!/ Gr. 236, 242; Morris y. Salberg, 22

V. Whitehurst, 18 C. B, N. S. 356. Q. B. D. 614 : 58 L. J. Q. B. 275.

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THE LAW OF COKTKACTS.

675

It has long been settled that a person who does an act justifloation.
on his own behalf cannot afterwards justify it as done on
behalf of another or rely on that other's subsequent assent
to the act. On this point it is sufficient to cite the words
of Anderson, C.J. (;•) : If one have cause to distrain my
goods, and a stranger, of his own wrong, without any
warrant or authority given him by the other, take my
goods, not as bailiff or servant to the other, and I bring an
action of trespass against him, can he excuse himself, by
saying that he did it as bailiff or servant? Can he so
father his misdemeanors upon another ? He cannot ; for
once he was a trespasser, and his intent was manifest. But
if one distrain as bailiff, although, in truth, he is not bailiff :
if after he in whose right he doth it doth assent, he shall
not be punished as a trespasser, for that assent shall have
relation unto the time of the distress taken."

It must be observed, however, that there is one class of Wrongful
cases in which a person may, perhaps, be said to adopt or
ratify an act although it was done without any pretence of
doing it on his behalf. For it is well established that a
person whose goods are wrongfully seized and sold may
waive the tort, affirm the sale as a sale by his authority,
and recover the proceeds as money had and received to his
use (s).

Whether a criminal act can be so ratified as to make it in Criminal
law the criminal act of the person ratifying it is a question
on which there seems to be no clear decision. In Eeg. v.
Woodward (t) it seems that the opinion of some of the
Judges was that a person is guilty of knowingly receiving
stolen goods, if, with knowledge of the felony, he ratifies
their receipt by a person who assumed to receive them on

(r) Godbolt, 109, US ; see ante, p. 238.

(s) Lamine v. Darrell, 2 Ld. (i) 31 L. J. M. 0. 91: L. & C.

Eaym. 1216 ; Smith v. Hodson, i 122 ; see 1 Smith, L. C, 11th ed.

T. R. 211 : 2 Smith L. C, 11th ed. 364.
146 ; Badgers v. Maw, 15 M. & W.

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acts.

676 THE LAW OF CONTBAOTS.

his behalf, the acts of ratification being an agreement with
the thief for the price of the goods and payment thereof.
The main ground, however, of the decision in this case
appears to have been that the receipt of the goods was not
complete until the price was agreed and paid.

Forgery. It seems Safe to say that a person whose signature is

forged cannot ratify the act so as to protect the forger from
the charge of forgery («) ; and it has been held that where
a person's signature is forged to a promissory note, the
doctrine of liability by ratification cannot be invoked against
him in an action on the note, the forger's pretence having
been, not that the signature was authorised, but that it
was genuine (a) . The person whose signature is forged
may, indeed, become estopped by his conduct from setting
up that it is not genuine (b) ; but a contract by him that he
will not dispute the signature in consideration of the forger
not being prosecuted is illegal, and creates no estoppel as
between the parties thereto (c).

Incapacity to The principle, it will be noticed, is that a ratification is

ratify. . .

equivalent to a prior command ; and it has no greater force.
A person cannot ratify an act, if at the time of the act he
had no capacity to command or to do it (d) ; and there can
be no ratification of an act by a person who when the act
was done had no existence actually or in contemplation of
law (e) . Thus a corporation cannot ratify a contract which
a person purported to make on its behalf before its in-
corporation (/). On the other hand, as the title of an
administrator, when he has been appointed, relates back to
the time of the intestate's death, it has been held that an

(u) See ^er Ld. Blackburn, 6 App. (e) Per Willes, J., L. E. 7 0. P.

Cas. 99. 184.

(a) Brook v. Hook, L. E. 6 Ex. (/) Re Empress Engiiieering Co.,

89. 16 Ch. D. 125 ; Be Northumberland

[h] See 45 & 46 Viot. 0. 61, s. 24. Avenue Hotel Co., 33 Id. 16; see

(c) Brook V. Hook, supra. Howard v. Patent Ivory Co., 38 Id.

(d) Biche v. Ashhury Co., L. E. 7 156.
H. L, 653.

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THE LAW OF CONTEACTS.

677

administrator can ratify a sale of the intestate's property
made before his appointment by a person purporting to
sell as agent for whatever person might happen to be the
intestate's legal representative (g).

Although the subsequent ratification of an act done as Ratification,
agent is, as a rule, equivalent to a prior command, there j^te.
are cases in which a ratification is of no effect, because it
comes too late. For, where the time within which a person
has power to do an act is limited, he cannot ratify the act,
if done without his previous authority, unless he ratify it
before his power to do the act has ceased (h). Thus, a
landlord cannot rely upon an unauthorised notice to his
tenant to quit, unless he ratify it before the time for giving
the notice has passed (t) ; and a person who stops goods in
transitu, as agent for the seller, but without his authority,
cannot justify the act, unless it be ratified before the seller's
right of stoppage is lost (j). And the rule has been stated
to be that an estate once vested cannot be divested, nor can
an act lawful at the time of its performance be rendered
unlawful, by the application of the doctrine of ratifica-
tion (A-). Moreover, it must be observed that a ratification
is an election to confirm an act, and that, being an elec-
tion, it must be made within a reasonable time, the
standard of reasonableness depending in each case upon its
circumstances (l).

Again, if a person pay another's debt, acting as his agent,
but without his authority, it is open to such person and
the creditor, so long as the payment remains unratified, to
agree to cancel it, and, afteri it has been so cancelled, the
debtor cannot take the benefit of the payment by ratifying

(3) Foster v. Bates, 12 M. & W. (i) Doe v. Ooldwm, 2 Q. B. 143.

226 ; see Be Watson, 19 Q. B. D. {j) Bird v. Brown, 4 Exoh. 786.

234 ; ^os«, pp. 703, 704. {k) Per Cotton, L.J., Bolton v

{h) Amsworth v. Creelce, L. R. 4 Lambert, 41 Oh. D. 295, 307.
C. P. 476 ; Di66ms V. DiSMws, [1896] (l) Per Bowen, L.J., Re Portu-

2 Ch. 348 : 65 L. J. Gh. 725 ; Bremer guese Consolidated Mines, 45 Ch. D.

V. Mathews, [1910] 2 K. B. 401. 16, 34.

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678 THE LAW OF CONTRACTS.

it (m). But upon the acceptance, though not authorised, of
an offer of purchase, the person who made the offer cannot,
by his mere withdrawal of it, render the acceptance
incapable of ratification (n).
Conditions From what has been already said the reader will gather

of valid .

ratification, that to constitute a valid ratification three conditions must,
as a rule, be satisfied : first, the agent whose act is sought
to be ratified must have professed to act for the principal (o) ;
secondly, at the time the act was done the agent must have
had a competent principal ; and thirdly, at the time of the
ratification the principal must be legally capable of doing
the act himself (j)). Moreover, in order to render the
ratification of an act binding, " the ratification must be
either with full knowledge of the character of the act to be
adopted, or with the intention to adopt it at all events and
under whatever circumstances" (g). Where the supposed
ratification relates to acts as to which there is no pretence
of any previous authority, " full knowledge of the facts and
unequivocal adoption after such knowledge must be proved,
or, in the alternative, the circumstances of the alleged
ratification must be such as to warrant the clear inference
that the principal was adopting the supposed agent's acts,
whatever they were or however culpable they were" (r).

Without discussing at length by what acts a ratifica-
tion may be shown, we may point out here that where
work is done to property, such as repairs to a ship,
under an order not authorised by the owner, the mere

{m} Walter v. James, L. R. 6 Ex. (p) See per Wright, J., Frith v.

124. Staines, [1897] 2 Q. B. 70, 75: 66

(n) Bolton Partners v. Lambert, L. J. Q. B. 510.

41 Ch. D. 295 : 58 L. J. Ch. 425. (2) Per Willes, J., L. R. 7 C. P.

(0) It is enougli if he professed to 57 ; see Freeman v. Eosher, 13 Q. B.

act on behalf of the principal, though 780; E. Counties R. Co. v. Broom,

his real intention may have been 6 Exoh. 314 ; La Banque Jacgues-

to contract on his own behalf (In Cartierv. LaBanqiie d'Eparque, 13

re Tiedmann & Ledermann Frires, App. Gas. 111.

[1899] 2 Q. B. 66 : 68 L. J. Q. B. (r) Marsh v. Jones, [1897] 1 Gh.

852). 213, 247 : 66 L. J. Ch. 128.

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THE LAW OF CONTRACTS. G79

fact that the owner afterwards takes possession of the
property and deals with it as his own is not evidence
that he has ratified the order: it is not Hke the case
of an acceptance of goods which were not previously the
acceptor's property (s).

The doctrme that ratification is equivalent to prior Ratification
command is applicable to persons, not only when they act ^^ '^™''"-
on behalf of private individuals, but also when they act on
behaK of the Crown (i). For instance, in 1841, Captain
Denman, having been sent to the Gallinas to rescue two
British subjects, detained there as slaves, took upon him-
self, without previous orders, to break up a slave-dealing
establishment, and when its owner subsequently brought
an action against him it was held that he could justify
his acts by showing that the British Government had
ratified them, and that they were consequently acts of
State, the responsibility for which rested with the Crown
alone (u).

Nihil tam conveniens est natueali ^qditati quam
unumquodque dissolti ec ligamine quo ligatum est.
(2 Inst. 360.) — Nothing is so consonant to natural equity
as that every contract should be dissolved by the means
which rendered it binding.

It is an old rule of the common law that every contract Rule, and
ought to be dissolved by matter of as high a nature as that rule""^ °
which first made it obligatory (x). It was considered to
be " inconvenient that matters in writing, made by advice
and consideration, and which finally import the certain
truth of the agreement of the parties, should be controlled

(s) SeeFormanv.TheLiddesdale, (u) Buron v. Denman, 2 Exoh.

[1900] A. 0. 190. 167 ; see also Sec. of State for India

(t) Phillips V. Eyre, L. R. 6 Q. B. v. Sahaba, 13 Moo. P. C. 86.

23, 24. (x) Jenk. Cent. 166 ; Id. 74.

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680 THE LA-\V OP CONTRACTS.

by averment of the parties, to be proved by the uncertain
testimony of slippery memory " {y); and it was therefore
laid down, that, "an obligation is not made void but by
a release; for natumle est quidlibet dissolvi eo modo quo
ligatur: a record by a record; a deed by a deed; and a
parol promise or agreement is dissolved by parol; and an
Act of Parliament by an Act of ParUament. This reason
and this rule of law are always of force in the common
law " (z).
Statute. In the first place, with respect to statutes of the realm,

we may remark that these, being created by an exercise
of the highest authority which the constitution of this
country acknowledges, cannot be dispensed with, amended,
suspended, or repealed, but by the authority by which they
were made: jiira eodem modo destituuntur quo constituuntur (a).
It was, indeed, a maxim of the civilians that, as laws might
be established by long and continued custom, so they could
likewise be abrogated by desuetude, or be annulled by
contrary usage : ea vero qum ipsa sibi quceque civitas con-
stituit scepe mutari solent vel tacito consensu populi vel alia
postea lege lata (&). Our law, however, follows the safer
rule, that every statute continues in force till repealed by
the legislature (c).

(y) Countess of Eutlaiid's case, 5 the multitude, therefore, do insti-

Rep. 26. " That which is gained by tute, the multitude may abrogate ;

marriage may be lost by marriage : and they themselves, or those who

eodem modo quo quid constituitur succeed in the same right, can only

dissolvitur : " Cruise on Dignities, be fit judges of the performance of

2nd ed. 90; cited Cowleyv. Cowley, the ends of the institution:" Sid-

[1900] P. 123 ; see S. 0. [1901] A. C. ney, Discourse concerning Govern-

450 : 70 L. J. P. 83. ment, p. 15.

(z) Jenk. Cent. 70. (fc) I. 1, 2, 11; Irving, Civ. Law,

(a) Dwarr. Stats., 2nd ed. 529; 4th ed. 123.

Bell. Diet, and Dig. of Scotch Law, (c) Ashford v. Thm-nton, 1 B. &

636. " Cujus est instittiere ejus est Aid. 405 : 19 K. E.. 349, affords a

abrogare. We say, in general, he remarkable instance of the rule,

that institutes may also abrogate, See, also, per Patteson, J., Reg. v.

most especially when the institution ArclMsTiop of Canterbury, 11 Q. B.

is not only by, but for himself. If 627 ; and ante, p. 19.

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fore breach.

THE LAAV OF CONTRACTS. 681

We propose, in the next place, to consider the three Record,
following species of obligations : viz., by record, by specialty,
and by simple contract; as to the first of which it will
suffice to say, that an obligation by record may be discharged
by a release under seal (d).

In the case of a specialty, no rule of our common law Specialty,
was better established than that such a contract could, charged be-
before breach, only be discharged by an instrument of
equal force (e) ; that a subsequent parol, that is to say,
written or verbal agreement, not under seal, dispensing
with or varying the time or mode of performance of an
act covenanted to be done, could not be pleaded in bar to
an action, on an instrument under seal, for non-perform-
ance of the act in the manner thereby prescribed (/), — in
short, that the terms of a deed could not be contradicted
or varied by parol; that a parol licence could not be set
up in opposition to a deed (g).

In equity, however, the rule is different; a parol agree,
ment, founded on valuable consideration, was formerly
a good ground for an injunction to restrain an action upon
a deed, brought in breach of the agreement ; and it is clear
that the rule of equity, which now prevails in the High
Court (h), is that a- contract under seal, even though the
contract be one which is required by law to be in writing,
may be rescinded by a valid parol agreement (i).

(d) Per Parke, B., Barker v. St. case, 6 Eep. 43 ; Peytoe's case, 9
Quintin, 12 M. & W. 453 (cited in Eep. 77 ; Kaye v. Waghorn, 1
Exp. Games, 3 H. & C. 299) ; Litt., Taunt. 428 : 10 K. R. 558 ; Cocks v.
s. 507, and the commentary thereon ; Nash, 9 Bing. 341 : 35 R. R. 547 :
Shep. Touch., by Preston, 322; Harden v. Clifton, 1 Q. B. 522;
Farmer v. Mottram, 7 Scott, N. R. Bippinghall v. Lloyd, 5 B. & Ad.
408. 742, is particularly worthy of perusal

(e) Per Bosanquet, J., 3 Scott, in connection with the above subject.
N. R. 216. (g) Per Lush, J., Albert v. Gros-

(/) Heard v. Wadham, 1 East, veiior Investment Co., L. R. 3 Q. B.

619; Owynne v. Davy, 2 Scott, 128.

N. R. 29 ; cited by Oockburn, O.J., (h) 36 & 37 Vict. c. 66, s. 25 (11).

L. R. 3 Q. B. 127; Roe v. Harrison, (i) Fry, Spec. Perf., 3rd ed. pp.

2 T. E. 425 : 1 R. E, 513 ; Blake's 469, 470.

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682

THE LAAV OP CONTKACTS.

Accord and
satisfaction
after breach.

Simple con-
tracts.

It is well established that, at the common law, accord
and satisfaction after a breach is a good defence to an
action to recover unhquidated damages for the breach of
a contract under seal, but not to an action to recover
a specialty debt ; the distinction being that, in the latter
case, the duty to pay the debt is deemed to arise entirely
from the deed, and therefore can be avoided only by matter
of as high a nature ; whereas, in the former case, the
action is considered to be founded, not entirely upon the
deed, but mainly upon the subsequent wrong or default,
which, as it supports only a claim to amends, may be
satisfied by amends given (k). It is equally well established,
however, that, in equity, a specialty debt may be discharged,
when overdue, by accord and satisfaction, and the rule
of equity now prevails in the High Court (I).

It has been thought that, hj the rules of equity, a voluntary
parol declaration by a creditor that he intends to release
his debtor from the debt becomes binding upon the creditor
after the debtor has acted upon the faith of it (m). But
this seems to be incorrect ; for even in equity, a represen-
tation, to create an estoppel, must be a misrepresentation of
an existing fact, and not of a mere intention (n).

The extent of applicability of the maxim, unumquodque
dissolvitur eodem ligamine quo ligatia; to simple contracts,
may be thus concisely indicated : " It is," said Parke, B.,
in Foster v. Daivher (o), " competent for both parties to
an executory contract, by mutual agreement, without any
satisfaction, to discharge the obligation of that contract {p).
But an ^executed contract cannot be discharged, except by
release under seal, or by performance of the obligation,"

(k) Blake's case, 6 Rep. 43 b.

(I) Steeds v. Steeds, 22 Q. B. D.
537 : 58 L. J. Q. B. 302.

(m) Yeomans v. Williams, L. R.
1 Eq. 184.

(to) Jorden v. Money, 5 H. L. C.
185 ; Chadwick v. Manning, [1896]

A. C. 231: 65 L. J. P. C. 42. See
also Maddison v. Alderson, 8 App.
Cas. 473.

(o) 6 Exoh. 839, 851.

{p) See De Bernardy v. Harding,
8 Exoh. 822.

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THE LAW OF CONTEACTS. 683

or by accord and satisfaction (q). A bill of exchange or
promissory note, however, stands on a different footing,
and the obligation thereon may, even after breach, be
discharged by the waiver or renunciation of the holder (?•) :
a doctrine which the 45 & 46 Vict. c. 61, s. 62, recognises,
but limits by the requirement that the renunciation, which
must be absolute and unconditional, must also be in writing
unless the bill or note be delivered up to the acceptor or
maker (s).

With respect, then, to simple contracts, which are neither
within the operation of the Statute of Frauds nor under
the control of any Act of Parliament, the rule is, that such
contracts may, before breach, be dissolved by parol; the
term parol being understood as applicable indifferently to
written and verbal contracts. By the general rules of the
common law, and independently of any statutory enact-
ment, if there be a contract which has been reduced into
writing, and which is meant in itself to constitute an entire
agreement, verbal evidence is not allowed to be given of
what passed between the parties, either before the written
instrument was made, or during the time that it was in
a state of preparation, so as to add to, or subtract from, or
in any manner to vary or qualify, the written contract (t) ;

(g) Ooldham v. Edwards, 17 C. B. 543, 593; Judgm., Foster v. Dawber,

141. " It is a general rule of law, 6 Exch. 851.

that a simple contract may before (s) See Edwards v. Walters,

breach be waived or discharged, [1896] 2 Oh. 157 : 65 L. J. Ch. 557.

without a deed and without con- {t) See Eden v. Blake, 13 M. & W.

sideration ; but after breach there 614 (which presents a good iUustra-

can be no discharge, except by deed tion of this rule) ; Abrey v. Crux,

or upon sufficient consideration." L. R. 5 0. P. 87; Laurie \. Schole-

Byles on BiUs, 7th ed., p. 168, fieU, L. R. 4 0. P. 622; jperWilles,

adopted by Bramwell, B., DofesoTC V. J., Heffield v. Meadows, L. R. 4

Es'pie, 2 H. & N. 79, 83 (which shows 0. P. 599 ; Lockett v. Nicklin, 2

that " leave and licence " is not Exch. 93 ; Martin v. Pycroft, 2 De

a proper plea to a declaration for G. M. & G. 785 ; Adams v. Wordley,

breach of contract). CZaj/v. Turley, 1 M. & W. '874, 380: recognised in

27 L, J. Ex. 2. FUght v. Gray, 8 0. B. N. S. 320,

(r) Cook V. Lister, 13 0. B. N. S. 322 ; Sughes v. Statham, 4 B. & 0.

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684

THE LAW OF CONTRACTS.

King v,
GilUtt.

but, after the instrument has been reduced into writing, it
is competent to the parties, at any time before breach of it,
by a new contract, not in writing, either altogether to waive,
dissolve, or annul the former agreement, or in any manner
to add to, or subtract from, or vary, or qualify the terms of
it, and thus to make it a new contract, which is to be proved
partly by the written agreement, and partly by the subse-
quent verbal terms engrafted upon what will be thus left of
the written agreement (»). It should be observed, that the
first part of the above rule is confined and must be restricted
in its application to a contemporaneous verbal agreement.
It has been expressly decided, that, in an action on a bill
or note, a contemporaneous agreement, in nriting, may be
set up, as between the immediate parties, to vary the con-
tract evidenced by such instrument {x) ; and a verbal agree-
ment, set up in suspension — though not in defeasance — of
a written contract has been held good {y).

In King v. Gillett (z) (which shows that a contract to

187 ; Soare v. Graham, 3 Camp.
57 : 13 R. E. 752 ; cited per Tindal,
C.J., 5 Scott, N. K. 254 ; Benson v.
Coope, 3 Scott, N. R. 48 ; Reay v.
Bichardson, 2 Cr. M. & R. 422 ; per
Bayley, J., Lewisy. Jmies, 4 B. & C.
512 : 28 R. R. 360; per 1,(1. Abinger,
AlUn Y, Pinlc, 4 M. & W. 140, 144 ;
Knapp V. Harden, 1 Gale, 47 ; Soares
V. Olyn, 8 Q. B. 42; Manley v.
Boycot, 2 E. & B. 46.

See Malpas v. L. & S. W. R. Co.,
L. R. 1 G. P. 336.

A mistake in the original written
contract may sometimes be set up by
way of equitable defence : see Steele
V. Haddock, 10 Exob. 643 ; Beis v.
Scottish Equitable Life Ass. Soc, 2
H. & N. 19 ; Wake v. Harrop, 6 H.
& N. 768; Battle v. HormbrooJc,
[1897J 1 Cb. 25 : 66 L. J. Ob. 144.

(«) Judgm., Ooss V. Lord Nugent,
5 B. & Ad. 64, 65 : 39 R. R. 392 ;

Hargreaves v. Parsons, 13 M. & W.
561. Taylor v. Hilary, 1 Cr. M. &
R. 741, and QilesY. Spencer, 3 C. B.
N. S. 244, present instances of sub-
stituted agreements. See, also,
Patmore v. Colburn, Id. 65 ; Douglas
V. Watsoti, 17 C. B. 685.

{x) Brown v. Langley, 5 Scott,
N. R. 249 ; per Gibbs, J., Bowerbank
V. Monteiro, 4 Taunt. 846 : 14 R. R.
679 ; Toung v. Austen, L. R. 4 C. P.
553, 557. See Strong v. Foster, 17
0. B. 201; Halhead v. Young, 6
E. & B. 312 ; Pooley v. Harradine,
7 E. & B. 431; cited in Ewin y.
Lancaster, 6 B. & S. 576.

(y) Wallis v. Littell, 11 C. B. N. S.
369; but see Stott v. Fairlamb, 52
L. J. Q. B. 420 ; New London Credit
Syndicate v. Neale, [1898] 2 Q. B.
487 : 67 L J. Q. B. 825.

(z) 7 M. & W. 55 ; Davis v.
Bomford, 6 H. & N. 245.

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THE LAW OF CONTBAOTS.

685

marry, founded on mutual promises, is not within s. 4 of
the Statute of Frauds), the Court of Exchequer held, that
to an action on such a contract, it is a good plea that, after
the promise, and before any breach, the plaintiff absolved
and discharged the defendant from his promise and the
performance of the same ; and we have here more particu-
larly mentioned this case, because it affords an exact illus-
tration of the rule now under consideration, and which we
find laid down in the Digest in these words : nihil tain
naturale est qiia?ii eo genere qaidque dissolvere quo colligatum
est; uleo verborum ohligatio verbis tollitior, niuli consensiis
obligatio eontrario consensu, dissoloitur (a). So, in Langden
V. Stokes (6), which was followed by the Court in deciding
the above case, and which was an action of assumpsit, the
defendant pleaded that, before any breach, the plaintiff
exoneravit eum of the alleged promise, and the plea was held
good, on the ground that, as this was a promise by words,
it might be discharged by words before breach. In order,
however, to sustain such a plea, if issue be taken thereon,
the defendant, it has been observed, must prove "a
proposition to exonerate on the part of the plaintiff, acceded
to by himself, and this in effect will be a rescinding of the
contract previously made " (c).

By the Statute of Frauds, however, certain contracts are Where writ-
not enforceable by action, unless they be in writing (rf). by statute.

(a) D. 50, 17, 35. 284 ; Taplin v. Florence, 10 C. B.

(6) Cro. Car. 383. 744.

(c) Judgm., 7 M. & W. 59. In As to the proper mode of plead-

Wood V. Leadbitter, 13 M. & W. 838, ing a contemporaneous or subse-

it was held that a parol licence to quent agreement, varying that

enter and rem.ain for some time on entered into between the parties,

the land of another, even though see per Parke, B., Heath v. Durant,

money were paid for it, is revocable 12 M. & W. 440, which was an

at any time, and without paying action of assumpsit on a policy of

back the money. In this case the insurance.

law respecting the revocation of a {d) 29 Car. 2, c. 3, ss. 4, 17 ; but

licence was much considered. See, s. 17 is now replaced by 56 & 57

also, Boffey v. Henderson, 17 Q. B. Vict. c. 71, s. 4. It is now settled

586 ; Adams v. Andrews, 15 Q. B. that the statute does not render a

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686 THE LAW OF CONTKACTS.

Therefore, if the parties to a contract in writing to which
the statute appUes afterwards make a mere verbal agree-
ment to vary its terms, neither party can maintain an action
at law upon the contract as so varied ; for that is an action
upon a contract some of the terms of which are not in
writing (e) ; and the result of the decisions seems to be that
neither the plaintiff nor the defendant can avail himself
of a verbal agreement to vary a contract previously made
in writing and required so to be by the statute (/). To
meet the objection that he did not perform his part of
the contract within the stipulated time, the plaintiff may,
indeed, prove, by verbal evidence, that he voluntarily post-
poned performance at the defendant's request {g) ; but it is
not open to him to prove by verbal evidence that at his
request the defendant agreed that performance should be
postponed, because this would be to prove a new verbal
contract (7i) ; nor can the defendant rely upon a verbal
agreement by the plaintiff' to vary some of the terms of the
contract as an absolute rescission of the original contract
in writing (i), for that is an attempt to give to the verbal
agreement an effect which the parties clearly did not intend
that it should have.

It seems, nevertheless, that, in an action upon a contract
made in writing and required by the statute so to be made,
it is a good defence at law that, before breach, the parties,
by an agreement not in writing, waived and abandoned
the whole contract in its entirety ; that defence not being
substantiated, however, by proof of a verbal agreement

verbal contract " void ; " Maddison 598, 605 ; Vezeyv. Bashleigh, [1904]

V. Alderson, 8 App. Cas. 488 ; 1 Oh. 634 : 73 L. J. Oh. 422.
Britain v. Bossiter, 11 Q. B. D. {g) Hickman v. Haynes, supra,

128 ; see Hugill v. Masker, 22 Id. Qi) PUvins v. Downing, 1 0. P. D.

364. 220.

(e) Goss V. Lord Nugent, 5 B. & (t) Noble v. Ward, L. B. 2 Ex.

Ad. 58 : 39 E. B. 392. 135 ; Moore y. Campbell, 10 Ex. 325 ;

(/) See the oases collected in Vezey v. Bashleigh, supra.
Hickman v. Haynes, L. B, 10 0. P.

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THE LAW OF CONTRACTS. 687

for a partial variation (k) ; and it is clear that a verbal
agreement amounting to an entire rescission of the con-
tract is an effectual answer in equity to a claim for specific
performance (l).

We may further observe, in connection with the maxim Payment of
under consideration, that payment of part only of a ®^^ ^ *
hquidated and ascertained demand, cannot be in law a
satisfaction of the whole ; for the transaction between the
parties consists in reality of two parts, viz., payment, and an
agreement to give up the residue ; which agreement is void,
as being made without consideration (m) . The above rule
does not, however, apply if the claim is bond fide disputable ;
nor if there has been an acceptance of a chattel or of a
negotiable security in satisfaction of the debt, will the
Court examine whether that satisfaction were a reasonable
one, but it will merely inquhe whether the parties actually
came to such an agreement. A man, therefore, may give
in satisfaction of a debt of £100 a horse of the value of £5,
but not £5 ; and a sum of money payable at a different time
may be a good satisfaction of a larger sum payable at a
future day («) . Moreover, although the obligor of a bond
cannot, at the day appointed, pay a less sum in satisfaction
of the whole, yet if the obligee then receive a part and give
his acquittance under seal for the whole, this will be a good
discharge, according to the maxim, eodem ligamine quo
ligatum est dissolvitur (o).

(k) See Goss v. Lord Nugent, 5 (m) FoaJces v. Beer, 9 App. Cas.

B. & Ad. 66 : 39 E. E. 392 ; Harvey 605.

V. Grabham, 5 A. & E. 74 ; Stead (n) Sibree v. Tripp, 15 M. & W.

V. Dawher, 10 Id. 64, 65 ; Mocyre v. 34, 38.
Campbell, and Noble v. Ward, supra. (o) Co. Litfc. 212 b ; per Parke,

(l) Fry, Spec. Perf., 3rd ed. pp. B., 15 M. & W. 34.
471, 475.

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688 THE LAW OF CONTEACTS.

ViGILANTIBUS, NON DORMIENTIBUS, JUEA SUBVENIUNT. (2 Inst.

690.) — The laivs assist those ivho are vigilant, not those
who sleep over their rights (jp).

Instances of We have already, under the maxim caveat emptor {q),
considered the proposition that courts of justice require that
each party to a contract shall exercise a due degree of
vigilance and caution ; we shall now, therefore, confine our
attention to the important subject of the limitation of
actions, which will serve to exemplify that general policy of
our law, in pursuance of which " the using of legal diligence
is always favoured, and shall never turn to the disadvantage
of the creditor " (r) ; merely prefacing that this principle is
well known (s) and of very extensive applicability, and might
be illustrated by reference to very many reported cases {t).
Thus, where the right to claim compensation is given by
statute — for instance, by an enclosure Act — which directs
that the claim shall be made within a specified time, the
right will be forfeited by omission to assert it within that
time, and in such a case the maxim under consideration has
been held forcibly to apply («) ; and the rule before us

(p) See Wing. Max. 672; Hob. 347. (t) The principle may be applied

(q) Ante, p. ,604. See, also, the in construing statutes. They should

maxim, prior tempore, potior jure, not be so interpreted as to deprive a

ante, p. 278. creditor of a right actually existing

(r) Per Heath, J., Cox: v. Morgan, and vested in him, " unless they be

2 B. & P. 412. clear and direct upon the point; "
(s) In 2 B. & P. 412, Heath, J., Bottomhy v. Hayward, 7 H. & N.

observed that this was one of the 569, 570.

maxims earliest learnt by attendance The maxim applies also where

in Westminster Hall. It is applied there has been undue delay in in-

in courts of equity as weU as in stituting a suit for divorce ; see 20

courts of law ; see per Ld. Cran- & 21 Vict. c. 85, s. 31 ; and cases

worth, in Leather Cloth Co. v. cited in Inderwick, Div. Acts, 27.

American L. Cloth Co., 11 H. L. See, also, Castleden v. Castleden, i

Oas. 535 ; Spackman v. Evans, L. E. Macq. So. App. Oas. 159.

3 H. L. 220 ; Downes v. Ship, Id. {u) Doe v. Jefferson, 2 Bing. 118,
343 ; McDonnel v. White, 11 H. L. 125.

Gas. 570.

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THE LAW OP CONTRACTS. 689

is obviously applicable whenever a party debars himself of a
legal right or remedy by his own negligence or laches (x) .

Kelative to the doctrine of limitation of actions (2/), Policy of
Mr. Justice Story observed : " It has often been matter of the umitation
regret in modern times that, in the construction of the o^^ot'o^is-
21 Jac. 1, c. 16, the decisions have not proceeded upon
principles better adapted to carry into effect the real objects
of the statute ; that instead of being viewed in an unfavour-
able light as an unjust and discreditable defence, it has not
received such support as would have made it what it was
intended to be, emphatically a statute of repose. It is a
wise and beneficial law, not designed merely to raise a
presumption of payment of a just debt from lapse of time,
but to afford security against stale demands after the true
state of the transaction may have been forgotten, or be
incapable of explanation by reason of the death or removal
of witnesses " (^:). So in the ancient possessory actions,
" there was a time of limitation settled, beyond which no
man should avail himself of the possession of himself or his
ancestors, or take advantage of the wrongful possession of
his adversary; for if he were negligent for a long and
unreasonable time, the law refused afterwards to lend him
any assistance to recover the possession ; both to punish his
neglect, nam leges vigilantibus, non dormientibus, subveniunt,
and also because it was presumed that the supposed wrong-
doer had in such a length of time procured a legal title,
otherwise he would sooner have been sued " (a). Further,

(x) See, for instance, Camidge v. the maxim, interest reipublicceutdt

Allenby, 6 B. & C. 373 : 30 B. B. finis litium.

358 (with which cf. Timmins v. (x) Bell v. Morrison, 1 Peters

Qibbins, 18 Q. B. 722) ; Lichfield (U. S), E. 360.

JJmon V. Greene, 1 H. & N. 884. (a) 3 Black. Com. 188. As to

The maxim was applied by Coltman, the doctrine of Prescription in the

J., in Omrnis v. Bawdier, 5 C. B. 74, Boman Law, see Mackeld. Civ. Law,

where a mistake occurred in the 290. Usucapio constituta est ut

overseers' list of persons qualified aUguis litiwn fims esset ; D. 41, 10,

to vote for a borough. 5 ; Wood, Civ. Law, 3rd ed. 123.

ly) Which may also be referred to

L.M

44
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690

THE LAW OF CONTRACTS.

Recovery of
land.

Mortgage
debts and
judgments.

as Wood, V.C, remarked in Manhy v. Beivicke (b), "the
legislature has in this, as in every civilized country that has
ever existed, thought fit to prescribe certain limitations of
time, after which persons may suppose themselves to be
in peaceable possession of their property and capable of
transmitting the estates of which they are in possession,
without any apprehension of the title being impugned
by litigation in respect of transactions which occurred at
a distant period, when evidence in support of their own
title may be most difficult to obtain."

We can refer here but verj' briefly to some of the more
important statutes respecting the limitation of actions which
are at the present time in force.

The period within which an action for the recovery of
land may be brought is now regulated by the Eeal Property
Limitation Act, 1874 (c). This Act amended the Eeal
Property Limitation Act, 1833 (cl), by reducing the period
from twenty years to twelve years next after the right to
bring the action first accrued to the plaintiff or to some
person through whom he claims. If, however, at the time
when that right first accrued the person to whom it accrued
was under the disability of infancy, coverture, or unsound-
ness of mind, a further period of six years from the cesser of
the disability is allowed for bringing the action, provided
that it be brought within thirty years next after the accrual
of the right (e).

Sect. 8 of the Act of 1874 requires an action for the
recovery of money secured by a mortgage of land, or by a
judgment (/), to be brought within twelve years next after
the present right to receive the same accrued to a person
capable of giving a discharge therefor; but where there

(6) 3 K. & J. 352; Trustees of
Dundee Harbour v. Dougall, 1 Macq.
So. App. Gas. 317.

(c) 87 & 38 Viot. 0. 57.

id) 3 & 4 Will, i, 0. 27.

(e) Ss. 1—6.

(/) Whether or not it operates as
a charge on land ; Jay v. Johnstone
[1893] 1 Q. B. 189 : 62 L. J Q b'
128.

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THE LAW OF CONTBACTS. 691

has been within such twelve years a payment on account of
principal or interest, or the requisite acknowledgment in
writing of the right thereto, the twelve years begin to run
afresh from such payment or acknowledgment. This section
applies to an action by mortgagee against mortgagor of
land upon the covenant for payment of the debt in the
mortgage-deed (g) ; but it has not removed from the operation
of the Limitation Act, 1623, an action upon a simple
contract debt, secured by a charge upon land (/;).

Unless the case falls within s. 8 of the Act of 1874, the Covenants.
time for bringing an action of covenant or debt upon a
specialty is fixed by the Civil Procedure Act, 1833 (i) ; and
that statute also fixes the time for an action of debt for rent
upon an indenture of demise, or of debt or sci. fa. upon a
recognizance. These actions may be brought, as a rule,
within twenty years after accrual of the cause of action, but
not later (j). The requisite acknowledgment by writing or
part payment, however, extends the right of action for
twenty years from the acknowledgment (k) ; and if at the
time when the cause of action accrues the person to whom
it accrues is under disability, the time does not begin to run
until the disability has ceased (l).

The Civil Procedure Act, 1833 (i), also limits the time for
bringing an action of debt upon an award where the
submission is not by specialty, or for a fine due in respect
of copyhold estates, or for an escape, or for money levied
on a fi. fa., to six years after the cause of action ; and an
action for penalties, damages, or sums of money given to
the party grieved by any statute, to two years after the
cause of action, but not so as to extend the time where
further limited by any statute (m). Time, however, does

(g) Sutton V. Sutton, 22 Oh. D. {i) 3 & 4 Will. 4, o. 42.

511 ; see Be Frisby, 43 Oh. D. 106 : (f) S. 8.

59 L. J. Ch. 94. {k) S. 6.

(h) Barnes v. Glenton, [1899] 1 [1) Ss. 4, 5 ; see post, p. 694.

Q. B. 885 : 68 L. J. Q. B. 502. (m) S. 3.

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tracts.

692 THE LAW OF CONTRACTS.

not begin to run against a plaintiff under disability until
the disability has ceased (ji).
Simple con- The doctrine of limitation in the case of simple contracts

is founded upon a presumption of payment or release
arising from length of time, as it is not common for a
creditor to wait so long without enforcing payment of what
is due ; and, as presumptions are founded upon the ordinary
course of things, ex eo quod plerumque fit, the laws have
formed the presumption, that the debt, if not recovered
within the time prescribed, has been acquitted or released.
Besides, a debtor ought not to be obliged to take care for
ever of the acquittances which prove a demand to be
satisfied; and it is proper to limit a time beyond which
he shall not be under the necessity of producing them.
This doctrine has also been established as a punishment
for the negligence of the creditor. The law having allowed
him a time within which to institute his action, the claim
ought not to be received or enforced when he has suffered
that time to elapse (o).

For these reasons, the Limitation Act, 1623 {p), requires
actions of account and of assumpsit, actions of debt
grounded upon any lending or contract without specialty,
and actions of debt or arrearages of rent (g), to be com-
menced within six years next after the cause of such actions,
and not after (?■). Certain actions of account between
merchant and merchant, their factors or servants, were
excepted from the provisions of this statute, but now by
the Mercantile Law Amendment Act, 1856 (s), these actions
also must be brought within six years after the cause thereof
accrued.

(n) S. 4 ; see post, p. 694. and holder, of a cheque, for its pre-

(o) 1 Pothier, by Evans, 451. sentment, unless loss is occasioned

(p) 21 Jac. 1, c. 16, s. 3. by the delay ; Laws v. Rand, 3 C. B.

(3) See, also, 3 & 4 WiU. 4, o. 27, N. S. 442. See also, as to payment

s. 42. by cheque, Hopkins v. Ware, L. E.

(r) No time leas than six years 4 Ex. 268.

is unreasonable, as between drawer (s) 19 & 20 Vict. o. 97, ». 9.

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THE LAW OP CONTRACTS.

693

With respect to actions ex delicto, the period of Umita- Actions m

delicto.
tion (0 m trespass qu. cl. Jr., or for taking goods or cattle,

as also in trover, detinue, replevin, and case (except for

slander), is six years ; in trespass for assault, battery, or

false imprisonment, it is four years : and for slander, two

years.

The Limitation Act, 1623, s. 3, applies in terms only to

certain actions at laiv ; but when the right of set-off in an

action was created {u), it was appHed to that right, since the

right was only given to save the need of a cross-action {v).

And Courts of equity, which follow the law where there is no

equity to be administered, came to apply this statute — and,

indeed, all like statutes of limitation — to proceedings before

them, though not within the strict letter of the statute :

applying it by analogy, and thereby enforcing their own

rule against aiding stale demands : yet applying it with

an important distinction in cases of concealed fraud, on the Concealed

ground that it has always been a principle of equity, that

no length of time is a bar to relief in cases of fraud where

there has been no laches on the part of the person defrauded.

At law it is not a valid reply to a plea of the statute, that

the defendant's fraud had prevented the plaintiff from

discovering his cause of action within the prescribed

period {x) ; but in equity, the rules of which now generally

prevail in the High Court {y), the maxim, nemo ex sua

delicto vieliorem suam conditiojiem facere potest (2'), is applied,

and the cause of action is treated as arising at the time

when the fraud is first discovered (a). There is, therefore,

{t) 21 Jac. 1, 0. 16 s. 3. Gas Co., 10 Exoh. 39.

(u) See 2 Geo. 2, o. 22, s. 13 ; {y) 36 & 37 Vict. c. 66, s. 25 (11).

8 Geo. 2, c. 24, s. 5; E. S. C. 1883, (2) D. 50, 17, 134, § 1 ; see per

O. 19, 1. 3. Ld. Coleridge, 9 Q. B. D. 65.

{v) Remington Y. Stevens, 2 Stra. (a) Gibbsy. Guild, 9 Q. B. D. 59;

1271 ; see Walker v. Clements, 15 Betjemann v. Betjemann, [1895] 2

Q. B. 1046. Oh. 474, 482 : 64 L. 3. Ch. 641 ; see

(x) Hunter v. Gibbons, 1 H. & N. Thorm v. Seard, [1895] A. 0, 495,

459 ; Imperial Gas Co. v. London 506 : 64 L. J. Ch. 652.

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THE LAW OF CONTRACTS.

Disabilities.

Defendant's
absence
beyond the

seas.

no room in equity for the application of the statute m the
case of concealed fraud, so long as the party defrauded
remains in ignorance without any fault of his own ; and
in equity it is regarded as a case of concealed fraud, if a
person furtively obtains the minerals out of the land of
another by a ivilful secret trespass underground ; and it is
so regarded, whether or not the wrong-doer afterwards takes
active measures to avoid detection : for otherwise cunning
which renders such measures unnecessary would be
rewarded (b).

We have mentioned that the Civil Procedure Act, 1833,
contains provisions in favour of a person to whom a cause
of action accrues whilst such person is under a disabihty ;
and the like provisions are to be found in s. 7 of the
Limitation Act, 1623. Of the five disabilities mentioned in
these statutes infancy and unsoundness of mind are the
only two which remain unaffected by subsequent legisla-
tion. By the Mercantile Law Amendment Act, 1856, s. 10,
the plaintiff's absence beyond the seas ceased to be a
disability, and so did his imprisonment; and the effect of
the Married Women's Property Act, 1882, whereby a
married woman became capable of suing in contract or in
tort, or otherwise, as if she were a feme sole, seems to
be that every married woman is now discovert within the
meaning of the above-mentioned statutes of limitation (c).

The Limitation Act, 1623, contained no provision to
meet cases where the defendant is absent beyond the seas at
the time when the cause of action accrues. But provision
for these cases was afterwards made by the 4 & 5 Anne,
c. 16, which provided that in such cases time should not
begin to run until the defendant's return. A similar

(i) Btdli Coal Mining Co. v.
Osborne, [1899] A. C. 351 : 68 L. J.
P. 0. 49. As to the efieot of con-
cealed fraud upon the right to re-
cover land, see 3 & 4 Will. 4, o. 27,

s. 26 ; Willis v. Sowe, [1893] 2 Ch
545 : 62 L. J. Ch. 690.

(c) See Lowe v. Fox, 15 Q. B. D.
667.

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THE LAW OF CONTRACTS. 695

provision will be found in s. 4 of the Civil Procedure Act,
1833 (d). The effect of these provisions, however, is cut
down by the Mercantile Law Amendment Act, 1856, s. 11.
This section deals with the case where one of the joint
debtors is beyond the seas at the time when the cause
of action accrues against them, but the other is not, and it
enacts that the absence of the former is not to prevent time
from running in favour of the latter, but that a judgment
recovered against the latter is not to be a bar to a subsequent
action against the former.

With regard to the effect upon the Limitation Act, 1623, Payment by
and the Civil Procedure Act, 1833, of the part payment of tractor?"'^
a debt, it is important to notice that the Mercantile Law
Amendment Act, 1856, s. 14, provides that one of several
co-contractors, executors, or administrators, shall not lose
the benefit of those statutes, so as to be chargeable in
respect or by reason only (e) of any payment by another of
them. This enactment may be regarded as supplementary
to Lord Tenterden's Act (9 Geo. 4, c. 14), which provides
that none of such persons shall lose the benefit of the
Limitation Act, 1623, so as to be chargeable in respect or by
reason only of an acknowledgment or promise by another
of them. No similar provision, however, exists with
regard to an acknowledgment by writing under the Civil
Procedure Act, 1833, s. 5; but it has been held that an
acknowledgment by the executor of one of two co-obligors
to a bond does not bind the other, because an executor
can only be liable in respect of the several liability and not
of the joint liability of the bond (/). Having touched upon
the topic of part payment, we may here notice that the
payment by a devisee for life of lands of interest upon his

(d) See, also, s. 5. As to what (e) See Tucker v. TiLcher, [1894]

places are not beyond the seas, 3 Oh. 429 : 63 L. J. Oh. 737.
within the meaning of these Acts, (/) Bead v. Price, [1909] 2 K. B.

see 19 & 20 Viot. o. 97, s. 12, and 724 : 78 L. J. K. B. 1137.
3 & 4 Will. 4, 0. 42, s. 7.

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696 THE LAW OF CONTRACTS.

testator's simple contract or specialty debt keeps alive, as
against the remainderman, the creditor's remedies against
the lands (g).
Maxim as to It ig not intended here, nor would it be consistent with

prescription.

the plan of this work to consider in detail the numerous
points with which the various statutes of limitations bristle.
There is, however, one maxim which naturally suggests
itself in this place, and which is illustrated by the pro-
visions with respect to cases of disability, which suspend
the ordinary operation of such statutes until the disability
is removed. The maxim alluded to is expressed thus :
Contra non valentem agere nulla currit prcescriptio — prescrip-
tion does not run against a party who is unable to act.
For instance, in the case of a debt, it only begins to run
from the time when the creditor has a right to institute his
suit, because no delay can be imputed to him before that
time (/i). In the case, therefore, of a contract to pay
money at a future period, or upon the happening of a
certain event, as, " when J. S. is married," the six years
are to be dated, in the first instance, from the arrival of the
specified period; in the second, from the time when the
event occurred (i). Again, if a person incurs a debt while
he enjoys the immunity from process which our law allows
to an ambassador, the six years do not begin to run until
that immunity has ceased {j).

Where, however, the statute has once begun to run, the
rule is that no subsequent disability interrupts its operation ;

(g) See Be HolUngshead, 37 Oh. D. Diet. & Dig. of Scotch Law, 223.
651. Where a loan is made by cheque

(h) 1 PotMer, by Evans, 451 ; the statute does not begin to run

Hemp V. Garland, i Q. B. 519, 524 ; until the cheque is paid ; Garden v.

Beeves v. Butcher, [1891] 2 Q. B. Briice, L. E. 3 0. P. 300.
509 ; Coburn v. Golledge, [1897] 1 (i) 1 Pothier, by Evans, 451 ;

Q. B. 702: 66 L. J. Q. B. 462; Shutfmd v. Borough, Godb. 437;

Huggins v. Ooates, 5 Q. B. 432 ; Fenton v. Emhlers, 1 W. Bla. 358.
Holmes v. Eerrison, 2 Taunt. 323: (j) MusunisBeyY.Godban,[189i]

11 E. E. 594. See, also, Davies v. 2 Q. B. 852 : 63 L. J. Q. B. 621.
Humphreys, 6 M. & W. 153; Bell,

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THE LAW OF CONTBACTS.

697

for instance, its operation is not interrupted by the death
of the debtor, and the non-appointment of an executor by
reason of htigation as to the right to probate (k). But even
to this rule there is an exception ; for where administration
of the goods of a creditor is granted to a debtor, this,
being by act of law, suspends the statute during the
administration (l).

Actio personalis moeitue cum Pbesona. (Noy, Max. 14.) —
A personal right of action dies tuith the person.

The legal meaning and application of this maxim will,
perhaps, most clearly be shown, by stating concisely the
various actions maintainable by and against executors and
administrators, as well as those causes of action which die
with the person. To the latter alone can the above maxim
be considered in strictness to apply (m).

1. Contracts. — The personal representatives are, as a Actions ex
general rule, entitled to sue on all covenants broken by personal
in the lifetime of the covenantee ; as for rent then due, ^763!^^"^ ^
or for breach of covenant for quiet enjoyment (?0, or to
discharge the land from incumbrances (0). A distinc-
tion must, however, be remarked between a covenant
running with the land and a purely collateral covenant. In
the former case, where the formal breach has been in the
ancestor's lifetime, but the substantial damage has taken

{k) Rhodes v. Smethurst, 4 M. & of the death of either party between

W, 42 : 6 Id. 351 ; Homfray v. the verdict or finding of the issues

Scroope, 13 Q. B. 513 ; Freake v. of fact and the iudgment, and judg-

Cranefeldt, 3 My. & Or. 499 ; Penny ment may be entered notwithstand-

V. Brice, 18 C. B. N. S. 396. ing the death.

(I) Seagram v. Knight, L. E. 2 (n) Ltocy v. Levington, 2 Lev. 26.

Oh. 628. By 13 Edw. 1, st. 1, u. 23, executors

(m) By R. S. 0. 1883, 0. XVII., were given a writ of account. In

r. 1, whether the cause of action 31 Edw. 3, st. 1, c. 11, originated

survives or not, there is no abate- the office of administrator,

ment of a cause or matter by reason (0) Smith v. Simonds, Comb. 64.

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698 THE LAW OF CONTBACTS.

place since his death, the real and not the personal repre-
sentative is the proper plaintiff; whereas, in the case of a
covenant not running with the land, and intended not to
be limited to the life of the covenantee, as a covenant not
to fell trees excepted from the demise, the personal repre-
sentative is alone entitled to sue (p). In a case where it
was held that the executor of a tenant for life may recover
for a breach of covenant to repair committed by a lessee of
the testator in his lifetime, without averring a damage to
his personal estate, the rule was stated to be, that unless
the particular covenant be one for breach whereof, in the life-
time of the lessor, the heir alone can sue, the executor may
sue : unless, indeed, it be a mere personal contract, to which
the rule applies, actio personalis moritur cum persona (q).

The personal representative, moreover, may sue, not
only for the recovery of all debts due to the deceased by
specialty or otherwise, but for all breaches of contract with
him, except breaches which import a mere personal
injury (r) ; and, with that exception, all rights of action
for breaches of contract committed during the lifetime of
the deceased pass to the personal representative, as also
does the right to sue for breaches, committed after the
death of the deceased, of contracts which were neither
limited to his lifetime nor determined by his death (s). An

(p) Baymcmdv.FUch,2G.M..&'R. in an indenture of apprenticeship,

598, 599; per Williams, J., and Baxter v. Burfield, 2 Stra. 1266;

Parke, B., Beckham v. Drake, 2 Cooper v. Simmons, 7 H. & N. 707.

H. L. Cas. 596, 624 ; per Parke, J., (r) Judgm., 2 C. M. & B. 596,

Garr v. Roberts, 5 B. & Ad. 84 : 39 597 ; yer Tindal, O.J., Orme v.

B. E. 405 ; Kingdom v. Nottle, 1 M. Brozighton, 10 Bing. 537 : 38 B. B.

& S. 355: 4 M. & S. 53 : 14 B. B. 544; Stubbs v. Holywell B. Co.,

462 : 16 B. B. 879 ; King v. Jones, L. B. 2 Ex. 311 : 1 Wms. Saund.

5 Taunt. 518 : 15 B. B. 533 ; S. C. 112, n. (1) ; Edwards v. Grace, 2M. &

(in error), 4 M. & S. 188. W. 190 ; Webb v. Cowdell, 14 M. &

(g) Bicketts v. Weaver, 12 M. & W. 820; per Vaughan Williams,

W. 718, recognising Raymond v. L.J., in Formby v. Barker, [1903] 2

Fitch, supra. As to a covenant Oh. 539, 550 : 72 L. J. Oh. 716.

respecting a chattel, see per Parke, (s) Cooper v. Johnson, 2 B. & Aid,

J., Doe V. Rogers, 2 N. & M. 555 ;— 394: 20 B. B. 483 ; per Bayley, J.,

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THE LAW OF CONTRACTS. 699

administrator, moreover, may sue for the price of goods sold
and delivered between the death of the intestate and the
taking out letters of administration (t), but he cannot sue
in his representative character upon contracts made after
the death of the intestate in the course of carrying on the
intestate's business («).

An action, however, is not maintainable by an executor or
administrator for a breach of promise oi marriage made to
the deceased, where no special damage is alleged (x) ; for the
general allegation of the breach imports only a personal
injury ; and, generally, with respect to injuries affecting the
life or health of the deceased, — such personal injuries, for
instance, as arise out of the unskilfulness of a medical practi-
tioner, or the negligence of a coach proprietor, — the maxim
as to actio personalis is applicable, unless some damage done
to the personal estate of the deceased be stated on the
record (y). But where the result of a breach of a contract
relating to the person is a damage, not to the person only,
but also to the personal estate : for instance, where, in the
case of negligent carriage or cure, the consequential damage
includes the expenditure of money, or the loss for a time of
the profits of a business, or of the wages of labour : or
where, in the case of a contract to carry safely both the
person and the goods, both be injured : in such cases it
appears that the executor may sue for the breach of
contract, and recover damages to the extent of the injury
to the personal estate (z).

Rhodes v. Haigh, 2 B. & C. 346, (u) Bolingbroke v. Kerr, L. R. 1

347 : 26 E. E. 376 ; M'Dcyagal v. Ex. 222.

Bobertson, 4 Bing. 435 : 29 E. R. {x) Chamberlain v. WilUamson, 2

592 ; Tyhr v. Jones, 3 B. & C. 144 ; M. & S. 408 : 15 R. R. 295 ; see also

Clarke v. Crofts, 4 Bing. 143 : 29 Finlay v. Chinery, 23 Q. B. D. 494 :

R. R. 527 ; Bowher v. Evans, 15 57 L. J. Q. B. 247.

Q. B. D. 565 ; Knights v. Quarles, 2 {y) Judgm., 2 M. & S. 415, 416 ;

B. & B. 102 : 22 R. E. 659, which Beckham v. Drake, 2 H. L. Gas. 579,

was an action against an attorney 596, 624. See Knights v. Quarles, 2

for negligence in investing a title. B. & B. 104 : 22 R. R. 659 .

(<) Foster v.Bates,12U. &W.226. (a) Judgm., 8 M. & W. 854, 855;

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700

THE LAW OF CONTRACTS.

Against
representa-
tives .

The personal representatives, on the other hand, are
Hable, so far as they have assets, on all the covenants and
contracts of the deceased broken in his lifetime («), and
likewise on such as are broken after his death, for the due
performance of which his skill or taste was not required (b),
and which were not to be performed by the deceased in
person (c). " The executors," observed Parke, B. (d), "are
in truth contained in the person of the testator, with respect
to all his contracts, except indeed in the case of a iiersonal
contract, that is, a contract depending on personal skill,
in which is always implied the condition that the person
is not prevented by the act of God from completing the
work. That condition is peculiar to personal contracts."
The distinction must, moreover, be noticed between a mere
authority and a contract, the former being revoked by
death, whereas the latter is not determined thereby, except
as above mentioned (e).

Further, the personal representatives are liable on a
covenant by deceased for their performance of a particular
act, as for payment of a sum of money (/) ; for building a

Bradshaw v. Lane. £ Y. B. Co.,
10 C. P. 189 : 44 L. J. C. P. 148 ;
Daly V. Dublin B. Co., 30 L. B. Ir.
514 ; per Ld. Halsbury, [1897] A. C.
601.

(a) " Wliere a relation exists
between two parties which involves
the performance of certain duties by
one of them, and the payment of
reward to him by the other, the law
will imply, or the jury may infer a
promise by each party to do what is
to be done by him ; " and for breach
of such a, promise, executors may
sue or be sued ; Morgan v. Bavey, 6
H. & N. 265, 276; Batthyany v.
Walford, 36 Oh. D. 269, 279: 56
L. J. Oh. 881. See also Blyth v.
Pladgate, [1891] 1 Oh. 387, 366:
60 L. J. Oh. 66.

(6) Per Parke, B., Sibani v.
Kirkman, 1 M. & W. 423 ; per
Patteson, J"., Wenbvorth v. Cock,
10 A. & E. 445, 446; Hopwood v.
Whaley, 6 0. B. 744; Bac. Abr.,
" Executors and Administrators,"
(P. 1); Oom. Dig. '^Administra-
tion " (B. 14).

(o) Hyde v. Dean of Windsor, Cro.
Eliz. 552, 553 ; per Cur., Marshall
V. Broadhurst, 1 Or. & J. 406.

(d) Wills V. Murray, 4 Exch. 866.
See Tasker v. Shepherd, 6 H. & N.
575.

(e) Bradbury v. Morgan, 1 H. &
0. 249.

(/) Ex parte Tindal,d Bing, 404,
405, and cases there cited ; Pmoell
V. Graham, 7 Taunt. 580 : 18 E. R.
593.

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THE LAW OF CONTRACTS. 701

house left unfinished by the deceased (g) ; or on his con-
tract for the performance of work by the plaintiff, before
the completion of which he died, but which was subse-
quently completed (h). And the same principle was held
to apply where an intestate had agreed to receive from the
plaintiffs monthly during a certain period a certain quantity
of slate, a portion of which, when tendered after his death,
but before the expiration of the stipulated period, his
administrator refused to accept (i).

The action of debt on simple contract, except for rent (j),
did not, however, formerly lie against the personal repre-
sentative for a debt contracted by the deceased (/c), unless
the undertaking to pay originated with the representative (l) ;
and the reason was, that executors or administrators, when
charged for the debt, were not admitted to wage their law,
and, consequently, were deprived of a legal defence of
which the deceased himself might have made use ; but this
reason did not apply to assumpsit, which, therefore, could
always be brought (m). However, by the Civil Procedure
Act, 1833, wager of law was abolished, and an action of debt
on simple contract became maintainable in any Court of
common law against an executor or administrator (n).

2. Torts. — It is to actions in form ex delicto that the Actions ea
maxim, actio personalis moritur cum persona is peculiarly
applicable ; for, as Lord Abinger observed (o), this maxim

{g) Quick V. Ludborrow, 3 Bulstr. 30 K. R. 569.

30; recognised, 1 M. & W. 423. See (m) 3 Bla. Com., 16th ed. 347,

per Cur., 1 Or. & J. 405, 406; per and n. (12). In Perkmson y. Qilford,

Ld. Abinger, 3 M. & W. 353, 354. Cro. Car. 539, debt was held to lie

(h) Corner v. Shew, 3 M. & W. against the executors of a sheriff,

350, 352. See per Alderson, B., who had levied under a, fi. fa., anA

Prior V. Hemhrow, 8 M. & W. 889, died without paying over the money.

890. As to a set-off by an executor sued

(i) Wentworth v. Cock, 10 A. & E. as such, see Mardall v. Thellusson,

42. 6 E. & B. 976 ; S. C, 18 Q. B. 857.

(j) Norwood V. Bead, Plowd. 180. (n) 3 & 4 Will. 4, c. 42, ss. 13, 14.

(k) Barry v. BoUnson, 1 N. K. (o) Baymond v. Fitch, 2 Cr. M. &

293. R- 588, 597.

(1) Bidden v. Sutton, 5 Bing. 206 :

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702 THE LAW OF CONTRACTS.

" is not applied in the old authorities to causes of actions
on contracts, but to those in tort, which are founded on
malfeasance or misfeasance to the person or property of
another : which latter are annexed to the person, and die
with the person, except where the remedy is given to (or by)
the personal representatives by the statute law." And the
general rule of the common law is, that if an injury were
done either to the person or to the property of another for
which unliquidated damages only could be recovered in
satisfaction, the action died with the person to whom, or
by whom, the wrong was done (p).
Injuries to Dealing, first, with actions brought In/ personal repre-

testator's . /. n n i • , '

personalty. sentatives, we find that this general rule of the common
law received considerable alteration by statute, as early as
1330, when the 4 Edw. 3, c. 7, was passed. This Act,
after reciting that in times past executors had not " actions
for a trespass done to their testators as of the goods and
chattels of the same testators carried away in their Ufe,"
enacted that executors (q) in such cases should have an
action against the trespassers, and recover their damages,
in like manner as their testators if they were in life ; and
the effect of this Act, which, being remedial in character,
has always been construed liberally (r), seems to be, that,
whatever the form of the . action may be, a personal repre-
sentative now always has the same action as the deceased
person whom he represents would have had, for any injury
done in such person's lifetime to his personal estate,
whereby that estate is rendered less beneficial (s). In other
words, the Act has been construed as extending " to all torts,
except those relating to freeholds, and those where the

(p) Wheatley v. Lcme, 1 Wms. (r) See per Ld. Ellenborough,

Savmd. (ed. 1845) 216 a, n. (1). Wilson v. KnuhUy, 7 East, 134 ;

(g) Administrators are within the Emerson v. Emerson, 1 Ventr.

equity of the Act ; Smith v. Colgay, 187.

Cro. Eliz. 384; and the remedy was (s) See 1 Wms. Saund. (ed. 1845)

extended by 25 Edw. 3, st. 5, c. 5, 217 b, n.
to executors of executors.

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THE LA-\V OF CONTRACTS.

703

injury done is of a personal nature "(<). For instance,

the Act gives an executor a remedy for the infringement in

his testator's lifetime of his registered trade-mark, for that

is an injury to personal property (w).

And here we may remind the reader that " the right of Eepresenta-

• 1 • 1 tide's title to
an executor to the personal estate of the testator is derived personal

from the -will, and the property in the personal goods and ^^ * '^'

chattels of the testator is vested in him immediately upon

the testator's death; and he is deemed to be in legal

possession of them from that time, though before probate

granted " (a;). The title of an administrator, on the other

hand, is derived from the letters of administration, though

it has relation back, for many purposes, to the date of the

death ; for instance, it has been held that trespass to goods

is maintainable by an administrator for an act done between

the death of the intestate and the grant of the letters (y) .

Detinue, however, does not lie at the suit of an administrator

for goods of the intestate which the defendant restored

before the grant (z) .

In regard to this doctrine of relation, we may add in

the words of Parke, B., that " an act done by one who

afterwards becomes administrator, to the prejudice of the

estate, is not made good by the subsequent administration.

It is only in cases where the act is for the benefit of the

estate, that the relation back exists, by virtue of which

relation the administrator is enabled to recover against

such persons as have interfered with the estate, and thereby

to prevent it from being prejudiced and despoiled " (a).

(i) Per Bramwdl, L.J., Twycross man v. Sturgis, 13 Q. B. 552. In

V. Grant, 4 C. P. D. 40, 45. Bodger v. Arch, 10 Exch. 333, the

(u) Oakey v. Dalton, 35 Ch. D. doctrine of relation was applied,

700; see Hatchard v. Mege, 18 under peculiar circumstances, to

Q. B. D. 771 : 56 L. J. Q. B. 897. prevent the operation of the statute

(a;) Per Ld. Campbell, Pemberton of limitations ; see Stamford Bank

V. Chapman, 7 E. & B. 210, 217. v. Smith, [1892] 1 Q. B. 765 : 61

(y) Tharpe v. Stallwood, 5 M. & L. J. Q. B. 405.

Gr. 760 ; recognised in FosUr v. (z) Crossfield v. Such, 8 Exoh. 825.

Bates, 12 M. & W. 227 ; see Welch- (a) Morgan v. Thomas, 8 Exch.

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704

THE LAW OP CONTRACTS.

Injuries to

testator's

realty.

Injuries to

testator's

person.

The common law provides no remedy after a person's

death for an injury done in his Hfetime to his real estate (b) ;

and accordingly, if his personal representatives sue in

respect of such an injury, the maxim, actio personalis

moritur citm persona, still, as a rule, defeats the action,

unless it be maintainable under the Civil Procedure Act,

1833 (c). Under this Act, an action may be maintained

by executors or administrators of a deceased person for any

injury to his real estate committed in his lifetime, for which

he might have maintained an action if alive, provided, first,

that the injury was committed within six months before

his death, and, secondly, that their action be brought

within one year after his death ; and damages recovered in

the action form part of his personal estate. Since this Act

does not enable an executor to commence an action for an

injury which was done to his testator's real estate more

than six months before the testator's death, an executor

cannot carry on a pending action, commenced by his

testator, while alive, for an injury to his real estate, if at

the time when the testator dies six months have elapsed

since the injury was committed (d). In the case, however,

of a continuing injury which gives rise to a new cause of

action every day, the executor can bring an action, or carry

on his testator's action, in respect of the injury, if and so

far as the injury continued within the period of six months

before the testator died (e).

Notwithstanding the statutory exceptions which we have

noticed to the general rule of the common law, that rule

still applies where a tort is committed to a man's person,

feelings or reputation, as by battery, libel, slander, or his

daughter's seduction; and in such cases no action is

maintainable by his executors or administrators, for they

302, 307 ; see Be Watson, 18 Q. B. D. (d) Kirk v. Todd, 21 Ch. D. 484 :

116 : 19 Id. 284 ; ante, p. 676. 52 L. J. Ch. 224.

(6) See 1 Wms. Saund. (ed, 1845) (c) Jones v. Svmes, 43 Ch. D. 607 :

217 b. 59 L. J. Ch. 351 ; Jenks v. CUfden,

(c) 8 & 4 Will. 4, 0. 42, s. 2, [1897] 1 Ch. 694 : 66 L, J. Ch. 338.

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THE LAW OF CONTRACTS. 705

represent not so much the person as the personal estate
of the testator or intestate, of which they are in law the
assignees (/). Accordingly, where a man sustained personal
injuries through the defendants' negligence, whilst he was
using a level crossing at their railway, and eventually died
from such injuries, it was held that his administratrix
could recover damages neither for the injuries themselves
nor for the loss such injuries occasioned to him, while yet
alive, through his inability to work and his need of doctors
and nurses (g).

The victim of bodily harm, if occasioned by another's Lord Camp-
wrongful act, has a cause of action against the wrong-doer,
to recover damages for his physical sufferings; but if the
bodily harm results in the victim's death, our common law
does not transfer the cause of action to his legal personal
representatives ; nor does it give to the members of the
victim's, family who were dependent upon him for their
support any cause of action against the wrong-doer for the
pecuniary loss which they sustain through their bread-
winner's death. For such pecuniary loss, however, some
remedy is provided by the Fatal Accidents Act, 1846 Qi),
commonly known as Lord Campbell's Act. Under this Act,
in every case where the death of a person is caused by
wrongful act, neglect or default, and the act, neglect or
default is such as would (if death had not ensued) have
entitled the injured person to maintain an action and
recover damages in respect thereof, the person who would
have been hable if death had not ensued is liable to an

(/) 3 Blac. Com,, 16th ed. 302, (h) 9 & 10 Vict. o. 93 ; amended

n. (9); Com. Dig., " Administra- by 27 & 28 Viet. o. 95, and 8 Edw.

tion" (B. 13); Bowker v. Evans, 7, o. 7. The Employers' Liability

15 Q. B. D. 565 : 54 L. J. Q. B. 421. Act, 1880 (43 & 44 Viot. c. 42), and

(g) PulUng v. G. E. B. Co., 9 the Workmen's Compensation Act,

Q. B. D. 110: 51 L. J. Q. B. 453, 1906 (6 Edw. 7, u. 58), also give

where Bradshmv v. Lcmc. d Y. B. remedies to personal representatives

Co., L. E. 10 C. P. 189, was distin- or dependants of a deceased work-

guished, as being an action for man.
breach of contract. See ante, p. 699.

L.M.

45

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706 THE LAW OF CONTKACTS.

action for damages notwithstanding the death, and even
though the death was caused under such circumstances
as amounted in law to a felony (i). Such action, though
it must be brought, as a rule (k), in the name of the
executor or administrator, is an action for the benefit of
the wife, husband, parents (l) and children (Q of the
deceased person : the jury being required to give such
damages as they think proportioned to the injury resulting
from the death to the parties respectively for whose benefit
the action is brought; and the amount recovered, after
deducting costs not recovered, is divisible amongst these
parties in such shares as the jury by their verdict direct (m).
The action must be brought within twelve months after the
death (n).

This Act, it is to be observed, creates a new cause of
action, arising upon and out of a person's death (o) ; and,
therefore, it really leaves the maxim, actio personalis moritur
cum persona, untouched ; for the cause of action which the
injured person might have maintained for his personal
sufferings dies with him, and in an action, brought under
the Act for the benefit of his relatives, compensation is
recoverable only for the pecuniary loss which they them-
selves sustain by reason of his death (p). The Act, how-
ever, gives no cause of action, unless the injured person
was entitled, at the time of his death, to bring an action
for his personal injuries. For instance, the relatives remain

(i) 9 & 10 Vict. 0. 93, s. 1. E. B. & E. 168 ; Pym v. G. N. R.

{k) Id. s. 2 ; see 27 & 28 Vict. c. Co., 4 B. & S. 396 ; see also JDuclc-

95, s. 1. wm-th V. Johnson, 4 H. & N. 653 ;

(I) As defined by the Act ; see s. 5. Franklin v. S. E. B. Co., 3 Id. 211 ;

(m) S. 2. Dalton v. S. E. B. Co., i C. B. N. S.

(n) S. 3. 296. Funeral expenses of the de-

(o) See per Ld. Selborne, Seward ceased cannot be recovered : Clark

V. Vera Cruz, 10 App. Gas. 59, 67; v. London General Omnibus Co.,

cited in Adam v. British & F. SS. [1906] 2 K. B. 648 : 75 L. J. K. B.

Co., [1898] 2 Q. B. 430 : 67 L. J. 907. As to taking into account

Q. B. 844. insurances on the life of the

{p) Blake v. Midi. B. Co., 18 deceased, see 8 Edw. 7, u. 7.
Q. B. 93 ; Chapman v. Bothwell,

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THE LAW OF CONTRACTS. 707

without remedy if the injuries from which the deceased

died were the result of his own contributory negUgence (q) ,

or if satisfaction for his injuries was accepted by him before

he died(r). Moreover, it seems that, by virtue of the

maxim, actio 'personalis moriUir cum persona, the relations

lose their remedy under the Act if the wrong-doer dies, Death of

whether he die before or after the death of the person ^'^°°^' °®'^-

whom he injured ; for the Act supplies no remedy either to

the injured person while he lives, or to his relatives after

his death, against the executors or administrators of the

wrong-doer (s) .

Turning now to actions ex delicto brought against the Actions ex

. J. J. deZicto against

personal representatives oi a wrong-doer, we must refer personal
again to the Civil Procedure Act, 1833 {t). By this Act, uver^"'*'
an action of trespass, or trespass on the case, may be
maintained against the executors or administrators of any
deceased person for any wrong committed by him in his
lifetime to another, in respect of his property, real or
personal, provided, first, that the injury was committed
within six months before such deceased person's death {u),
and, secondly, that the action be brought within six months
after such executors or administrators have taken upon
themselves the administration of his estate; and the
damages recovered in the action are payable in like order
of administration as simple contract debts.

Before the passing of this Act, the remedy for a tort to Eule at
the property of another, real or personal, by an action in °°™™°'^
form ex delicto— su-ch. as trespass, trover, or^case for waste,
or for diverting a watercourse or obstructing ancient lights

(g) Witherley v. Begent's Canal personal representatives of a

Co. 12 C. B. N. S. 2 ; Pym v. deceased employer. See s. 13 of

G. N. B. Co., supra. tlie Act.

(r) Bead v. G. E. B. Co., L. E. (t) 3 & i WiU. 4, c. 42, s. 2.

3 Q. B. 555. (*^) See Bichmond v. Nicholson,

(s) But compensation in accord- 8 Scott, 134 ; Powell v. Bees, 7 A. &

anoe with the Workmen's Compen- B. 426 ; and cases cited, ante, p.

sation Act, 1906, is payable by the 704, notes (d) and (e).

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708

THE LAW OF CONTRACTS.

Liability of
innkeeper.

Tort to
property.

— could not have been enforced against the personal repre-
sentatives of the tort-feasor (x) ; and this, therefore, must
still be the general rule in cases where, the tort having
been committed more than six months before the tort-
feasor's death, the above Act does not apply (y). Cases,
however, occur in which a person whose property has been
damaged may treat the injury either as a tort or as a
breach of contract; and in these cases he has a remedy
in assumpsit against the wrong-doer's executors, which is
independent of the above Act (a) : the general rule of the
common law being that executors are liable for- damage
done by their testator to personal property if assumpsit can
be brought in respect of such damage (h).

Where a guest at an inn lost his goods there lyropter
defectum liospitoris (c), it was held that the guest could
recover the value of the goods from the innkeeper's
executors, as damages for a breach of contract; and
it was laid down that "where a relation exists between
two parties, which involves the performance of certain
duties by one of them and the payment of reward to
him by the other, the law will imply, or the jury may
infer, a promise by each party to do what is to be done
by him " (d).

Upon the question whether the common law of itself
supplies any remedy by action against the personal repre-
sentatives of a wrong-doer for a tort committed by him to

(x) See 1 Wms. Saiind. (ed. 1845)
216 a, n. (1). Where chattels,
wrongfully in the possession of the
testator, continued m specie in the
executor's hands, detinue was main-
tainable to recover the specific
goods : Bro. Abr. " Detinue," pi. 19 ;
Le Mason v. Dixon, W. Jones, 173,
174.

{y) The 30 Gar. 2, st. 1, c. 7, and
4 & 5 W. & M. c. 24, s. 12, provide
a remedy against the representatives

of an executor or administrator who
committed waste; see Huntley v.
Bussell, 13 Q. B. 572 ; Coward v.
Ch-egory, L R. 2 C. P. 158.

(a) Seeper Ld. Mansfield, Hambly
V. Trott, Cowp. 375.

(6) See per Bowen, L.J., 24 Ch. D.
457.

(c) See Calye's case, 8 Rep. 32 : 1
Smith, L. 0.

{d) Morgan v. Ravey, 6 H. & N.
265, 276.

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THE LAW OF CONTRACTS. 709

property, Phillips v. Homfray(e) may now be regarded as a
leading case. In that case the wrongful act was a trespass
to land by the secret use of certain underground ways with-
out the landowner's knowledge, and the action was brought
by the landowner against the trespasser to recover compen-
sation for the trespass. While the action was pending, the
trespasser died, and thereupon the landowner sought to
continue the action against the executors of the trespasser
on the ground that, as no way-leave had been paid for the
use of the underground ways, the estate of the deceased
wrong-doer had derived a profit from his wrong (/). The
Court of Appeal, however, decided that the maxim, actio
personalis moritur cum persona, applied. The rule, laid
down in the judgment delivered by Bowen, L.J., in this
case, as to the general effect of the maxim, was as
follows : —

" The only cases in which, apart from questions of breach Buie laid
of contract, express or implied, a remedy tor a wrongiul phuups v.
act can be pursued against the estate of a deceased person "^r^-v-
who has done the act appears to us to be those in which
property, or the proceeds or value of property, belonging to
another, have been appropriated by the deceased person
and added to his own estate or moneys. In such cases,
whatever the original form of action, it is in substance
brought to recover property, or its proceeds or value, and
by amendment could be made such in form as well as in
substance. In such cases the action, though arising out of
a wrongful act, does not die with the person. The property
or the proceeds or value which, in the lifetime of the
wrong-doer, could have been recovered from him, can be
traced after his death to his assets, and recaptured by the
rightful owner there. But it is not every wrongful act by
which a wrong-doer indirectly benefits that falls under this

(e) 2i Ch. D. 439 : 52 L. J. Ch. under 3 & 4 Will, i, c. 42, s. 2, was
gqg barred by lapse of time.

(/) The landowner's remedy

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710 THE LAW OF CONTRACTS.

head, if the benefit does not consist in the acquisition of
property, or its proceeds or value. Where there is nothing
amongst the assets of the deceased that in law or equity
belongs to the plaintiff, and the damages which have been
done to him are unliquidated and uncertain, the executors
of a wrong-doer cannot be sued merely because it was
worth the wrong-doer's while to commit the act which
is complained of, and an indirect benefit may have been
reaped thereby " (g).

As regards torts to property, therefore, the rule of the
common law, which equity also recognises, is that remedies
for the wrongful acts "can only be pursued against the
estate of a deceased person when property or the proceeds
or value of property belonging to another have been
appropriated by the deceased person and added to his own
estate " (h).
Tort to the Por a tort committed to the person, such as battery

person. ^^ i&lae imprisonment, the Civil Procedure Act, 1833 (i),

gives no remedy against the personal representatives of the
tort-feasor ; and it is clear that, at common law, no action
for a tort of this kind can be maintained against them (A) .
By our law an executor represents the debts and property,
but not the person of the testator, and it seems to have
been thought that there would be an injustice in making
the executor stand in the place of the dead man when the
causes of action were purely personal (l). Accordingly, the
rule at common law is, that no action lies against executors
for a tort committed by their testator for which unliquidated
damages is the only remedy (in) ; and for that reason the
estate of a deceased person cannot be made answerable to

{g) 25 Ch. D. 454, 455. 456 ; see also 2>er Ld. EUenborough,

(h) Per Bowen, L.J., 20 Q. B. D. 2 M. & S. 415 : cited per Bowen,

504. L.J., 20 Q. B. D. 505.

(i) 3 & 4 Will. 4, 0. 42. (m) Per Jessel, M.E., 21 Ch. D.

{k) 3 Blao. Com. 802. 489.
(Z) Per Bowen, L.J., 24 Ch. D.

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THE LAW OF CONTRACTS. 711

a claim to recover damages for deceit (n), or defamation (o),
or for damages for adultery awarded against a co-respon-
dent (oo). Moreover, as damages of a vindictive and
uncertain kind may be given for a breach of promise of
marriage, the maxim, actio personalis moritur cum persona,
applies upon the promisor's death, except in so far as the
plaintiff has suffered special damage to her estate, arising
out of the breach of contract (p).

Upon a petition of right whereby compensation was Demise o£
claimed for damage to property occasioned by the negligence *^® Crown.
of the servants of the Crown in a preceding reign, Lord
Lyndhurst inclined to the view that the maxim, actio
personalis ruorltur cum persona, was applicable. The main
ground, however, of his decision against the claimant was
that a petition of right does not lie for negligent or tortious
acts of the Crown's servants (g).

After some controversy, it seems to be now settled that a Action by
master cannot maintain an action for injuries to his servant ^rvanthas^^
by a wrongful or negligent act which caused the servant's been killed

J ^ ^ *= outright.

immediate death, and that he cannot recover from the
wrong-doer damages either for the loss of the servant's
services or for expenses incurred in burying the servant ;
and that this rule obtains even if the servant was the
master's own child (r). This rule rests mainly upon the
statement of Lord Ellenborough at nisi prius (s) that " in a
civil court the death of a human being could not be com-
plained of as an injury " ; or, as Bowen, L.J., said in a
later case (<), " the killing of the deceased per se gives no

(to) Re Duncan, [1899] 1 Oh. 387 : (r) Clarh v. London General

68 L. J. Oh. 253. Omnibus Co., [1906] 2 K. B. 648 :

(o) Hatchard v. Mege, 18 Q. B. D. 75 L. J. K. B. 907, where the

771 : 56 L. J. Q. B. 897. opinion of the majority of the Court

(oo) Brydges v. Brydges & Wood, in Osborn v. GilXett, L. B. 8 Ex. 88 :

[1909] P. 187 : 78 L. J. P. 97. 42 L. J. Ex. 53, was followed.

(2>) Fmlay v. Ghvnery, 20 Q. B. D. (s) Baker v. Bolton, 1 Oamp. 493 :

494, 504 : 57 L. J. Q. B. 247. 10 B. B. 734.

(2) Yisc. Canterbury v. A.-G., 1 (t) The Vera Crm (No. 2), 9 P. D.

Phill. .306 ; see ante, p. 44. 36 : 53 L. J. P. 33.

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712

THE LAW OF CONTBAOTS.

Death caused
by breach of
contract.

Duties to be
performed.

Statutory
duties.

right of action at all, either at law or under Lord Campbell's
Act."

It has, nevertheless, been decided that, in action for the
breach of a warranty that an article was fit for consumption
as human food, the damages recoverable may include the
loss by the plaintiff of his wife's services, if she died of eating
the article, and the expense of hiring some one else to
perform those services after the wife's death (m). This
decision was based upon the distinction between an action
for breach of contract and an action of tort.

Notwithstanding the maxim actio personcclis moritur cum
persona, an action in respect of dilapidations to the build-
ings of a benefice lay at common law against the executors
of a deceased incumbent at the suit of his successor or even
of the executors of his successor {v) ; and the reason was
that the omission to repair was considered not as a tort,
but as the breach of a duty, analogus to an implied
contract, with regard to the property {x). For the like
reason, it appears that the maxim does not apply to a suit
against executors in respect of their testator's breach of
trust (i/), or his breach of his duty to repair his copy-
hold tenement in accordance with the custom of the
manor {z).

The maxim has no application to statutory duties, such
as the duty of an employer to pay compensation to the

(w) Jackson v. Watson & Sons,
[1909] 2 K. B. 193 : 78 L. J. K. B. 587.

(v) See Bunhury v. Hewson, 3
Exch. 558 ; Boss v. AdcocJc, L. K. 3

C. P. 655. By 84 & 85 Vict. c. 43,
the cost of the repairs became re-
coverable as a debt ; see Be Monk,
35 Ch. D. 588 : 56 L. J. Oh. 809.

(x) See per Cotton, L.J., 86 Ch.

D. 280, referring to Sollers v. Law-
rence, Willes, 413, 421.

{y) Concha v. Murrieta, 40 Ch.
D. 543, 553 (see S. C, [1892] A. 0.

670) ; Bamskill v. Edwards, 31 Oh.
D. 100, 111 : 55 L. J. Oh. 81. See
also Be Sharjpe, [1892] 1 Ch. 154 :
61 L. J. Ch. 193. Sequestration,
issued to compel the performance
of a duty, is not determined by the
death of the person against whose
estate it was issued ; Pratt v. Inman,
43 Ch. D. 175 : 59 L. J. Ch. 274.

[z] Blackmm-e v. White, [1899] 1
Q. B. 293 : 68 L. J. Q. B. 951. See
also Battyhany v. Walford, 36 Ch.
D. 269 : 56 L. J. Ch. 881.

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THE LAW OF OONTEACTS. 713

dependants of a deceased workman under the Workmen's
Compensation Act, 1906. This duty may be enforced by
the executors of a deceased dependant to whom compensa-
tion was payable at the time of her death (a). So too where
an action was commenced by a manufacturer to compel a local
authority to perform their statutory duty of making a sewer
to enable the manufacturer to dispose of liquids proceeding
from his factory, it was held that the cause of action, if any,
survived to his executors on his death (6) . There is, how-
ever, a decision to the effect that the extraordinary expenses
of repairing a highway damaged by extraordinary traffic
thereon cannot be recovered by the highway authority,
under the Highways Act, 1878 (c), from the executor of the
person by whose order the traffic was conducted (d). The
claim was, it seems, treated as one to which Lord Mans-
field's remark might be applied : " All private criminal
injuries or wrongs, as well as all public crimes, are buried
with the offender "(e).

In conclusion, the extent and limits of the common law General rule,
doctrine, actio personalis moritur cum persona, may be
summed up thus : it was a rule of the common law that
if an injury were done either to the person or property of
another for which damages only could be recovered in
satisfaction, the action died with the person to whom or
by whom the wrong was done : but this rule was never
extended to such personal actions as were founded upon
any obligation, contract, debt, covenant, or any other duty
to be performed : for there the action survived (/).

(a) Darlmgtm v. Boscoe £ Sons, (c) 41 & 42 Vict, c, 77, s. 23 : see

[1907] 1 K. B. 219 : 76 L. J. K. B. 61 & 62 Vict. o. 29, s. 12.

371- Vnited ColUeries Limited v. {d) Storyw.Sheard,ll892}2Q.B.

Simmon, [1909] A. C. 383 : 78 L. J. 515 : 61 L. J. M. C. 178.

p Q 129 («) Sambly v. Trott, 1 Cowp. 374.

'(6) Peebles v. Oswaldwistle V. D. (/) 1 Wms. Sauna, (ed. 1845)

C, [1896] 2 Q. B. 159: 65 L. J. 216 a; see also WiUiams on Exeou-

q!'b. 499 ; but see S. 0., [1897] 1 tors, 9tli ed. 1593.
Q. B. 625.

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714

CHAPTEE X.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

We have in a previous chapter investigated certain
rules of the law of evidence which relate peculiarly to the
interpretation of written instruments; it is proposed, in
these concluding pages, to state some few additional rules
of evidence. Very little, however, has been here attempted
beyond a statement and brief illustration of them ; because
it appeared desirable at once to refer the reader to treatises
of acknowledged authority on the subject, from which, after
consideration of the more important cases there indicated,
a clear perception of the extensive applicability of the
following maxims can alone be derived.

Optimus Inteepees Eeeum Usus. (2 Inst. 282.) — Usage
is the best interpreter of things.

Definition Custom, consuctudo, is a law not written, established

usage. by long usage and the consent of our ancestors {a) ; and

hence it is said that usage, usus, is the legal evidence of
custom (b). Moreover, where a law is established by an
implied consent, it is either common law or custom; if
universal, it is common law (c) ; if particular to this or that

(a) Jacob, Law Diet., tit. " Cus- law of England, lex non scripta, is

torn." nothing but custom;" Judgm.,

(6) Po-Bayley.J., 10B.&O.440. Ntmn y. Varty, B Gmt. 363. But

(c) " In point of fact, the common the claim of any particular place to

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 715

place, then it is custom. When any practice was, in its
origm, found to be convenient and beneficial, it was naturally
repeated, continued from age to age, and grew into a law,
either local or natural (d). A custom, therefore, or customary
law, may be defined to be an usage which has obtained
the force of law, and is, in truth, the binding law, within
a particular district, or at a particular place, of the persons
and things which it concerns (e) : consuetude loci est
observanda (/).

There are, however, several requisites to the validity of Oustom,
a custom, which can here be but briefly specified. "^^^"^ ^°°^-

First, it must be certain, or capable of being reduced
to a certainty ((/). Therefore, a custom that lands shall
descend to the most worthy of the owner's blood, is void ;
for how shall this worth be determined ? but a custom to
descend to the next male of the blood, exclusive of females,
is certain, and therefore good. And a custom to pay a
year's improved value for a fine on a copyhold estate is
good; for, although the value is a thing uncertain, yet
it may at any time be ascertained (h).

Secondly, the custom must be reasonable in itself, or,
rather, not unreasonable (i). A custom is unreasonable and

be exempt from the obligation im- E. 554, 575 (where the oustom

posed by the common law, may also alleged was designated by Williams,

be properly called a custom ; Id. J., as " uncertain, indefinite, and

(d) 3 Salk. 112. Ex non scrijoto absurd ") ; Constable v. Nicholson,
jus venit qicod usus comprobavit ; 14 C. B. N. S. 230 ; A.-G. v.
nam diuturni mores consensu uten- Mathias, 27 L.J. Oh. 761 ; Padwich
Hum comprobati legem imitantur ; v. Knight, 7 Exoh. 854 ; Wilson v.
I. 1, 2, 9. Consuetudinis jus esse Willes, 7 East, 121 : 8 E. E. 604;
putatur id quod voluntate omnium Broadhent v. Wilkes, Willes, 360 ;
sine lege vetustas comprobavit — Oic. S. C. (in error), 1 Wils. 63 (which
de Invent, ii. 22. also shows that a oustom must be

(e) Le Case de Tanistry, Davys, reasonable) ; with this case of.
E. 31, 32 ; cited Judgm., 9 A. & E. Sogers v. Tayloj; 1 H. & N. 706 ;
421 ; and in Rogers v. Brenton, 10 Carlyon v. Lovering, Id. 784.

Q. B. 26, 63. (h) 1 Blac. Com. 78 ; 1 Eoll. Abr.

(/) 6 Eep. 67 : 10 Eep. 189. See 565 ; Davys, E. 33.

Busher v. Thompson, 4 0. B. 48. (i) 1 Blac. Com. 77.

[g) Bluett V. Tregonwing, 3 A. &

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716 MAXIMS APPLICABLE XO THE LAW OF EVIDENCE.

bad if it conflicts with the general principles of the common
law, such as a custom which would compel persons to alienate
property without an exercise of free will (j). A custom,
however, is not unreasonable merely because it is contrary
to a particular maxim or rule of the common law, for
consuetudo ex certd causa rationabili tisitata privat com-
munem legem (k) : custom, when grounded upon a certain
and reasonable cause supersedes the common law (1) ;
in proof whereof may be instanced the customs of gavel-
kind and borough English (m), which are directly contrary
to the general law of descent ; or the custom of Kent,
which is opposed to the general law of escheat (n).
Eeferring to a peculiar custom respecting the descent of
copyhold lands in a manor, Cockburn. J., observed that
such "local customs are remnants of the older English
tenures, which, though generally superseded by the feudal
tenures introduced after the dominion of the Normans had
become firmly established, yet remained in many places,
probably in manors which, instead of passing into the pos-
session of Norman lords, remained in the hands of English
proprietors. These customs, therefore, are not merely the
result of accident or caprice, but were originally founded
on some general principle or rule of descent" (o).

Further, a custom is not necessarily unreasonable because
it is prejudicial to the interests of a private man, if it be for
the benefit of the commonwealth; as the custom to turn
the plough upon the headland of another, which is upheld

{j) Johnson v. Clark, [1908] 1 Oh. of the custom of borough English,

303 : 77 L. J. Ch. 177. and therefore, in pleading the

(k) Co. Litt. 113 a ; Tyson v. custom, its nature need not be

Smith, 9 A. & B. 406, 421. specially set forth; Doe v. Clift, 12

{I) Litt. s. 169 : Co. Litt. 38 b : 5 A. & E. 579. The same remark

Bing. 293. It is of the very essence applies to the custom of gavelkind ;

of a custom that it should vary from see Co. Litt. 175 b.

the common law ; per Ld. Kenyon, (n) See 2 Blao. Com. 84.

6 T. R. 764. (o) 2 H. & N. 681 ; cf. 1 Blao.

(to) See Muggleton v. Barnett, 2 Com. 74.
H. & N. 653. The law takes notice

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 717

in favour of husbandry, or the custom to dry nets on the
land of another, which is Hkewise upheld in favour of
fishing and for the benefit of navigation {p). Similarly, the
existence of a fair being treated as a matter of public con-
venience, a custom to erect stalls at a fair upon the highway
may be reasonable, though the exercise of the custom causes
a partial obstruction of the highway so long as the fair
continues {q) ; and upon the ground that recreation is
necessary (;•), it has been held to be a good custom for the
inhabitants of a parish, at all seasonable times of the year,
to enter upon a close within the parish, and there to erect a
maypole and dance round it, and otherwise to enjoy upon
the close any lawful and innocent recreation (s). Again, in
the interests of agriculture, it is a reasonable custom that a
tenant shall have the way-going crop after the expiration of
his term (0, and that a tenant, who is bound to use his farm
in a good and tenantable manner and according to the rules
of good husbandry, may, on quitting the farm, charge his
landlord with part of the expense of draining land which
needed drainage, though the drainage was done without the
landlord's consent or knowledge (it) .

(p) Mercer v. Define, [1905] 2 Oh, a parish to train horses at all season-

538 : 74 L. J. Oh. 723. Judgm., able times of the year in a place

Tyson v. Smith, 9 A. & E. 421 ; Go. outside the parish is not good ;

Litt. 33 b. See Ld. Falmouth v. Sowerby v. Coleman, L. B. 2 Ex.

George, 5 Bing. 286, 293 : 30 R. E. 96 ; of. Edwa/rds v. Jenkins, [1896]

597. There cannot be a custom for 1 Oh. 308 : 65 L. J. Oh. 222.
the inhabitants of a parish to have, {t) Wigglesworth v. Dallismi,

as such, a profit i, prendre in alieno Dougl. 201 : 1 Sm. L. C, 10th ed.

solo ; Oateward's case, 6 Kep. 60 b ; 528, and notes thereto,
see Ooodman v. Saltash, 7 App. Oas. (u) Mousley v. Ludlam, 21 L. J.

633 ; Neill v. Duke of Devonshire, 8 Q. B. 64 ; Dalby v. Hirst, 1 B. & B.

Ii.l35,15i; Fitzha/rdingev.Purcell, 224 : 21 E. R. 577. Mwrg.of Salis-

[1908] 2 Oh. 139 : 77 L. J. Ch. 529. hury v. Gladstone, 9 H. L. Oas. 692

(g) Ehvood v. Bullock, 6 Q. B. (followed in Blewett v. Jenkins, 12

383 ; see Simpson v. Wells, L. E. 7 0. B. N. S. 16), is an important case

Q. B. 214. with reference to the reasonableness

(r) See 1 Lev. 176 : 2 H. Bl. 398. of a custom. See also Phillips v.

(s) Hall V. Nottingham, 1 Ex. D. Ball, 6 0. B. N. S. 811.
1. A custom for the inhabitants of

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On the other hand, a custom, which is contrary to the
pubhc good, or prejudicial to the many and beneficial only
to some particular person, is repugnant to the law of reason,
for it could not have had a reasonable commencement.
For example, a custom set up in a manor on the part of
the lord, that the commoner cannot turn in his cattle until
the lord has put in his own, is clearly bad, for it is injurious
to the multitude and beneficial only to the lord (x). So, a
custom is bad, that the lord of the manor shall have £3 for
every pound-breach of any stranger (]/) , or that the lord of
the manor may detain a distress taken upon his demesnes
until fine be made for the damage at the lord's will (z). In
these and similar cases (a), the customs themselves are
void, on the ground of their having had no reasonable
commencement, — as being founded in wrong and usurpation,
and not on the voluntary consent of the people to whom
they relate (h) ; for it is a true principle, that no custom
can prevail against right, reason, or the law of nature.
The will of the people is the foundation of that custom,
which subsequently becomes binding on them ; but, if it be
grounded, not upon reason, but error, it is not the will of
the people (c), and to such a custom the established maxim
of law applies, malus usus est abolendus (d) — an evil or
invalid custom ought to be abolished.

(x) Year Bk., 2 H. 4, fol. 24 B. Bell, 9 App. Cas. 286 : 10 Q. B. D.

pi. 20 : 1 Blac. Com. 77. 547, 561 ; Duke of Buccleugh v.

{y) See 9 A. & E. 422, n. (a). Wakefield, L. R. 4 H. L. 399). See,

(z) Id., p. 422. also, Bogers v. Taylor, 1 H. & N.

(a) Douglas v. Dysart, 10 C. B. 706 ; Clayton v. Corhy, 5 Q. B. 415

N. S. 688. See Phillips v. Ball, 6 (where a prescriptive right to dig

C. B. N. S. 811. clay was held unreasonable) ; cited

(6) Judgm., 9 A. & E. 422. by Ld. Denman, 12 Q. B. 845

(c) See Taylor, Civ. Law, 3rd ed. Gibbs v. Flight, 3 C. B. 581 ; Bailey
245,246; Noy, Max., 9th ed., p. 59, v. Stephens, 12 C. B. N. S. 91
n. (a) ; Id. 60. Constable v. Nicholson, 14 Id. 280

(d) Litt. s. 212 ; 4 Inst. 274 ; 241. In Lewis v. Lane, 2 My. & K
Hilton V. Earl Granville, 5 Q. B. 449, a custom inconsistent with the
701 (as to which case see Oill v. doctrine of resulting trusts was held
Dickinson, 5 Q. B. D. 159 ; Love v. to be unreasonable.

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719

Thirdly, the custom must have existed from time imme-
morial (e) ; it is no good custom if it originated within the
time of legal memory (/). But, in the absence of evidence
to the contrary, the immemorial existence of a custom
should be inferred, as a fact, from an uninterrupted modern
usage to observe it (g) ; and whenever it is found that a
custom has existed immemorially, it is the duty of a Court
of law to presume that it had a legal origin, if any legal
origin is reasonably possible (h) ; for " it is a maxim of the
law of England to give effect to everything which appears to
have been established for a considerable time and to presume
that what has been done has been done of right and not of
wrong" (i) ; and "it is a most convenient thing that every
supposition, not wholly irrational should be made in favour
of long-continued enjoyment " (j ).

Fourthly, the custom must have continued without any
interruption ; for any interruption would cause a temporary
cessation of the custom, and the revival would give it a new

" The Superior Courts have at all
times investigated the customs under
which justice has been administered
by local jurisdictions ; and, unless
they are foiind consonant to reason
and in harmony with the principles
of law, they have always been re-
jected as illegal;" Judgm., Cox v.
Mayor of London, 1 H. & C. 358 ;
S. C, L. E. 2 H. L. 239.

(e) Legal memory begins with the
beginning of the reign of Bichard I. ;
see Litt. s. 170.

(/) 1 Blac. Com. 76 ; Simpson v.
Wells, L. B. 7 Q. B. 214. See also
Mounsey v. Ismay, 3 H. & C. 4M ;
and of. De la Warr v. Miles, 17 Oh.
D. 535. With regard, however, to
usages of trade, "the custom may
change, and a new custom may
become notorious, so as to be in-
corporated into every contract, un-
less it be expressly excluded " ; per

Channell, J"., Moult v. Halliday,
[1898] 1 Q. B. 180 : 67 L. J. Q. B.
451.

(g) B. V. JolUffe, 2 B. & 0. 54 :
26 B. B. 264 ; Jenkins v. Harvey, 1
Or. M. & B. 877, 894 : 2 Id. 393,
407 ; see Shephard v. Payne, 16
G. B. N. S. 132; Bryant v. Foot,
L. E. 3 Q . B. 497 ; Lawrence v. Hitch,
Id. 521 ; Holford v. George, Id. 689 ;
Mercer v. Denne, [1904] 2 Oh. 534 :
74 L. 3. Oh. 71.

(h) Goodman v. Saltash, 7 App.
Oas. 633; A.-G. v. Wright, [1897]
2 Q. B. 318 : 66 L. J. Q. B. 834 ;
see also Foreman v. Free Fishers of
Whitstable, L. B. 4 H. L. 266, 280.

(i) Per Pollock, O.B., 2 H. & N.
623.

{fj Per Bramwell, B., 3 Ex. D.
299; see Tilbwy v. Silva, 45 Oh.
D. 98.

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beginning, which must necessarily be within time of memory,
and consequently the custom will be void. But this must
be understood with regard to an interruption of the right :
for an interruption of the possession only, for ten or twenty
years, will not destroy the custom. As, if the inhabitants
of a parish have a customary right of watering their cattle
at a certain pool, the custom is not destroyed though they
do not use it for ten years : it only becomes more difficult
to prove ; but, if the right be in any way discontinued for
a single day, the custom is quite at an end (k) .

Fifthly, the custom must have been peaceably enjoyed and
acquiesced in, not subject to contention and dispute. For,
as customs owe their origin to common consent, their being
immemorially disputed, either at law or otherwise, is a
proof that such consent was wanting (I).

Sixthly, a custom, though estabHshed by consent, must,
when established, be compulsory, and not left to the option
of every man whether or not he will use it. A custom that
all the inhabitants shall be rated towards the maintenance
of a bridge will be good ; but a custom that every man is to
contribute thereto at his own pleasure, is idle and absurd,
and indeed no custom at all {m).

Seventhly, customs existing in the same place " must be
consistent with each other ; one custom cannot be set up in
opposition to another. For if both are really customs, then
both are of equal antiquity, and both established by
mutual consent : which to say of contradictory customs
is absurd " (n).

Eighthly, customs in derogation of the common law,
or of the general rights of property, must be strictly
construed (o).

(k) 1 Blao. Com. 77. (to) 1 Blao. Com. 78.

{1} 13- (o) Id. ; Judgm., 10 Q. B. 57 ; per

(m) 1 Blac. Com. 78. This does Bayley, J., 2 B. & C. 839. See as

not mean that a trade usage cannot to the above rule, per Cookburn,

be excluded by contract. O.J., 2 H. & N, 680, 681,

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Ninthly, if it is sought to attach a custom or usage to a
written contract it must not be inconsistent therewith;
therefore where by the terms of a charter-party a ship was
to proceed to a certain port, or so near thereto as she could
get, and there discharge her cargo as customary, it was
decided that a custom of the port by which the charterer
was bound to take delivery only at the port, and not at
a place as near thereto as the vessel could safely get
was excluded, as being inconsistent with the written
contract (p).

Where, then, continued custom has acquired the force
of an express law (q), reference must of course be made to
such custom in order to determine the rights and liabilities
of parties, arising out of transactions which are affected by
it; optiimis interpres renom usus. This maxim is, how-
ever, likewise applicable to many cases, and under many
circumstances, which are quite independent of customary
law in the sense in which that term has been here used, and
which are regulated by mercantile usage and the peculiar
rules recognised by merchants.

The law merchant, it has been observed, forms a branch Usage of
of the law of England, and those customs which have been
universally and notoriously prevalent amongst merchants,
and have been found by experience to be of public use,
have been adopted as a part of it, upon a principle of
convenience, and for the benefit of trade and commerce ;
and, when so adopted, it is unnecessary to plead and
prove them (r).

In cases, also, relating to mercantile contracts, courts

(p) Hayton v. Irvin, 5 C. P. D. See Brandao v. Barnett, 12 01. & F.

130: 41 L. J. Q. B. 661; The 787; S, C, 3 G. B. 519; Bellamy v.

Alhambra, 6 P. D. 68 ; 50 L. J. P. Marjoribanks, 7 Exoh. 389 ; Jones

36 ; Beynolds v. TomUnson, [1896] v. Peppercorne, 28 L. J. Oh. 158.

1 Q. B. 586 : 65 L. J. Q. B. 496. As to the mode of proving meroan-

(q) See Judgm., 9 A. & E. 425, tile usage, see Mackenzie v. Dunlop,

426. 3 Maoq, So. App. Gas. 22.

(r) Judgm., 7 Soott, N. K. 327.
L.M.

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722 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

Mercantile of kw will, in Order to ascertain the usage and under-

oontracts. , , . , , .,

standing of merchants, examine and hear witnesses con-
versant with those subjects ; for merchants have a style
peculiar to themselves, which, though short, yet is under-
stood by them, and of which usage and custom are the
legitimate interpreters (s). And this principle is not
confined to mercantile contracts or instruments, although
it has been more frequently applied to them than to
others (*) ; but it may be stated generally, that where the
words used by parties have, by the known usage of trade,
by any local custom, or amongst particular classes, ac-
quired a peculiar sense, distinct from the popular sense
of the same words, their meaning may be ascertained by
reference to that usage or custom (m). And the question
in such cases usually is, whether there was a recognised
practice and usage with reference to the transaction out
of which the written contract between the parties arose,
and to which it related, which gave a particular sense to
the words employed in it, so that the parties might be
supposed to have used such words in that particular sense.
" The character and description of evidence admissible for
that purpose" being "the fact of a general usage and practice

(s) 3 Stark. Ev. 1033 ; (Id. 4th See, further, Johnston v, Usboriie,
ed. 701); cited 3 B. & Ad. 733: 11 A. & E. 549; Stewart v. Aber-
per Ld. Hardwicke, 1 Ves., sen., dein, 4 M. & W. 211, as to which
459. See Startup v. Macdonald, 7 case, see 1 Arnould, Mar. Insur.,
Soott, N. R. 269 (where the question 5th ed. 203 n. (1).
was respecting the reasonableness (t) PerFavke, J. , SniithY. Wilson,
of the time at which a tender of 3 B. & Ad. 733, where evidence was
goods was made, in the absence of held admissible to show that, by
any usage of trade on the subject) ; the custom of the country the word
Goddingtmi v. Paleologo, L. E. 2 thousand, as applied to rabbits, de-
Ex. 193, 197. noted twelve hundred. Spicer v.

Evidence of former transactions Cooper, 1 Q. B. 424, is also in point,

between the same parties is reoeiv- («) Judgm., Bohertson v. French,

able for the purpose of explaining 4 East, 135 : 7 R. E. 535. See

the meaning of the terms used in Carter v. Crick, 4 H. & N. 412 ;

their written contract, if ambiguous; Biirellv. Dryer, 9 App. Gas. 345.
Bourne v. Gatliff, 11 01. & P. 45.

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prevailing in that particular trade or business, not the judg-
ment and opinion of the witnesses, for the contract may be
safely and correctly interpreted by reference to the fact of
usage, as it may be presumed such fact is known to the
contracting parties, and that they contract in conformity
thereto ; but the judgment or opinion of the witnesses called
affords no safe guide for interpretation, as such judgment
Or opinion is confined to their own knowledge " {x).

The following examples must here suffice in illustration
of the subject just adverted to, and in the notes will be
found references to a few cases, showing the operation of
the well-known rule stated above, that evidence of usage —
mercantile or otherwise — cannot be admitted to vary a
written contract {y).

In an action for the breach of a contract for the sale
of a quantity of gambler, evidence was held admissible to
show that by the usage of the trade a " bale " of gambler
was understood to mean a package of a particular descrip-
tion, and, consequently, that the contract would not be
duly performed by tendering packages of a totally different
description {z).

{x) Judgm., Lewis v. Marshall, 8 ington, 6 H. & N. 278 : 7 Id. 954;

Scott, N. B. 493 ; Bussian St. Nav. Symonds v. Lloyd, 6 0. B. N. S.

Co. V. Silva, 13 0. B. N. S. 610. 691 ; Foster v. Mentor Life Ass. Co.,

As to mercantile words see also 3 B. & B. 48.
Peek V. N. Staffordshire B. Co., 10 Parol evidence may be admitted

H. L. Cas. 543 ; Suttcm v. Ciceri, 15 to show that a person whose name

\vv. Gas. 144. appears at the head of an invoice as

(2/) In the under-mentioned cases, vendor, was not in fact a contract-
evidence of custom or usage was ing party ; Holding v. Elliott, 5 H.
held inadmissible for construing a & N. 117 ; or to show that there
mercantile instrument; Diclcensmi never was any contract between the
V. Jardine, L. E. 3 C. P. 639 ; Hall parties ; Bogers v. Hadley, 2 H. &
V. Jansm, 4 E. & B. 500 ; Cockburn 0. 227 ; Kempson v. Boyle, 3 Id.
v! AUxander, 6 0. B. 791 ; Spartali 768 ; Hurst v. G. W. B. Co., 19
V Benecke, 10 0. B. 212 ; distin- 0. B. N. S. 310.
guished in Godts v. Bose, 17 C. B. (z) Gorrissen v. Perrin, 2 0. B.
229, 234, and in FieU v. LeUan, 6 N. S. 681. See Devaux v. Conolly,
H. & N.' 617 ; Corturier v. Hastie, 8 C. B. 640. In the following cases
8 Exch. 40 : 9 Id. 102 ; Be Stroud, evidence of mercantUe usage has
8 0.B.'502. Ses Miller y. Tether- been admitted to explain words or

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MAXIMS APPLICABLE TO THE LAW OP EVIDENCE.

Difference
between
custom of
merchants
and usage of
trade.

It is important when considering this question to bear in
mind the difference between the general custom of mer-
chants and the usage of a particular trade. The former
is the established law of the land, it receives judicial
notice and therefore does not require to be proved in the
ordinary way by the evidence of witnesses. It has had its
origin no doubt in the practice of merchants, which, having
been uniformly observed for a long period of time, comes
at length to be judicially noticed. It is not possible to say
at what exact period of time, or by what precise means this
change takes place, but probably after the custom has been
frequently proved as a fact in and recognised by the Courts
as a binding custom in a particular trade they will take
judicial notice of it (a). Thus the custom for hotel-keepers
to hire the furniture for their hotels has been so frequently
proved that the Courts take judicial notice of it in questions
arising on the reputed ownership clauses in the statutes
relating to bankruptcy (b) .

Where evidence of an established local usage — as on the
stock exchange of a particular town (c) — is admitted to add
to or to effect the construction of a written contract, it is
admitted on the ground that the contracting parties are

phrases occurring in written con-
tracts : — " month,'' Simpson v.
Margitson, 11 Q. B. 27 ; " net pro-
ceeds," Caine v. Horsfall, 1 Exch.
519 ; " wet," as applied to palm-oil,
Warde v. Stuart, 1 0. B. N. S. 88 ;
" in regular turns of loading,"
Leidemann v. Schults, 14 C. B. 38 ;
c£. Hudson v. Clementson, 18 Id.
213.

(a) See the observations and cases
collected in the notes to Wiggles-
worth V. Dallison, 1 Smith's L. 0.

(6) Crawcour v. Salter, 18 Oh. D.
30 ; Ex p. Turguand, 14 Q. B. D.
636 ; see Whitfield v. Brand, 16 M.
& W. 282, where the Court appears to
have judicially noticed the custom

for bookbinders to have in their
shops books for sale on commission.
See Be Qoetz, [1898] 1 Q. B. 787 :
67 L. J. Q. B. 577.

(c) Bayliffe v. Butterwoiih, 1
Exch. 425; Polloch v. StahUs, 12
Q. B. 765; Bayley v. WilUns, 7
C. B. 886 ; Taylor v. Stray, 2 C. B.
N. S. 174 ; Crcypper v. Cook, L. E. 3
0. P. 194, 198 ; Viscount Torrington
V. Lowe, L. R. 4 G. P. 26 ; Grissell
v. Bristowe, Id. 36 ; Maxted v. Paine,
L. K. 4 Ex. 81, 203 ; Davis v. Hay-
cock, Id. 373 ; Kidston v. Empire
Mar. Ins. Co., L. B. 1 0. P. 535,
2 Id. 357 ; Chapman v. Shepherd, 2
Id. 228.

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725

both cognisant of the usage, and must be presumed to have
made their agreement with reference to it; but it seems
that a person who employs an agent to transact business
for him in a particular market is bound by its usages;
though he be ignorant thereof, provided the same are
reasonable, and do not change the intrinsic nature of the
employment, but merely regulate its performance (d).

There is also another extensive class of decisions in
which evidence of usage is admitted to explain and con-
strue ancient grants or charters, or to support claims not
incompatible therewith (c). Nor is there any difference
in this respect between a private deed and the king's
charter (/), and in either case, evidence of usage may be
given to expound the instrument, provided such usage
is not inconsistent with, or repugnant to, its express
terms (g). So, the immemorial existence of certain rights
or exemptions, as a modus or a claim to the payment of
tolls, may be inferred from uninterrupted modern usage (/;)•

Generally, as regards a deed (as well as a will), — the

Evidence of
usage to
explain
deeds.

(d) Bobinson v. Mollett, L. B. 7
H. L. 836; see Perry v. Barnett,
15 Q. B. D. 388 ; and for a case
where one contracting party was
bound by a custom of a port of
which he was ignorant, see King v.
Hinde, 12 L. E. Ir. 113.

(e) Bradley v. Pilots of Newcastle,
2 B. & B. 427 ; Duke of Beaufort v.
Mayor of Swansea, 3 Exch. 413, 435 ;
A.-G. V. Drummond, 1 Dru. & War.
353 : 2 H. L. Gas. 837 ; Shore v.
Wilson, 9 Gl. & E. 569.

(/) "All charters or grants of the
Grown may be repealed or revoked
when they are contrary to law, or
uncertain or injurious to the rights
and interests of third persons, and
the appropriate process for the pur-
pose is by writ of scire facias; ■'
Judgm., Beg. v. Hughes, L. B. 1
P. C. 87.

(g) Per Ld. Kenyon, Withnell v.
Gartham, 6 T. E. 398 : 3 E. B. 218 ;
B. V. Salway, 9 B. & G. 424, 435 :
33 B. B. 230 ; Stammers v. Dixon,
7 East, 200 : 8 B. B. 612 ; per Ld.
Brougham, A.-G. v. Brazenose Coll.,
2 01. & E. 817 : 37 B. B. 107 ; per
Tindal, G.J., 8 Scott, N. E. 813.
See Be NottingJiam Corporation,
[1897] 2 Q. B. 511, 512; N. E. B.
Co. V. Ld. Hastings, [1900] A. G.
260.

(h) See per Parke, B., Jenkins v.
Harvey, 1 Or. M. & B. 894: 40
B. B. 769 ; per Biohardson, J., Chad
V. Tilsed, 2 B. & B. 409 : 23 B. B.
482 ; Foreman v. Pree Fishers of
WMtstdble, L. B. 4 H. L. 266, and
cases there cited ; Earl of Egremont
V. Saul, 6 A. & E. 924; Brune v.
Thompson, 4 Q. B. 543.

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state of the subject to which it relates at the time of
execution, may be inquired into ; and where a deed is
ancient, so that the state of the subject-matter or its date
cannot be proved by direct evidence, evidence of the mode
in which the property in question has been held and
enjoyed is admissible. Thus, where the question was
whether the soil or merely the herbage passed under
the term "pastura" in an ancient admission as entered
on the court rolls of a manor, evidence was received
to show that the tenants had for a long series of years
enjoyed the land itself (i), for optimus interpres reruvi
1ISUS (k).
Statutes. Lastly, evidence of usage is likewise admissible to aid

in interpreting Acts of Parliament, the language of which
is doubtful ; for jus et norma loquendi are governed by
usage. The meaning of things spoken or written must be
such as it has constantly been received to be by common
acceptation (l), and that exposition shall be preferred,
which, in the words of Sir E. Coke (m) is "approved by
constant and continual use and experience : " optima enim
est legis interpres consuetiido (n). Thus, the Court was
influenced in its construction of a statute of Anne, by the
fact that it was that which had been generally considered
the true one for one hundred and sixty years (o).

We shall conclude these brief remarks upon the maxim
optimus interpres rerum tisus in the words of Mr. Justice

(i) Doe V. Jtleviss, 7 0. B. 456 ; Mackonochie, L. E.. 2 A. & E. 195.
see Taylor on Ev., 9th ed., p. 791. (l) Vaughan, B,., 169 ; per Crow-

{k) Per Ld. Wensleydale, Water- dier, J., The Fermoy Peerage, 5 'H..Ij.

park V. Furnell, 7 H. L. Oas. 684 ; Oas. 747 ; Arg., B. v. Bellringer, 4

citing Weld v. Hornby, 7 East, 199 : T. E. 819.
8 K. R. 608 ; Duke of Beaxifort v. (m) 2 lust. 18.

Swansea, 3 Exch. 413; A.-G. v. (w) D. 1,3, 37; ^lerLd. Brougham,

Pa/rker, 1 Ves. 43 ; 8 Atk. 576 ; per 3 CI. & P. 354.
Ld. St. Leonards, A.-G. v. Drum- (o) Cox v. Leigh, L. R. 9 Q. B.

mond, 1 Dru. & W. 368. See the 333 ; 43 L. J. Q. B. 123 ; and see

msamia.stocontempora'neaexpositio, Maxwell, Interp. of Statutes, 3rd

ante, p. 529. As to construing the ed., p. 423.
rubrics and canons see Martin v.

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Story, who observed, " The true and appropriate office of a Eemaiks of
usage or custom is, to interpret the otherwise indeterminate ^jo/'''*'''®
intentions of parties, and to ascertain the nature and respecting
extent of their (30ntracts, arising, not from express stipu-
lations, but from mere imphcations and presumptions, and
acts of a doubtful or equivocal character. It may also be
admitted to ascertain the true meaning of a particular
word, or of particular words in a given instrument, when
the word or words have various senses, some common,
some qualified, and some technical, according to the subject-
matter to which they are applied. But I apprehend that
it can never be proper to resort to any usage or custom
to control or vary the positive stipulations in a written
contract, and, a fortiori, not in order to contradict them.
An express contract of the parties is always admissible to
supersede, or vary, or control a usage or custom; for the
latter may always be waived at the will of the parties. But
a written and express contract cannot be controlled, or
varied, or contradicted by a usage or custom ; for that
would not only be to admit parol evidence to control, vary,
or contradict written contracts ; but it would be to allow
mere presumptions and implications, properly arising in
the absence of any positive expressions of intention, to
control, vary, or contradict the most formal and deliberate
declarations of the parties" (p).

CUILIBET IN SUA ArTE PERITO EST CREDENDUM. (Oo. Litt.

125 a.) — Credence should he given to one skilled in his
jieeuliar profession.

Almost all the injuries, it has been observed, which one ^®°®j^g^^*y

individual may receive from another, and which lay the

foundation of actions, involve questions peculiar to the

trades and conditions of the parties ; and, in these cases,

(p) The Schocmer Beeside, 2 Sumner (U.S.), B. S67.

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

Evidence as
to matters of
Boience, &o.

the jury must, according to the above maxim, attend
to the witnesses, and decide according to their number,
professional skill, and means of knowledge. Thus, in an
action against a surgeon for ignorance, the question may
turn on a nice point of surgery. In an action on a poUcy
of life insurance, physicians must be examined. So, for
injuries to a mill worked by running water, if occasioned
by the erection of another mill higher up the stream,
mill- Wrights and engineers must be called as witnesses. In
like manner, it may be necessary for a jury to decide ques-
tions of navigation, as in the ordinary case of deviation
on a policy of marine insurance, of seaworthiness, or
where one ship runs down another at sea through bad
steering (j).

Eespecting matters, then, of science or trade (v), and
others of the same description, persons of skill may not
only speak as to facts, but are even allowed to give their
opinions in evidence (s), which is contrary to the general
rule, that the opinion of a witness is not evidence. Thus
the opinion of medical men is evidence as to the state of a
patient whom they have seen; and even in cases where
they have not themselves seen the patient, but have heard
the symptoms and particulars of his state detailed by other
witnesses, their opinions on the nature of such symptoms
have been admitted (i). In prosecutions for murder, they
have, therefore, been allowed to state their opinion,
whether the wounds described by witnesses were likely to
be the cause of death (u).

With respect to the admissibility in evidence of the
opinion of a medical man as to a prisoner's state of mmd,

(g) Johnstcme v. Sutton, 1 T. E.
538, 539 : 1 B. R. 269.

(r) The importance attached to
the lex mercatoria, or custom of
merchants, and the implied war-
ranty by a skilled labourer, artizan,
or artist, that he is reasonably com-

petent to the task he undertakes,
may be referred to this maxim ; see
1 Blac. Com. 75.

(s) 1 Stark. Ev., Srd ed. 173, 175 ;
Stark. Ev., 4th ed. 96, 273.

(0 1 Phil. Ev., 10th ed. 521.

(u) Ibid.

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the following question was proposed to the judges by the
House of Lords (x) : " Can a medical man, conversant with
the disease of insanity, who never saw the prisoner previously
to the trial, but who was present during the whole trial and
the examination of all the witnesses, be asked his opinion
as to the state of the prisoner's mind at the time of the
commission of the alleged crime, or his opinion whether
the prisoner was conscious, at the time of doing the act,
that he was acting contrary to law, or whether he was
labouring under any, and what, delusion at the time ? "
To this question the majority of the judges returned the
following answer, which removes much of the difficulty
which formerly existed with reference to this, the most
important practical application of the maxim under review,
and must be considered as laying down the rule upon the
subject: "We think the medical man, under the circum-
stances supposed, cannot, in strictness, be asked his
opinion in the terms above stated, because each of those
questions involves the determination of the truth of the
facts deposed to, which it is for the jury to decide, and the
questions are not mere questions upon a matter of science,
in which case such evidence is admissible. But where the
facts admitted are not disputed, and the question becomes
substantially one of science only, it may be convenient to
allow the question to be put in that general form, though
the same cannot be insisted on as a matter of right."

Further, on the principle expressed by the maxim, insurance.
cuilibet in sua arte perito est credendum, ship-builders have
been allowed to state their opinions as to the seaworthiness
of a ship from examining a survey taken by others, at the
taking of which they themselves were not present ; and the
opinion of an artist is evidence as to the genuineness of
a picture iy). But, although witnesses conversant with a

(x) M'Naghten's case, 10 CI. & P. evidence as to the genuineness of

211 212. handwriting given by a witness pos-

ly) Phil. Ev., 10th ed. 522. So s easing the requisite experience and

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particular trade may be allowed to speak to a prevailing
practice in that trade, and although scientific persons may
give their opinion on matters of science, it has been
expressly decided that witnesses are not receivable to state
their views on matters of legal or moral obhgation, nor on
the manner in which others would probably have been
influenced if particular parties had acted in one way rather
than another (.-). For instance, in an action on a policy of
insurance, where a broker stated, on cross-examination,
that in his opinion certain letters ought to have been
disclosed, and that, if they had, the policy would not have
been underwritten : this was held to be mere opinion, and
not evidence (a). Whether the opinions of underwriters as
to the materiality of facts and the effect they would have
had upon the amount of premium, is admissible in evidence,
has been the subject of considerable controversy, and the
law on the subject cannot at present be considered in a
satisfactory state. The learned author of this book (b)
appears to have been of opinion that such evidence is
generally inadmissible, founding his view apparently on the
decisions in Carter v. Boehm (c) and Campbell v. Richards (d).
On the other hand, there is authority for the afi&rmative

skill is admissible, although little genuineness, or otherwise, of the

or no weight has, by many judges, writing in dispute." See Beg. v,

been thought to be due to suoh Silverlock, [1894] 2 Q. B. 766: 63

testimony. 2 PhU. Ev., 10th ed. L. J. M. C. 233.

308 ; Doe v. Smkermwe, 5 A. & E. («) Judgm., 5 B. & Ad. 846. See,

703 ; Doe v. Davies, 10 Q. B. 814. also, Greville v. Chapman, 5 Q. B.

See Brookes v. Tichhoimie, 5 Bxch. 781 ; as to this case see Taylor on

929, 931; Neiotxm v. Bicketts, 9 Ev., 9th ed. 934.

H. L. Gas. 262. (a) Carters. Boehm,3Buri. 1905,

By 28 & 29 Vict. ^. 18, s. 8, 1913, 1914 ; Campbell v. Bickards,

" comparison of a disputed writing 5 B. & Ad. 840 ; 39 R. B. 679 ; cf.

with any writing proved to the satis- Bickards v. Murdock, 10 B. & 0.

faction of the judge to be genuine 257 : 34 B. B. 511 ; Chapman v.

shall be permitted to be made by Walton, 10 Bing. 57 : 38 B. B. 396.

witnesses ; and suoh writings, and (b) 5th ed., p. 935.

the evidence of witnesses respecting (c) 8 Burr. 1905.

the same, may be submitted to the (d) 5 B. & Ad. 840.
Court and jury as evidence of the

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view of the proposition to be found in the cases cited
below (e). It has been said that the differences to be found
in these decisions is less upon any point of law than on the
application of a settled law to certain states of facts, and
that such evidence has only been rejected when it has
been tendered in an inquiry, the nature of which is not
such as to i-equire any peculiar habits of thought or study
in order to qualify a man to understand it (/). Whether
or not this be the true solution of the difficulty, it seems
that, as a matter of practice, the evidence of underwriters
and brokers on such questions is being more and more
resorted to without objection (g), and probably the A^ew
taken by the Common Pleas in the cases referred to would
now be upheld as the correct one.

Where the fixing of the fair price for a contract to insure
is a matter of skill and judgment, and must be effected by
applying certain general principles of calculation to the
particular circumstances of the individual case, it seems to
be matter of evidence to show whether the fact suppressed
would have been noticed as a term in the particular
calculation. In some instances, moreover, the materiality
of the fact withheld would be a question of pure science ;
in others, it is very possible that mere common sense,
although sufficient to comprehend that the disclosure was
material, would not be so to understand to what extent the
risk was increased by that fact ; and, in intermediate cases,
it seems difficult in principle wholly to exclude evidence of
the nature alluded to, although its importance may vary
exceedingly according to circumstances (h). Thus, it has
been said (i), that the time of sailing may be very material

ie) Chapman v. Walton, 10 Bing. 581 ; lonides v. Finder, L. R. 9

57 ■ 38 E. B. 396 ; Bickards v. Q. B. 531, 585 : 43 L. J. Q. B. 227.

Mnrdock, 10 B, & C. 257 : 34 R. R. (h) 3 Stark. Ev., 3rd ed. 887, 888.

51]^_ (i) Per Story, 3., delivering judg-

(f) See notes to CarUr v. Boehm, ment, M'Lanaham v. Universal Ins.
ISnTLthUC. Co., 1 Peters (U.S.), R. 188.

(g) ArnotUd, Mar. Inis., 5th ed.

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to the risk. How far it is so must essentially depend upon
the nature and length of the voyage, the season of the year,
the prevalence of winds, the conformation of coasts, the
usages of trade as to navigation and touching and staying
at ports, the objects of the enterprise, and other circum-
stances, political and otherwise, which may retard or
advance the general progress of the voyage. The material
ingredients of all such inquiries are mixed up with nautical
skill, information, and experience, and are to be ascertained
in part upon the testimony of maritime persons, and are
in no case judicially cognisable as matter of law. The
ultimate fact itself, which is the test of materiality, that is,
whether the risk be increased so as to enhance the premium,
is, in many cases, an inquiry dependent upon the judgment
of underwriters and others who are conversant with the
subject of insurance.

The Sussex Peerage Case offers a good illustration of the
above maxim as it applies to the legal knowledge of a party,
whose evidence it is proposed to take. In order to prove
the law prevailing at Rome on the subject of marriage, a
Roman Catholic Bishop was tendered as a witness, and
was examined as to the nature and extent of the duties of
his office in its bearing on the subject of marriage, with
the view of ascertaining whether he had such a peculiar
knowledge of the law relative to marriage as would render
him competent to give evidence respecting it. It appeared
from this examination that the witness had resided more
than twenty years at Rome, and had studied the ecclesiastical
law prevailing there on the above subject ; that a knowledge
of this law was necessary to the due discharge of an important
part of the duties of his office ; that the decision of matri-
monial cases, so far as they might be affected by the
ecclesiastical and canon law, fell within the jurisdiction of
Roman Catholic bishops ; and, further, that the tribunals at
Rome would respect and act upon such decision in any
particular case if not appealed from. It was held that

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the witness came within the definition of pcritus, and was
receivable accordingly (k). In a later case it was held
that the mercantile usage of a foreign country bearing
on a particular subject may be proved by a witness who,
though he has not been a lawyer by profession, and has
never held any official appointment as judge, advocate, or
solicitor, can yet satisfy the Court that he has had special
and peculiar means of acquiring knowledge respecting such
usage (0. Thus the Court has allowed the law of a foreign
country to be proved by the evidence of a secretary to the
embassy of that country (m).

Lastly, although in accordance with the principal maxim,
a skilled witness may be examined as to mercantile usage,
or as to the meaning of a term of art, he cannot be asked
to construe (n) a written document, for ad qucestionon Icgis
respondent judices.

Omnia Pr^sumuntur contra Spoliatorem. {Branch, Max.,
5th ed., p. 80.) — Every presumption is made against a
u rang -doer.
The following case serves forcibly to illustrate this maxim. Example
An account of personal estate having been decreed in ° "^
equity, the defendant charged the plaintiff with a debt as

(fe) Sussex Peerage, 11 01. &¥. 85. In Bristow v. Sequeville, 5 Bxoh.
See, also, Di Sora v. PMlUpps, 10 275, a witness was held inadmissible
H. L. Oas. 624; per Ld. Langdale, to prove the law of a foreign country,
EarlNelsonY.Ld.Bridport,8'Bea,\. whose knowledge of it had been
527 ; Barm de Bode\. Beg., 8 Q. B. ac(iuirea solely by study at a uni-
208, 246, 250 ei seg;. ; Berth Peerage, versity in another country. This
2 H. L. Oas. 865, 874. " A long decision was followed in Be Bonelli,
course of practice sanctioned by 1 P. D. 69 : 45 L. J. P. 2 ; and Cart-
professional men is often the best ivright v. Cwrtwright, 26 W. B. 684.
expositor of the law;" per Ld. (to) Be Dost Aly Khan, 6 P. D.
Eldon, Candler v. Ccmdler, 1 Jao. 6 : 49 L. J. P. 78.
og2 (w) Kirkland v. Nisbet, 3 Maoq.
(T) Vander DoncU v. Thellusson, So. App. Oas. 766; Bowes v. Shand,
8 0. B. 812. See Beg. v. Povey, 22 2 App. Oas. 455, 462.
L. J. Q. B. 19 : Dearsl. 0. 0, 32.

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due to the estate. It was proved that the defendant had
wrongfully opened a bundle of papers relating to the
account, which had been sealed up and left in his hands :
that he had altered and displaced the papers : and that it
could not be known what papers might have been abstracted.
The Court, upon these facts, disallowed defendant's whole
demand, although the Lord Chancellor declared himself
satisfied, as indeed the defendant swore, that all the papers
entrusted to the defendant had been produced ; the ground
of this decision being that in odium spoliatoris omnia
pvasumuntur (o).
Withholding Again, " if a man, by his own tortious act, withhold the
evidence by which the nature of his case would be manifested,
every presumption to his disadvantage will be adopted" (no-
where a party has the means in his power of rebutting and
explaining the evidence adduced against him, if it does not
tend to the truth, the omission to do so furnishes a strong
inference against him {q). Thus, where a person who has
wrongfully converted property will not produce it, it shall
be presumed, as against him, to be of the best description {r) .
On the other hand, if goods be sold without any express
stipulation as to price, and the seller prove their delivery,

(o) Wardour v. Berisfoi'd, 1 Vern. dock, 12 Ij. J. 0. P. 166 ; and applied

452 ; S. C, Francis, M., p. 8. San- hy JjA. Ga,iins, Hamviersmith B. Co.

son V. Bumsey, 2 Vern. 561, affords v. Brand, L. R. i H. L. 224). But

another illustration of the maxim. " a person who refuses to allow his

See, also, Dalston v. Coatsworth, 1 solicitor to violate the confidence of

P. Wms. 731 ; cited Arg., Ld. Mel- the professional relation " cannot be

ville's Trial, 29 St. T. 1194 ; Gart- regarded in the same odious light as

side V. BatcUff, 1 Chano. Gas. 292. was the jeweller in the ahove case ;

{p) 1 Smith, L, C, 11th ed. 356; per Ld. Chelmsford, Wentworth v.

1 Vern. 19. The maxim likewise Lloyd, 10 H. L. Cas. 591. See,

applies to the spoliation of ship's too, Williamson v. Bover Cycle Co.,

papers ; The Hunter, 1 Dods. Adm. [1901] 2 Ir. R. 615, where the maxim

E. 480, 486; The Emilie, 18 Jur. was held not to apply in a case

703, 705. where the defendants destroyed

{g) A.-Q. V. Windsor, 24 Beav. parts of a bicycle which the plaintifi

679. had sent them for inspection after

(r) Armory v. Delami/rie, 1 Stra. tliey had been examined by his own

504 (followed in Mortimer v. Cra- expert witnesses.

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but give no evidence to fix their value, they are presumed
to be worth the lowest price for which goods of that
description usually sell; unless, indeed, it be shown that
the buyer himself has destroyed the means of ascer-
taining the value, for then a contrary presumption arises,
and the goods are taken to be of the very best descrip-
tion (s).

According to the same principle, if a man withhold an
agreement under which he is chargeable, after a notice
to produce, it is presumed, as against him, to have been
properly stamped, until the contrary appear (<). Where
a public officer, such as a sheriff, produces an instrument,
the execution of which he was bound to procure, as against
him it is presumed to have been duly executed (u). More-
over, if a person is proved to have defaced or destroyed
a written instrument, a presumption arises, that, if the
truth had appeared, it would have been against his interest,
and that his conduct is attributable to his knowledge of
this circumstance, and, accordingly, sKght evidence of the
contents of the instrument will usually be sufficient (x). A
testator made a wUl, by which he devised an estate to A.,
and afterwards made another will, which was lost, and
which the jury found, by special verdict, to have been
different from the former will, though they did not find
in what particular the difference consisted : the Court
decided that the devisee under the first will was entitled
to the estate ; but Lord Mansfield observed, that, if the
devisee under the first will had destroyed the second, it

(s) Ckmnes v. Pezsey, 1 Camp. 8 ; Q. B. 52 ; Barms v. Lucas, 1 By. &

followed Lawton v. Sweeney, 8 Jur. M. 264.

964. See Hayden v. Hayward, 1 (x) 1 PhU. Ev., 10th ed. 477, 478,

Camp. 180. where various oases are cited ex-

(0 Crisp V. Anderson, 1 Stark. emplifying the maxim in the text ;

N. P. 0. 35 : 18 E. E. 744. See Annesley v. Earl of Anglesey, 17

MarJMe investment Co. v. Saviside, HoweU, St. Tr. 1430; 1 Stark. Ev.,

L E 5. H. L. 624. 3rd ed. 409 ; Boe v. Harvey, i Burr.

\n) Scott v.' Waithman, 8 Stark. 2484; Ld. TrimUstown v. Kemmis,

N. P. C. 168 ; Plitmer v. Brisco, 11 9 01. & F. 775.

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would have been a good ground for the jury to find a
revocation (y).

With reference to the cases in which a deed or other
instrument, which ought to be in the possession of a
htigant party, is not produced, the general rule is, that the
law excludes such evidence of facts as, from the nature of
the thing, supposes still better evidence in the party's
possession or power. And this rule is founded on a pre-
sumption that there is something in the evidence withheld
which makes against the party producing it (z). TK-yinan v.
Knoidcs (a) may be referred to in connection with this part
of the subject. That was an action of trespass qu. cl. fi:,
at the trial of which the plaintiff relied upon his bare
possession of the close, although it appeared that he had
taken it under an agreement in writing which was not
produced ; the judge directed the jury that, having proved
that he was in possession of the close at the time of the
trespass, the plaintiff must have a verdict ; but that to
entitle himself to more than nominal damages, he should
have shown the duration of his term. And this direction
was upheld by the Court, Maule, J., observing that the
plaintiff had the means of showing the quantum of his
interest, and that " the non-production of the lease raised
a presumption that the production of it would do the
plaintiff no good."
Eule in On the principle of this maxim rests the well-known rule

ejectment. ™ actions of ejectment that the plaintiff must recover by
the strength of his own title, not the weakness of his
antagonist's, for no one can recover in ejectment who
would not be entitled to enter without bringing ejectment ;
and any person entering on the possession of the tenant,
unless he has a better title, is a wrong-doer.

(y) Harwood v. Ooodright, Gowp. 633, 634 ; BrcAthwaite v. Coleman,

86. 1 Harrison, 223 ; Mason v. Morley,

{z) As illustrating the nature and 34 L. J. Oh. 422.

force of this presumption, see Lum- (a) 13 0. B. 222 ; see 36 Ch. D.

leyv. Wagner, 1 De G. M. & G. 604, 119.

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If the evidence alleged to be withheld is shown to ba
unattainable, the presumption contra spoUatorem ceases,
and the inferior evidence is admissible. "If therefore, a
deed be in the possession of the adverse party, and not
produced, or if it be lost or destroyed, no matter whether by
the adverse party or not, secondary evidence is clearly
admissible ; and, if the deed be in the possession of a third
person, who is not by law compellable to produce it, and
he refuse to do so, the result is the same, for the object
is then unattainable by the party offering the secondary
evidence" (b).

Omnia pe.esu3Iuntue kite et solenniter esse acta.
(Co. Litt. 6 h : 332.) — All acts are presumed to have
been clone rightly and, regidarly.

Ex diiiturnitate temporis omnia prccsumimtur rite ct Eule stated.
solenniter esse acta (c). " Antiquity of time fortifieth all
titles and supposeth the best beginning the law can give
them " (rf). "It is a maxim of the law of England to give
effect to everything which appears to have been established
for a considerable course of time, and to presume that what
has been done was done of right, and not of wrong " (e).
" It is a most convenient thing that every supposition,
not wholly irrational, should be made in favour of long-
continued enjoyment" (/). This maxim applies as well

(6) Judgm., Doe v. Ross, 7 31. & {d) Hob. 257 ; Ellis v. Mayor of

W. 121 ; Marston v. Dowries, 1 A. & Bridgnorth, 15 C. B. N. S. 52.

E. 31 ; Coohe v. Tamswell, 8 Taunt. (e) Per Pollock, O.B., 2 H. & N.

450, 623 ; and in Prica v. Worwood, i

(c) Jenk. Cent. 185. Roberts v. Id. 514, where lie observed, "The

Bethell, 12 0. B. 778, seems to offer law will presume a state of things

an illustration of this presumption. to continue which is lawful in every

See Potez v. Olossop, 3 Exoh. 191 ; respect ; but, if the continuance is

observed upon by Ld. Wensleydale, unlawful, it cannot be presumed."

Duller V. Mountgarret, 7 H. L. Gas. (/) Per Bramwell, L.J., Mayor of

647 ; Morgan v. WMtmore, 6 Exoh. Penryn v. Best, 3 Ex. D. 299. See

Yj^g also Philipps v. Halliday, [1891]

L.M.

47

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where matters are in contest between private persons as to
matters public in their nature ((/).
Rule applies For instance : A lease of a house contained a covenant by
rights!*'^ the lessee that, without the lessor's consent, he would not
carry on any trade upon the demised premises, nor convert
them into a shop, nor suffer them to be used for any
purpose other than a dwelling-house. The house was
converted into a public-house and grocery shop, and the
lessor, with full knowledge of this fact, continued to accept
the rent for more than twenty years. The plaintiff, having
purchased from the lessor the reversion of the premises,
brought an action of ejectment for breach of the covenant.
It was held that user of the premises in their altered state
for more than twenty years, with the knowledge of the
lessor, was evidence from which a jury might presume that
the alteration was made with his licence (h).

Where, indeed, a private right is in question, the pre-
sumption omnia rite esse acta, may, as has been already
stated, arise, under various and'wholly dissimilar states of
facts, ex diuturnitate temjwris. Thus, the enrolment of a
deed may be presumed ; where there has been a conveyance
by lease and release, the existence of the lease may be
presumed upon the production of the release ; and livery of
seisin, the surrender of a copyhold estate, or a reconveyance
from the mortgagee to the mortgagor, may be presumed (i).
Where an attestation clause to a deed stated that the deed

A. C. 228, 231 ; G. E. B. Co. v. to the contrary, on production of

Goldsmid, 11 App. Gas. 927, 939 ; tlie counterpart ; Hughes v. Clark,

Ooodman v. Saltash, 7 App. Gas. 10 G. B. 905. In Avery v. Bowden,

683. 6 E. & B. 973, PoUook, C.B., ob-

{g) See, per Pollock, G.B., Beed served that "where the maxim,

y. Lamb, 6 H. & N. 85 — 86 ; per omnia riti acta prcesumuntiir ap-

Crompton, J., Dawson v. Surveyor plies, there indeed, if the event

for Willoughby, 5 B. & S. 924. ought properly to have taken place

(h) Oibson v. Doeg, 2 H. & N. 615. on Tuesday, evidence that it did

(i) Per Watson, B., 2 H. & N. take place either on Tuesday or

777 ; and cases cited, Doe v. Oardi- Wednesday is strong evidence that

ner, 12 G. B. 319. So a lease is it took place on the Tuesday."

presumed, in the absence of evidence

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739

had been signed, sealed, and delivered, and commissioners
before whom the deed had to be executed, certified that the
parties had acknowledged the same, the Court presumed
that the deed had been properly sealed, although upon its
face there was no sign of the impression of a seal (k).

Upon the same principle proceeds the rule that deeds. Ancient
wills, and other attested documents which are more than ^^^^^'
thirty years old, and are produced from the proper custody,
prove themselves, and the testimony of the subscribing
witness may be dispensed with, although of course it is
competent to the opposite party to call him to disprove
the regularity of the execution (l).

Again, where acts are of an official nature, or require the Rule applied

c rf • ^ ,• . . to public and

concurrence of onicial persons, a presumption arises m official acts,
favour of their due execution. In these cases the ordinary
rule is, omnia prcesumuntitr rite ct solenniter esse acta donee
probetur in contrarium (in) — everything is presumed to be
rightly and duly performed until the contrary is shown (n).

(fe) Be Sandilands, L. R. 6 0. P.
411. For a case where the presump-
tion was rebutted and the onus
shifted, see Marine Ins. Co. v.
Haviside, L. B. 5 H. L. 624: 42
L. J. Ch. 173.

(Z) Best on Presumptions, p. 81 ;
see Be Airey, [1897] 1 Ch. 169 : 66
L. J. Ch. 152. The date which
appears on the face of a document
is primd facie its true date, Malpas
V. Clements, 19 L. J. Q. B. 435;
Laws V. Band, 3 C. B. N. S. 442.

(m) Co. Litt. 232; VanOmeronv.
Dowick, 2 Camp. 44 : 11 B. K. 656 ;
Doe V. Evans, 1 Cr. & 51. 461 : 38
E. B. 579; Powell v. Sonrntt, 3
Bing. 381, ofiers a good instance of
the application of this maxim. Pre-
sumption as to signature, Taylor v.
CooTe, 8 Price, 653. The Court will
not presume any fact so as to
vitiate an order of removal : per Ld.

Denman, B. v. Stockton, 5 B. &Ad.
550. See Beg. v. St. Paul, Covent
Garden, 7 Q. B. 232 ; Beg. v. War-
wickshire JJ., 6 Q. B. 750 ; Beg. v.
St. Mary Magdalen, 2 E. & B. 809.
As to an order of affiliation, see
Watson V. Little, 5 H. & N. 472,
478. As to an award, see per Parke,
B., 12 M. & W. 251 ; as to presum-
ing an indenture of apprenticeship,
Beg. V. Fordingbridge, B. B. & E.
678 ; Beg. v. Broadhempton, 1 E. &
E. 154, 162, 163.

QucBre whether the maxim applies
to the performance of a moral duty,
see per Willes, J., Fitzgerald v.
Dressier, 7 C. B. N. S. 399.

(n) Seejper Story, J., Bank of the
United States v. Dandridge, 12
Wheaton (U. S.), B. 69, 70 (where
the above maxim is illustrated) ;
Davies v. Pratt, 17 C. B. 183.

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

The following may be mentioned as general presumptions
of law illustrating this maxim : — That a man, in fact acting
in a public capacity, was properly appointed and is duly
authorised so to act (o) ; that in the absence of proof to the
contrary, credit should be given to public officers who have
acted, prima facie, mthin the limits of their authority, for
having done so with honesty and discretion {p) ; that the
records of a court of justice have been correctly made (q),
according to the rule, res judicata pro verifate aceipitur (r) ;
that judges and jurors do nothing causelessly and mali-
ciously (s) ; that the decisions of a court of competent juris-
diction are well founded, and their judgments regular (0 ;
and that facts, without proof of which the verdict could not
have been found, were proved at the trial {u).

Besides the cases below cited (.r), which strikingly illustrate

(o) Per Ld. Ellenborougli, B. v.
Verelst, 3 Camp. 432 : 14 B. B. 775 ;
Monke v. Butler, 1 Boll. E. 83;
M'Gahey v. Alston, 2 M. & W. 206;
Faulkner v. Johnson, 11 M. & W.
581 ; Doe v. Toung, 8 Q. B. 63 ;
Beg. v. Essex, Dearsl. & B. 369;
M'Mahon v. Lennard, 6 H. L. Cas.
970. See the above maxim applied,
per Erie, C.J., Bremner v. Hull,
L. B. 1 0. P. 759.

(p) Judgm., Earl of Derby v.
Bury Imp, Commrs., L, E. 4 Ex.
226.

(q) Beed v. Jackson, 1 East, 355 :
6 B. E. 283.

(r) D. 50, 17, 207 ; Co. Litt. 103,
a. ; Judgm., Magrath v. Hardy, 4
Bing. N. C. 796; per Alderson, B.,
Hopkins v. Francis, 13 M. & W.
670 ; Invin v. Grey, L. E. 2 H. L.
20; Smithy. Sydney, L. B. 5 Q. B.
203.

A family Bible is in the nature of
a record, and being produced from
the proper custody, is itself evidence
of pedigrees entered in it ; Hubbard
^ . Lees, L. E. 1 Ex. 255, 258.

(s) Sutton V. Johnstone, 1 T. B.
503 : 1 B. E. 257. See Lumley v.
Gye, 3 E. & B. 114.

(t) Per Bayley, J., Lyttleton v.
Cross, 3 B. & C. 327 : 27 E. B. 370 ;
Beg. V. Brenan, 16 L. J. Q. B. 289.
See Lee v. Johnstone, L. B. 1 So.
App. Cas. 426 ; Morris v. Ogden,
L. B. 4 C. P. 687, 699.

(m) Per Buller, ?•, Spieres v. Par-
ker, 1 T. B. 145, 146 : 1 E. E. 165. If
the return to a mandamus be certain
on the face of it, that is sufficient,
and the Court cannot intend facts
inconsistent with it, for the purpose
of making it bad ; per Buller, J., B.
V. Lyme Begis, 1 Dougl. 159. See
B. V. Nottingham Waterworks Co.,
6 A. & E. 355.

(.t) See, as to presuming an Act of
Parliament in support of an ancient
usage, Judgm., Beg. v. Chapter of
Exeter, 12 A. & E. 532 ; the passing
of a by-law by a corporation from
usage, Beg. v. Powell, 8 E. & B. 877 ;
in favour of acts of commissioners
having authority by statute, Hwton
V. Westminster Imp. Cmnmrs., 7

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M.VXniS APPLICABLE TO THE LAW OF EVIDENCE. 741

the presumption of law under our notice, the following may
be adduced : —

It is a well-established rule that the law will presume in other
favour of honesty and against fraud (ij), and this presump- PresTmpti^n
tion acquires weight from the length of time during which ? ^"?^V
a transaction has subsisted (z). The law will moreover
strongly presume against the commission of a criminal act :
for instance, that a witness has committed perjury (a).

The law will also presume strongly in favour of the
vahdity of a marriage, especially where a great length of
time has elapsed since its celebration (b) — indeed the legal
presumption as to marriage and legitimacy is only to be
rebutted by " strong, distinct, satisfactory and conclusive "
evidence (c) ; therefore where it was shown that the man
and woman had gone through a form of marriage, and
thereby indicated an intention to be married, it was held
that those who claimed by virtue of the marriage were
not bound to prove that all necessary ceremonies had been
performed (d).

Where the claimant of an ancient barony, which has

Exch. 780 ; Beg. v. St. Michael's, Piers, 2 H. L. Gas. 331 ; Sichel v.

Southampton, 6 E. & B. 807 ; an Lambert, 15 C. B. N. S. 781, 787,

order of justices for stopping up a 788 ; Harrison v. Mayor of South-

road, Williams v. Eijton, 2 H. & N. ampton, 4 D. M. & G. 137 ; as to

771 777 • S. C. i Id. 357. See, presuming consent to a marriage,

also, Woodbridge Union v. Colneis see Re Birch, 17 Beav. 358.

Giilrdians, 13 Q. B. 269. {<=) Per Ld. Brougham, 2 H. L.

(y) MiddUtmi v. Earned, i Exch. Gas. 373 ; citmg,per Ld. Lyndhurst,

241; per Parke, B., Id. 243; and in Morris v. Davies, 5 Gl. & P. 265.

Shaw V. Beck, 8 Exch. 400 ; Doe v. See Lapsky v. Ghierson, 1 H. L. Gas.

Catmnore 16 Q. B. 745, 747, with 498 ; Saye and Sele Peerage, Id.

which cf' Doe v. PalrMr, Id. 747. 507; per Erie, J., Walton y. Gavin,

See Trott v. Trott, 29 L. J. P. 156. 16 Q. B. 58 ; Harrison v. Mayor of

h) Be Postlethwaite, 70 L. T. 514, Southampton, 4 D. M. & G. 137, 153.

g2Q ' [d) Sasty Velaider v. Sembeoutty,

la) Per Ld Brougham, McGregor 6 App. Gas. 864. See, also, B. v.

V. Topham, 3 H. l! Gas. 147, 148 ; Jones, 11 Q. B. D. 118 : 52 L. J.

per Turner, L.J., 4 D. M. & G. 153. M. 0. 96 ; B. v. Cresswell, 1 Q. B, D.

(6) Lauderdale Peerage, 10 App. 446 : 45 L. J. M. G. 77.
Cas. 692, 742, 755, 761 ; Piers v.

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742 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

been long in abeyance, proves that his ancestor sat as a
peer in Parliament, and no patent or charter of creation
can be discovered, it is now the estabKshed rule to hold
that the barony was created by writ of summons and
sitting, although the original writ or enrolment of it is not
produced (e). In The Hastings Peerage case, it was proved
that A. was summoned by special writ to Parliament in
49 Hen. 3, but there was no proof that he sat, there being
no rolls or journals of that period. A.'s son and heir, B.,
sat in the Parliament of 18 Edw. 1, but there was no proof
that he was summoned to that Parliament, there being no
writs of summons or enrolments of such writs extant from
49 Hen. 3 to 28 Edw. 1. It further appeared that B. was
summoned to the Parliament of 23 Edw. 1, and to several
subsequent Parliaments, but there was no proof that he sat.
It was held, that it might be well presumed that B. sat in
the Parliament of 18 Edw. 1 in pursuance of a summons, on
the principle that omnia 'praswmuntur legitime facta donee
prohetur in contrarium (/).

As regards the acts of private individuals, the presump-
tion, omnia rife esse acta, forcibly applies where they are of
a formal character, as writings under seal (c/). Likewise
upon proof of title, everything which is collateral to the
title will be intended, without proof ; for, although the law
requires exactness in the derivation of a title, yet where
that has been proved, all collateral circumstances will be

(e) Braye Peerage, 6 CI. & F. 757 ; tiff, see Bradlaugh \. De Bin, L. R.

Vaux Peerage, 5 01. & F. 526. 3 C. P. 286.

(/) The Hastings Peerage, 8 01. & As to presumption of evidence of

P. 144. probate, see Doe v. Powell, 8 Q. B.

(g) SeeArg. andJudgm.jiuiJicm-c? 576.

V. Williams, 7 Wheaton (U.S.), E. As to presumption that a will was

59 ; Strother v. Litcas, 12 Peters duly executed, Lloyd v. Boberts, 12

(U.S.) E. 452; S. P., 2 Id. 760; 2 Moo. P. C. C. 158, 165; Trott v.

Exch. 549 ; D'Arcy v. Tamar B. Co., Trott, 29 L. J. P. 156 ; ByUs v. Cox,

4 H. & 0. 463, 467—468. 74 L. T. 222 ; Hanis v. Knight, 15

As to presumption that a foreign P. D. 170, 179, where the wiU was

bill of exchange was duly stamped at lost,
the time of its indorsement to plain-

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MAXnrS APPLICABLE TO THE LAW OP EVIDENCE. 743

presumed in favour of right (//) ; and, wherever the posses-
sion of a party is rightful, the general rule of presumption
IS applied to invest that possession with a legal title (i). No
greater obUgation, it has, indeed, been said (k), lies upon a
court of justice than that of supporting long continued
enjoyment by every legal means, and by every reasonable
presumption ; this " doctrine of presumption goes on the
footing of validity, and upholds vaUdity by supposing that
everything was present which that vahdity required;"
omnia pmsumuntur rith fuisse acta is the principle to be
observed.

In reference also to a claim by the rector of a parish to
certain fees, founded on prescription, it has been judicially
observed that " the true principle of the law applicable to
this question, is that, where a fee has been received for a
great length of time, the right to which could have had a
legal origin, it may and ought to be assumed that it was
received as of right during the whole period of legal
memory, that is, from the beginning of the reign of
Richard I. to the present time, unless the contrary is
proved" (?).

On the same principle it is a general rule that, where
a person is required to do an act, the not doing of
which would make him guilty of a criminal neglect of
duty, it shall be intended that he has duly performed it
unless the contrary be shown — stabit prefesumj^tio donee
prohetiir in contrariura (m) ; negative evidence rebuts this
presumption, that all has been duly performed (n) . Thus, on

{h) 3 stark. Ev., 3rd ed. 936; 2 (to) Wing. Max. 712; Hob. E.

Wms. Saund. 5tli ed. 42, n. (7). 297 ; per Sir W. Soott, 1 Dods. Adm.

(i) Per Ld. Ellenborougli, 8 East, B. 266 ; Davenport v. Mason, 15

263. See Simpson v. Wilkinson, 8 Tyng (U.S.), B., 2nd ed. 87. "It

Scott, N. E. 814 ; Doe v. Thompson, seems reasonable that presumption

7 Q. B. 897. which is not founded on the basis of

(k) Per Ld. Westbury, Lee v. certainty, should yield to evidence

Johnstone, L. B. 1 So. App. Cas. 435. which is the test of truth." Id.

(l) Bryant v. Foot, L. B. 3 Q. B. (w) Per Ld. Ellenborough, R. v.

505 ; Lawretice v. Hitch, Id. 521. HasUngfield, 2 M. & S. 558, 561 : 15

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744 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

an indictment for the non-repair of a road, the presumption,
that an award, in relief of the defendants, was duly made
according to the directions of an inclosure Act, may be
rebutted by proof of repairs subsequently done to the road
by the defendants ; for, if the fact had been in accordance
with such presumption, they ought not to have continued to
repair (o).
Proceedings It is, however, important to observe, in addition to the above
oourtsr°'^ general remark, that, in inferior courts and proceedings by
magistrates, the maxim, omnia prasumuntur rite esse acta,
does not apply to give jurisdiction {p).

Thus, the Mayor's Court, London, is an inferior Court,
When therefore process had issued out of that Court
against C. as a garnishee, and he declared in prohibition,
it was held that jurisdiction was not sufficiently shown
by a plea, which set up the custom of foreign attachment,
but did not allege that the original debt, or the debt
alleged to be due from the garnishee to the defendant,
arose, or that any of the parties to the suit was a citizen or
was resident, within the City (q) .

Again, where the examination of a soldier, taken before two
justices, was tendered in evidence to prove his settlement,
but it did not appear by the examination itself, or by
other proof, that the soldier, at the time when he was
examined, was quartered in the place where the justices
had jurisdiction, it was held not to be admissible [r). So,
in the case of an order by justices, their jurisdiction must
appear on the face of such order ; otherwise, it is a nullity,

B. E. 350 ; recognising Williams v. 83 : 67 L. J. Q. B. 741.

East India Co.,3:KaBt, 192: 6 B. E. {p) Per Holroyd, J., 7 B. & C.

589. 790. See Eeg. v. Inh. of Gate

(o) B. V. Haslingfield, 2 M. & S. Fulford, Dearsl. & B. 74 I Best on

558 : 15 B. E. 350 ; Manning v. E. Presumptions, p. 81.

Counties B. Co., 12 M. & W. 237; (q) Maym of London^. Cox,'L.'R.

Doe V. Gore, 2 Id. 321 ; Heysham v. 2 H. L. 239.

Porster, 5 Man. & By. 277. See (?■) B. v. All Saints, Southampton,

Bundle v. Hearle, [1898] 2 Q. B. 7 B. & 0. 785.

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MAXIMS APPLICABLE TO THE LAAV OF EVIDENCE. 745

and not merely voidable (s) ; unless, indeed, the order
follows aform authorised by statute. Where an examina-
tion before removing justices left it doubtful whether the
examination had been taken by a single justice or by two,
the Court stated that they would look at the document as
lawyers, and would give it the benefit of the legal presump-
tion in its favour ; and it was observed, that the maxim,
omnia prcesiimunt'ur rite esse acta, applied in this case with
particular effect, since the fault, if there really had been one,
was an irregular assumption of power by a single justice, as
well as a fraud of the two, in pretending that to have been
done by two which was, in fact, done only by one (t).

In a case before the House of Lords some remarks were
made in reference to this subject, which may be here
advantageously inserted:— It cannot be doubted, that
where an inferior court (a court of limited jurisdiction,
either in point of place or of subject-matter) assumes to
proceed, its judgment must set forth such facts as show
that it has jurisdiction, and must show also in what respect
it has jurisdiction. But it is another thing to contend that
it must set forth all the facts or particulars out of which
its jurisdiction arises. Thus, if a power of commitment or
other power is given to justices of a county, their conviction
or order must set forth that they are two such justices of
such county, in order that it may be certainly known
whether they constitute the tribunal upon which the statute
they assume to act under has conferred the authority
to make that order or pronounce that conviction. But
although it is necessary that the jurisdiction of the inferior
court should appear, yet there is no particular form in
which it should be made to appear. The Court above,

(s) Per Bayley, J., 7 B. & 0. 790 ; 80 ; Beg. v. Treasurer of Kent, 22

E. V. Hulcott, 6 T. R. 583 ; R. v. Q. B. D. 603 : 58 L. J. M. C. 71.

Helling, 1 Stra. 8; iJ. v. Chilvers- (t) Beg. v. Silkstone, 2 Q. B. 520,

coton, 6 T. E. 178 ; B. v. Holm, 11 and oases cited, Id. p. 729, n. {p).
East, 381 ; Beg. v. Totness, 11 Q. B.

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746 MAXurs applicable to the law of evidence.

which may control the inferior court, must be enabled,
somehow or other, to see that there is jurisdiction such
as will support the proceeding ; but in what way it shall
so see it is not material, provided it does so see it (u). The
rule, therefore, may be stated to be, that where it appears
upon the face of the proceedings that the inferior court
has jurisdiction, it" will be intended that, the proceedings
are regular (x) ; but that, unless it so appears, — that is, if it
appear affirmatively that the inferior court has no jurisdic-
tion, or, if it be left in doubt, whether it has jurisdiction
or not, — no such intendment will be made (?/). "The
old rule for jurisdiction is, that nothing shall be intended
to be out of the jurisdiction of the superior court but
that which specially appears to be so ; nothing is intended
to be within the jurisdiction of an inferior court but that
which is expressly alleged " (z). And again, " it is necessary
for a party, who relies upon the decision of an inferior
tribunal, to show that the proceedings were within the
jurisdiction of the Court " («).
Foreign court Where the District Court of Philadelphia at the suit of
jurisdiction, the defendant issued a writ of attachment against the
plaintiff's ship, for the purpose of enforcing a debt which
the defendant alleged that the plaintiff owed him, and the
plaintiff afterwards sued the defendant in this country for

(u) Per Ld. Brougham, Taylor v. 17 0. B. N. S. 777.
Clemson, 11 01. & F. 610, affirming (y) Per Tindal, C.J., Dempster v.

the judgment, 2 Q. B. 978. In this Purnell, 4 Scott, N. B. 39 (citing

case, and in Mayor of Lmidon v. Moravia v. Sloper, Willes, 30, and

Cox, L. B. 2 H. L. 239, many Titley v. Foxhall, Id. 688) ; per Erie,

authorities as to the necessity of J., Barnes v. Keane, 15 Q. B. 84.
showing jurisdiction are coUeoted (z) Arg. , Peacock v. Bell, 1 Wms.

and reviewed. Saund. 73 ; adopted in Gosset v.

(x) A presumption in favour of Hoioard, 10 Q. B. 453, and Mayor of

regularity in official practice is often London v. Cox, L. E. 2 H. L. 259.

made. See (ex, gr.) Barnes v. Keane, See, also, further in connection with

15 Q. B. 75, 82 ; Be Warne, 15 C. B. the text, Id. 261 et seq.
767, 769 ; Baker v. Cave, 1 H. & N. (a) Per Alderson, B., Stanton v.

674 ; Cheney v. Cotirtois, 13 C. B. Styles, 5 Exch. 583 ; ace. Mayor of

N. S. 684 ; Robinson v. Collingwood, Lmidon v. Cox, L. B. 2 H. L. 239.

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JIAXIMS APPIjICABLE TO THE LAW OP EVIDENCE. 747

trespass in seizing the ship, it was held that it must be
presumed, in the absence of evidence to the contrary, that the
Court had jurisdiction to issue the process in question (b).

In the great case of Gosset v. Howard (c), the Exchequer Oossetv.
Chamber held that the warrant of the Speaker of the House
of Commons must be construed by the rules applied in
determining the validity of warrants and writs issuing from
a superior Court ; and it was laid down that, with respect to
writs so issued, it must be presumed that they are duly
issued, that they have issued in a case in which the Court
has jurisdiction, unless the contrary appear on the face of
them, and that they are valid of themselves, without any
allegation other than that of their issue, and a protection
to all officers, and others in their aid, acting under them.
Many of the writs issued by superior Courts recite upon
their face the cause of their issuing, and show their legality
—writs of execution for instance. Others, however, do not,
and, though unquestionably valid, are framed in a form
which, if they had proceeded from persons having a special
jurisdiction unknown to the common law, would have been
clearly insufficient, and would have rendered them altogether
void. With regard to the Speaker's warrant, the Court
held that it must be construed with at least as much respect
as would be shown to a writ out of any of the Courts at
Westminster; observing, in the language of Mr. Justice
Powys (d), that " the House of Commons is a great Court,
and all things done by them are intended to have been
nte acta"{e}.

(b) Taylm- v. Fm-d, 29 L. T. N. S. (d) Beg. v. Paty, 2 Ld. Eaym.
392. 1105, 1108.

(c) 10 Q B. 411, where the cases (e) Judgm., Gosset v. Soward, 10
with respect to the validity of war- Q. B. 457. Cf. Bradlaugh v. Gosset,
rants were cited in argument. 12 Q. B. D. 271.

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748 JIAXmS APPLTCABLE TO THE LAW OF EVIDENCE.

Res inter alios acta alteei nocere non debet. {Wing.
Max., p. 327.) — A transaction between two parties ought
not to operate to the disadvantage of a third (/).

Principle Qf maxims relating to the law of evidence, the above may-

be considered as one of the most important and most useful ;
its effect is to prevent a litigant party from being concluded
or even affected, by the acts, conduct, or declarations of
strangers (cj). On a principle of good faith and mutual
convenience, a man's own acts are binding upon himself,
and are, as well as his conduct and declarations, evidence
against him ; yet it would not only be highly inconvenient,
but also manifestly unjust, that a man should be bound by
the acts of mere unauthorised strangers ; and if a party
ought not to be bound by the acts of strangers, so neither
ought their acts or conduct to be used as evidence against
him {h).

The above rule, then, operates to exclude all the acts,
declarations, or conduct of others as evidence to bind a
party, either directly or by inference ; so that, in general,
no declaration, written entry, or affidavit made by a stranger
is evidence against a man ; nor can a person be affected,
still less concluded, by any evidence (0, decree, or judgment
to which he was not actually, or, in consideration of
law, privy {k) .

(/) Bes inter alios judieatcB neg^ue (h) 1 Stark. Evid., 3rd ed. 58, 59 ;

emolumentum afferre Ms quijudicio Stephen, Dig. Law of Evid., 1st ed.

non interfuerunt negue pi-ejudicium 138. See Armstrong v. Normandy,

solent irrogare ; Cod. 7, 56, 2. 5 Exoh. 409 ; Reg. v. Amhergate B.

(g) The maxim was much con- Co., 1 E. & B. 372, 381 ; Salmon v.

sidered in Meddowcroft v. Huguenin, Webb, 3 H. L. Gas. 510.

3 Curt. 408 (where the issue of a (i) See Humphreys v. Pensam, 1

marriage, which had been pro- My. & Or. 580.

nounced void by the Consistorial (&) " It cannot be doubted that

Court, attempted unsuccessfully to a man's assertions or admissions,

impeach that sentence in the Pre- whether made in the course of a

rogative Court). S. 0., 4 Moore, judicial proceeding or otherwise,

P. C, 386. See Beg. v. Fontaine and, in the former case, whether he

Mm-eau, 11 Q. B. 1028, and cases was himself a party to such pro-

infra. ceeding or not, may be given in

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749

In a leading case (/), immediately connected with this Maxim
subject, it was laid down by the judges, as a general principle, j^^lioiai °
" that a transaction between two parties in judicial pro- pi^oceedings.
ceedings ought not to be binding upon a third ; for it would
be unjust to bind any person who could not be admitted to
make a defence, or to examine witnesses, or to appeal from
a judgment, which he might think erroneous ; and, there-
fore, the depositions of witnesses in another cause (m) in
proof of a fact, the verdict of a jury finding the fact, and
the judgment of the Court upon facts found, although
evidence against the parties and all claiming under them,
are not, in general, to be used to the prejudice of
strangers" («)•

As regards the parties to the earlier suit, it is stated in
the same case, as being generally true, " first, that the judg-
ment of a Court of concurrent jurisdiction (o), directly upon
the point, is, as a plea, a bar, or, as evidence, conclusive (p),

evidence against him in any suit or
action in wMch the fact so asserted
or admitted becomes material to
the issue to be determined. And
in principle there can be no differ-
ence whether the assertion or ad-
mission be made by the party
himself, who is and ought to be
affected by it, or by some one
employed, directed, or invited by
him to make the particular statement
on his behalf. In like manner a
man who brings forward another for
the purpose of asserting or proving
some fact on his behalf, whether in
a court of justice or elsewhere, must
be taken himself to assert the fact
which he thus seeks to establish ; "
per Oookburn, O.J., Richards v.
Morgan, 4 B. & S. 661.

(l) See the Duchess of Kingston's
case, 11 Howell, St. Tr. 261; 2
Smith L. 0. See, also, Needham v.
Brmner.L.B. IC. P. 583; Natal
Land Co. v. Good, L. B. 2 P. C.

121 ; Davies v. Loiondcs, 7 Scott,
N. E. 141 ; Doe v. Bnjdges, Id. 333 ;
Ld. Trimlestown v. Kemmis, 9 CI.
& P. 781 ; cited Boileau v. Butlin,
2 Exch. 665, 677. The general rule
stated in the text has, however,
been departed from in certain cases ;
for instance, in questions relating to
manorial rights, public rights of
way, immemorial customs, disputed
boundary, disputed modus, and
pedigrees.

(m) See, for instance, Morgan v.
Nicholl, L. K. 2 0. P. 117.

(n) See, also, Judgm., King v.
Norman, i 0. B. 898.

(o) Provided the judgment is not
beyond the statutory jurisdiction of
the Court giving it (Toronto Bail-
way V. Toronto Corporation, [1904]
A. 0.809: 73 L. J. P. 0. 120).

(p) I.e., if pleaded, there being an
opportunity to plead it ; for " if a
party does not take the first oppor-
tunity which the pleadings afford

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750 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

between the same parties {q), upon the same matter,
directly in question in another Court ; secondly, that the
judgment of a Court of exclusive jurisdiction, directly upon
the point, is, in like manner, conclusive upon the same
matter, between the same parties, coming incidentally in
question in another Court, for a different purpose. But
neither the judgment of a concurrent or exclusive jurisdic-
tion is evidence of any matter which came collaterally in
question, though within their jurisdiction, nor of any matter
incidentally cognisable, nor of any matter to be inferred by
argument from the judgment " (r).

To the general principle, that a judgment is binding only
as between the same parties and their privies (s), judgments
in rem form an exception ; for by a judgment in rem the
subject-matter adjudicated upon is rendered, ipso facto, such
as it is thereby declared to be, and the judgment, therefore,
is of effect as between all persons whatever. For instance,
a grant of probate by a Court of competent jurisdiction
actually invests the executor with the character which it
declares to belong to him, and such a grant, until its
revocation, is conclusive against all the world (i) . Amongst
judgments which are considered to be in rem is the sentence

him of relying on an estoppel, he Thomas, 9 P. D. 70, 210 ; A.-Cr. for

leaves the matter at large ;"Judgin., Trinidad v. EricM, [1893] A. C.

Fevcrsham v. Emerson, 11 Exoh. 518,523: 63 L. J. P. C. 6; N. E.

385 ; see 2 Sm. L. C, 11th ed. 767— By. v. Dalton Overseers, [1898] 2 Q.

773. B. 66 : 67 L. J. Q. B. 715 ; and see

(q) But not in a proceeding in also Wakefield Corporation v. Cook,

which the parties are not the same. [1904] A. 0. 31 : 73 L. J. K. B. 88.

Thus an order of quarter sessions (s) See, for instance. Lady Wen-

quashing a bastardy order is no maji v. Mackenzie, 5 E. & B. 447 ;

estoppel in an action for seduction Mercantile Trust Co. v. Biver Plate

brought by the employer of the Trwsi Co., [1894] 1 Ch. 578: 63 L. J.

woman ; Anderson v. Collinson, Ch. 366 ; Toung v. HoUoway, [1895]

[1901] 2 K. B. 107: 70 L. J. K. B. 620. P. 87 : 64 L. J. P. 55 ; Beardsley x.

(r) Duchess of Kingston's case, Beardsley, [1899] 1 Q. B. 746: 68

supra ; see per Knight Bruce, V.-C, L. J. Q. B. 270.

Barrs v. Jackson, 1 Y. & C. 585 ; per (t) See per Buller, J., Allen v.

Ld. Selborne, Beg. v. SutcUngs, 6 Dundas, 3 T. E. 129 : 1 E. B. 666 ;

Q. B. D. 300, 304 ; Priestman v. Prosser v. Wagner, 1 C. B. N. S. 289.

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of a Court of competent jurisdiction, in a proceeding
against a vessel for the purpose of forcing a maritime
lien, whereby the ship is condemned to be sold, in order that
the lien may be satisfied out of the proceeds of sale (tt).

It must be noticed, however, that, as regards the matters
upon which a judgment is conclusive, there is no distinc-
tion in principle between a judgment in rem and a judgment
inter partes ; neither is conclusive except upon the points
actually decided thereby (r). For instance, a judgment of
conviction on an indictment for forging a bill of exchange
has the force of a judgment in rem, for it operates upon the
status of the defendant, and makes him a convicted felon ;
but it is conclusive only as to the defendant's status, and is
not even admissible evidence of the forgery in an action on
the bill, although the conviction must have proceeded on
the ground that the bill was forged (vc). Similarly, a
verdict of guilty and judgment thereon, on an indictment
for a nuisance by obstructing a highway, is not conclusive
evidence, on the question whether the way is pubUc, in
an action of trespass brought by the defendant against a
private person for using the way {x).

Again, a decree of probate is conclusive evidence that the
instrument proved was testamentary according to the law
of this country, but it is not conclusive in rem a.s to
the testator's domicile, even though it contain a finding
thereon (i/). It appears that the sentence of a prize court,
condemning a vessel expressly on the ground of breach of
neutrality, is conclusive evidence not only of the condemna-
tion, but also of the fact that the vessel was not neutral;
but this case must be regarded as exceptional (z).

lu) Castmue v. Inirie, 8 C. B. 2 Q. B. 66 ; 67 L. J. Q. B 715.
N S 405 412 : L. B. 4 H. L. 414, M Castmue v. Imne L. E. 4

Ss- m1. Craig Co. v. Okartere^ H. L. ^l^^^*'/- ^f J^ 569

616; N. E. By. v. Dalton, [1898J

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It is requisite to notice the distinction which exists
between the case in which a verdict or judgment inter partes
is offered in evidence, with a view to establish the mere
fact that such a verdict was given, or such a judgment
pronounced, and that in which it is offered as a means of
proving some fact which is either expressly found by the
verdict, or upon the supposed existence of which the
judgment can alone be supported. In the latter case, as
has been already stated, the evidence will not, in general,
be admissible to conclude a third party ; whereas, in the
former, the judgment itself is invariably not only admis-
sible as the proper legal evidence to prove the fact, but is
usually conclusive evidence for that purpose, since it must
be presumed that the Court has made a faithful record of
its own proceedings. Moreover, the mere fact that such a
judgment was given can never be considered as res inter
alios acta, being a thing done by public authority ; neither
can the legal consequences of such a judgment be ever so
considered, for, when the law gives to a judgment a
particular operation, that operation is properly shown and
demonstrated by means of the judgment, which is no more
)'es inter alios than the law which gives it force ((()•

There is another qualification of the general rule as to
res inter alios to be noticed.

Where the acts or declarations of others have any legal
operation material to the subject of inquiry, they must
operation, &c. necessarily be admissible in evidence, and the legal conse-
quence resulting from their admission can no more be
regarded as res inter alios aeta than the law itself. For
instance, where a question arises as to the right to a
personal chattel, evidence is admissible, even against an
owner who proves that he never sold the chattel, of a sale
of the chattel in market overt ; for, although he was no

Where acts
have a
direct legal

(a) 1 Stark. Bvid., 3rd ed. 252
King v. Norman, i C. B. 884
Thomas v. Russell, 9 Exch. 764

Drouet v. Taylor, 16 C. B. 671;
Boileau v. ButUn, 2 Exch. 665.

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MAXIJIS APPLICABLE TO TPIB LAW OF EVIDENCE. 753

party to the transaction, which took place entirely between
others, yet, as such a sale has a legal operation on the
question at issue, the fact is no more res inter alios than
the law which gives effect to such a sale. So, in actions
against the sheriff, it frequently happens that the law
depends wholly on transactions to which the sheriff is
personally an entire stranger ; as, where the question is as
to the right of ownership in particular property seized
under an execution ; and in these cases all transactions
and acts between others are admissible in evidence,
which, in point of law, are material to decide the right of
property (b).

In an action of assumpsit for making and fixing iron
railings to the defendant's houses, the defence was, that
the credit was given to A., by whom the houses were built
under a contract, and not to the defendant. A., who had
become bankrupt since the railings were furnished, was
called as a witness for the defendant, and, having stated
that the order was given by him, was asked what was the
state of the account between himself and the defendant in
reference to the building of the houses at the time of his
bankruptcy. A.'s reply was, that the defendant had over-
paid him by £350. On the part of the plaintiff it was
insisted that the state of the account between A. and the
defendant was not admissible in evidence ; that it was res
inter alios acta; and that the inquiry was calculated
improperly to influence the jury. It was held, however,
by the Court that the evidence was properly received ; and
Erie, J., remarked, that in an action for goods sold and
delivered, a common form of defence is, that the defendant
is liable to pay a third person, and that in such cases the
jury usually conclude that the defendant in reality wants
to keep the goods without paying for them; that the
evidence went to show the bond fides of the defence by
proving payment to such third person; and that it was
(6) 1 stark. Evid., 3rd ed. 61.

48

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

Hearsay.

Exceptions
to rule —
1st. Declara-
tions against
interest.

not, therefore, open to the objection of being res inter
alios acta (c) .

The well-known rule excluding hearsay evidence may
here claim attention, more especially as its operation is
not unfrequently confounded with that of the maxim " res
inter alios." A leading authority {d) upon the law of
evidence condemns the expression "hearsay evidence" as
inaccurate and misleading, and the cause of general mis-
conception as to the true nature of the rule. The same
writer prefers the phrase "derivative or second-hand
evidence." This is not receivable, the law requiring all
evidence to be given under formal responsibility, i.e., upon
the direct testimony of a witness in open court, subject to
the penalties with which perjury is attended. The rule
therefore may be thus stated; — the fact that a statement
was made, whether orally or in writing, by a person not
called as a witness, is not admissible in evidence, except in
certain exceptional cases. Some of these excepted cases,
which effect a most important qualification of the rule,
must now be noticed.

The declaration or entry of a deceased person who had
peculiar means of knowing the matter stated and no object
in misrepresenting it, is admissible, if relevant to the
issue, where such declaration or entry was opposed to the
proprietary (e) or pecuniary (/) interest of the declarant (</).
In such a case, when a written statement or entry is
relevant, it is only necessary to prove the handwriting and
death of the party who made it (h).

(c) Gerish v. Chartier, 1 C. B. 13,
17.

(d) Best on Evidence, 7th ed. 445
et seq. See Stephen's Dig. Law of
Ev., 1st ed. 22, 139.

(e) B. V. Exeter, L. E. 4 Q. B.
341 : 38 L. J. M. C. 126.

(/) Sussex Peerage case, 11 CI. &
P. 85; B. V. Overseers of Birming-
ham, 1 B. & S. 763.

(g) Per Bayley, B., Gleadow v.
Atkin, 38 E. E. 635: 1 Cr. & M.
423, adverting to Middletoii v. Mel-
ton, 10 B. & 0. 317: 34 E. E. 423 ;
1 Sfcarkie, 3rd ed. 62 ; Staph. Dig.
35, 147; Doe v. Webber, 1 A. & E.
740; Plant v. Taylor, 7 H. & N.
238. See Ex p. Edwards, 14 Q. B. D.
415.

(h) Per Parke, J., 8 B. & Ad. 889.

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 755

In the leading case on this subject, it was held, that an Higham v.
entry made by a man-midwife, who had delivered a woman ^*""''''
of a child, of his having done so on a certain day, referring
to his ledger, in which he had made a charge for his
attendance, which was marked as "paid," was evidence
upon an issue as to the age of such child at the time of
his afterwards suffering a recovery (i). Here, it will be
remarked, the entry was admitted, because the deceased
party, by making it, discharged another, upon whom he
would otherwise have had a claim. In another case, which
was an action of trover by the assignees of a bankrupt,
two entries made by an attorney's clerk in a day-book
kept for the purpose of minuting his transactions, were
held admissible, by the first of which the clerk acknowledged
the receipt of £100 from his employer for the purpose of
making a tender, and in the second of which he stated
the fact of tender and refusal; for if an action had been
brought by the official assignee of the bankrupt against
the clerk for money had and received, the plaintiff could
have proved by the first entry that the defendant had
received the £100; and, by the second, he could have
shown that the object for which the money was placed in
the defendant's hands had not been attained. Consequently,
the declaration might be considered as the entry of a fact
within the knowledge of the deceased, which rendered him

(i) Higham y.Bidgway, 10 'East, essential; per Jessel, M.E., in

109 : 10 E. B. 235 (distinguished in Taylor v. Witham, 3 Ch. D. 605,

Doe\. Beviss, 7 C. B. 456, 496, 509, not following Doe v. Vowles, 1 M. &

512; a.nd in Smithy. Blakey,-L.-R. Kob. 261. See the question dis-

2 Q. B. 826) ; Bradley v. James, 13 cussed in the notes to Bigham v.

0 B 822, 825 ; Percival v. Nanson, Ridgway, 2 Smith L. C. It is not

7 Exch 1; Edie v. Kingsford, 14 a valid objection to the admissi-

C B. 759 ; Doe v. Michael, 17 Q. B. bUity of an entry, that it purports to

2_g charge the deceased, and afterwards

In Higham v. Bidgway there was to discharge him ; for such an ob-

evidence, apart from the entry, to jection would go to the very root

show that the work for which the of this sort of evidence ; per Ld.

charge was made was actually done. Tenterden, Bowe v. Brenton, 3 Man.

It has been held that this is not & By. 267 : 32 E. E. 524.

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756 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

subject to a pecuniary demand (k). And generally, it may
be observed, that the rule as to res inter alios acta does not
apply to exclude entries made by receivers, stewards, and
other agents charging themselves with the receipt of money ;
such entries being admissible, after their decease, to prove
the fact of their receipt of such money (l).

The foregoing are illustrations of the rule as to declara-
tions against pecuniary interest. The following remarks
relate rather to declarations against proprietary interest.
An occupier proved to be in possession (m) of a piece of land
is, prima facie, the owner in fee, and his declaration is
receivable in evidence, when it shows that he was only
tenant for life or years (n). So, in an issue between A.
and B., to determine whether C. died possessed of certain
property, her declaration that she had assigned it to A.
was held admissible (o). But it is clear, that a person
who has already parted with his interest in property cannot
be allowed to divest the right of another claiming under
him by any statement which he may choose subsequently to
make (p), and, therefore, the declarations of a person who
had conveyed away his interest in an estate by executing a
settlement, and had subsequently mortgaged the estate,
were, after the death of the mortgagor, held inadmissible,
on behalf of the mortgagee, to show that money had actually
been advanced upon the mortgage (q).

(k) Marks v. LaUe, 8 Bing. N. G. F. 780. As to the extent to which

^Qg_ a tenant for life may by his deolara-

II) Per Parke, J., Middleton v. tionafieota remainderman, see Bbw«

Melton, 10 B. &' 0. 327 : 34 E. R. v. Malkin, 40 L. T. 196 : 27 W. B.

423.

340.

(to) His possession, must be (o) Ivat v. Mwh, 1 Taunt. 141 ;

proved; La Touehe v. Button, 9 9 B. R. 390 ; cited, 18 Oh. D. 298.

Ir. B. Eq. 166. (P) ^«'' Ld. Denman, 1 A. & E.

(«) Judgm., Crease v. Barrett, 1 740.

C. M. & B. 931 : 40 B. E. 779 ; per (g) Doe v. Webber, 1 A. & E. 733.

Mansfield, G.J., Peaceablev. Watson, As to declarations against interest,

4 Taunt. 16 : 13 E. E. 552 ; Davies see, also, Sussex Peerage, 11 01. & F.

V. Pearce, 2 T. E. 53 : 1 E. B. 419 ; 85 ; Smith v. Blakeij, L. B. 2 Q. B.

Ld. Trimlestown v. Kemmis, 9 01. & 326 ; per Ld. Denman, Davis v.

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MAXIIIS APPLICABLE TO THE LAW OF EVIDENCE. 757

The declaration or entry of a deceased person if relevant 2iid. Deoiaca-
to the issue is admissible where it was made in the ordinary oXsTof^ ''^
course of business, or in the discharge of professional duty, business.
near the time when the matter stated occurred and of the
declarant's own knowledge ()•).

The case (;•) usually referred to as estabhshing the above Price v. Earl
rule, was an action brought by a brewer against the Earl of °f ^°^'>'^''Oion.
Torrington for beer sold and delivered; and the evidence
given to charge the defendant showed that the usual way
of the plaintiff's dealing was, that the draymen came every
night to the clerk of the brewhouse, and gave him an account
of the beer they had delivered out, which he set down in a
book kept for that purpose, to which the draymen signed
their names ; and that the drayman was dead whose name
appeared signed to an entry stating the delivery of the beer
in question. This was held to be evidence of a delivery.

In another important case on this subject, at the trial
of an action of ejectment, it was proved to be the usual
course of practice in an attorney's office for the clerks to
serve notices to quit on tenants, and to indorse on duplicates
of such notices the fact and time of service ; that, on one
occasion, the attorney himself prepared a notice to be
served on a tenant, took it out with him, together with
two others, prepared at the same time, and returned to
his office in the evening, having indorsed on the duplicate
of each notice a memorandum of his having delivered it
to the tenant ; and two of the notices were proved to have
been delivered by him on that occasion. The indorse-
ments so made were held admissible, after the attorney's
death, to prove the service of the third notice (s).

Lloyd, 1 Car. & K. 276 ; Taylor v. and notes to Price v. Earl of Tor-

Witham, 3 Oh. D. 605 : Blwndy- rington, 2 Sm. L. C. ; Malcomson v.

Jenkins v. Dimraven, [1899] 2 Oh. O'Dea, 10 H. L. Oas. 605 ; Smith v.

121 ; and Fountaine v. Amherst, Blakey, L. R. 2 Q. B. 329, 333.
[1909] 2 Oh. 382 : 78 L. J. Oh. 648 (s) Doe v. Turford, 3 B. & Ad.

(entries in solicitor's hooks). 890 ; cited by Sir J. Bomilly, Bright

(r) Steph. Dig., 1st ed. 83, 146, v. Legerton, 29 L. J. Oh. 852, 854 ;

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758 MAXIMS APPLICABLE TO THE LAW OP EVIDENCE.

It is necessary, however, that the particular entry be
contemporaneous with the circumstance to which it relates ;
that it be made in the course of performing some duty (t),
or discharging some office {u) ; that it was the duty of the
deceased person to do the particular thing and to record the
fact of having done it contemporaneously (v), and that
the entry relate to facts necessary to the performance of
such duty ; for, if the entry contain a statement of other
circumstances, however naturally they may be thought to
find a place in the narrative, the entry will not be legal
proof of those circumstances (x).
other Space will not permit of the other exceptions to the

rule excluding hearsay evidence being here treated. The
following extract from a judgment of Parke, B., well
expresses the rule itself, and indicates many of the excep-
tions which qualify it. — One great principle in the law of
evidence is, that all such facts as have not been admitted
by the party against whom they are offered, or some one
under whom he claims, ought to be proved under the
sanction of an oath (or its statutory equivalent), either on
the trial of the issue, or some other issue involving the
same question, between the same parties, or those to whom
they are privy. To this rule certain exceptions have been
recognised, some from very early times, on the ground of
necessity or convenience ; such as the proof of the quality
and intention of acts by declarations accompanying them,

Stapylton v. Clotigh, 2 E. & B. 933 ; [1904] 2 Ch. 525 : 74 L. J. Ch.

Eastern Union B. Co. v. Symonds, 5 475.

Excb. 287 ; Doe v. Wittcomh, 4 H. L. (u) See PoUni v. G^-ey, 12 Ch. D.

Cas. 425 : 6 Exch. 601. See Doe v. 411 : 49 L. 3. Ch. 41.

Skinner, 8 Exoh. 84 ; Beg. v. St. (v) Mercer v. Denne, [1904] 2 Ch.

Mary, Warwick, 1 E. & B. 816, 820, 534 : 74 L. J. Ch. 71.

825; Beg. v. Inhabs. of Worth, 4 (x) Charnbers v. Bernasconi, 1

Q. B. 132. See, also, Pooley. Dicas, C. M. & B. 347 : 40 B. B. 604 ; per

1 Bing. N. 0. 649. Blackburn, J., Smith v. Blakey,

(t) See Massey v. Allen, 13 Ch. D. L. E. 2 Q. B. 332 ; per Parke, J., 3

558. A report made by a surveyor B. & Ad. 897, 898 ; per Pollock, C. B.,

under contract does not come within Milne v. Leister, 7 H. & N. 795;

the rule ; Mellor v. Walmesley, Trotter v. Maclean, 13 Ch. D. 574.

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE, 769

of pedigrees and of public rights by the statement of
deceased persons presumably well acquainted with the
subject, as inhabitants of the district, in the one case, or
relations, within certain limits, in the other ; and another
exception occurs, where proof of possession is allowed to
be given by the entries of deceased stewards or receivers
charging themselves, or proof of facts of a public nature by
public documents (y).

There is one other topic, which may be adverted to as Bes gcstco.
qualifying both the rule which excludes evidence of ras
inter alios actce, and also that as to hearsay evidence.
Under the head of res gestce, an expression which, according
to Sir James Stephen (z), seems to have come into use
on account of its convenient obscurity, facts and state-
ments are frequently admitted in evidence, which upon the
broad construction of one or other of the rules which have
been noticed would be inadmissible. The doctrine of res
gestcB was much discussed in the leading case of Doe v.
Tatliam (a). In delivering his opinion to the House of
Lords in that case, Parke, B., said " Where any facts are
proper evidence upon an issue, all oral or written declara-
tions which can explain such facts may be received in
evidence " (b). Where declarations accompany an act, they
are fi'equently admissible in evidence as part of the res
gestce, or as the best and most proximate evidence of the
nature and quality of the act ; their connection with which
either sanctions them as direct evidence, or constitutes them
indirect evidence from which the real motive of the actor
may be duly estimated (c).

Thus, an action was brought by a man on a policy of Aveson v.
insurance, on the life of his wife, which was conditional Kim,naird.

{y) Per Parke, B., 7 A. & E. 384, (z) Dig. L. of Ev., 1st ed., p. 134.

385. For additional information as (a) 7 A. & E. 313.

to the maxim respecting res inter (6) 4 Bing. N. C. 489.

aUos acta, the reader is referred to (c) See Ford v. Elliott, 4 Exoh.

1 Tayl. Evid., 9th ed. 229 et seq_., 78 ; 'per Pollock, C.B., Milne v.

366 et seq., and Steph. Dig. Leister, 7 H. & N. 796.

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upon her being in a good state of health at the time when
the insurance was effected. The question arose as to the
admissibihty of declarations, concerning the bad state of
her health, made by the wife, when found lying in bed,
apparently ill, a few days after she had obtained the
medical certificate upon which the policy was subsequently
issued. These declarations were , made to the witness,
whom the defendants called at the trial to relate the
wife's own account of the cause of the witness finding
her in bed at an unseasonable hour and with the appear-
ance of being ill, and they were held admissible, on
the same ground that inquiries of patients, by medical
men, with the answers to them, are evidence of the
state of health of the patient at the time; and it was
further observed, that this was not only good evidence,
but the best evidence which the nature of the case
afforded (d).

So, where a bankrupt has done an equivocal act his
declarations accompanying the act have been held admis-
sible to explain his intentions ; and, in order to render them
admissible, it is not requisite that such declarations were
made at the precise time when the act in question was
done (e).

So, in cases of treason and conspiracy, it is an established
rule, that, where several persons are proved to have
combined together for the same illegal purpose, any act
done by one of the party in pursuance of the plan origi-
nally concerted, and with reference to the common object,
is, in the contemplation of law, the act of the whole
party (/), though, where a question arises as to the
admissibility of documentary evidence, for the purpose of

[d) Aveson v. Ld. Kinnaird, 6 Eaigh, 2 Bing. 99. See Smith v.
East, 188 : 8 E. R. 455 ; 1 Phill. Cramer, 1 Bing. N. C. 585.

Ev., lOth ed. 149. (/) Per Bayley, J., Watson's case,

(e) Bateman v. SaiUy, 5 T. E. 32 Howell, St. Tr. 7 ; Beg. v. Blake,
512. Per Tindal, O.J., Bidley v. 6 Q. B. 126.

Oyde, 9 Bing. 352 ; Bawson v.

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implicating a party, and showing his acquiescence in such
illegal purpose and common object, it will always be neces-
sary to consider, whether the rule scribere est agere applies,
or whether the evidence in question is merely the narra-
tive of some third party of a particular occurrence, and
therefore, in its nature hearsay and not original evidence.

Nemo tbnetuk seipsum accusaeb. (Wing. Max. 486.)— A"o
man can be compelled to criminate himself (g).

This maxim expresses a characteristic principle of Policy of
English Law (ft). Hence it is, that, although an accused
person may of his own accord make a voluntary statement
as to the charge against him, a justice, before receiving
his statement, is required, by the Indictable Offences Act,
1848 (i), to caution him that he is not obliged to say any-
thing, and that what he does say may be given in evidence
against him. Hence also arises the rule that evidence of a
confession by the accused is not admissible, unless it be
proved that such confession was free and voluntary (/<;).

It may be stated as a general rule that a witness in any
proceeding is privileged from answering, not merely where
his answer will criminate him directly, but also where it
may have a tendency to criminate him (Z). " The proposition
is clear," remarked Lord Eldon in Ex parte Symes (m),
"that no man can be compelled to answer what has any

{g) A man is competent to prove 762; per Pollock, C.B., Adams v.

his own crime, though not compel- Lloyd, 3 H. & N. 362 ; B. v. Qarbett,

table; per Alderson, B., Tidal v. 1 Den. C. C. 286. a?he oases sup-

Walton, 14 M. & W. 256. porting this proposition are collected

(h) As to the Scotch law on the in Eosc. Law of Evidence in Grim,

subject, see Longworth v. TeViierton, Gas., 12th ed., pp. 129 et seq. See

L. B. 1 So. App. Gas. 218. Ex p. Fernamdez, 10 G. B. N. S.

(i) 11 & 12 Vict. i;. 42, s. 18. 3 ; Be Ferncmdes, 6 H. & N. 717 ;

(fc) Beg. V. Thompson, [18931 2 BradloAigh v. Evoms, 11 0. B. N. S.

Q. B. 12 : 62 L. J. M. C. 93. 377.

(I) Fisher v. Bonalds, 12 0. B.

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

tendency to criminate him," — which proposition is, it
seems, to be thus quahfied, that the danger to be appre-
hended by the witness must be " real and appreciable with
reference to the ordinary operation of law in the ordinary
course of things, not a danger of an imaginary and unsub-
stantial character having reference to some extraordinary
and barely possible contingency, so improbable that no
reasonable man would suffer it to influence his conduct,"
for such a possibility should not be suffered to obstruct the
administration of justice («). And, although a party to a
cause, who has been subpoenaed as a witness, cannot object
to be sworn on the ground that any relevant questions
would tend to criminate him (o), he may claim his privilege
when such objectionable questions are put to him (p).

The protection does not extend to excuse a person from
answering questions on the ground that the answers may
establish or tend to establish that he owes a debt or is
otherwise subject to a civil suit, either at the instance of
the Crown or of any other person (q). As to whether a

(m) 11 Yes. 525.

(n) Beg. v. Boyes, 1 B. & S. 311,
330; Be BeynoUs, 20 Ch. D. 294.
See Be Mexican (& 8. American Co.,
28 L. J. Ch. 631.

(o) Boyle v. Wiseman, 10 Exch.
647.

(p) An objection to discovery,
whether by affidavit of documents
or sworn answer to interrogatories,
on the ground that it may tend to
criminate, can only be taken in the
affidavit or answer itself ; Spokes v.
Orosvenor Co., [1897] 2 Q. B. 124 :
66 L. J. Q. B. 572, and oases there
cited.

An objection to produce a docu-
ment, on that ground, must be by
oath; Webb v. East, 5 Ex. D. 23:
49 L. J. Ex. 250, where the 0. A.
declined to decide whether the ob-
jection is valid ; but it seems that

it is. See Priichett v. Smart, 7
C. B. 625.

Discovery is not granted in actions
to recover penalties or enforce for-
feitures ; Earl of Mexborough v.
Whitwood U.D.C., [1897] 2 Q. B.
Ill : 66 L. J. Q. B. 637, and oases
there cited.

Whether or not a witness is com-
pellable to answer questions having
a tendency to disgrace him, is ably
discussed by Mr. Best, Law of Evi-
dence, 2nd ed., pp. 163 et seq., to
which the reader is referred. A
witness in any cause may be ques-
tioned as to whether he has been
convicted of any felony or mis-
demeanor ; see 17 & 18 Vict. c. 125,
s. 25.

(2) 46 Geo. 3, c. 37, which was
enacted to put an end to the doubts
which had been expressed.

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 763

person is bound to answer a question the answer to which
may criminate his or her wife or husband, the authorities
are somewhat conflicting, though they tend to establish the
privilege in such cases (;•).

Where, however, the reason for the privilege of the
witness or party interrogated ceases, the privilege also
ceases (s) ; and therefore it ceases if the prosecution to
which the witness might be exposed or his liability to a
penalty or forfeiture is barred by lapse of time, or if the
offence has been pardoned or the penalty or forfeiture
waived (t) .

The rule nemo tenetur seipsum accusare, which has been ^^Med! '^
designated («) " a maxim of our law as settled, as important
and as wise as almost any other in it," is, however, some-
times trenched upon, and the privilege which it confers,
is in special cases abrogated. Thus a bankrupt under
examination before the Court of Bankruptcy {x) does not
enjoy such privilege as regards any question touching his
estate (if) ; though a witness, summoned for examination
as to the bankrupt's affairs, may refuse to answer a question
upon the ground that his answer might tend to criminate
himself {z). And the legislature sometimes, on grounds
of pohcy, extends indemnity — partial or entire— to a witness
whose privilege is taken away (a). Thus the Larceny Act,
1861, c. 85 Qj), enacts that nothing in any of the preceding
ten sections of that Act, which relate to frauds by agents,

if) B. V. Claviger, 2 T. B. 263 ; (») See 46 & 47 Vict. c. 52, s. 17.

E. V. All Saints, WcyrcesUr, 6 M. & (y) Beg. v. Erdheim, [1896] 2

G. 194, 200, per Bayley, J. ; Cart- Q. B. 260 : 65 L. J. M. 0. 176 ; Beg.

Wight Y. Green, 8 Ves. 405 : 7 B. E. v. Scott, Dearsl. & B. 47 ; Beg. v.

99 ; B. V. HalUday, BeU, 257. Cross, Id. 68 ; Beg. v. Skeen, Bell

{s) Wigr. on Discovery, 2nd ed., C. C. 97 ; Beg. v. BoUnson, L. B. 1

p. 83, where the equity cases upon C. 0. 80, 85, 87, 90.

the point are coUected. (^) Ex p. SchofieU, 6 Ch D 230 ;

(t) See Ex p. Fernandez, 10 0. B. Exp. BeynoUs, 20 Oh. D. 294.

N. S. 3 ; Beg. v. Boyes, 1 B. & S. W See, for instance, the Corrupt

gj^j^ and lUegal Practices Prevention

he) Per Coleridge, J., Dearsl. & Act, 1883 (46 & 47 Vict. o. 51) s. 59.

-g^g'^^ [b) 24 & 25 Vict. c. 96, s. 85.

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764 MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

bankers, and factors, " shall enable or entitle any person
to refuse to make a full and complete discovery by answer
to any bill in equity, or to answer any question or inter-
rogatory in any civil proceeding in any Court or upon the
hearing of any matter in bankruptcy or insolvency ; and
no person shall be liable to be convicted of any of the
misdemeanours in any of the said sections mentioned by
any evidence whatever in respect of any act done by him,
if he shall, at any time previously to his being charged
with such offence, have first disclosed such act on oath
in consequence of any compulsory process of any court of
law or equity in any action, suit, or proceeding which shall
have been bond fide instituted by any party aggrieved " (c).

The disclosure above referred to, in order to be available
as a protection, must be made bona fide, and must not be
a mere voluntary statement, made for the express purpose
of screening the person making it from the penal conse-
quences of his acts {d).
Answering Lastly, in Re(j. V. Gillyard (e), the facts were these. A

maltster, suspected of having violated the excise laws,
obtained a conviction against his servant for the purpose,
as was charged, of relieving himself from penalties, by
force of the 7 & 8 Geo. 4, c. 52, s. 46. In support of a rule
nisi to quash the conviction the affidavits stated circum-
stances, showing that the conviction had been obtained
by collusion, and no affidavit tvas made in opposition to the
rule. On behalf of the maltster it was urged that he ought
not (regard being had to the maxim now under considera-
tion) to have been called upon to defend himself by afiidavit
on a charge which was virtually of a criminal nature (/).
But the conviction nevertheless, was quashed as being " a

(c) With regard to disclosure upon C. C. 85 : decided under tte ra-
the hearing of a matter in bank- pealed 7 & 8 Geo. 4, o. 29, s. 52.
ruptoy, see 53 & 54 Vict. u. 71, (e) 12 Q. B. 527.
s. 27; Beg. v. Erdheim, [1896] 2 (/) Citing Stephens v. Hill, 10
Q. B. 260 : 65 L. J. M. C. 176. M. & W. 28.

{d) See Beg. v. Strahan, 7 Cox,

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MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 765

fraud and mockery, the result of conspiracy and subornation
of perjury:" Coleridge, J., remarking that, "where the
Court observes such dishonest practices it will interfere,
although judgment has been given," and that " no honest
man ought to think it beneath him or a hardship upon
him to answer upon affidavit a charge of dishonesty
made upon affidavit against him. If a man, when such
a serious accusation is preferred against him, will not
deny it, he must not complain if the case is taken 2>ro
confesso."

Upon the cognate subject of the competency of witnesses Competency
a few remarks must suffice. At one time it was the most °^ '^'*°^^^^^-
important topic of the law of evidence; for formerly
interest in a suit was considered to disqualify a person
from giving testimony, the result being that the best
evidence available was often excluded. At common law
the parties, and their husbands or wives, were incompetent
as witnesses in all cases. This incompetency was removed
as to the parties in civil cases by the Evidence Act, 1851 {g),
and as to their husbands or wives by the Evidence Amend-
ment Act, 1853 Qi). By both these Acts the rule of the
common law was expressly preserved in criminal cases,
and by the latter Act the incompetency of the parties, and
their husbands or wives, was retained in proceedings
instituted in consequence of adultery. By the Evidence
Further Amendment Act, 1869 (i), however, the incom-
petency in such proceedings is removed, but no witness
may be asked any question tending to show that he or she
has committed adultery, unless such witness has already
given evidence in the same proceeding in disproof of such
adultery.

With regard to the law of evidence in criminal cases, the
year 1898 was marked by a great change, which for some
years had been foreshadowed by the instances in which

(g) 14 & 15 Vict. 0. 99, s. 2. (i) 32 & 33 Vict. o. 68, s. 3.

(h) 16 & 17 Vict. 0. 88, ss. 1, 2.

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766 MAXIMS APPLICABLE TO THE LAW OP EVIDENCE.

statutes creating new offences had expressly enabled a
person charged therewith to be a witness on his own
behalf. By the Criminal Evidence Act, 1898 {k), every
person charged with an offence, as also the wife or husband
of such person, is a competent witness for the defence at
every stage of the proceedings, whether such person be
charged solely or jointly with others (Z) ; but such person
may not be called as a witness except upon his own
application ())i) ; nor, as a general rule, may the wife or
husband, except upon the application of the person
charged (»). The husband or wife is not compellable to
disclose communications made by the one to the other
during marriage (o) ; but the person charged may be asked
in cross-examination any question tending to criminate
him as to the offence charged (p) ; though, not as a general
rule, any question tending to show that he has committed
another offence, or is of bad character (5). In respect of
certain offences the wife or husband of the person charged
may be called as a witness for the prosecution without
the consent of that person (/•) ; but, as has been already
indicated, the maxim, nemo tenetur seipsum accusare, still
holds good to this extent, that the person charged cannot
be compelled to enter the witness-box against his will (s).

Having thus briefly touched upon some few rules relating
chiefly to the admissibility of evidence, and having con-
siderably exceeded the limits originally prescribed to myself,
I now feel compelled reluctantly to take leave of the reader,

(k) 61 & 62 Vict, c. 36. [1909] 1 K. B. 568 : 78 L. J. K. B.

(1) S. 1. 335.

(to) S. 1 (a). (r) S. i, and schedule.

(n) S. 1 (o) ; see s. 4. (s) Except in proceedings insti-

(o) S. 1 (d). tuted for the purpose of trying a

(p) S. 1 (e). civil right only ; see 40 & 41 Vict, o.

(2) S. 1 (f). See Eex v. Preston, 14, s. 1 ; 61 & 62 Vict. c. 36, s. 6 (1).

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MAXIMS APPLICABLE TO THE LAW OF EYIDENCE. 767

trusting that, however slight or disproportioned this attempt
to illustrate our legal maxims may appear, when compared
with the extent and importance of the subject, I have yet,
in the language of Lord Bacon, applied myself, not to that
which might seem most for the ostentation of mine own
wit or knowledge, but to that which might yield most use
and profit to the student ; and have afforded some materials
for acquiring an insight into those conclusions of reason —
those legum leges — essential to the true understanding and
proper application of the law — whereof, though some may
strongly savour of human refinement and ingenuity, the
greater portion claim from us instinctively, as it were,
recognition — and why ? they have been " written with the
finger of Almighty God upon the heart of man "(f).
{<) See Calvin's case, 7 Eep. 126.

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INDEX.

{The reader will find, at the beginning of the book, a Table of Contents, an
Alphabetical List of Legal Maxims, and also Tables of Cases and Statutes
Cited.)

ABATEMENT of nuisance, 233, 302.

ACCESSIO, title by, in Eoman law, 376.

ACCESSOEIUM SEQUITUE PBINCIPALE, 376.

ACCOED AND SATISFACTION,
plea of, 682, 687.
negotiable instrument taken in, 630.

ACT OF GOD,

necessitas inducit privilegium, 9.

actus dei nemini facit injuriam, 190.

effect of, on duty imposed by law, 190 et seq.

definition of, 190.

damage to sea-wall by, 190, 191.

statutory duty, when excused by, 191, 192, 201.

water escaping, or fire spreading, by, 192.

liability of tenant for, 193, 194.

payment of rent, when not excused by, 193, 194.

performance of absolute contract, not excused by, 194.

conditions as to when implied, 195 — 200.

effect of, upon contracts for personal services, 196, 197.

common carrier, not liable for, 199.

iUness of juryman during trial, 201, 274.

agent's ignorance of principal's death, 645.

actio personalis moritur cum person^, 697.

ACTA EXTEEIOEA INDICANT, &o., 248.

ACTIO PEESONALIS MOEITUE CUM PEESONA, 697.

ACTION AT LAW,

rex non potest peccare, 39.
ubi jus, ibi remedium, 153.
L.M. 49

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770 INDEX.

ACTION AT hAV^— continued.
volenti non fit injuria, 223.
nemo debet bis vexari, 266.
ex dole malo non oritur actio, 569.
ex nudo paoto non oritur actio, 583.
respondeat superior, 656.
actio personalis moritur cum persona, 697.
for a tort wMcb is a felony, 171—173, 706, 711.
for breach of statute, 178, 174, 712.

ACTUS CUEIiE NEMINEM GBAVABIT, 99.

ACTUS DEI NEMINI FACIT INJUBIAM, 190.

ACTUS LEGIS NEMINI EST DAMNOSUS, 102.

ACTUS NON FACIT REUM NISI, &c., 256.

AD EA QU^ FBEQUENTIUS ACCIDUNT, &c., 30.

AD PBOXIMUM ANTECEDENS FIAT BELATIO, 528.

AD QU^STIONEM FACTI, &c., 82.

AD QU^STIONEM LEGIS, &c., 82.

ADMINISTBATOE. See Personal Bbpebsentativb.
title of, relates back, 676, 703.

ADULTERY, husband conniving at wife's, 223.

ADVOWSON,

lapse of right of presentation, 53.
notice to patron of vacancy, 146.
tenants in common of, 209.
right to present in turn, 102.
appendant to manor, 377, 378.

ABBONAUT, actions against, 311.

AFFIDAVIT,

facts, not deposed to, not presumed, 181, 132.
must be sufficiently intituled, 523.
charging dishonesty, not answered, 764, 765.
objections to discovery, 762, n. (p).

AFTEE-ACQUIBED PBOPEBTY, 148, 382.

AGENT. See Peincipal and Agent.

AGBEEMENT. See Contract.

AIDER BY VEBDICT, 146, 147.

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INDEX. 771

ALIEN,

nemo patriam in qua natus est, &c., 61.

local allegiance, 64.

extara territorium jus dicenti, &c., 80—82.

marriage between aliens, 393.

insurance covering trade with enemy, 561.

ALIBNATIO BBI PE^FEETUR, &o., 344.

ALIENATION,

maxims as to transfer of property, 343—385.

favoured by the law, 344 et seq.

of lands by deed, 344—348.

of lands by will, 348.

Settled Land Act, 1882.. .356.

obnditions against, 349, 351, 355.

restraint against anticipation, 353, 354.

of personalty favoured, 354, 355.

rule against perpetuities, 351, 352, 425, 426.

ALLEGANS CONTEABIA NON AUDIENDUS, 135, 243.

ALLEGIANCE,

nemo patriam in quft natus est, &o., 61.
natural allegiance, 61 — 63.
local allegiance, 64.
Naturalization Act, 1870... 64.

ALLUVION, increase by, 133, 376.

ALTEEATION of instrument, 126.

AMBIGUITAS VEEBOEUM LATENS, &o., 464.

AMBIGUITY,

distinction between patent and latent, 464.

rule as to patent, 465 et seq.

evidence to show that none exists, 468.

rule as to latent, 469 et seq.

quoties in verbis nulla ambiguitas, &o., 476.

certum est quod certum reddi potest, 478.

falsa demonstratio non nooet, 483.

the golden rule of construction, 438.

APPOETIONMENT of rent, 194, 234, 235, 321.
APPEOPEIATION of payments, 633.
ARBITEATION CLAUSE, efleot of, 542.

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772 INDEX.

AEGUMENTUM AB INCONVBNIBNTI, &o., 149.

AEKEST,

of person illegally confined, 104.
contract to obtain release, 105, 230.
action for malicious, 231.
every man's house is his castle, 336.
privilege of M.P. from, 129.

ARTIFICIAL EESEBVOIE, 192, 295.

ASSAULT,

in defence of another, 10.

consent to illegal, 223.

conviction for, no bar to indictment for murder, 274.

in course of forcible entry, 342, 343.

to recapture chattels, 343, n. (s).

compromise of indictment for, 573.

actio personalis moritur cum persona, 697.

limitation of action for, 693.

ASSIGNATUS UTITUE JUEE AUCTOEIS, 359.

ASSIGNEE,

meaning of term, 360.

prior in tempore, potior in jure, 281 et seq., 560.

generally relies on assignor's title, 359 et seq., 624.

of bill of lading, 363.

position of trustee in bankruptcy, 365, 564.

may have better title by estoppel, 625.

title of, under Factors Act, 625.

sale to, under special power, 626.

buying in market overt, 627, 628.

under unlawful contract, 564.

of negotiable instrument, 628 — 630.

of chose in action, 283, 364, 554.

qui sentit commodum, &c., 551 et seq.

caveat emptor, 604.

ASSIZES, one legal day, 109.

ATTAINDER,

corruption of blood by, not pleadable to process to set aside, 134.
effect of, upon descent of lands, 396, 397.

ATTORNEY,

king does not appear by, 35.
compromising suit contrary to instructions, 162.
participating in illegal execution, 76, n. (y), 652.
no privity between client and agent of, 590.

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INDEX. 773

AUDI ALTERAM PARTEM, 91.
AUTREFOIS ACQUIT, plea of, 273, 274.
AUTREFOIS CONVICT, plea of, 274.

AWARD,

surplusage in, 482.

may be condition precedent to action, 542.

AWAY-GRO-\VING CROP, 322, 323, 717.

BALLOONS, 811.

BANK-NOTE,

alteration of, 126.

bona fide holder for value of, 628.

pledge of half of, for illegal debt, 563.

BANKRUPT,

position of trustee ia bankruptcy of, 365, 564.
declarations by, when admissible, 760.
nemo tenetur seipsum accusare, 763.

BARONY, proof of ancient, 741, 742.

BASTARD,

cannot inherit lands in England, 396, 397.
may take personalty, by jus domicilii, 398.
may take under devise to children, when, 428, 471.
presumption in favour of legitimacy, 741.

BENIGN^ FACIENDiE SUNT INTERPRETATIONES, &c., 410.

BILL OF EXCHANGE,

material alteration of, 126, 559.

notice of dishonour, 54, 132, 548.

waiver of notice, 548.

seized under an extent, 54.

in favour of fictitious payee, 244.

consideration for, presumed, 592, 593.

given for illegal consideration, 581.

bona fide holder for value of, 628—630.

discrepancy between words and figures, 467.

effect of paying by, 637, 638.

payment to agent by, 640.

judgment against joint debtor upon, 269.

limitation of action upon, 692, n. (r).

loan by bill or cheque, 696, n. (h).

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774

INDEX.

BILL OP EXCHANGE— con^in^e^.

discharge of, by remmciation, 683.
payment of forged, 216.
falling due on a Sunday, 17.

BILLS OP LADING,

exceptions in, 185.

assignee of, 363, 364, 626.

authority of master of ship to sign, 651.

BILLS OF SALE,

priorities of holders of, 284.

of fixtures, 331.

of after-acquired property, 884.

BLANKS in a will, 465, 466.

BOND,

effect of alteration of, 126.

action on, by commissioners of taxes, 132.

act of God making condition impossible, 197, 198.

effect of the condition becoming otherwise impossible, 204, 205.

executed under assumed name, 237.

illegality a good defence to action on, 542, 571.

how discharged, 681, 687.

BONI JUDIOIS EST AMPLIABE JUEISDIOTIONEM, 65.

BOEOUGH ENGLISH, 280, 716.

BOTTOMEY BONDS, priority of, 285.

BOUGHT AND SOLD NOTE, alteration of, 126.

BEOKEE,

selling as principal, 642.

employing another broker to sell, 654.

opinion of, as to materiality of facts, 730.

BYE-LAW,

restraining Sunday traffic, 17, 18.
power of corporation to make, 369.
divisibility of, 580.

CAEEIEE,

for what damage he is liable, 199.

giving conflicting notices, 458.

railway company acting by agents, 641, 642, 664.

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INDKX. 775

CASE, ACTION ON THE,

origin of the action, 154.

novelty of complaint in, no objection, 155.

for nuisances, 311.

CASUS OMISSUS, 32.

CAVEAT EMPTOE, 604.

CERTUM EST QUOD CERTUM REDDI POTEST, 478.

CESSANTE EATIONE LEGIS CESSAT LEX, 129.

CHALLENGE, privilege of peremptory, 266.

CHARTER-PARTY,

when vitiated by alteration, 126.

how construed by reference to intention of parties, 419.

recovery of freight pro rata itineris, 507.

CHEQUE. See also Bill of Exchange.

action against banker for refusing payment of, 162.
banker paying, when account overdrawn, 215.
within what time to be presented, 692, n. (r).

CHILDREN, meaning of, iu devise, 428.

CHOSE IN ACTION, assignment of, 283, 364, 554.

CLAUSULA DEROGATORIA, 18.

COHABITATION,

grant of annuity after immoral, 359.
presumption of wife's agency from, 651, 652.

COLLISION, presumption of negligence from railway, 253.

COLONIAL LEGISLATIVE ASSEMBLY,

power of, to punish for contempt, 373, 374.

COMITY OF NATIONS, 14, 394.

COMMISSIONERS OF PAVING, liability of, 5, 668, 669.

COMMISSIONERS OF TAXES,

action by, on bond, against tax-collector's surety, 132.

COMMON,

action by commoner for damage to, 120.
trespass by commoner, 249.
pinr cause de vicinage, 130.
abatement of nuisance on, 342.
of pasture appendant, 378.

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776 INDEX.

COMMUNIS EEEOB FACIT JUS, 115.

COMPULSION. See Necessity.

CONCUBITUS NON FACIT MATBIMONIUM, 386.

CONDITION,

rendered impossible by act of God, 192 et seq.

by act of obligor, 205.

by act of stranger, 205.

by act of obligee, 205.
impossible at its creation, 204, 205.
when implied, 195 et seq, 518, 582, 607.
implied, on sale of goods, 613 — 615, 623.
difference between, and warranty, 612.
description amounting to, 494, n. (z).
against entering ser^-ioe of Crown, 581.

CONFLICT OF LAWS,

divine and human, 13, 14.
English and foreign, 14.
as to validity of marriage, 393, 394.
as to legitimacy, 395, 396.

CONFUSION OF GOODS, 236, 237, 280, n. (i).

CONJUNCTIVES, 450-452.

CONSENSUS FAOIT MATBIMONIUM, 886.

CONSENSUS TOLLIT EBEOBEM, 112.

CONSIDEEATION. See also Nudum Pactdm.
in Eoman and French law, 583, 584.
definition of, in English law, 585, 586.
impossible, 206.
illegal, 571, 580.

CONSTABLE,

qui jussu judicis aliquod fecerit, &c., 75 et seq.
may require assistance of bystanders, 372.

CONSTEUCTION of instruments,

maxims relating to, 409—535.
golden rule for, 438.

CONTEMPOEANEA EXPOSITIO EST OPTIMA, 529.

CONTEMPT,

Colonial legislative assembly punishing for, 373, 374.
audi alteram partem, 92.

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INDEX. 777

CONTEMPT— cowimwerf.

party in, rights of, 134.
entry to arrest for, 838, n. (g).

CONTINGENT INTEEEST, defined, 520.

CONTEACT. See also Nudum Pactum.
maxims as to law of, 536—713.
maxims as to interpreting, 409—535.
golden rule for construing, 438.
made on a Sunday, 16, 17.
breach of, by Crown, 44, 48.

damages recoverable for breach of, 168, 186 — 188, 712.
act of God excuses performance of, when, 194 — 197.
impossibility of performance excuses, when, 204 — 208.
relief against mistake in, 217 — 221.
conventio vincit legem, 227, 335, 537.
payments under illegal, 230, 561 et seg.
party cannot take advantage of his breach of, 234, 235.
specific performance of, 540, 608, 609.
illegal, not enforceable, 541 — 543, 561 et seq, 571 et seq.
does not affect rights of strangers to, 336, 543.
consideration required to support, 583 et seq.
warranty of authority to make, 644, 645.
who entitled to sue upon, 639, n. (e).
ratification of unauthorised, 553, 554, 672 et seq.
rescission of, for material misrepresentation, 608.
induced by fraud, 608—610, 618 et seq.
how dissolved, 679 et seq.
oral variation of written, 683 — 687.
evidence of custom or usage to explain, 823, 512, 721.
evidence not admissible to vary, 475, 513, 514, 721.
effect of death of party to, 196, 697—701, 713.
capacity to make, 894.

CONTEIBUTION between tortfeasors, 567, 568.

CONVEYANCE. See Deed.

act of God making a condition annexed impossible, 198.
condition being otherwise impossible, 205.

COPYHOLD,

trespass to, before entry by heir, 109.
grant of, by tenant for life of manor, 362.
custom to repair, 712.

COPYEIGHT, law of, 288.

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INDEX.

COEPORATION,

power of, to make bye-laws, 369.
liability of, for acts of servants, 664, 668.

COURT,

maxims as to judicial ofSoes, 65—91.
maxims as to administration of justice, 91 — 124.
agreement to oust jurisdiction of, 542.
will not enforce illegal contract, 571.

COVENANT

running with land, 365, 551.

express words not necessary to create, 415.

whether joint or several, 416.

whether or not independent, 416, 417.

CRIMINAL CONVERSATION, husband's connivance at, 223.

CRIMINAL INTENTION,

actus non facit reum nisi mens sit rea, 256.

evidence of, 259—261.

bare intention not punishable, 261.

distinction between bare intention and attempt, 261.

effect of drunkenness, 260.

effect of insanity, 263.

when ascribable to infant, 263, 264.

CRIMINAL LAW,

foundation of, 7, 8.

necessitas inducit privelegium, 8 — 13.

new, should not be made retrospective, 29.

nullum tempus ocourrit regi, 52.

questions of fact are for the jury, 89.

de minimis non curat lex, 118.

in jure non remota causa spectatur, 189.

ignorantia facti excusat, 10, 211, 221, 222, 670, n. {x).

ignorantia legis non excusat, 222.

actus non facit reuna nisi mens sit rea, 256.

attempt distinguished from bare intention, 261.

attempt doomed to failure, 262.

consideration in favorem vitse, 265.

memo debet bis vexari, 266, 273—276.

construction of penal statutes, 435 — 437.

respondeat superior, 670 n. (x).

ratiiication of criminal act, 675, 676.

public crimes are buried with the offender, 713.

nemo tenetur seipsum accusare, 761.

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INDEX. 779

CEOWN. gee also King.

maxims relating to, 34 — 64.

descent of, 37, 38, 405.

grant from, when void, 40—43, 50, 51, 725, n. (/).

remedy agaiast, by petition of right, 43—46, 711.

not responsible for torts of servants of, 44, 46, 670.

when bound by statutes, 58—61.

questions indirectly affecting, 50.

construction of charters from, 369, 463, 464, 529, 725.

liability of servants of, 40, 44, 46, 47, 670, 671.

servants of, contracting on behalf of, 48, 645.

dismissal of servants of, 48.

funds received by, under treaties, 48, 49.

ratification by, of unauthorised acts, 679.

condition against entering military service of, 581, n. (q).

CUICUNQTJE ALIQUIS QUID CONOEDIT, &c., 367.

CUILIBET IN SUA ARTE, &c., 727.

CUJUS EST DARE EJUS EST DISPONBRE, 856.

CUJUS EST SOLUM, &c., 809.

CURSUS OURI^ EST LEX CURI^, 110.

CUSTOM,

optimus interpres renun usus, 714.

non audire alteram partem, bad, 92.

evidence of, to explain contract, 823, 512, 721.

evidence of, not admitted to vary contract, 475, 513, 721.

usage cannot justify clear breach of trust, 532.

judicial notice, when taken of, 724.

affecting mercantile contracts, 721 — 725.

knowledge of, when material, 724, 725.

reasonableness of, 128, 715 — 718.

respecting away-going crop, 322, 823, 717.

definition of, 714.

requisites to the validity of, 714 et seq.

CT-PRES, origin of doctrine of, 430.

DAMAGES,

in jure non remota causa spectatur, 168, 179.
in action of contract, 168, 186—188, 712.
in action of tort, 168—170, 187.
in action for slander, 169.

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780

INDEX.

DAMAQ'ES— continued.

for trespass to land, 164, 166, 238.

for breach of promise of marriage, 699, 711.

various kinds of, 186, n. (j).

DAMNUM ABSQUE INJURIA, 156—162.

DEATH,

decorum est pro patria mori, 13.

rex nunquam moritur, 37.

actus Dei nemini faoit injm-iam, 190, 196.

agent acting after principal's, 645.

actio personalis moritur cum personS,, 697.

Lord Campbell's Act, 705—707.

DECISIONS, reasons for following former, 121—124.

DE DONIS, Statute of, 346.

DEED.

two requisites to validity of, 83.

effect of alteration of, 126.

maxims as to interpreting, 409 — 521.

golden rule for construing, 412, 438.

general principles for construing, 410 et seq.

valeat quantum valere potest, 413, 494.

words of doubtful import in, 412 — 414, 418.

noscitur a sociis, 447.

fortius contra proferentem, 453.

ambiguitas patens, 465. .

ambiguitas latens, 464, 469.

quod certum reddi potest, 478.

falsa demonstratio non nocet, 483.

verba generalia restringuntur, 499.

ad proximum antecedens relatio, 528.

contemporanea expositio, 529.

qui bseret in liters, 533. i

mala grammatica non vitiat, 534.

ex antecedentibus et consequentibus, &c., 440.
construction of covenants in, 415 — 417, 441.
quoties in verba nulla ambiguitas, &c., 474.
utile per inutile non vitiatur, 481.
recitals in, 441, 501.
expressum facit cessare taciturn, 504.
expressio eorum quae tacite insunt, &o., 519.
verba relata inesse videntm*, 521.
schedules and plans annexed to, 522.

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INDEX. 781

DEED — continued.

court will not enforce illegal, 571.
consideration not neoessajy for, 585.
how discharged, 681, 682, 687.
construed by usage, when, 725.

DE FIDE ET OFFICIO JUDICIS, &c., 70.

DE MINIMIS NON CUEAT LEX, 118.

DE NON APPAEBNTIBUS, &o., 131.

DESCENT, maxuns as to, 394—405.

DESCBIPTION,

falsa demonstratio non nocet, 483.
prsesentia corporis tollit errorem nominis, 491.
slight errors of, 609.
sale of goods by, 613.

DISJUNCTIVES, 450-452.

DOCUMENTS OF TITLE, 363, 625.

DOLUS,

in Koman law, 570.

in our law, 188, n. (o).

circuitu non purgatur, 188.

ex dolo malo non oritur actio, 569.

DOMUS SUA CUIQUE TUTISSIMUM REFUGIUM, 336.

DEUNKENNESS,

no excuse for crime, 260.

bearing of, on question of intention, 260.

DUBESS, 12, 106, 232, 392.

EASEMENT,

acquisition of, under 2 & 3 WiU. 4, c. 71... 303.
right to create, how limited, 358.

EJUSDEM GENEEIS, 16, 447-453.

ELECTION,

to take under deed or will, 140, 555 — 556.

duty to elect arises when, 220, 582.

semel facta non patitur regressmn, 391, n. (s), 582, 619.

must be made within reasonable time, 582, 677.

EMBLEMENTS, 318 et seq., 612.

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782

INDEX.

ESTOPPEL,

definition of, 187.

allegans contraria non est audiendus, 135, 243.

doctrine of estoppel in pais, 240 — 244.

does not arise from bare promise, 243, 682.

by matter of record, 267, 270 et seq., 749 et seq.

res inter alios acta non nocet, 271, 748.

title by, 138, 242, 625.

ESTOVEES, right to, 547

EVASION of statutes, 375.

EVIDENCE,

maxims applicable to law of, 714 et seq.

audi alteram partem, 91.

de non apparentibus, &c., 131.

allegans contraria non est audiendus, 135, 141.

acta exteriora indicant, &c., 248.

res ipsa loquitur, 253.

of criminal intention, 259, 260.

extrinsic, to explain instrument, 464 et seq., 476^478.

cuilibet in sua arte perito credendum, 727.

opinion on matters of science, 728.

of underwriters as to materiality of facts, 730.

of experts on foreign law, 732.
omnia praesumuntur contra spoUatorem, 733.

effect of withbolding evidence, 734.

rule in ejectment actions, 736.
omnia praesumuntur rite esse acta, 737.

proof of ancient deeds, 739.

presumption against fraud, 741.

presumption against illegality, 582.
res inter alios acta, &c., 748.

judgments in rem, 750, 751.

acts having legal operation, 752.
hearsay evidence, generally inadmissible, 754.

some exceptions to rule, 754 et seq.
declarations against interest, 754 — 756.
entries in course of business, 757.
doctrine as to res gestse, 759.
against conspirators, 760.
nemo tenetur seipsum accusare, 761.
competency of witnesses, 765.

EX ANTECBDENTIBUS ET CONSEQUENTIBUS, &c., 440.

EX DOLO MALO NON ORITUR ACTIO, 569.

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INDEX. 783

EX NUDO PACTO NON OBITUR ACTIO, 583.

EXEGUTIO JURIS NON HABBT INJURIAM, 103.

EXECUTION,

jus regis prseferri debet, 55—58.

qui jussu judicis aliquod fecerit, &o., 11, 75.

action for malicious, 230.

priority of, 285.

domus sua ouique refugium, 336.

EXECUTOR. See Personal Rbpresbntativbs.
right of retainer by, 178.
de son tort, 233, 657, n (s).
derives title frora the will, 703.

EXPRESSIO EOEUM QUiB TAOITE INSUNT, &o., 519.

EXPRESSUM FAOIT CESSARE TACITUM, 504, 615.

EXPRESSIO UNIUS EST EXOLUSIO ALTEBIUS, 504.

EXTENT, right of Crown to priority under, 56.

FACTORS' ACT, 625.

FALSA DEMONSTRATIO NON NOCET, &c., 483.

FATHER,

not liable for son's debt, 406, 407.
pater est quern nuptise demonstrant, 395.

FELONY,

actus non facit reum nisi mens sit rea, 256.
action for felonious act, 171—173, 706, 711.

FERRY, 158, 556.

FICTION,

in fictione juris semper asquitas existit, 106.
presumption of law distinguished from, 106.

FINDER OF GOODS, 278—280, 558, 631.

FIRE,

demolition of house, to prevent spread of, 2.
liabUity in case of, 192, 193, 296.
who takes risk of, 611.

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784 INDEX.

nXTUEES,

quicquid plantatur solo, &c., 325.

meaning of term, 326.

right to, of heir, 325, 327—329, 332.

of devisee, 329, 332.

of purchaser, 829, 330, 331, 336.

of mortgagee, 330, 331, 335.

of remainderman, 327, 332.

of landlord, 332.
trade fixtures, 327-329, 332.
ornamental fixtures, 331, 332—336.
agricultural fixtures, 333—334.
tenant's right to, how lost, 334 — 335.
agreements as to, 335, 336.
mining fixtures, 336.
BiUs of Sale Acts, 331.
Sale of Goods Act, 612.

FOKCIBLE ENTRY, 342, 343.

FOEEIGN JUDGMENT, action upon, 14.

POREIGN LAW, how proved, 732, 733.

FORTIUS CONTRA PROFERENTEM, 453.

FRANCHISE, grant of, when void, 40—43, 50, 725.

FRAUD,

Charter from King, obtained by, 41.

Act of Parliament, obtained by, 41.

fraudulent alteration of document, 126.

without damage, no action for, 163, 619.

party cannot take advantage of his own, 239, 245.

consent to marriage obtained by, 392.

contract to be irresponsible for, 548.

which of two innocent parties must suffer for, 559.

ex dolo malo non oritur actio, 569.

effect of, on contract induced thereby, 582.

never presumed, 582, 588.

rescission of contract for, 582, 608, 609, 618.

remedies for, 618, 619.

action of deceit, 618 — 623.

what is fraud, 620, 621.

meaning of good faith, 629.

by co-partner, 646.

by servant or agent, 663, 664.

effect of, on statutes of limitation, 693, 694.

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INDEX. 785

FREIGHT,

follows property in vessel, 382.
pro rata itineris, 507.

GAVELKIND, 379.

GENERAL WORDS, 452, 499.

GOODS. See Sale of Goods.

confusion of, 236, 237, 280 n. (i).
finder of, 278-280, 558, 631.

GRANT. See Deed.

quod ab initio non valet, &c., 144.

cuicunque aliquisquid concedit, &c., 367.

accessorium sequitur principals, 376.

of after acquired property, 148, 382.

ancient, how construed by usage, 529, 725.

no man shall derogate from his own, 140, 235, 371.

HiEREDITAS NUNQUAM ASOENDIT, 401.

H^RES EST QUEM NUPTI^E DEMONSTRANT, 394.

HEIR,

rule of primogeniture, 280.
haeres est quern nuptisB demonstrant, 394.
heir to the father is heir to the son, 396.
ex damnato coitu natus nullius filius, 397.
presumption as to legitimacy, 741.
nemo est hseres viventis, 399.
hsereditas nunquam ascendit, 401.
lineal descent preferred, 403.
rule as to half blood. 404, 405.
rule in Shelley's case, 426.

HEIR-LOOMS, 377.

HIGHWAY,

deviation from founderous, 2.
action for nuisance in, 166, 167, 255, 308.
horse bolting in, 254, 255.
owners of property adjacent to, 308, 553.
liability to repair, ratione tenurse, 167, 553.
compounding offence of obstructing, 573.
effect of conviction for obstructing, 751.
li M.

50

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786 INDEX.

HOMICIDE. See Criminal Law.
in self-defence, 10, 387.
in defence of others, 10, 337.
in execution of law, 10, 11.
in resisting felonious entry, 337.
in mistake of facts, 10, 222.

HOUSE,

right of support to, 160, 161.
injury to neighbour's, 291, 298.
domus sua cuique refugium, 336.

HOUSE OF COMMONS, 76, 170, 747.

HOUSE OF LORDS, decisions of, 69.

HUSBAND AND WIPE. See Maeeiagb.

husband conniving at wife's misconduct, 223.

crime by wife under husband's coercion, 12, 13.

restraint against anticipation, 353.

consensus faeit matrimonium, 386.

competent witnesses for one another, 407, 408, 765, 766.

meaning of ' wife ' in wUl, 481.

agency of wife, when presumed, 651, 652.

IGNORANTIA FACTI EXCUSAT, 210, 257.

IGNORANTIA JURIS NON EXCUSAT, 210.

INDEMNITY,

lex quBe cogit defendit, 11.

none between joint wrong-doers, 567.

right of agent to, 568.

INDEPENDENT CONTRACTOR, 657—661.

INDICTMENT,

aider of, by verdict, 146, 147.

one count in, may refer to another, 528, 524.

rejection of surplusage in, 483.

INFANT,

guardian for infant king, 37.
contracts by, 406, 407, 546.
marriage settlement by, 546.
promise of marriage by, 390, 391.
marriage by, 391, 392.

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INDEX. 787

INFANT— continueti.

within what age he is doli inoapax, 263, 264.

malitia supplet setatem, 264.

statutes of limitation do not run against, 690, 694.

IN FICTIONE JURIS SEMPER ^QUITAS, &o., 106.

IN JURE NON RBMOTA CAUSA SPECTATUB, 179.

INJURY,

ubi jus ibi remedium, 153.

damnum absque injuria, 156 — 162.

injuria absque damno, 162.

actus dei nemini faoit iujuriam, 190.

volenti non fit injuria, 223.

sic utere tuo ut alienum non Isedas, 289.

IN PRiESENTIA MAJOBIS CESSAT, &o., 90.

INSANITY,

a bar to marriage, 392.

a defence to charge of crime, 263.

a reply to statutes of limitation, 690, 694.

INSURANCE. See Marine Insubanoe, Policy of Insurance.

INTENTION. See Criminal Intention, Will.
acta exteriora indicant, 248, 621, 622.
actus non facit reum nisi, &c., 256.
wrongful, cEinnot be pleaded when, 238.
expression of mere, no estoppel, 243, 682.
inference of, from declarations, 632, 758.

INTEREST,

accessory to principal, 381.

debt kept alive by pajonent of, 691.

appropriation of payment to, 637.

INVOLUNTARY ACT, 9, 12, 225, 229.

JOB-MASTER, 659.

JOINT DEBTOR,

judgment against, 268, 269.
absence beyond seas of, 695.
discharge of, 549.
part payment by, 695.

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788 INDEX.

JUDGE,

maxims as to office of, 65 — 91.
King oamiot act as, 35, 36, 94.
jurisdiction of, at chambers, 67.
exercise of discretion by, 68, 69.
no action lies against, 70—74, 101.
appeal from, 74, 75.
immunity of officer of, 11, 75.
questions of law are for, 82 et seq.
construction of instrument for, 88.
mis-direction by, 89.
audi alteram partem, 91.
nemo debet esse in sua caus&, 94.
duty of, stare decisis, 121.

JUDGMENT,

form of, against the Crown, 45.

nunc pro time, 100.

no bar to appeal, 133 — 135.

action on foreign, 14, 746.

doctrine of res judicata, 267, 270.

merges cause of action, 268, 270.

estoppel by record, 270 et seq., 749 et seq.

by consent, 271.

obtained by collusion, 267, u. (o), 272.

binding effect of, 231, 232.

presumption as to regularity, 267, 740.

of inferior court, 77, 78, 744—747.

recovered against joint debtor, 268, 269, 695.

discharge of obligation by record, 681.

when barred by time, 690.

in rem, 275, 276, 750, 751.

JUDICIAL OFFICE, maxims as to, 65—91.

JUDICATURE ACTS, general effect of, 384.

JURISDICTION,

territorial limits of, 80 — 82.

in praesentia majoris cessat, &a., 90.

quando aliquid mandatur, &e., 371 — 374.

contract to oust, 542.

to prevent abuse of process, 272.

delegation of, 655, 656.

omnia prsesumuntur rite esse acta, 737.

of inferior court, when not presumed, 77, 78, 744 — 747.

of superior court, when presumed, 746.

not given by consent, 112.

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INDEX. 789

JUEY,

ad qusestionem facti respondent, 82.

province of, in action for malicious prosecution, 85, 86.

for libel, 86, 87.
disagreeing, discharge of, 274, 275.

JUEOB,

illness of, during trial, 201.

wrong, sworn by mistake, 493.

withdrawal of, by consent, 271. {See 18 q. b. d. 822.)

JUSTICE, maxims as to administrating, 91 — 124.

JUSTICES,

liability of, 71—73, 77—80.
audi alteram partem, 91.
disquaUfied by interest, 96 — 98.
cannot delegate their functions, 655.
jurisdiction of, when not presumed, 744 — 746.
control over, by high court, 90.

KING. See also Crown.

maxims relating to, 34—64.

how subject to the law, 34 — 36.

in AngM non est interregnum, 36.

cannot act as judge, 35, 36, 94.

can do no wrong, 39.

petition of right against, 43 — 46.

treaties by, 47 n. (y), 48, 49.

grants from, when invalid, 50, 51, 725, n. (/).

nullum tempus occurrit, 52.

cannot be joint-owner of chattel, 55.

priority of execution for, 56 — 58.

entry to execute process of, 338.

when not bound by statute, 58 — 61.

allegiance owed to, 61 — 64.

taking by escheat, 278.

KING'S BENCH DIVISION,

power of, over inferior Courts, 90.

LAND,

cujus est solum ejus est usque ad ccelum, 309.
quicquid plantatur solo, solo cedit, 314.
what included in grant of, 312, 313, 370, 371.
novel incidents not annexable to, 357, 358.
title to, by remitter, 175—178.

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790 INDEX.

LAND — continued.

title to, by priority of occupation, 278, 281.
right of support for, 160, 161, 300.
licence to enter, when implied, 251, 252.
rights and liabilities of owners of, 289 et seq.
liability of occupier of, for nuisances, 667, 668.
limitation of actions to recover, 690.

LANDLOED AND TENANT- See also Lease.
relation of, how evidenced, 139, 324.
waiver by landlord of right to re-enter, 145.
construction of conditions for re-entry, 102, 234.
liability of tenant for waste, 193.
destruction of premises by fire, 192 — 194.
eviction by act of God, 194.
partial eviction by title paramount, 234.
landlord oaimot avoid lease for defect of title, 238.
entry by landlord to distrain, 32, 249, 339, 340.
distress excessive, or for more than due, 162, 163.
position of mortgagor's tenant, 282.
injuries to reversion, action for, 310.
rights of, as to trees, 129, 234, 316—318, 368, 533.
emblements, 318—322, 612.
away-going crop, 322, 323, 717.
fixtures, 325, 327, 331, 332—336.
what conditions landlord may impose, 358.
covenants running with reversion, 365.
covenants running with land, 379, 551.
when bound by custom of country, 513.
conventio vincit legem, 537, 538.
surrender by operation of law, 540.
right of tenant to estovers, 547.
qui sentit commodum, &c., 551—553.
covenants for title when not implied, 606, 607.
warranty as to condition of premises, 607, 608.
liability for nuisances, 667, 668.
ratification of notice to quit, 677.
limitation of actions for rent, 691, 692.

LABCENY, by finder of chattel, 558 n. (o), 631, 632.

LAW,

salus populi suprema lex, 1.

rex debet esse sub lege, 34.

actus legis nemini est damnosus, 102.

de minimis non curat lex, 118.

cessante ratione cessat lex, 129.

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INDEX. 791

LAW — continued.

argumentum ab inconvenienti valet in lege, 149.
lex non cogit ad impossibilia, 201.
ignorantia legis non excusat, 210.
hard cases make bad law, 123, 156.

LAWS,

necessity of obedience to existing, 10.
foreign, how regarded, 14.

how proved, 732, 733.
framed to meet ordinary cases, 30.

LEASE. See also Landlord and Tenant.
exception of trees in, 129, 868.
construction of condition for re-entry, 234.
voidable only for breach of condition, 235.
apportionment of condition re-entry, 102.
covenant not to assign, 102, 858.
by estoppel, 148.

certum est quod certum reddi potest, 478 — 480.
covenant to repair, 504, 505.
covenants for title, 505, 606, 607.
undertaking as to state of premises, 607, 608.

LEGES POSTEBIORES PBIORES ABROaANT, 18.

LEX NON COGIT AD IMPOSSIBILIA, 201.

LIBEL,

province of jury in action for, 86, 87.
proof of malice, when necessary, 87, 157.
immunities from action for, 76, 170, 171.
recovery of substantial damages for, 165.
actio personalis moritur cum persona, 711.

LICENCE,

of law and of party distinguished, 248.
when implied, 251.

defence of leave and licence, 223, 683, n. (j).
distinguished from request, 658.

LICET DISPOSITIO DE INTEEESSE FUTURO, &c., 382.

LIEN,

of factors and bankers, 539.
of seUer of goods, 540.

LIGHT, right to enjoyment of, 159, 302—304, 370.

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792 INDEX.

LIMITATION OF ACTIONS,

nullum tempus oceurrit regi, 52.

dormientibus jura non subveniunt, 688 et seq.

contra non valentem agere, &o., 696.

waiver of defence of statute, 546.

payment appropriated to barred debt, 635.

policy of statutes creating, 689, 690.

recovery of land, 690.

mortgage debts and judgments, 690, 691.

covenants, 691.

penalties to party aggrieved, 691.

simple contracts, 692.

right of set-off, 693.

actions ex delicto, 693.

effect of fraud, 693, 694.

disabilities, 690, 691, 692, 694—696.

payment by co-contraotor, 695.

administration granted to debtor, 697.

LOGIC, EULES OF, 125—151.

LUNATICS,

incapable of marriage, 392.

incapable of criminal intent, 263.

saving in favour of, in statutes of limitation, 690, 694.

MAGISTRATES. See Justices.

MAINTENANCE, 574, n. (g).

MALICE,

meaning of, 156, 157.

destroys privilege, when, 157, 170.

malitia supplet setatem, 264.

MALICIOUS PROSECUTION, action for, 85, 157, 164.

MANDAMUS,

remedy by, 153 n. {d).

lex non cogit ad impossibilia, 203, 204.

MARINE INSURANCE,

remota causa non spectatur, 180.

perils of seas, what loss referable to, 179 et seq.

how defined, 183.
loss by wrongful act of assured, 184, 643.
evidence as to materiality of risks, 729—731.

MARKET OVERT, sale of goods in, 58, 627, 628.

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INDEX. 793

MAKRIAGE. See also Promise of Marriage.

quod ab initio non valet, non convalescit, 144, n. (l).

quod fieri non debet, factum valet, 148, 392.

meaning of, in Christendom, 386.

consensus, non oonoubitus, facit, 386 et seq.

requisites of, at common law, 387—390.

statutory changes in law of, 390.

by infant, 391, 392.

by member of royal family, 392.

by non compos mentis, 392.

obtained by duress or fraud, 392.

materiality of lex loci domicilii, 393, 394.

what is gained by, may be lost by, 680, n. (y).

proof of foreign law of, 732.

presumption in favour of, 388, n. (7c), 741.

promise of, by married man, 581, n. (g).

MASTEE AND SERVANT. See also Principal and Agent.
homicide by the one, in defending the other, 10.
qui faoit per alium, facit per se, 639 et seq.
respondeat superior, 656 et seq.
omnis ratihabitio retrotrahitur, 672 et seq.
master, when liable for servant's offence, 258, 663.
relation of, how constituted, 658 — 660.
master's liability for servant's acts, 662 et seq.
master's duty to servant, 665 — 667.
volenti non fit injuria, 223, 226.
doctrine of common employment, 665, 666.
statutory modifications of doctrine, 666, 667.
torts of servants of the Crown, 44, 46, 47, 670.
action by master for servant's death, 711.
illness or death of servant, 196, 197.

MELIOR EST CONDITIO POSSIDENTIS, 557.

MERGER, definition of, 143.

MINERALS,

obligations of owners of, 293 — 295.

damages for trespass by tipping refuse, 238.

property in, 311 — 313.

effect of grant or lease of, 367.

effect of reservation of, 368, 369.

MINING FIXTURES, 336.

MISCHIEVOUS ANIMALS, liability for, 306—308.

Digitized by Microsoft®

794 INDEX.

MISDEMEANOR,

oonviotion for lesser, upon indictment for greater, 144
attempt to commit, 261.
all are principals in, 120.

MISBEPEESENTATION,

allegans contraria non audiendus, 135, 243.
estoppel by, 240—244.
rescission of contract induced by, 608 — 610
simplex commendatio non obligat, 617.
fraudulent, 619—621.

MISTAKE OF LAW OR FACT, 210.

MODUS ET CONVENTIO VINCUNT LEGEM, 537.

MONEY,

title to, 628, 630, 631.

following trust money, 637.

MONEY HAD AND RECEIVED,

action for, lies wben, 66, 67, 560.
money paid voluntarily, 227.
mistake of law, 212—214.
mistake of fact, 214—216.
illegal compulsion, 228 — 232.
payments under legal process, 230 — 232.
proceeds of wrongful sale, 675.
in pari delicto, &c., 561 et aeq.

MONEY LENT,

implied promise to repay, 508, 595.

MONEY PAID. See Money had.

request to pay, when implied, 595, 596.

MONSTEANS DE DROIT, 49, 50.

MORTGAGE

priority amongst mortgagees, 281, 282.

doctrine of tacking, 281, 282.

mortgagor's tenant, 282.

fixtures, 330, 331.

covenant to pay off out of special fund, 507.

recovery of money secured by, 690.

MOTIVE, 156, 157, 589.

NAME,

instrument executed under assumed, 237.
prsBsentia corporis toUit errorem, 491.
Veritas nominis toUit errorem, 491.

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INDEX. 795

NECESSITY,

necessitas induoit privilegimn, 8.
actus dei nemini faoit injuriam, 190.
lex non oogit ad impossibilia, 201.
ouiounque aliquis quid ooncedit, &o., 367.
quandolex aliquid alicui concedit, &o., 372.

NEGLIGENCE,

how defined, 291.

bare, gives no cause of action, 163, 291.

non remota causa spectatur, 168, 179, 185.

contributory, must be proximate, 186.

volenti non fit injuria, 223.

burden of proof of, 253.

res ipsa loquitur, 253.

sic utere tuo ut alienum non Isedas, 289.

dangerous instrimients, 305, 306.

omission to foresee crime, 560, 625.

distiaguished from fraud, 621, 629.

liability of master for servant's, 662.

employment of independent contractor, 658, 660, 661.

non dormientibus jura subveniunt, 688.

Lord Campbell's Act, 705—707.

NEGOTIABLE INSTRUMENT, title to, 628—630.

NEMO DEBET BIS VEXARI, &c., 266.

Roman law as to exceptio rei judicatse, 266.

Our doctrine of res judicata, 267, 268.

merger of cause of action in judgment, 268, 269.

meaning of ' same cause of action,' 269.

second action for relief not obtainable in first, 269, 270.

summary remedy against vexatious litigation, 270.

estoppel by record, 270 et seq.

judgment by consent or default, 271.

collusive proceedings, 272, 273.

maxim, a rule of our criminal law, 273 — 275.

statutory recognition of maxim, 275.

operation of judgment in rem, 275, 276.

NEMO DEBET ESSE JUDEX IN SUA CAUSA, 94.

NEMO EST H^RES VIVENTIS, 399.

NEMO PATRIAM EXUERE POTEST, 61.

NEMO TENETUR SEIPSUM AOCUSARE, 761.

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796 INDEX.

NEW TEIAL,

limit of right to, 75, 118, 119.

after misdirection or perverse verdict, 89.

not granted where damages are small, 118.

NO CASE, 88.

NON-FEASANCE, 166, 251.

NON POTEST ADDUCI EXCEPTIO, &o., 133.

NON POTEST EEX GBATIAM FAOEEE, &c., 60.

NOSCITUE A SOCIIS, 447.

NOVA CONSTITUTIO FUTUEIS, &c., 24.

NUDUM PACTUM,

ex nudo paoto non oritur actio, 588.
meaning of, in Eoman law, 584.
in English law, 584.
consideration, how defined, 585, 586.
contract under seal, 585, 586.
consideration must have some value, 587, 588.
failure of consideration, 588.
consideration must move from whom, 589 — 591.
moral obligation, 591, 592.
voluntary courtesy, 594.
request, when implied, 595, 596.
past consideration revived by promise, 597 — 599.
promise, when implied, 600— 602.
concurrent consideration, 603, 604.
continuing consideration, 604.

NUISANCE,

action in respect of public, 166, 167.

sic utere tuo, &c., 289 et seq.

lex non favet votis dehcatorum, 301.

right to abate, 302.

liabihty of occupier for, 667, 668.

NULLUM TEMPUS OCCUEKIT EEGI, 52.

NULLUS COMMODUM OAPEEE POTEST, &c., 233.

OMNE MAJUS CONTINET IN SE MINUS, 141.
OMNIA PE^SUMUNTUK CONTEA SPOLIATOEEM, 733.
OMNIA PE^SUMUNTUE EITE ESSE ACTA, 737.
OMNIS INNOVATIO PLUS PEETUEBAT, &c., 121.

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INDEX. 797

OMNIS EATIHABITIO RETROTBAHITUE, 595, 672.
OPTIMUS INTERPRES RERUM USUS, 714.
OUTLAWRY, no bar to proceedinga to reverse, 135.

PAR DELICTUM,

raelior est conditio possidentis, 557.

test applicable as to, 562.

executory contracts, 563, 564.

cases of oppression, 564, 565.

position of agents, 566.

position of stake-holders, 567.

no contribution between joint tort-feasors, 567.

PARDON by Crown, 17, 50.

PARTNER,

jus regis prsefertur, 55.

person representing himself to be, 138.

liability of retiring, 243.

jus aocrescendi non habet, 354.

introduction of new, 539, 636, 637.

indemnity or contribution from, 568.

current account continued after change of firm, 636.

liability of partner for, 645, 646.

PATENT,

licensee of, cannot dispute validity of, 138.
who is entitled to, 286—288.
construction of grant, 420.
specification of, how construed, 421.
extrinsic evidence to explain, 421.
repeal of grant, 42.
use of, by Crown, 117.

PAWNOR AND PAWNEE, rights of, 228, 366.

PAYMENT. See Money had. Money paid.
flolvitur in modo solventis, 632.
appropriation of, 632 — 637.
presumptions as to, 562, 634, 638.
by biU or note, 638.

of lesser sum does not discharge debt, 687.
to agent, 639, 640.

PEBITO EST OREDENDUM IN SUA ARTE, 727.

PERSONA CONJUNOTA .EQUIPARATUE, &c., 405.

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798

INDEX.

PBESONAL REPRESENTATIVES,
right of retainer, 178.
title of, 676, 703.

assignees by operation of law, 860.
actio personalis moritur cum person^,, 697.

actions of contract by, 697 — 699.

actions of contract against, 700, 701.

actions of tort by, 701—707.

actions of tort against, 707 — 711.

general rule as to actions, 713.
executor de son tort, 233, 657, n. (s).

PETITION OF RIGHT, 43—46, 711.

PLEADING, surplusage in, 481, 483.

POLICY OP INSURANCE. See Marine iNsnEANCB.
interpretation of, 422, 456.
general words in, 448, 449.
party interested in, keeping up, 595.

PRACTICE,

cursus curiae est lex curiae, 110.
ignorantia juris non excusat, 211,217.
waiver of irregularity, 118, 114.

PREAMBLE of statute, 437, 601.

PRECEDENTS, JUDICIAL, 110, 117, 121—124, 583.

PRESUMPTION OP LAW, 106.

PRINCIPAL AND AGENT. See also Master and Servant.
qui facit per alium facit per se, 689.
respondeat superior, 656.

ratihabitio mandato priori aequiparatur, 595, 672.
delegatus non potest delegare, 653 — 656.
qui sentit commodum, sentiat onus, 553.
qui sentit onus, sentiat commodum, 556.
torts by agents of Crown, 44, 46, 670.
contracts by agents of Crown, 48, 645.
person cannot act as both, 139.
recovery of money extorted by agent, 229.
adoption of sale by unauthorised agent, 238.
principal contracting as agent, 458.
principal letting agent act as principal, 554, 647.
mistake of agent acting for all parties, 560.
liability of agent for money received, 566.
right of agent to indemnity, 568.

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INDEX. 799

PEINCIPAL AND AQTSNT—eontinued.

agent disposing of negotiable instrument, 630.
payment to or by agent, 639 — 641.
payment by principal to bis own agent, 640.
agent for sale of goods, 236, 642.
agent contracting as principal, 553, 643.
liability of unauthorised agent, 644, 645.
warranty of authority by agent, 644, 645.
general remarks as to agency, 646 et seq.
agency, how constituted, 649.
liability of firm for partner, 645, 646.
authority of master of ship, 651.
authority of wife, 651, 652.
position of sheriff, 652, 653.
employment to do unlawful act, 657.
distinction between command and licence, 658.
position of independent contractor, 658 — 661.
liability of principal for agent, 656 et seq.
effect of ratification of act, 553, 672 et seq.

PEINCIPAL AND SURETY,

surety, when released, 549, 550.
construction put on guarantee, 418.

PRIVILEaBD COMMUNICATION, 76, 87, 157, 170.

PEOCESS OF COUET,

qui jussu judioio aliquod fecerit, &c., 75.
abuse of process of, 103, 104, 230—232, 270.
legality of, when presumed, 740, 744 — 747.

PEOMISE OF MAEEIAGE,
action for breach of, 390.
how determinable, 390, 685.
by infant, 390, 391.
by married man, 581, n. (q).
actio personalis moritur cum person^, 699, 711.

PEOPERTY,

right to, by prior acquisition, 278, 557.
rights and liabilities relating to, 288—342.
the transfer of, 343—385.
mobiha sequuntur personam, 399.

PUBLIC AND PEIVATE ACTS, distmotion between, 6.

PUBLIC AUTHORITIES, protection to, 175.

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800

INDEX.

PUBLIC OFFIOEES,

official character of, when presumed, 740.
presumption as to execution of documents by, 739.

PUBLIC POLICY, "an unruly horse," 581.

PUBLIC WELFABE, private rights yield to, 1, 170.

QUANDO JUS EEGIS ET SUBDITI, &c., 55.

QUI HiERET IN LITEEA HjEBET IN CORTIOE, 533.

QUI JUSSU JUDICIS ALIQUOD FECEBIT, &c., 75.

QUI PER ALIUM FACIT PER SEIPSUM PACIT, 639.

QUI PRIOR EST TEMPORE POTIOR, &c., 278.

QUI SENTIT OOMMODUM, SENTIRE, &c., 551.

QUICQUID PLANTATUB SOLO, &o., 314.

QUICQUID SOLVITUB, SOLVITUB SECUNDUM, &c., 632.

QUILIBET POTEST RENUNCIABE PEO SE, &c., 545.

QUOD AB INITIO NON VALET, &c., 144.

QUOD BEMEDIO DESTITUITUE, &c., 175.

QUOTIES IN VERBIS NULLA AMBIGUITAS, &c., 474.

BAIL WAY ACTS, construction of, 3—7, 461—463.

EAILWAY COMPANY,

Sunday traffic by, 18.

theft in carriage of, 168.

liability of, if common carrier, 199.

mandamus against, 203, 204.

liabUity of, for condition of stations, 226.

general duty of, to passenger, 227.

contracting to carry at owner's risk, 227.

recovery of money extorted by, 229.

negligence of, presumed from collision, 253.

delivery of goods to agent of, 641, 642.

duty of, to have agents, 664.

when liable for wrongful arrest, 664, 665.

liability of committee-men of, 647, 650.

authority of station-master of, 642.

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INDEX. 801

RATIFICATION, 672 ct seq.

REMEDY,

ubi jus ibi remedium, 153.

quod remedio destuitur ipsa re valet, 175.

by statute, must be followed when, 173, 174, 518.

of nuisance, by abatement, 238, 302.

REMITTER, doctrine of, 175 et seq.

RES INTER ALIOS ACTA NON NOCET, 271, 748.

quando duo jura in una persona concurrunt, &o., 271, n. (r), 404.

RES IPSA LOQUITUR, 253.

RES JUDICATA,

merger of cause of action, 268, 270.
estoppel by record, 270.

RESPONDEAT SUPERIOR, 656.

RETAINER, doctrine of, 178.

REVERSIONER,

may maintain action, when, 310.
liable for nuisance, when, 667, 668.

REX DEBET ESSE SUB LEGE, 34.

REX NUNQUAM MORITUR, 36.

REX NON POTEST PECCARE, 39.

REX NON POTEST GRATIAM PACERE, &c., 50.

ROY N'EST LIE PER ASCUN STATUTE, &c., 58.

SALE OF GOODS,

law as to, now codified, 612.
distinction between warranty and condition, 612.
bare contract raises no warranty of quality, 613.
warranty of quality, when implied, 613-615.
sale of victuals, 614, 712.

implied warranty not negatived by express, 512, 615.
express warranty, how constituted, 615.
rule as to visible defects, 616.
simplex commendatio non noeet, 617.
aliud est eelare, aliud tacere, 618, 620.
remedies for fraud, 618 et seq.
warranty of title, when implied, 623.
payment for, to true owner, 624.
L.ir. 51

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802 INDEX.

SALE OF GOODS— continued.

nemo dat quod non habet, 361, 624.

title by estoppel, 242, 625.

title under Factors' Act, 625, 626.

by seller or buyer in possession, 626.

by indorsement of bill of lading, 363.

under special power, 626.

in market overt, 58, 627, 628.

restitution of stolen goods, 628.

coin sold as a chattel, 630.

money found in bought bureau, 631.

sale upon credit, 540.

mutual mistake as to quantity, 560.

to be used for illegal purpose, 577.

agreement to supply goods, if ordered, 588.

sale of future goods, 384.

made on Sunday, 16.

res perit suo domino, 195, 611.

SALE OF LAND,

right to conveyance of fee, 547.

stipulations as to title, 547.

for illegal purpose, 576.

caveat emptor, 604 et seq.

after conveyance, warranty of title not implied, 606.

no implied warranty as to state of premises, 607.

rescission for fraud, 608.

rescision for material misrepresentation, 608.

slight errors of description, 609.

stipulations as to errors, 610.

effect of completion, 610.

duty of vendor retaining possession, 610, 611.

risk of fire, 611.

SALUS POPULI SUPBEMA LEX, 1.

SEDUCTION of daughter, action for, 163.

SERGEANT-AT-ARMS, 76, 747.

SERVANT. See Master.

SESSIONS, meaning of " appeal to next," 209.

SEYMAYNE'S CASE, 336—342.

SHARES, title to, 283.

SHERIFF.

general position of, 11, 652.
arresting on invalid writ, 104.

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INDEX. 803

SHEEIFF— con^wwterf.

action against, for escape, 162.

for neglect to levy, 163.

for false return, 163.

for false imprisonment, 237.
delaying to withdraw, 250.
having two writs to execute, 104, 285.
delivering possession, 337, 338.
executing King's process, 338.
entering by open door, 339.
breaking outer door, 337—342.
breaking inner doors, 340.
may summon the posse comitates, 372.
liability of, for his bailiff's, 652, 653.

SHIP,

transfer of shares in, 284.
authority of master of, 651.
driven against pier by storm, 192.

SIC UTEEE TUO UT ALIENUM NON L.EDAS, 289.

SLANDER, 157, 169, 170.

SOLVITUE IN MODO SOLVENTIS, 632.

SPECIAL VERDICT, how construed, 131.

SPECIALTY, how discharged, 681, 682, 687.

SPECIFIC PERFORMANCE,
doctrine of, 540.

mistake of fact, when ground for refusing, 221.
misrepresentation, a defence to, 608, 609.

STATUTE OF FRAUDS.

verba relata inesse videntur, 523.

contract within, cannot be varied verbally, 686.

STATUTES,

leges posteriores priores contrarias abrogant, 18.
nova constitutio futuris formam imponere debet, 24.
ad ea quse frequentius aocidunt jura adaptantur, 30.
distinction between public and private, 6.
construction of, as to compensation, 4 — 7.
clausula derogatoria, 19.
repeal of, by impUcation, 19.
generalia specialibus non derogant, 20.
concurrent efficacy of, 20, 21.

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804 INDEX.

STATUTES— coniMiM«d.

effect of repeal, 21 — 23.

when Act begins to operate, 23.

common law yields to, 24.

common law cannot be changed without, 24.

retrospective, defined, 24, 25.

generally not construed as retrospective, 25, 26.

dealing with procedure are generally retrospective, 27.

retrospective, if intention clear, 27 — 29.

criminal, should not be made retrospective, 29.

effect of, on covenants, 208.

intended to meet ordinary circumstances, 30.

casus omissus in, 32, 33.

how far the Crown is bound by, 58 — 61.

convenience, how far regarded in construing, 150, 440.

must be obeyed, though immoral, 13, 14.

meaning of, should not be strained, 127.

ignorance of, recently passed, 222.

application to, of doctrine of mens rea, 256 — 259

quando aliquid mandatur, &c., 371.

quando aliquid prohibetur, &c., 374.

evasion of Act, 375.

general principles for construing, 433 — 435.

penal or fiscal, construction of, 435 — 437.

office of preamble of, 437, 501.

bearing of headings and recitals, 438.

marginal notes to, 438, n. (m).

golden rule for construing, 438.

construed ex antecedentibus et consequentibus, 445 — 447.

decisions on earlier Acts in pari materia, 446.

meaning of words ascertained by context, 452, 453, 534.

construction of Acts, for benefit of adventurers, 461-463.

a verbis legis non est recedendum, 478.

attempts to substitute equivalent terms, 478.

construction of general words in, 503, 504.

expressio unius est exclusio alterius, 514 — 516.

not of universal appHcation, 518.
exceptions and provisoes in, 516, 525 — 527.
contemporanea expositio of ancient, 530 — 533.
statements in Parliament as to, 529, n. (/).
remain in force until repealed, 680.

STATUTOEY PKOTECTION, remarks as to, 79, 80.

SUMMA RATIO EST QU.E PRO EELIGIONE FACIT, 13.

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INDEX. 805

SUNDAY,

is not dies juridicus, 15.
taking verdict on, 15, n (j/).
the Lord's Day Act, 15—17.
contract raade on, when void, 16, 17.
bye-law to close public canal on, 17, 18.
railway cloak office on, 18.

SURPLUSAGE, 481, 519.

SUERENDER, by operation of law, 544.

TAXES must be clearly imposed, 3, 435, 461.

TENANT FOR LIFE,

liability of, for waste, 193, 316, 317, 653, 712.
right of his representatives to emblements, 819.
sale by, under Settled Land Acts, 356.

TENDER,

when good, 141, 520.
refusal of sufficient, 236.
meaning of, 520.
of part of entire debt, 633.
to agent, 640, 641.

TITLE,

jus regis prseferri debet, 55.

qui prior est tempore, potior est, 278.

assignatus utitur jure auotoris, 359.

melior est conditio possidentis, 557.

caveat emptor, 604.

antiquity of time fortifieth, 737.

TORT,

ubi jus ibi remedium, 153.

no contribution between joint tort-feasors, 567.

waiver of, 676.

ratification of, 674.

actio personalis moritur cum persona, 701 et seq.

TRADE DISPUTE, 168, 160, 171.

TREES. See Landlord and Tenant.

quicquid plantatur solo solo cedit, 314.
overhanging neighbour's land, 262, 290, 310.
who may cut, 316 — 318.

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806 INDEX.

TEESPASS,

after entry, for previous acts, 108, 109.

repeated acts of, 165.

on horseback, seizure of horse, 232, 233.

nuUus commodum capere potest, &c., 233, 238, 246.

ab initio, 248—251.

entry to recapture goods, 251.

by straying cattle, 307, 308.

by over-hanging building, 310, 311.

every man's house is his castle, 336 et seq.

forcible entry, 247, 342.

qui facit per alium faoit per se, 657, 658.

ratification of, 674.

vsrilful and secret underground, 694.

actio personalis moritur cum persona, 704, 707 — 710.

UBI EADEM EATIO IBI IDEM JUS, 125.

UBI JUS IBI EEMEDIUM, 153.

UNUMQUODQUE DISSOLVITUE EODEM LIGAMINE, &c., 679.

USAGE. See Custom.

UT EES MAGIS VALEAT QUAM PEEEAT, 410.

UTILE PEE INUTILE NON VITIATUE, 481.

VEK3A CHAETAEUM FOETIUS, &c., 453.

VEEBA GENEEALIA EESTEINGUNTUE, &c., 499.

VEEBA BELATA INESSE VIDENTUE, 521.

VEEDICT, aider by, 146, 147.

VESTED ESTATE, meaning of, 520.

VEXATIOUS LITIGATION, 270.

VIGILANTIBUS NON DOEMIENTIBUS JUEA, &c., 688.

VOLENTI NON FIT INJUEIA, 223.

WAIVEE,

consensus tollit errorem, 112.

quilibet potest renunciare juri pro se, 545.

doctrine of, 112.

error in pleading cured by, 113.

irregularity when cured by, 113, 114.

implied, when, 114.

of inquiry as to facts, 215, 678.

of defences or rights, 545.

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INDEX. 807

WAIVER— cou^Mutcrf.

of right by married woman, 543, 550.
none to detriment of public, 545, n. (r), 551.

WARRANTY. See Sale of Land, Sale of Goods.
distinction between condition and, 612.
representation amounts to, when, 615.

WATER,

artificial reservoir, 192, 295.

floods, 158, 194, 295.

natural streams, 159, 295, 296.

artificial streams, 297 — 299.

percolating, 159, 295, 299.

subterraneous, 295, 299.

support to land from, 294, n. (o), 300.

pollution of wells, 300.

W^AY. See Highway.

right of, when impliedly granted or reserved, 867, 368.

reservation of, 368, 869, 370.

of necessity, 367, 370.

right of, when not assignable, 358.

WIFE. See Husband and Wife.

WILL,

election to take under, 140, 585.

history of devises of land by, 348.

of after-acquired property, 885.

formalities in executing, indispensable, 551.

proof of ancient, 739.

effect of general attestation clause, 508, 509.

general principles for construing, 422 et seq.

golden rule for construing, 438.

intention of, to be collected from words used, 423.

regardless of legal consequences, 424, 425.
intention of, to be carried into effect, 423.

if no rule of law infringed, 423, 425.
object of technical rules, 425.
rule against perpetuities, 351, 425.
rule in Shelley's case, 426.
technical words, how construed, 427.

" children," 428.

" heirs of the body," 429.
doctrine of cy-pres, 430, 481.
rules of construction summarized, 431, 432.
ex antecedentibus et consequentibus, &c., 440, 449.
repugnant clauses in, 445.

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808 INDEX.

WILL — continued.

noscitur a sooiis, applied to words in, 449, 450.
oonjunotives and disjunctives in, 450 — 452.
patent ambiguities in, 465.

evidence of intention not admitted, 465—467.
evidence of facts removing, admitted, 468.
evidence of surrounding circumstances, 471.
latent ambiguities in, 464, 469.

evidence to identify person intended, 469 — 471.
person must answer description, 470, 471.
quoties in verbis nulla ambiguitas, &c., 474.
certum est quod certum reddi potest, 478.
falsa demonstratio non nocet, 483 et seq.

rule applies to remove surplusage, 487, 490.
not to supply defect, 490, 491.
rule when inapplicable, 496.
ex multitudine signorum identitas, 492.
verba quae competunt in limitationem veram, 496.
summary of rules as to evidence, 497.
general words in, 502, 503.
expressio unius est exclusio alterius, 504, 509.

not of universal application, 506, 509.
construction to prevent intestacy, 484, 524.
verba relata inesse videntur, 524.
ad proximum antecedens fiat relatio, &c., 529.

WITNESS. See also Evidence.

nemo tenetur seipsum accusare, 761.

competency of, 765.

privilege of, from action for slander, 171.

WORDS. See also Deed, Statutes, Will.
meaning of, 412, 413, 420, 439.
technical, 427—430, 489.
noscitur a sociis, 16, 447.
fortius contra proferentem, 453.
verba generalia restringuntur, 499.
construed by reference to occasion, 535.

WEIT, what is good service of, 238.

FINIS COKONAT OPUS.

I'KINTKD BV WtLLlAM cr.OWKS AND SONS, l.IMITK.D, LONDON AND BKCCI KS.

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